author: Menchine, J.,

text:
    TRI-STATE TRUCK AND EQUIPMENT COMPANY, INC. v. FRANKLIN E. STAUFFER ET AL.
    [No. 108,
    September Term, 1974.]

      Decided January 13, 1975.

      The cause was argued before Orth, C. J. and Thompson and Menchine, JJ.

      James P. Salmon, with whom were Sasscer, Clagett, Channing & Bucher on the brief, for appellant.

      Leonard L. Lipshultz, with whom were Ronald G. DeWald and Lipshultz & Hone on the brief, for appellee Stauffer. Carmyn J. Lombardo, with whom was Edward C. Bell on the brief, for other appellees.
   Menchine, J.,

delivered the opinion of the Court.

On November 29, 1973 a jury in the Circuit Court for Prince George’s County rendered a verdict in favor of the plaintiff, Franklin E. Stauffer, against Tri-State Truck and Equipment Co., Inc. [Tri-State], Johnnie Whichard, and Sam Parker, a/k/a Harrison Charles Parker, individually, and t/a Market Transport Company, in the sum of $48,500.00. Final judgment against Johnnie Whichard and Sam Parker, a/k/a Harrison Parker, individually and t/a Market Transport Company, was extended on December 5, 1973. No appeal from that judgment was taken. Final judgment against Tri-State was extended on January 9, 1974. It is solely with the latter judgment that the subject appeal is concerned.

On the 5th of June, 1969 Franklin E. Stauffer, [Stauffer] while operating a motor vehicle, had stopped it at the intersection of U.S. 1 and Cherry Lane, in Laurel, Maryland, preliminary to making a left turn. His left turn signal was flashing. A truck operated by Johnnie Whichard, and owned by Tri-State, struck the Stauffer vehicle in the rear, causing personal injury and property damage. The negligence of Whichard and the contributory negligence of Stauffer are not in issue.

Stauffer had claimed damages from Tri-State upon alternate bases: (a) asserting it was liable under the principle of respondeat superior, and (b) asserting it was liable mder the theory of negligent entrustment. The trial court granted Tri-State’s motion for directed verdict as to the claim asserted under the principle of respondeat superior, but rejected its motion for directed verdict on the theory of negligent entrustment.

Appellant makes three contentions on appeal:

1. That its motion for directed verdict should have been granted because of the absence of any showing that its negligence was a proximate cause of harm to the appellee.
2. That reversible error was committed in the charge to the jury.
3. That reversible error was committed in the admission of evidence.

The Motion for Directed Verdict

The evidence established that Tri-State was engaged in a large scale car and truck rental business in Baltimore City. Previous truck rentals had been made by Tri-State to “Market Transportation,” 1399 5th Street, N. W., Washington, D. C. There was evidence that “Market Transportation” was the firm name of Harrison Charles (alias Sammy) Parker, who resided at 941 R Street, N. W., in the District of Columbia.

The evidence bearing upon the rental of the truck involved in the subject collision was conflicting. Robert W. Wentz, the Vice President of Tri-State, called as a witness by Stauffer, testified that he had handled the subject truck rental transaction on June 3, 1969 for the account of Market Transport, having dealt with Charles Parker personally. He said that leasing document Exhibit 14 reflected the transaction accurately; that Parker had presented a driver’s license bearing a sixteen digit number; that the physical description appearing on that license was compared with that of the renter; that he also had compared the signature on the license with that of “C. Parker” on the document. He acknowledged that a second leasing document for the account of Market Transport bearing an identical license number contained the signature “Harrison Parker.” Examination of the two documents demonstrates a marked difference in the two signatures. Wentz acknowledged that he did not record the date and place of issue of the license. The leasing document that Wentz claimed reflected the transaction in question was on a different form than other documents showing rentals for the account of Market Transport. Wentz’s explanation was that it was a “new form.” Other leasing documents offered in evidence, however, dated both before and after the subject transaction, used the “old form.” There was evidence that Charles Harrison (Sammy) Parker was licensed to drive in Virginia but not in Maryland or the District of Columbia.

The testimony of the defendant Parker told a different story. He said that he never had loaned that license to another; that the Virginia license had his photograph upon it and that Whichard did not in any way resemble him. He said that one Hicks and Whichard had gone to Baltimore to get a truck from Tri-State and that “I got a call from Tri-State. The man said it was a man there to pick the truck up, and he didn’t have any license. And he said, ‘I’m going to let this dude use one of these old papers. I want to get the hell out of here, and I’m going to send him back.’ ” The witness also said: “ * * * the mechanic issued this truck. They have a big heavyset colored fellow that they leave there on duty to take care of these kinds of things.” When shown Exhibit 14, that Tri-State contended reflected the rental transaction in question, Parker said, “This is not my signature. And there is still no time on this thing. This is something someone just wrote up. This has no time on it. Because it’s not a rental company in the world that will rent you a truck and let you take a truck out at 8:00 o’clock in the morning and bring it back at 2:00 o’clock the following day. This don’t happen.” Commenting on other leasing documents representing rentals for the account of Market Transport bearing both prior and subsequent dates, Parker said, “ * * * I’m saying from looking at the rest of them, where somebody signed for the truck each time, each one of them here has got somebody’s signature on it that I do know and can bring them here, except this here one, right here (Exhibit 14) I don’t know who this is.” Parker testified, “I understood that, you know, that he [Whichard] was not too good with a truck.” He said that Whichard was driving the truck when it arrived at the market in Washington, D. C. on the date of the rental. A State Trooper who investigated the collision at the scene, testified that Johnnie Whichard was not licensed either in the District of Columbia or in Maryland, and that he charged him with operation of the vehicle without a license. Whichard, who resided at 124 Kentucky Avenue, S. E., Washington, D. C., did not appear at the trial. Tri-State offered no evidence at the close of the plaintiff’s case.

The question whether there was a negligent entrustment by Tri-State to Whichard such as would give rise to a cause of action by Stauffer against Tri-State depends upon the facts and circumstances surrounding the truck rental and its subsequent use as influenced or affected, if at all, by the provisions of Article 66V2, § 8-103 (formerly § 114) of the Annotated Code of Maryland.

Section 8-103 (114) reads as follows:

“Renting motor vehicles to another.
(a) To be rented to licensed person only. — No person shall rent a motor vehicle or trailer to any person for operation unless the person who will operate the rented motor vehicle or trailer is duly licensed hereunder or, in the case of a nonresident, duly licensed under the laws of the state of his residence; provided that state requires an examination for qualification to operate a motor vehicle and in which state residents of Maryland are given the same privilege.
(b) Inspection of driver’s license. — No person shall rent a motor vehicle or trailer to any other person for operation until the person in possession of the motor vehicle or trailer to be rented has inspected the driver’s license of the person by whom the motor vehicle or trailer is to be operated and compared and verified the signature thereon with the signature of the person written in his presence and compared and verified the physical description thereon with the physical description of the person.
(c) Record. — Every person renting a motor vehicle or trailer to another shall keep a record of the registration number of the motor vehicle or trailer rented or, if only a trailer is rented, the registration number of the trailer and the motor vehicle used to haul the trailer, the name and address of the person to whom the motor vehicle or trailer is rented, the number of the driver’s license of the person who is to operate the motor vehicle or haul the trailer and the date and place of issuance of the driver’s license. The record shall be open to inspection by any peace officer or employee of the Department.”

In almost classic understatement the brief of appellant declares: “Appellant admits that this evidence was sufficient, if believed, to allow the jury to conclude that appellant did not fulfill the requirements of Article 66V2, § 114 (now § 8-103), which required that vehicles be rented to drivers who present proof of a valid driver’s license.”

In this appeal we are required to view the evidence in the light most favorable to the plaintiff-appellee. Buchanan v. Galliher and Harless, 11 Md. App. 83, 87, 272 A. 2d 814, 816-817. This rule applies as well to the issue of causation. In Ness v. Males, 201 Md. 235, 93 A. 2d 541, it was said at 241 [544]: “Causation, like negligence, is a jury question where the material facts are controverted.” See also: Schweitzer v. Showell, 19 Md. App. 537, 539, 313 A. 2d 97, 98-99. So viewed, the evidence would permit the jury to find that appellant willfully and purposefully violated § 8-103 (114) and having done so, thereafter fabricated a leasing agreement in efforts to cover up that violation. If the testimony of Parker was believed by the jury, the inference is inescapable that Tri-State was totally unconcerned whether Whichard was a dangerously incompetent driver or not. The jury could find that the telephone call made by the Tri-State employee afforded a clear opportunity for inquiry as to Whichard’s skill but that none was made. Tri-State contends that its violation of § 8-103 (114) was not a proximate cause of the harm sustained by Stauffer. The question whether a particular negligent act constitutes a proximate cause of harm is an issue that has long perplexed the Courts.

In Prosser, Law of Torts, Ch. 7, § 41 (4th Ed. HB, 1971) it is said at 236:

“An essential element of the plaintiff’s cause of action for negligence, or for that matter for any other tort, is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered. This connection usually is dealt with by the courts in terms of what is called ‘proximate cause,’ or ‘legal cause.’ There is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion. Nor, despite the manifold attempts which have been made to clarify the subject, is there yet any general agreement as to the proper approach. Much of this confusion is due to the fact that no one problem is involved, but a number of different problems, which are not distinguished clearly, and that language appropriate to a discussion of one is carried over to cast a shadow upon the others.
“ ‘Proximate cause’ — in itself an unfortunate term — is merely the limitation which the courts have placed upon the actor’s responsibility for the consequences of his conduct.

P. 241 “On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

P. 242 “The plaintiff is not, however, required to prove his case beyond a reasonable doubt. He need not negative entirely the possibility that the defendant’s conduct was not a cause, and it is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise. Proof of what we call the relation of cause and effect, that of necessary antecedent and inevitable consequence, can be nothing more than ‘the projection of our habit of expecting certain consequents to follow certain antecedents merely because we had observed these sequences on previous occasions.’ If as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists.”

It is, of course, well settled in Maryland that the violation of a statute regulating the use and operation of motor vehicles is evidence of negligence and if such violation causes or contributes to the injuries complained of, it constitutes actionable negligence. Ford v. Bradford, 213 Md. 534, 541, 132 A. 2d 488, 491-92.

In Volkswagen of America v. Young, 272 Md. 201, 218, 321 A. 2d 737, 746, it was said:

“Legislative or administrative requirements that persons or businesses conduct their operations in a particular manner, and adhere to specified standards, have never been viewed as supplanting tort liability. On the contrary, such statutory or regulatory requirements are deemed to furnish standards by which courts or juries determine, along with other circumstances, whether or not conduct is negligent. Failure to adhere to those standards is evidence of negligence for the court or jury to consider.”

It is widely held that the mere violation of a licensing statute will not be regarded as the proximate cause of a collision. Maryland subscribes to that view. Davis v. Gordon, 183 Md. 129, 36 A. 2d 699. There is no such general agreement, however, respecting statutes expressly forbidding owners to allow unlicensed persons to operate their vehicles. This distinction is noted in 6 Blashfield, Automobile Law and Practice, 2d Ed. 1966, § 254.26, at 383, et seq

“The fact that an owner permits an unlicensed person to drive his automobile ordinarily will not of itself subject the owner to liability on the theory that he has permitted the use of the car by an unskillful operator. However, under a statute requiring licenses for the protection of the public by confining the right to drive to qualified persons and forbidding owners to allow unlicensed persons to operate their automobiles, a violation is evidence bearing on the owner’s negligence, or is negligence per se.
“So, where an examination is required to test the competency of the applicant before the issuance of a license and it is provided by statute that no person shall knowingly permit his automobile to be driven by an unlicensed person, a violation of the statute makes a prima facie case against the owner in favor of one injured through the negligence of the unlicensed driver. Moreover, it has been held that one who intrusts his automobile to a person under the statutory age required for a license is liable for injury resulting from the latter’s negligence without proof of the driver’s actual incompetence.
“Under a statute making it unlawful to rent a motor vehicle without first ascertaining that the driver had an operator’s license, an owner renting an automobile to a person who had no license, without making inquiry as to the ability or competence of such person, may be held liable to a person injured by the driver.”

Harper & James, The Law of Torts, Vol. 2, subscribes to the same view with respect to the effect of statutes similar to § 8-103 (114), saying at 1120-21:

“Where the car is entrusted to an unlicensed driver, or where defendant himself drives it without a license, a similar question is presented (if the licensing statute is thought to have safety in mind and not exclusively revenue, or some other unrelated purpose), namely, did the harm result from the want of a license, or (more accurately) because of the risk of unskilled driving which the licensing statute sought to prevent? If the car was driven with all the skill and care the law requires, then the harm did not proceed from such a risk; if the car was negligently driven, then it did. * * * The legislature has decided that the general safety requires the activity in question to he limited to those who can demonstrate at least a minimum of special skill. It is fair to assume that the unlicensed as a class are far less likely than those licensed to have the skill for which a license is required. And it is certainly true that when the unskilled attempt what it takes skill to do, some of the intangible factors that go to make up lack of skill are far more likely than not to have contributed to any mishap that occurs. Frequently they do this in ways that are hard to prove; moreover, what evidence there is in the matter is likely to be in the defendant’s hands. Both probability and policy, therefore, call for the rule that breach of a licensing statute, if it is negligence to the plaintiff at all, should be prima facie evidence that it is the ‘proximate causé’ of any injury that ensues.” (Italics supplied.)

The question whether the violation of a statute prohibiting knowing permission to an unlicensed driver to use a motor vehicle will support an action for damages against the owner of such vehicle has been presented in two Maryland cases. The question was left unanswered in both. In State use of Weaver v. O’Brien, 140 F. Supp. 306, (U.S. D.C., D. Md., 1956) Chief Judge Rozel C. Thomsen referred to Article 66V2, § 111, providing that, “No person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven upon any highway of this State by any person who is not authorized to operate such motor vehicle under this Article.” and stated at 309-10:

“Under Maryland law the mere violation of a statute does not support an action for damages, but it is evidence of negligence, and where such violation is the proximate cause of an injury, a right of action accrues to the party injured. Hopper, McGaw & Co. v. Kelly, 145 Md. 161, 169, 125 A. 779; Kelly v. Huber Baking Co., 145 Md. 321, 334, 125 A. 782; Cumberland & Westernport Transit Co. v. Metz, 158 Md. 424, 438, 149 A. 4, 149 A. 565; Brown v. Bendix Radio Division, 187 Md. 613, 51 A.2d 292; Gosnell v. Baltimore & Ohio R. Co., 189 Md. 677, 687, 57 A.2d 322; State, for Use of Parr v. Board of County Commissioners, 207 Md. 91, 113 A.2d 397, 402. See also Gordon v. Bedard, 1929, 265 Mass. 408, 164 N.E. 374 and Kenyon v. Hathaway, 1931, 274 Mass. 47,174 N.E. 463, 73 A.L.R. 156.
“It is not necessary in this case to determine whether the mere fact that Chaney permitted O’Brien to drive without a chauffeur’s license is sufficient to take the case to the jury against Chaney on the issue, since that fact must be considered in connection with the evidence of O’Brien’s drinking.”

In U-Haul Co. v. Rutherford, 10 Md. App. 373, 270 A. 2d 490, the violation of this very statute — § 8-103 (114) itself was urged as the basis for recovery. In U-Haul, however, we said at 381 [494]:

“We have no need to decide whether an entruster would know or have cause to know that the entrustee would be likely to use a motor vehicle in a manner involving an unreasonable risk of physical harm merely because the rental of it was in violation of § 114 as we find here that the evidence was insufficient in law to prove that the statute was violated.”

We added at 385 [496-97]:

“ * * * it was not established that U-Haul violated § 114 as declared and it was error requiring reversal to deny the motion for a directed verdict made on the ground that the evidence was insufficient to show the violation.”

In the subject case we must decide the issue.

Although the comments in Blashfield and Harper & James, supra, would seem to make the issue quite simple, there are decisional differences upon the question of the proximate cause of such a prohibitory rental statute. We shall cite but two cases representative of the respective rationale.

The case of Christy v. Baker, 439 P. 2d 517 (Ct. of Appeals of Ariz. 1968) adopts the view that violation of such a statute is not the proximate cause of harm. In Arizona the statute provided:

“No person shall rent a motor vehicle to another until he has inspected the operator’s or chauffeur’s license of the person to whom the vehicle is to be rented and compared and verified the signature thereon with the signature of the person written in his presence.” (A.R.S. § 28-477)

Violation of the statute by the entrustor was conceded, as was the negligence of the entrustee. The Court in Christy said at 518-19:

“Our Supreme Court has held that in order to recover, the plaintiff must show that violation of a statute or ordinance was the proximate cause of his injury. In Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147, 130 A.L.R. 341 (1940), the court said:
‘ * * * Whenever a valid statute or regulation provides that a certain thing must or must not be done, if a failure to comply with such regulation is a proximate cause of injury to another, such failure is actionable negligence per se. * * * ’ (Additional emphasis ours) 55 Ariz. at 537, 104 P.2d at 148.

This rule is still the law and has been adhered to recently by both the Court of Appeals and the Supreme Court. (Beaty v. Jenkins, 3 Ariz. App. 375, 414 P.2d 763 (1966) and Brand v. J. H. Rose Trucking Company, supra). The rule has recently been summarized by the United States Court of Appeals, Ninth Circuit, as follows:

‘It is true, as plaintiffs contend, that violation of a valid statute enacted for the public safety, or a governmental regulation made in pursuance thereof, is negligence per se; but the violation must also be a proximate cause of the injury to constitute actionable negligence. See Salt River Valley Water Users’ Ass’n v. Compton, 1932, 39 Ariz. 491, 8 P.2d 249, 251; Donaldson v. Tucson Gas, Electric Light & Power Co., D.Ariz. 1935, 14 F. Supp. 246; Sisk v. Ball, 1962, 91 Ariz. 239, 371 P.2d 594.
‘Even if we assume that section 40-423 was enacted for the public safety, which is questionable, the plaintiffs may not recover unless the jury might properly find from all the evidence that the violation of the statute was the proximate cause of the injuries. In Alires v. Southern Pacific Company (1963) 93 Ariz. 97, 378 P.2d 913, 918, the Arizona Supreme Court held that the trial court properly instructed the jury that: “The proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient, intervening cause, produces the injury and without which the result would not have occurred.” ’ Shafer v. Mountain States Tel. & Teleg. Co., 335 F.2d 932 (1964) at 935.
“The Supreme Court has often defined proximate cause as was quoted in Shafer v. Mountain States, supra, and most recently in Brand v. J. H. Rose Trucking Company, supra. In the instant case it was uncontested that the accident was caused by the negligence of Mr. Walk in driving the rented vehicle. Plaintiff contends that sufficient proximate cause linking defendant to plaintiffs injuries is shown where the car was rented in violation of the statute, to a person whose negligence later causes injury. We do not agree. This would be in effect placing strict liability on car rentals for the torts of persons to whom they have rented cars in violation of the statute. If this was the intent of the Legislature in passing § 28-477, the statute would have been so worded rather than attaching a criminal misdemeanor penalty to it. Other Arizona statutes, such as A.R.S. § 28-417, subsec. B and § 28-420 do provide for joint and several civil liability for those either signing the license application for a person under 18 years of age or allowing such a person to drive without a license. The Legislature made no provision for civil liability for violation of the statute involved in this case. We are not prepared to legislate strict tort liability by judicial decision for the violation of this statute. If liability is to attach it must be proven under the traditional tort law that the negligence in violating the statute proximately caused the injury complained of.”

The case of Mundy v. Pirie-Slaughter Motor Co., 206 S.W.2d 587, (Supreme Ct. of Tex. 1947) espouses the rule that violation of such a statute by the entrustor when coupled with proof of the negligence of the entrustee, gives rise to a jury question upon the issue of probable cause. The Texas statute provided, inter alia, that it was “unlawful for any person knowingly to permit a motor vehicle owned by him or under his control to be driven by any person not licensed or otherwise authorized under the statute to operate a motor vehicle.” The statute did not in terms provide for civil liability. The Court declared at 590-91:

“Under this statute it is plain that defendant’s agents were guilty of a violation of the law if they permitted Dickson to operate a motor vehicle belonging to defendant knowing that Dickson did not have an operator’s license. While conceding this to be true, defendant urges that the criminal penalty is the only legal consequence of a violation of the law, that the alleged facts that Dickson did not have a license and that respondent’s agents knew this are not evidence of negligence, and that in any event the absence of a driver’s license could not be the proximate cause of the injury.
“Whether the violation of a criminal statute may be also the basis of civil liability in a given case, in the absence of an express statutory provision therefor, depends upon whether a purpose of the statute is to set up a standard of conduct in order to give protection to the interests of the class of persons to which the injured party belongs. * * * In the present case we think that it is apparent that the statute is designed to secure a minimum of competence and skill for drivers of automobiles and to fix a standard of conduct for persons lending their automobiles to others to drive, and that its principal aim is to afford some protection to the interests of other persons on or near the public highways. We therefore are of the opinion that the petitioner was entitled to plead and to offer evidence to show that Dickson did not have a driver’s license and that defendant’s agents knew that he did not have a license, and that the finding of such facts by the jury would be a finding of negligence per se.
“Mere proof that the defendant’s agents were guilty of negligence per se or that they were guilty of negligence in fact, does not, of course, establish liability on the defendant’s part. Plaintiff must go further and prove that such negligence was the proximate cause of the collision in which he was injured. Waterman Lumber Co. v. Beatty, 110 Tex. 225, 218 S.W. 363. In order to establish proximate causation, plaintiff must show that Dickson operated the automobile negligently (that is, in a manner that was negligent regardless of the lack of a driver’s license) and that such negligence was a proximate cause of the collision. The purpose of the statute which defendant is alleged to have violated is to prevent the lending of automobiles to persons not shown by examination and license to be competent to drive, and the danger anticipated and intended to be prevented by the statute is that such persons, if given the opportunity to drive, will do so negligently and will cause damage to other persons. If, after the automobile is entrusted to such driver, he operates it negligently, and thereby causes damages to a third person, the causal connection is shown between the negligence of the owner in lending him the automobile and the damage to the third person.”

For a general discussion of the question and cases in other jurisdictions see the extensive note in 69 A.L.R.2d 978-1001.

The subject case is readily distinguishable from cases such as Maggitti v. Cloverland Farms Dairy, 201 Md. 528, 95 A. 2d 81, and Liberto v. Holfeldt, 221 Md. 62,155 A. 2d 698, where the violation of statute was the mere passive act of parking and was held not to be the proximate cause of injury. No connection had been shown between the violator of those statutes and either the injured victim or the operator of the vehicle actually causing harm in either case. Moreover, in a discussion of the question of duty owed in Maggitti, the Court of Appeals commented at 532 [82]:

“ * * * it may be questioned whether the prohibition was designed to protect other users of the highway or affect their relative rights in any way.”

Similarly, in Liberto where the defendant had left the ignition key in the lock when he parked his vehicle, the Court in comments upon the duty owed, said at 66 [701]:

“ * * * The duty to the public created by the statute was primarily to protect against a theft of or tampering with a motor vehicle and to prevent them from moving under their own momentum should the brakes fail. Such duty, in all reasonableness, cannot be said to extend to all the world, but must be a foreseeable duty to a class of which the plaintiff was a member.”

On the issue of proximate cause, the Court in Liberto pointed out, “[where negligence of one person is merely passive and potential and negligence of another is the moving and effective cause of the injury, the latter is the proximate cause and fixes the liability.] ” at 67 [701]. Thus Maggitti and Liberto involved statutes not intended to protect other users of the public highways against the negligent operation of motor vehicles and involved circumstances absent any volitional connecting link between the statute violator and the operator of the vehicle causing harm. The violators of the statute in those cases would not reasonably have foreseen that the ultimate result would have occurred as a natural consequence of their violations.

In the subject case, however, a far different picture emerges. We have no doubt that § 8-103 (114) was intended to provide statutory standards for those engaged in the automobile and truck rental business. Nor do we doubt that such standards were imposed for the protection of the public from the negligent operation of motor vehicles. There was an abundance of evidence that Tri-State violated the statute as the following chart, showing duty and breach of § 8-103 (114) by subsection will establish:

Subsection (a)

The Duty

To assure that the person to whom the vehicle is rented is licensed in Maryland or in the State of his residence.

The Breach
Wentz Testimony
Parker Testimony
Alleged examination of Parker license (shown by other evidence to have been issued by the State of Virginia and not by the place of Parker’s residence).
Willful failure by TriState to comply.

Subsection (b)

The Duty

To inspect the driver’s license, compare and verify the signature thereon with the signature of the person written in his presence and compare and verify the physical description thereon with the physical description of the person.

The Breach
Wentz Testimony Duty performed.
Parker Testimony
Willful failure by TriState to comply, supplemented by testimony that his license was not presented to Tri-State; that his photograph appeared on his Virginia license and that he bore no resemblance to Whichard.

Subsection (c)

The Duty

To maintain a record of: (1) name and address of borrower; (2) the number of the driver’s license; and (3) the date and place of issuance of the driver’s license.

The Breach
Wentz Testimony
Parker Testimony
(1) and (2) performed, (3) ignored.
Willful failure by TriState to comply.

In short, in the subject case there was evidence that Tri-State deliberately placed Whichard in the driver’s seat in willful disregard of the statute. It thereby set in motion the chain of events that directly produced harm to the appellee. Whichard was so placed in the driver’s seat without inquiry as to his driving competence. Under the circumstances shown here such inquiry was mandated. There was direct testimony by Parker that, “He [Whichard] was not too good with a truck.” We are not permitted to assume that appropriate inquiry prior to rental would have produced differing evidence. That Tri-State’s Vice President was aware of the potential danger incident to the conduct of its business, is shown by the following excerpt from the record:

“Q Don’t you instruct the people who work for you that big trucks are dangerous out on the highway?
A Yes I do. I think everybody realizes that.”

We hold that there was legally sufficient evidence to show that Tri-State violated the provisions of § 8-103 (114) and that such violation was evidence of negligence. We hold also, that the circumstances of the entrustment to Whichard, as shown by competent testimony, would require submission to the jury of the question whether the violation of the statute was a probable cause of the harm to the appellee.

THE CHARGE

(As to Negligent Entrustment)

The brief of appellant declares (p. 21): “The trial judge gave the jury two instructions as to what the legal doctrine of negligent entrustment meant. The first instruction was that the term ‘negligent entrustment’ was basically a meaning of both words in that legal term of art, i.e., negligent entrustment * * * as follows: ‘The plaintiff, in order to prevail, must prove, as I have said, by a preponderance of the evidence that the act of entrustment, that is the rental of the vehicle involved in the accident, was done in a negligent fashion.’ ” The brief then acknowledges (p. 22) that, “Later the Gourt gave the jury a correct instruction as to what ‘negligent entrustment’ meant.” He then complains that the two instructions were “likely to confuse the jury.” We see nothing of conflict in the two parts of the charge. Taken as a whole, the charge fairly presented the issues which the evidence required to be submitted to the jury. That is all that was required. Jones v. Federal Paper Board Company, 252 Md. 475, 485, 250 A. 2d 653, 659.

(As to § 117 (8-101))

At the time of the rental of the subject vehicle, § 117 (now 8-101) imposed upon renters of automobiles and trucks an obligation to provide insurance that: “shall cover the person owning such vehicle and every person using or operating a vehicle under a rental agreement * *

It will be observed that the section makes no exception as to rentals to trucking companies — the suggested basis for Tri-State’s failure to assure such insurance in the subject case.

The trial judge explained his inclusion of a reference to § 117 (now 8-101) in his general charge upon the issue of negligence as follows:

“The reason the Court gave that instruction, Mr. Salmon, is the Court is of the opinion that in accordance with the testimony of your client, Mr. Wentz, to the effect that there was no insurance on the vehicle at the time that it was leased to a person alleged to be C. Parker, that that violation, along with other statutory violations — and the jury might very well determine from the testimony of Mr. Parker — as to the procurement by Johnnie Hicks, or Monk, also known as Whichard, of this vehicle, particularly in view of the fact that Parker testified that he literally bribed someone at Tri-State to put his partner’s license number down, and give him that person for the vehicle, which the Court considered if the jury believed that testimony, would be a willful, direct, wanton act of disregard of the statutes. That, coupled with the statement of your client that there was no insurance, may bear upon the Court’s theory of negligent entrustment, that Tri-State did not act as a reasonable, prudent person, under the circumstances, in leasing property or entrusting a truck to this individual. And as a result of the financial lack and other violations, cumulative in effect, the trier of the facts may feel that it was a violation and a negligent entrustment by your company.
“I’m stating this so there won’t be any misunderstanding, in the event of an appeal, that the Court considered that it was cumulative acts which should be considered by the jury under the peculiar facts of this case.”

The charge itself clearly so limited the effective influence of § H7.

Similar statutes have been held to have been intended “to protect the public from the negligent operation of motor vehicles by irresponsible drivers and to assure the ability of operators and owners to respond in damages to persons who may suffer as the result of such negligence, * * *.” Erie Ins. Exch. v. Gosnell, 246 Md. 724, 729, 230 A. 2d 467, 470.

In the course of his discussion under the heading, “Imputed Negligence” Prosser, Law of Torts, Ch. 12, § 73 (4th Ed. HB, 1971) says at 481:

“As in the case of the doctrine of joint enterprise, the advent of the automobile has been responsible for a number of other extensions of the principle of vicarious liability. The alarming increase in traffic accidents, together with the frequent financial irresponsibility of the individual driving the car, has led to a search for some basis for imposing liability upon the owner of the vehicle, even though he is free from negligence himself. Bluntly put, it is felt that, since automobiles are expensive, the owner is more likely to be able to pay any damages than the driver, who may be entirely impecunious; and that the owner is the obvious person to carry the necessary insurance to cover the risk, and so to distribute any losses among motorists as a class. Beyond this, also, is the feeling that one who originates such a danger by setting the car upon the highway in the first instance should be held responsible for the negligence of the person to whom he entrusts it; and also the reasonable idea that the assumption of such responsibility is the price which the owner should be required to pay for the privilege of having the car operated, at the cost of the taxpayers, over the expensive highways of the state.”

We do not find it necessary to espouse fully the doctrine enunciated by Prosser, supra, but we do hold that under the extraordinary conditions shown by this record, the acknowledged breach of § 117 (8-101) by Tri-State bears upon the ultimate issue whether Tri-State exercised reasonable care in the transaction relating to the entrustment of this truck to Whichard.

Reference to Insurance

In the course of his testimony the witness Wentz acknowledged that he had requested Parker to “give us a certificate of insurance” prior to the date of the subject truck rental and that he knew on the latter date that such a certificate had not been furnished. Wentz further acknowledged that, “[a]ccording to the contract we do not include insurance for trucking companies.” Appellant suggests that this evidence was improperly admitted and constituted reversible error.

We have heretofore stated that the question of whether § 117 was violated was a matter of substance under the circumstances of this case. The evidence was admissible on that ground. In addition, the evidence was admissible because the credibility of the witnesses Wentz and Parker upon the question whether Tri-State had violated § 8-103 (114) was a factor of crucial importance in the trial in the lower court. Wentz’s position essentially had been that Tri-State had substantially complied with § 114 (8-103). Parker’s position, on the other hand, was that the section had been willfully ignored by Tri-State. Thus, the acknowledged violation by Tri-State of a second statute imposing industry standards bore upon the question of the credibility of Wentz vis-a-vis Parker in the determination whether there had been a violation of § 114 (8-103). McCormick, Evidence, H.B. Ch. 19, § 168, p. 356 (1954). We see no error.

Judgment affirmed. Appellant to pay the costs.

       Note: Certiorari denied. Court of Appeals of Maryland, May 23, 1975.

      . The Unsatisfied Claim and Judgment Fund Board, (predecessor to the Maryland Automobile Insurance Fund) had entered its appearance for Whichard and Parker.

      . Tri-State leased about 200 cars and about 400 trucks.

      . An earlier leasing document (Exhibit 13) bore Hicks’ signature. He was described as a licensed driver. There is no evidence that the truck in question here was delivered to him.

      . We note that four other leasing documents reflecting Tri-State rental transactions for the account of Market Transportation all were mechanically stamped with hour, minute and date in and hour, minute and date out. Exhibit 14 bore no such stamp.

      . The case of Gordon v. Bedard, 1929, 265 Mass. 408,164 N. E. 374 cited by Judge Thomsen, was an early decision sustaining liability in a case of negligent entrustment grounded upon violation of such a statute, wherein the Supreme Judicial Court of Massachusetts had said at 376 of 164 N. E.:
      “The statute was passed to make the roads more safe and convenient for travelers by preventing unlicensed persons from operating motor vehicles thereon. The purpose of licensing operators of automobiles is to make it reasonably certain that the licensee is qualified for the task and a proper person to be licensed. G. L. c. 90, §§ 8, 10. Negligent operation of an automobile endangering the safety of other travelers is likely to follow if an unlicensed person is given complete control of its operation. The defendant knew that his son had lost his license because he had violated the conditions under which it was granted. Upon all the evidence it was for the jury to say whether the father should have anticipated or foreseen that if his son operated the truck it was reasonably probable that he would so negligently operate it that other travellers would be endangered. Dalton v. Great Atlantic & Pacific Tea Co., 241 Mass. 400, 403,135 N. E. 318.”

      . In at least two cases the Court of Appeals of Maryland has emphasized in negligent entrustment cases that trucks require a greater skill in their operation than do passenger automobiles. Snowhite v. State, use of Tennant, 243 Md. 291, 315, 221 A. 2d 342, 355; Curley v. General Valet Service, 270 Md. 248, 266, 311 A. 2d 231, 241.

      . Amendments to the section have not departed from this basic requirement. § 8-101 as it now appears (Code 1974 Cumulative Supplement) reads as follows:
      “8-101. Owners of for-rent vehicles to certify proof of financial responsibility.
      (a) The Administration shall not register any motor vehicle, trailer or semitrailer to be rented, unless and until the person owning such vehicle shall certify financial responsibility as provided by this article, and such certification has been accepted by the Administration, and the Administration shall suspend the registration of any such vehicle whenever the Administration ascertains that such owner has failed, or is unable, to maintain such proof of financial responsibility.
      (b) Certification required under this section shall cover the person owning such vehicle and every person using or operating the vehicle with the permission of the owner or lessee, notwithstanding any provision of the rental agreement to the contrary.
      (c) Any person violating the provisions of this section shall be deemed guilty of a misdemeanor.”


source: Caselaw Access Project

author:
Gilbert, J.,
      Moore, J,

license: Public Domain

text:
    DAVID ROSS v. STATE OF MARYLAND
    [No. 114,
    September Term, 1974.]

      Decided January 13, 1975.

      The cause was argued before Morton, Gilbert and Moore, JJ.

      JohnM. Morse, Assigned Public Defender, for appellant.

      George A. Eichhom, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, James L. Bundy, Assistant Attorney General, Milton B. Alien, State’s Attorney for Baltimore City, and Frank A. Sauer, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court. Moore, J., dissents and filed a dissenting opinion at page 260 infra.

The appellant, David Ross, and a codefendant, Clarence Johnson Marable, were jointly tried under separate indictments charging them with unlawful distribution of heroin, with possession and with conspiracy. A jury in the Criminal Court of Baltimore, presided over by Judge J. William Hinkel, convicted appellant of unlawful distribution. The jury, however, was unable to reach a verdict with respect to the charge of conspiracy against appellant or any of the charges against his codefendant. As to those offenses upon which the jury did not agree, the court declared a mistrial. Appellant was thereafter sentenced to a term of seven years.

Appellant assigns four reasons why the judgment should be reversed: (1) the trial court improperly answered in the negative a question from the jury as to whether, after resuming deliberations under the remaining counts, it was permissible to reconsider appellant’s conviction under the distribution count; (2) the evidence was insufficient to sustain a conviction; (3) the admission into evidence of testimony by an informer relating to past sales of narcotics in which he and appellant had participated constituted reversible error; (4) appellant was entrapped by the police through the agency of the informer.

The State’s case against appellant was presented through three witnesses — a paid informer for the federal Government, a detective from the Narcotics Unit of the Baltimore City Police Department detailed to the Drug Administration Task Force, and a Forensic Chemist with the Bureau of Narcotics and Dangerous Drugs.

Their combined testimony developed that on the evening of February 6, 1973, the informer, Stephen Brown, was working for federal agents in the vicinity of the 1500 block of Pennsylvania Avenue in Baltimore. Brown had twice been admitted to Patuxent Institution from which he was on parole. Released from Patuxent in February, 1972, he began his employment with federal narcotics agents in November, 1972. He testified that he had $150 of government funds in his possession and approached appellant, stating he wanted to “get a bundle of narcotics.” Appellant went into a nearby bar and the informer placed a telephone call to Detective Robert Murray. Appellant emerged from the bar with a cab driver who transported appellant and the informer to Catherine and Lombard Streets. The informer testified that during the trip he paid the entire $150 cash to appellant. The latter went into the residence of his codefendant, and the informer awaited his return. Detective Murray was in an unmarked car parked some 150 feet away. When appellant returned and delivered a package to the informer, appellant was arrested. The informer was placed in another vehicle. The package was later found to contain 25 glassine bags of heroin. The Forensic Chemist testified that the substance tested to 1.7%.

Both appellant and his codefendant testified in their own defense and both denied the alleged “buy.” Appellant testified on direct examination that he had been incarcerated with the informer in Hagerstown in 1962, and that he had heard Brown was an informer but “was not sure.” On cross-examination, it was established that although the appellant had prior convictions for larceny and unauthorized use, he had not been convicted for drug-related offenses. The codefendant had a record for larceny and possession of narcotics. He described himself as a “former addict.” The codefendant denied that, when the police went to his premises, he disposed of the $150 in the toilet. The money was never found.

I.

After deliberating for approximately three and one-half hours, during which there was a request to the court for a definition of circumstantial evidence, with which the court complied, the jury returned and the following transpired:

“THE CLERK: Members of the jury, have you agreed upon your verdicts?
THE JURY IN UNISON: Yes, we have.
THE CLERK: And who shall say for you?
THE JURY IN UNISON: Our foreman.
THE CLERK: Mr. Foreman, would you stand, please. How say you as to Indictment 17301335, is David Ross guilty of the matters wherein he stands indicted as to the First Count, possession with intent to distribute, guilty or not guilty?
THE FOREMAN: Guilty.
THE CLERK: How say you as to Indictment 17301337 charging conspiracy, guilty or not guilty?
THE FOREMAN: Haven’t reached a verdict.
THE COURT: Gentlemen, you have heard the statement by the foreman, the jury has agreed upon a verdict as to the First Count of the Indictment.
MR. HARRIS [defense counsel]: If your Honor please, I would ask that the jury be polled as to the First Count.” (Emphasis supplied).

The response of each juror sustained the verdict as announced by the foreman. The court then noted that, as to appellant, there remained only the conspiracy charge. Under both indictments the jury had been unable to reach a verdict on the culpability or non-culpability of the codefendant. Without any intervening objection, the jury was then given a version of the Allen charge and instructed to resume deliberations. Soon thereafter, the foreman sent out the question, “What does the term ‘judge the law’ mean? ”, to which the court responded. A short time later, the foreman transmitted another question: “Can a guilty determination be reversed at this point in the trial? ” The Court answered “No”. No objection was made by defense counsel. The jury later returned and indicated it was still unable to reach a verdict on the conspiracy charge or any charge against the codefendant.

Appellant contends that the court was wrong in instructing the jury it could not reverse its finding of guilty because “at no time was the jury hearkened.” He cites Givens v. State, 76 Md. 485, 25 A. 689 (1893) as establishing the rule that the jury must reaffirm its verdict by the procedure of hearkening before the verdict can properly be considered final. He concedes that, as with other instances of failure to object, a failure to object to the omission of the hearkening procedure results in a waiver of the trial defect, Glickman v. State, 190 Md. 516, 60 A. 2d 216 (1948); and that a jury poll “also serve[s] the purpose of verifying the unanimity of the jury verdict.” Appellant insists, nevertheless, that in “the totality of the circumstances” presented, the omission of hearkening deprived the jury verdict of finality, although the only “circumstance” he notes is that the jury later asked if it could change a guilty verdict.

We observe that no objection was made by defense counsel when the court indicated its intention to instruct the jury that it could not change its verdict. As a preliminary matter we must decide whether, even assuming plain error material to appellant’s rights, Md. Rule 756 g, we may take cognizance of the error in the absence of an objection. Ibid. Such a decision involves a determination of whether the putative error was one of commission or omission. Brown v. State, 14 Md. App. 415, 287 A. 2d 62, cert, denied 265 Md. 736 (1972). The transcript contains the following:

“THE COURT: The jury has sent out another question. It says, ‘Can a guilty determination be reversed at this point in the trial? The answer is ‘no.’
(The answer was sent to the jury, after which [the jury returned with its verdict].) ” (Emphasis supplied).

The Brown distinction between errors of commission and of omission in jury instructions is that in the former “the damage has been done,” or may well have been, so that corrective instructions would be of dubious value. Where nothing has been said to the jury on the point in issue, however, Brown construed Rule 756 g to impose an absolute burden upon the dissatisfied party to alert the court to the defect in its instructions. The error alleged here, had error indeed occurred, would have been one of commission.

In Brown we pointed out that even where there has been an error of commission, plain and material to the rights of the accused, that “the exercise of our discretion to correct it should be limited to those cases in which correction is necessary to serve the ends of fundamental fairness and substantial justice.” Since the finality of the verdict is a significant issue in this case we shall consider whether the court’s instruction to the jury that its verdict was final and irreversible was correct. We hold that it was for the reasons stated infra.

With some local variations in Maryland, the reply of the foreman as to whether the defendant is guilty or not guilty is noted by the clerk and recorded on the docket or upon such Other records as may be used preparatory to the completion of the formal docket entries. According to Hochheimer, Crimes and Criminal Procedure (1897), § 327, the formal mode for hearkening is as follows:

“Hearken to your verdict as the court hath recorded it. You say that A.B. is guilty (or not guilty) of the felony (or, treason) whereof he stands indicted: so you say all.”

The common law procedure is explained in Grant v. State, 33 Fla. 291, 14 So. 757 (1894) wherein the court said: In Maryland an accused has an absolute right to have the jury polled, a right of constitutional dimension insofar as it serves to assure him his right under the Maryland Constitution to be convicted only upon a unanimous verdict. The only limitation upon the right is that it be exercised after the verdict and before the jury is discharged. Maloney v. State, 17 Md. App. 609, 304 A. 2d 260 (1973).

“By the common-law procedure,. . . the verdict of the jury was orally pronounced in open court, then recorded by the clerk, and affirmed by the jury, which was done by that officer saying to them to hearken to their verdict as recorded by the court, and repeating to them what had been taken down for record.”

Md. Rule 758 d provides as follows:

“When a verdict is returned and before the jury is discharged it shall be polled at the request of a party or upon the court’s own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberation or may be discharged.”

Prior to the effective date of Md. Rule 758 d, viz January 1, 1957, it was evidently thought necessary that the accused request a poll of the jury prior to the recording of the verdict and the hearkening of the jury. Thus in Ford v. State, 12 Md. 514, 546-547 (1859) the Court of Appeals said:

“ . . . [W]e here remark, that when the jury be asked if they have agreed on their verdict, and they respond that they have, and that their foreman shall say for them, and the foreman, speaking for the whole panel, find a proper verdict, and the same be recorded, the whole panel being called upon to hearken to it as the court hath recorded it, and no objection being made, either by any of the jury, or the counsel for the State or prisoner, then such proper verdict, as given through the foreman, is the verdict of the whole panel, and it is too late, after the record of it, under such circumstances, for any of them to alter or amend it; it is then too late to poll the panel.” (Emphasis supplied).

While it is now recognized that recordation of the verdict coupled with the hearkening of the jury is an adequate safeguard of the right to a unanimous verdict, it has never been the law in Maryland that hearkening is the prerequisite to an acceptable verdict where the jury has been polled. In other words it has not been doubted that polling is a fully commensurable substitute for hearkening. The point was made in Givens v. State, supra. There the Court, in holding that hearkening was a matter of substance not mere form, said that as a rule it could not be omitted. The Court, however, referred with approval to the language of a Virginia case “that until the assent of the jury is expressed in this way, or by a poll, the jury has a right to retract; and that the verdict is not perfected until after the jury has expressed their assent in one of these ways.” Commonwealth v. Gibson, 2 Va. Cas. 70. (Emphasis supplied).

The Court recognized in Givens that polling is the more particular means “to secure certainty and accuracy, and to enable the jury to correct a verdict, which they have mistaken, or which their foreman has improperly delivered,” but in the absence of a request for a poll the practice of hearkening must be followed. Under our practice the hearkening of a verdict is the traditional formality announcing the recording of the verdict. A jury poll has the same effect. The recording of the verdict is the act which signifies the removal of the subject matter from the jury’s province. Though the act of recording' is seemingly a ministerial function, it is a duty performed by the court through its clerk, who for this purpose serves as the court’s amanuensis.

The formalizing ceremony of “hearkening” is an alert to the jury to secure certainty and accuracy enabling them to correct any manifest mistake. Glickman v. State, supra. Hearkening also serves as an admonition to counsel and the litigants that such verdict “as the court hath recorded it” will no longer be subject to alteration or amendment. Ford v. State, supra. It is upon the perfection of that verdict expressed by the jurors’ assent either through their acquiescence by hearkening, or through individual consent by poll, that the jury’s right to retract that verdict is concluded. Givens v. State, supra.

The last formal recorded act of the court in a jury case is the recording of the jury’s decision, attended with the traditional formalizing procedures which have become substantive rights. See Glickman v. State, supra at 525, citing Givens v. State, supra. For those present the formalities of polling signaled the conclusive nature of recording. This was the effect of perfecting the verdict as to Ross. When the judge expressed an intention to return the jury for further deliberations, appellant, as we have previously noted, interposed no objection.

Appellant acknowledges that he is clutching a slender reed in basing his claim of error on the omission of hearkening the verdict. Nevertheless, he urges that when the jury subsequently indicated second thoughts about its verdict, hearkening “would have afforded one final opportunity for the affirmance or disaffirmance of the unanimity of the jury’s verdict.” We reject appellant’s attempt to employ hearkening to defeat the finality of a verdict already conclusively certified by the poll of the jury. We observe that the failure of the clerk to hearken the verdict may well have been caused by the alacrity with which appellant’s trial counsel requested that the jury be polled.

Although we think the better practice dictates that the procedure employed by the trial court in the instant case be avoided, we, nevertheless, hold that the court did not err in instructing the jury that it could not reverse a guilty verdict that had been recorded after a poll. For reasons too obvious for discussion in the light of what we have said about the recording of a verdict, we find no merit in appellant’s tandem contention that the trial court should have declared a mistrial.

II

We also find no merit in appellant’s contentions relative to the alleged insufficiency of the evidence and entrapment. His challenge to the sufficiency of the evidence is two-fold. He asserts first that Officer Murray failed to exercise the now familiar precautions of searching the informer before and after the controlled purchase. This argument, however, is directed toward the weight, not the sufficiency, of the evidence. Weight of the evidence is a matter to be determined by the trier of fact. Hill v. State, 6 Md. App. 555, 252 A. 2d 259 (1969); Williams v. State, 5 Md. App. 450, 247 A. 2d 731 (1968). The second aspect of appellant’s attack on the evidence takes the form of an assertion that the judge should not have allowed the jury to determine appellant’s guilt or innocence based largely upon the testimony of Mr. Brown, “[a]n admitted criminal, an indefinite parolee from Patuxent Institution, a hireling whose very pay depended on the number of arrests he precipitated, . .and an inherently dishonest witness. Such an argument goes to Brown’s credibility and is for the trier of fact to adjudge. Bailey v. State, 16 Md. App. 83, 294 A. 2d 123 (1972); Ritter v. Danbury, 15 Md. App. 309, 290 A. 2d 173 (1973); Colburn v. Colburn, 15 Md. App. 503, 292 A. 2d 121 (1972). The test of the sufficiency of evidence is whether it directly shows or supports a rational inference of the facts to be proved, from which the trier of facts could fairly be convinced, beyond a reasonable doubt of the defendant’s guilt of the offense charged, Robinson v. State, 17 Md. App. 451, 302 A. 2d 659 (1973); Gatewood v. State, 15 Md. App. 450, 291 A. 2d 688 (1972). The evidence in the instant case is sufficient to sustain the conviction.

In this Court appellant argues that Mr. Brown was effectively an accomplice and, therefore, in order to sustain appellant’s conviction the State must have corroborated Brown’s testimony. This contention was not raised in the trial court and thus it is not before us. Md. Rule 1085. Even if we were to assume that corroboration were required, the record discloses that the corroboration has been furnished in the form of Detective Murray’s testimony.

Appellant contends that he was entrapped by the activity of the police or their agents. He raises the point for the first time in this appeal. The defense of entrapment was neither argued by appellant when he moved for a judgment of acquittal, nor when he renewed that motion. Moreover, he neither asked for an instruction on the law of entrapment nor excepted to the court’s instructions as given. Not having been raised and decided by the trial court, the issue of whether appellant was entrapped is not before us. Md. Rule 1085. Assuming arguendo that the issue is properly presented, we have no hesitancy in holding that the appellant was not entrapped. See Schuman v. State, 19 Md. App. 400, 311 A. 2d 460 (1973); Hignut v. State, 17 Md. App. 399, 303 A. 2d 173 (1973); Byrd v. State, 16 Md. App. 391, 297 A. 2d 312 (1972); Rettman v. State, 15 Md. App. 666, 292 A. 2d 107 (1972), cert, denied September 19, 1972; Simmons v. State, 8 Md. App. 355, 259 A. 2d 814 (1969).

Ill

Appellant also contends that reversible error was committed by the trial court in permitting testimony by the informer, Stephen Brown, relating to past sales of narcotics in which the informer and the appellant were mutually engaged. The record reveals that on direct examination Mr. Brown was interrogated by the State as follows:

“Q Now, prior to this night in question, did you know this person referred to as Breather? [i.e., appellant.]
A Yes, sir.
Q And how long had you known this person prior to this night in question?
A Since 1958, around 1958.
Q How would you characterize your acquaintanceship with Breather?
MR. HARRIS [defense counsel]: Objection.
THE COURT: Sustained.
Q BY MR. SAUER [Assistant State’s Attorney]: How would you say you knew him then?
MR. HARRIS: Objection.
THE COURT: Sustained.
Q BY MR. SAUER: Would you tell us what, if any, contact you had had with Breather from 1958 up to the date in question, February 6, 1973? [Emphasis supplied].
MR. HARRIS: Objection.
THE COURT: On what grounds?
MR. HARRIS: I think it is leading, number one, Your Honor; and, I don’t see that it has any bearing at all on the events of February 6, 1973. [Emphasis supplied],
THE COURT: They are superior [conspiracy] charges in the Indictment, and events prior to that may be relevant, and the form of the question, I believe, is not leading. You can answer the question.
A We use [sic] to work together selling narcotics.”

It is provided in Md. Rule 522 d:

“Objection to Evidence
1. When grounds must be stated. Unless requested by the court it is not necessary to state the grounds for objections to evidence.”

This rule had as its primary purpose the simplification of procedure by abolishing “unnecessary and outmoded formalities,” thus saving time and expense in trials. Elmer v. State, 239 Md. 1, 209 A. 2d 776 (1965). Rule 522 has been made applicable to criminal trials by Rule 725f. The Court of Appeals has held in Wilt v. Wilt, 242 Md. 129, 218 A. 2d 180 (1966), that even though it is not necessary to state the grounds for objection to evidence, when counsel is requested by the trial court to articulate the reasons for that objection, he should state all his reasons for objecting. If in articulating the reasons for the objection counsel omits to state a particular ground, he is ordinarily regarded as having waived any basis not so stated.

In the instant case the question to which objection was made embraced the period 1958 to February 6, 1973. As such, it was utterly lacking in specificity, and it theoretically, at least, encompassed every social or business contact between the parties for that period of time. The question was objected to on the ground that it was (1) leading and (2) did not have “any bearing at all on the events of February 6, 1973.” Patently, the question was not leading. We interpret the second stated reason to be grounded upon irrelevancy. The question was simply not objectionable for either of the reasons assigned by appellant. While it is true that the question dealt with a time frame of fifteen years, it did include within its ambit the crucial date of the alleged offense, and events occuring on that date were certainly relevant to the case then at trial. Further, the question included within its purview relatively recent contacts. Moreover, the question was relevant because the trier of fact must base its judgment on the truth or falsity of the testimony, in part, upon the nature of the relationship between the informer, Brown, and the appellant. The question under attack, while admittedly over-broad in scope, nevertheless, would have appeared to the trial judge to have been designed to demonstrate that relationship.

1 Wharton’s Criminal Evidence (13th. ed. C. Torcia 1972) § 254 states:

“In a prosecution for the sale of narcotics, evidence of other sales is admissible to show intent or guilty knowledge. . .

See also the cases collected in Annot. “Admissibility in prosecution for illegal sales of narcotics of evidence of other sales” 93 A.L.R.2d 1097 et seq. (1964).

In Robinson v. United States, 366 F. 2d 575, (10th Cir. 1966), Judge Hill writing for the court said:

“Of course, the general rule is that evidence of another and independent crime is not admissible against an accused; but a recognized exception to that rule is that evidence of other crimes committed by an accused is admissible if such evidence tends to establish a common scheme, system, plan or design on the part of the accused, where it is so related to the crime charged, that it may serve to establish the crime charged or to establish an intent or a motive in the mind of the accused to commit the crime charged. Certainly, all of the crimes charged and the other crimes shown by the questioned evidence were crimes of a similar nature, that is, crimes involving traffic in illegal drugs. This evidence did tend to establish a common scheme, plan and design on the part of the accused and was related to the crimes charged. It did give the jury additional evidence from which it could find intent. . . and ascertain the state of mind of the accused. ...”

As in Robinson, supra, the testimony elicited by the challenged question tended to establish “a common scheme, plan and design on the part of the accused” and was “related to the crime charged.”

Judgment affirmed.

Moore, J,

dissenting:

In my view, reversible error was committed by the trial court in permitting testimony by the informer, Stephen Brown, that he and the appellant “use [sic] to work together selling narcotics.” At oral argument the State claimed the answer was “a surprise” and candidly characterized the response of the informer as a “blockbuster.”

This is not adverted to by the majority and the State’s concessions of probable prejudice to appellant and that the “propriety of the trial court’s ruling on the question may be debatable,” are also ignored.

In my judgment, the question which the informer was permitted to answer was as objectionable as the two prior questions as to which appellant’s objections had been sustained. We have here a truly “dragnet” type inquiry relating to any contacts between the informer and the accused ranging over a period of fifteen years. Such a question is clearly so broad as to be improper. The elementary law here applicable is stated in 58 Am. Jur., Witnesses, § 565 as follows:

“As a general proposition the questions asked a witness should be definite and specific; questions which are so indefinite that they fail to put the adverse party on notice of the testimony sought to be elicited, or which leave it almost entirely to the discretion of the witness as to what matters he shall elucidate, are improper, and if a timely objection is made the trial court should not allow the witness to answer.” (Emphasis added.)

Defense counsel made a timely objection. The State contended in its brief that any question of error based upon the prejudicial effect of the answer had not been preserved for review because appellant made no objection to the answer nor a motion to strike or for a mistrial. The State’s reliance in this respect upon Maryland Rule 522 d 2 is altogether misplaced. This is not a situation where a question is competent, an objection is properly overruled but the answer constitutes inadmissible or unresponsive matter. In such instance, an objection to the answer is reasonable and its form is a motion to strike. See Wigmore on Evidence, 3d. Ed., Vol. 1, § 18 p. 344, where the author states:

“Moreover, where a question is objected to, and the objection is properly overruled, but the answer which follows contains improper evidence, the objection to the question is of no avail; a new objection must be made specifically to the answer; because the answer contains new matter. . . . Here the form of the objection is a motion to strike out.”

Again, a motion to strike an answer is the proper technique in situations where objection before answer is not feasible. McCormick on Evidence, 2d Ed., § 52 cites, for example, the case of the “forward witness” who answers before counsel has a chance to object, or where, after the evidence is received, a ground of objection is disclosed for the first time later in the trial. The author states (p.113):

“In all these cases, an ‘after-objection’ may be stated as soon as the ground appears. The proper technique, for such an objection is to phrase a motion to strike out the objectionable evidence, and to request an instruction to the jury to disregard the evidence.”

In the instant case, appellant’s counsel made timely objection, not once but three successive times, to the State’s Attorney’s question seeking to elicit from the informer evidence relating to his relationship with the appellant ranging over a period of 15 years, i.e., from 1958 to February 6, 1973, the date of the alleged crimes. The question even as rephrased was clearly improper and the third objection should also have been sustained on, at least, the stated ground of irrelevancy.

The reasons assigned for the. objection, at the request of the court and in the presence of the jury, can reasonably be understood only as an expression of counsel’s legitimate apprehension that the question would elicit prejudicial matter bearing upon appellant’s criminal character or propensity. Under the circumstances, the particularization of the objection was reasonably specific and sufficient. See Williams v. State, 229 Md. 606 (1962).

As previously noted, the court overruled the objection on the third occasion because of the conspiracy charges “and events prior to that may be relevant.” To overrule the objection on the rationale of the alleged conspiracy and for the stated reason that “events prior to that [ie., February 6, 1973] may be relevant,” was erroneous. Prior criminal activity between co-conspirators has been held by the Court of Appeals to be admissible under certain circumstances and conditions. Greenwald v. State, 221 Md. 245, 249 (1960); Irvin v. State, 23 Md. App. 457. Here, however, the question posed by the State did not relate to such prior activity between the co-conspirators but to “what, if any, contact” the informer had with the appellant since 1958. It was wrong to allow, on the rationale suggested by the trial court, a question so broad as clearly to involve the potential for prejudice which, in fact, occurred. Compare, United States v. Barcenas, 498 F. 2d 1110 (5th Cir. 1974).

Where, as here, there is an improper question, a timely objection to which is erroneously overruled, a motion to strike is not essential to preserve the objection for appellate review. A contrary holding, as suggested by the State, would be illogical and would construct a requirement which is plainly absent from Rule 522. It is implicit in prior decisions, that a timely objection to the question will suffice to preserve the prejudicial answer for judicial review. See Wethington v. State, 3 Md. App. 237 (1968); State v. Babb, 258 Md. 547 (1970), reversing (on grounds of harmless error) Babb v. State, 7 Md. App. 116 (1969). The same conclusion is explicit in appellate interpretations of Rule 46 of the Federal Rules of Civil Procedure, the content of which is substantially the same as sections a, ( “Formal Exceptions Unnecessary” ), b, ( “Action Desired or Objection” ) and c, ( “Lack of Opportunity to Object — No Prejudice” ) of Maryland Rule 522. See Rice v. Louisville & Nashville Railroad Co., 309 F. 2d 930 (6th Cir. 1962) where the Court stated:

“Counsel for the defendant raise the question that plaintiffs counsel made no request for any admonition by the court concerning this evidence [a prior conviction for drunkenness]. Counsel for plaintiff objected to the introduction of the testimony at every point when it was offered. An objection is all that is necessary under Rule 46 F.R.Civ.P.”

The majority opinion concludes that the question “was simply not objectionable for either of the reasons assigned by appellant” when the trial court requested an assignment of grounds as authorized by Rule 522 d.l. While the question may not have been leading, one of the grounds stated by counsel, the alternative ground of irrelevancy was certainly not saved, as the majority suggests, by the mere fact that the question included “the crucial date of the alleged offense.” Robinson v. United States, 366 F. 2d 575 (10th Cir. 1966), upon which the majority relies, cites the familiar rule that evidence of another and independent crime is not admissible but that a recognized exception to the rule is that such evidence may be admissible if it tends to establish absence of mistake or accident, a common scheme, system, plan or design on the part of the accused “where it is so related to the crime charged, that it may serve to establish the crime charged or to establish an intent or a motive in the mind of the accused to commit the crime charged.”

In this case the objectionable question did not relate to any activity between the informer and the accused on the day of the alleged conspiracy but, for all that appears, some illicit narcotics-related activity at a remote period of time; and there was no proffer by the State that the evidence sought to be elicited related to any of the recognized exceptions to the general rule above stated.

Nor can it be maintained that in the circumstances of this case, the court’s error was harmless. There was here no curative instruction when the prejudicial response was elicited nor was there an appropriate instruction in the court’s general charge to the jury. Cf. Dixon v. United States, 287 A. 2d 89, 99 (D.C. App. 1972). That the jury was free to consider the prior selling of drugs, testified to by the informer, as substantive proof of appellant’s guilt on the presently charged offense, distribution of heroin, is abundantly clear. This was at complete variance with the rationale for the exclusionary rule that evidence which simply indicates a disposition or propensity on the part of the accused to commit a crime and does not tend to establish any of the elements just numerated is irrelevant and untrustworthy; it deflects the mind of the trier of facts from the single issue of guilt or innocence of the specific crime with which the accused is charged. Wharton, Criminal Evidence, Vol. 1, § 240; Gilchrist v. State, 2 Md. App. 635 (1967). In the words of Dean Wigmore: “It is objectionable, not because it has no appreciable probative value but because it has too much.” 1 Wigmore on Evidence, (3d Ed. 1960), § 194, p.646.

Strikingly apposite is the statement of Judge Morton for this Court in Gilchrist v. State, supra:

“This was a jury trial and we have no way of assessing the influence this testimony may have had upon their judgment. Doubts in this regard must be resolved in favor of the Appellant. Fahy v. Connecticut, 375 U.S. 85; Barnes and Burgess v. State, 1 Md. App. 123; Goodman v. State, 2. Md. App. 473.” (Emphasis added.)

In evaluating error as harmless vel non, the opinion of the Court of Appeals in Babb, supra, by Judge Finan noted a significant difference between a bench trial and a jury trial (258 Md. at pp. 550-1):

“As we have previously stated, we think that the admission of the evidence pertaining to the prior conviction for drunkenness; if error at all, was harmless error. We are fortified in this belief by the fact that this was a nomjury case. The assumed proposition that judges are men of discernment, learned and experienced in the law and capable of evaluating the materiality of evidence, lies at the very core of our judicial system. Such an assumption would be completely unwarranted with regard to a jury of laymen and the impact which evidence may have upon their deliberative powers. And, if this case had been tried before a jury, our conclusion may well have been different than that presently reached.” (Emphasis added.)

In the instant appeal, it is significant that the State’s case depended in sizable measure on the testimony of the paid informer and the jury manifested some uncertainty about the guilty verdict rendered against appellant when it inquired of the court as to whether or not that verdict might be reconsidered.

It is my conclusion that the court below committed reversible error in overruling appellant’s objection and that a new trial should be granted,

      . The term is derived from Allen v. United States, 164 U. S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896) although the charge itself apparently originated in Commonwealth v. Tuey, 8 Cush. 1 (Mass. 1851).

      . Constitution of Maryland, Declaration of Rights Art. 21.

      . In Glickman, the jury also returned one verdict and was permitted to deliberate upon a second indictment. The initial verdict was merely reported. It was not perfected by either of the traditional procedures prior to the second deliberation. The initial verdict was not conclusive, nor was the subsequent deliberation dependent upon the conclusion of the initial verdict, had the former been perfected.

      . Givens, supra, deals at some length with the importance of matters of form and tradition. It is well worth remembering the significance and reasons for certain established “juridical forms.” Each is supported by-reasons of justice and propriety which are now regarded as matters of substance. Givens gives especial credence to “ .. . forms adopted in criminal trials . .. inasmuch as they have a strong tendency, by their solemnity to impress upon all who are engaged in it, the interesting and highly responsible nature and character of the duties which devolve on them respectively.” Givens, supra at 486.

      . The second indictment against appellant charged that he and Marable “did unlawfully conspire with each other,” on February 6, 1973, to violate the narcotics laws.

      . The trial court under these circumstances should have required a proffer by the State, out of the hearing of the jury, of the evidence sought to be elicited.

      . It is, of course, elementary that when the accused takes the stand in his own behalf, he is subject to the rules of impeachment of witnesses. Prior convictions of crimes affecting his credibility may be shown, Linkins v. State, 202 Md. 212 (1953), subject to the provisions of Code (1974) Courts Art., § 10-905 (not admissible if appeal pending, time to appeal not expired or conviction reversed) and Courts Art., § 3-834 (proceedings in Juvenile Court not admissible, unless the charge is perjury); and subject to the principle of Burgett v. Texas, 389 U. S. 109, 88 Sup. Ct. 258 (1967) that the conviction occurred when the accused was represented by counsel or there was a valid waiver of his right to counsel.


author: Thompson, J.,

text:
    CHARLES STANLEY JORDAN v. STATE OF MARYLAND
    [No. 237,
    September Term, 1974.]

      Decided January 13, 1975.

      The cause was argued before Thompson, Moore and Lowe, JJ.

      AlanM. Wolf, Assigned Public Defender, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and V. Lanny Harchenhorn, State’s Attorney for Carroll County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Charles Stanley Jordan, appellant, and a co-defendant were convicted for conspiracy to wear, transport and carry handguns in violation of Md. Code, Art. 27, §§ 441, 36B-36F, by the Circuit Court for Carroll County, Judge Edward O. Weant, Jr. presiding with a jury. He was also convicted for: receiving a stolen .38 caliber Colt Agent revolver, property of the Mayor and City Council of Baltimore City, valued at $104.95; receiving a stolen .38 caliber Smith & Wesson revolver, the property of Gilbert Holniker, valued at $54.96; receiving a stolen Colt Pithon .357 caliber Magnum revolver, the property of Stuart Distributing Co., Inc. valued at $199.95; receiving a stolen .270 caliber Winchester rifle, the property of Roger L. Houpt valued at $500.00; and unlawfully transporting a handgun in a vehicle traveling upon the public roads and highways of the State. The facts will be set out as required to discuss each issue raised on appeal.

I Speedy Trial

Prior to trial, appellant moved that the indictments be dismissed for lack of a speedy trial. The record shows that no evidence was produced at the hearing on the motion, which was denied prior to trial. We are, therefore, limited by not having the complete facts upon which to base a decision. The record shows that on April 6, 1973, the appellant was indicted on charges for which he was eventually convicted and that on June 5, 1973, he filed a motion for a speedy trial alleging as follows:

“1. That the Defendant herein was arrested on August 27,1972.
2. That although the defendant made a Motion for Speedy Trial in the District Court for Carroll County in September the hearing in the District Court did not occur until April 4,1973.
3. That on April 4, 1973 in the said District Court, the State was still unprepared to try the case and entered a Nol Pros.
4. Thereafter the aforesaid indictments were drawn by the Grand Jury.
5. Although 10 months have passed since the arrest no trial on the merits has been held or date of trial set.
6. This unnecessary long delay by the State to prosecute this case has permanently and irreparably prevented his adequate defense of these charges.
WHEREFORE: The Defendant, Charles Stanley Jordan, by his attorney, Alan M. Wolf moves that these indictments be dismissed forthwith.”

Trial in the Circuit Court was set for September 13, 1973, but co-defendant’s counsel requested a postponement because that date was a Jewish holiday; thereafter the case was scheduled for November 16, 1973 at which time trial began.

Appellant produced no evidence to show when he was arrested. He did not produce his motion for speedy trial in the District Court or any evidence that the case was called for trial on April 4,1973 or that it was nol prossed. From the admissions of the State’s Attorney it may well be that all of the matters alleged in the motion were accurate but in spite of that, we do not know on what charges the appellant was arrested. There are in the record some of the original charges against co-defendants, but none of them show for example that there was a charging document issued for receiving the .38 caliber revolver which was the property of Gilbert Holniker. Neither does the record show whether or not the appellant was granted bail after his arrest. Inasmuch as he promptly posted bail after the indictment and after his conviction, we assume that he was on bail but there is nothing in the record to establish that. In view of what we have said, the record was inadequate for the trial judge, or us, to find the appellant was denied a speedy trial on any of the charges.

There is no serious argument that a speedy trial was denied after the indictment was filed. We decline on the state of the record to review the question in detail and we affirm the action of the trial judge. See State v. Williams, 6 Md. App. 5, 249 A. 2d 503 (1969). In making our decision, we are acutely aware that when the appellant’s counsel was making a statement to the court alleging prejudice to the accused, he specifically declined the court’s invitation to offer any evidence of prejudice.

II Sufficiency of the Evidence

On August 27, 1972, Trooper Douglas Brown of the Maryland State Police investigated a complaint by a Mr. Collins that there was someone shooting on his farm. When he and Mr. Collins approached the scene of the shooting, Trooper Brown heard one shot but could not see anything at that point as a crest of a hill blocked his vision. He proceeded farther and saw four people, including the appellant whom he identified in court. The four individuals were about five feet apart. He observed Brenda Lou Pinkett, a co-defendant, pass a rifle to Andrew Strickland, who was also charged, who proceeded to fire the rifle. He observed that the rifle was being fired at silhouette targets. The targets were approximately seventy-five yards from the four individuals. He also observed a sawed-off shotgun and thirteen handguns about ten feet in front of appellant and his companions. Trooper Brown stated that Mr. Collins advised him that neither he nor his brother who owned the land jointly with him had given any of these individuals permission to come on their property. The trooper thereupon had the four persons place all the weapons in a cloth bag that was also found at the scene. The bag containing the weapons, together with a bag containing ammunition boxes, was carried up a hill and towards two automobiles, one of which, a white Buick Electra, was owned by the appellant. The appellant, who had a key to the trunk of the car, opened it and placed the weapons in the trunk. Trooper Brown then proceeded to call his barracks on his car radio to ascertain whether any of the weapons were stolen. Upon receiving certain information from the barracks and being aware of a violation as to the sawed-off shotgun, he arrested the defendants, took them to the barracks and had them fingerprinted. The four weapons which were alleged in the indictments to have been stolen were all identified and admitted into evidence. Trooper Brown stated that the appellant, in response to the Trooper’s inquiry, told him that he had been on Mr. Collins’ farm on previous occasions target shooting and that he belonged to the Henry James Gun Club in Baltimore; the officer testified on cross-examination that the appellant stated the guns belonged to the gun club.

Herbert McAllister testified as follows: On August 27, 1972, he received a telephone call from the appellant requesting that he join him in target practice. McAllister got in his car and proceeded to follow appellant to Carroll County. On the way they were joined by Andrew Strickland, who went with them to the target practice; the appellant also met the co-defendant, Brenda Lou Pinkett, who entered the appellant’s car and proceeded with them. When they reached the farm, the appellant opened the trunk of his car and he, Strickland and McAllister removed a case and two bags from the trunk and took them to the field. The co-defendant, Pinkett, picked up the targets and took them to the field. McAllister testified that when they opened the bags, he saw handguns in them. The contents of the bags were emptied on the ground and he, McAllister, took a weapon and started target shooting; he also saw the appellant and Strickland picking up some guns. McAllister had never seen these guns before and he heard the appellant tell Trooper Brown that the guns belonged to a gun club.

Officer David Williams, of the Baltimore City Police Department, testified as to the disappearance of a “Colt Agent” .38 caliber handgun from the police property room on November 20, 1969. The handgun was one of the handguns recovered at the scene of the appellant’s arrest.

Roger Houpt testified that his house was broken into on November 15, 1971, at which time nine guns were stolen from him, including the rifle which was recovered at the scene of the appellant’s arrest.

Gilbert Holniker testified that between November 3, 1971 and November 5, 1971, a handgun which he owned was stolen from his place of business. The handgun was also among the weapons recovered at the scene of the appellant’s arrest.

Edward John Weihs, Jr. testified that on September 2, 1971, a handgun was stolen from Marvin’s Sport City, a sporting goods store. He was an assistant to the president of the company which owned Marvin’s Sport City. This handgun was also among the weapons recovered at the scene of the appellant’s arrest.

The appellant testified that on the morning of August 27, 1972, he went to the apartment of his girlfriend, Linda Brown, and obtained the guns which he took to the target practice. The guns belonged to Mrs. Brown’s deceased husband from whom she had been separated. He denied that he had any knowledge that any of these guns had been stolen. At 12:00 noon he called McAllister for the purpose of asking him to join him at target practice. He denied that he told' Trooper Brown that he obtained the guns from the Henry James Gun Club. He testified he had been imprisoned in Petersburg, Virginia from May 18, 1970 until February 22, 1972, and thus was in prison at the time all of the guns were stolen, except for one which had been stolen from the Baltimore City Police Department in 1969.

Linda Brown testified that before her husband died he had brought the guns to her apartment. She stored these guns in the storage bin in her apartment house. On the afternoon of August 27, 1972, between 1:00 and 2:00 p.m., the appellant came to her apartment to get the guns. She testified that she didn’t want to know where her husband had gotten the guns because, knowing her husband, she was afraid to find out. She stated that the appellant knew her husband, a fugitive, had been killed by the police, and thereafter knew of his criminal background.

Appellant contends the evidence was insufficient to support the handgun convictions because it showed the conduct was within a statutory exception, Md. Code, Art. 27, § 36B (c) (3):

“* * * Nothing in this section shall prevent any person from wearing, carrying, or transporting a handgun used in connection with a target shoot, formal or informal target practice, sport shooting event, hunting, trapping, dog obedience training class or show or any organized military activity while engaged in, on the way to, or returning from any such activity. Nothing in this section shall prevent any bona fide gun collector from moving any part or all of his gun collection from place to place for public or private exhibition. However, while traveling to or from any such place or event referred to in this paragraph, a handgun shall be unloaded and carried in an enclosed case or enclosed holster.”

There was no evidence to show the guns were unloaded and the burden is on an accused to show he comes within a statutory exception. Spurrier v. State, 229 Md. 110, 112, 182 A. 2d 358 (1962); Agee v. State, 8 Md. App. 148, 151, 258 A. 2d 779 (1969). In addition it could hardly have been the legislative intent to permit the guns to be carried in an unfastened sack when it used the language “carried in an enclosed case or enclosed holster”. While this language may not require a customary gun case or holster it does require more than an unfastened sack.

The appellant’s convictions for receiving stolen goods are supported by the rule found in numerous cases that, in the absence of a satisfactory explanation, a person found in the exclusive possession of recently stolen goods can be convicted of the theft, the burglary or, if others are shown to have been involved, receiving the goods. Anglin v. State, 244 Md. 652, 656, 224 A. 2d 668 (1966); Jordan v. State, 219 Md. 36, 148 A. 2d 292 (1959); Anderson v. State, 9 Md. App. 532, 541, 267 A. 2d 296 (1970).

Neither this Court nor the Court of Appeals has set out an ironclad rule as to the meaning of the term “recent.” Instead its meaning has been declared to be relative and dependent

upon the surrounding circumstances. In Gamble v. State, 2 Md. App. 271, 234 A. 2d 158 (1967) this Court held:

“The requirement that goods be ‘recently’ stolen is a relative one. In Anglin v. State, 1 Md. App. at page 92, this court, quoting Butz v. State, 221 Md. 68, 77 said:
‘The term “recent” when used in connection with recently stolen goods, is a relative term, and its meaning as applied to a given case will vary with circumstances of the case. 1 Wharton, Criminal Evidence (12th Ed.), Section 135, Cf. Underhill’s op. cit., Sec. 723; 32 Am. Jur., Larceny, Sec. 142.’ ” Id. at 275.

Jones v. State, 5 Md. App. 180, 185, 245 A. 2d 897 (1968). Applying the rule in Cason v. State, 230 Md. 356, 187 A. 2d 103 (1963) stolen property found in possession of the defendant over four months after its theft was deemed “recent” by the Court of Appeals; in Anglin v. State, 1 Md. App. 85, 227 A. 2d 364 (1967) over six months; in Gamble v. State, supra, about six months.

In the case at bar, two of the weapons involved were stolen approximately 10 months prior to the appellant’s arrest, another approximately 1 year, the other approximately 3 years. While in the abstract these lengths of time may not seem “recent”, the surrounding circumstances support a holding that the lengths of time were recent. We have no difficulty in holding the 10 month periods to be recent under the rule. The other two guns, being acquired simultaneously in these peculiar circumstances, must also be considered as recently stolen. This is not to say that such lengths of time, even 10 months, would be held to be within the rule in an ordinary case.

The verdict can be supported on yet another ground. Both the appellant and Linda Brown testified that the appellant had picked up the guns from Mrs. Brown’s apartment on the day of his arrest. It appears significant that the sack contained more than 13 weapons, including a federally prohibited sawed-off shotgun. Four of the weapons were established to be fruits of separate and distinct larcenies. The appellant knew the guns had belonged to Mrs. Brown’s estranged husband, who had been killed by the police several months earlier as a fugitive. The appellant knew of the criminal background of Mrs. Brown’s husband. More importantly, at the time of his apprehension appellant falsely informed the police officer that the guns belonged to a gun club.

Proof of knowledge that the goods an accused possesses were stolen may be proved, as any other fact, by evidence establishing that the accused had “actual or direct knowledge” or by circumstantial evidence which permits a rational inference that the accused, although he may deny it, knew the goods were in fact stolen. Clarke v. State, 9 Md. App. 570, 573, 266 A. 2d 359 (1970). In Clarke, this Court added:

“Moreover, as this Court said in Greenway v. State, 8 Md. App. 194, it is a well recognized rule of law that an individual ‘with an unlawful purpose in mind, who deliberately “shuts his eyes” to avoid knowing what would otherwise be obvious to view, acts at his peril in this regard as far as the criminal law is concerned, and is treated as having “knowledge of the facts as they are ultimately discovered to be.” Perkins, Criminal Law (1957), pp. 684-685.’ ”

The reasonableness of the explanation given by the appellant as to his possession of the weapons, as with all other matters of fact, was for the triers of fact to determine. Streat v. State, 11 Md. App. 543, 548, 275 A. 2d 537 (1971); Boswell v. State, 5 Md. App. 571, 577-578, 249 A. 2d 490 (1968).

Ill Other Contentions

Appellant also raises the following contentions:

“Were the defendant’s constitutional rights, under the due process of the constitution denied when the State refused to try the case in the District Court of Maryland before proceeding to the Circuit Court levei?”
“Did the sentences of six years consecutive to the federal 5 year sentence or a total of 11 years arising from the same incident constitute cruel and unusual punishment?”

The contentions are devoid of merit and require no discussion.

Judgments affirmed.

      . We do wish to comment, however, on the failure of the State’s Attorney to produce any testimony explaining the delay. It is true he made a general oral reference to administrative difficulties and volume of work; he mentioned that one witness had to be brought from Florida, another from Baltimore City, one from Baltimore County and one from Washington County. There was also evidence that a trial on some charges arising out of the incident hereinafter described were conducted in the federal courts prior to the time they were tried in Carroll County. It may well be that detailed testimony would have produced adequate explanation of why the State could not dispose of the case in the District Court in less than eight months after the demand for a speedy trial was made. In the absence of an adequate testimonial explanation we might well have reversed had the appellant established a suitable record. Of course, we are aware that the State’s cavalier treatment of the motion could have been inspired by the appellant’s equally cavalier treatment.