text:
    SAMUEL E. LADDON v. ROBERT F. WHITTLESEY
    [No. 56,
    September Term, 1979.]

      Decided November 6, 1979.

    The cause was argued before Lowe, Mason and Wilner, JJ.

      Charles M. Chadwick for appellant.

      James L. Baer, with whom were Spriggs, Cromwell, Myers, Nicholson & Spire, P.A. on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

—prologue—

The Uniform Partnership Act, Md. Code, Corps. & Assocs. Art., Title 9, like most uniform acts, was intended to anticipate problems and simplify solutions within defined areas. Subtitle 6 anticipated the problems of Dissolution and Winding Up of partnerships. Section 9-609 anticipated the problems of applying partnership property upon dissolution in either instance when a surviving partner desires to continue the business with the same name or when the business is both dissolved and terminated.

If dissolution is mutually agreed upon, each partner may have the partnership property applied to discharge its liabilities and the surplus applied to pay in cash the net amount owing each partner. § 9-609 (a). If the dissolution is not mutual and amicably agreed upon; but caused by the wrongful conduct of a partner, the innocent partner is entitled not only to his net share of the surplus after liabilities, but also to damages caused by the wrongdoer. § 9-609 (b).

The innocent partners are given a conditional option either to continue the business or to wind it up and terminate it. If they desire to continue the business in the same name, they must, among other things, pay the partner who wrongfully causes the dissolution the value of his interest in the partnership (§ 9-609 (b) (2)), as of the date of dissolution (§ 9-614), less damages recoverable as abovementioned (§ 9-609 (b) (1) (ii)). If the business is not continued, the innocent partner has the right to wind up the partnership affairs, § 9-608; nonetheless, the partner who caused the dissolution wrongfully is entitled to be paid in cash the net amount of the surplus after repayment of liabilities as any other partner pursuant to § 9-609 (a), although his share is subject to diminution for whatever damages were caused by his wrongful breach of the partnership agreement causing dissolution, § 9-609 (b) (3) (i).

While all partnership rights to an accounting of any partner’s interest, investment or wrongful cause, accrue at the date of dissolution, § 9-614 and see § 9-609 (b) (2), dissolution does not terminate the partnership. The partnership continues until winding up of partnership affairs is completed, § 9-601. Only in the best of all possible partnership worlds will dissolution and termination coincide, but more often than is desirable a partnership will begin to disintegrate commensurate with a developing animosity between partners. At some point during that period, dissolution may be caused intentionally or unconsciously by wrongful conduct of a recalcitrant partner, but the “partnership” business limps on. The partners now openly antagonistic may be unable to agree on anything, including whether to carry on or dissolve; whether to wind up completely or have some partners remain and continue the business; or when and how to accomplish any of this.

When partnership affairs reach this stage, statutes do not provide easy answers, and even though the Uniform Act tries to anticipate such exigencies, the court is left with the responsibility to decree a dissolution as the solution. By the time the partners are resolved to seek court dissolution as a last resort, much damage has been done, and more may occur before termination because the date the court determines dissolution occurred and the final termination may affect distribution pursuant to § 9-611. Perhaps, recognizing that there will be times when this arms length period between partners will require business to be conducted for the preservation of the business partnership assets, the Act has provided among its delineation of rights and duties of partners in § 9-401 that:

"(2) The partnership must indemnify every partner in respect of payments made and personal liabilities reasonably incurred by him in the ordinary and proper conduct of its business, or for the preservation of its business or property.”

In addition thereto,

“(3) [a] partner, who in aid of the partnership makes any payment or advance beyond the amount of capital which he agreed to contribute, shall be paid interest from the date of the payment or advance.”

Unless there is some agreement for salary for specified services among or between the partners,

“(6) [n]o partner is entitled to a remuneration for acting in the partnership business, except that a surviving partner is entitled to reasonable compensation for his services in winding up the partnership affairs.”

—facts—

• When these pertinent sections of the Act are excised, dissolution of a partnership seems formulized. But when issues are isolated in a dissolution case that has dragged on for four years, replete with the digressions of individuals’ internal infighting, the panoramic partnership perspective may be distorted; the partnership purpose of dissolution digressed from; and the statutory formula misapplied. Such is the case of Laddon and Whittlesey, trading as Woodbine Auto Wreckers and Junk Company.

The case at bar, from the Circuit Court for Montgomery County, unfolded in serial-like sequences when appellant Samuel E. Laddon and appellee Robert F. Whittlesey found that their relationship as partners in the junk business was foundering. The two had purchased this business for $75,000, of which the seller took back a $50,000 deed of trust. The parties then borrowed $50,000 from a bank to be used as capital. These indebtednesses, which were to be repaid in equal periodic payments by the partners, are at the crux of this appeal, although the judge and the parties seem to have lost sight of that fact.

The origin, brief life, and ultimate demise of this partnership must be searched for in pleadings, statements and testimony from hearings on various motions made to compel payment of partnership obligations, extracts of transcripts of unexplained proceedings, stipulations and agreements of the parties before a master-auditor and his reports, hearings on motions to compel a sale, requests for contribution, etc. Even the briefs were of little help in this regard because the parties elected to address the issues narrowly in isolation rather than view the whole picture. We will not respond in that manner because to do so tends to lead to the same error as that committed by the court below.

The primary problem appears to be that the trial judge tried to decide the dollar dispute between the parties without determining the fate of the business. He addressed the personal dispute between the parties rather than the dissolution of the partnership. Although he did determine dissolution had occurred on one date, his accounting appears to have envisioned a date over a year later.

—the partnership—

It is accepted that the partnership agreement originally comprehended equal contributions and equal rewards. Laddon testified that there were definite terms agreed upon, however, as to the respective duties of the partners. It was Whittlesey who detailed them in some degree. Whittlesey was to be at the job, “when [he] could”, one half day a weék — presumably without salary. Laddon, however, was to assume a far greater management role for which he would be salaried, although even his time was flexible:

“When we went into the business, Laddon had closed his other business, was not operating it and we discussed a salary for him to oversee the operation of the business. He wanted two hundred dollars a week and I told him that wasn’t enough. We were friends. We settled on three hundred dollars a week. He said he would charge the business for the time he spent in the business if he spent a full week; he would get paid the three hundred dollars. If he spent less than that, he would scale it down.”

During the summer and early fall of 1973 this imbalance of responsibility caused Mr. Laddon to become disenchanted.

“Mr. Whittlesey didn’t seem to have any time to devote to the business in accordance with what my understanding of what he was going to do for the business at the inception of the partnership. He wasn’t doing it. I was very unhappy with the fact that I had to shoulder the entire responsibility and make most of the decisions regarding the operation of the business and try to be in a number of places at the same time.”

A' partnership meeting was scheduled by Mr. Laddon

“[t]o either refresh our arrangements regarding the partnership or to enter into some other agreement, including that of selling the business.”

The meeting did not come to pass because of a heart attack suffered by Mr. Laddon. He was unable to resume his duties until approximately April of 1974, when he would participate

“two or three hours a day, sometimes four or five hours a day, depending on how [he] felt.”

Even this did not last and Laddon’s disenchantment culminated in his realization

“[t]hat Mr. Whittlesey and I were hopelessly at odds over the operation of the business and that I couldn’t see any possibility of any sort of reconciliation or continuation of the business.”

Whittlesey, on the other hand, picked up the reins while Laddon was indisposed.

“When he was in the hospital I talked to him by phone and he was concerned about the business at that time.
Q Was there anything he wanted you to do with respect to the business while he was in the hospital?
A No, he wanted me to keep it going. There was not specific duties set out.”

Keep it going he did presumably until June of 1974 when Laddon had resumed some of his responsibilities.

“A He was there off and on from the time he recuperated from his illness which I don’t know the date of that. He was there in the spring and early summer.
Q Of 1974?
A That is correct.”

Laddon then struck the final blow:

“Q Did there come a time when Mr. Laddon no longer would participate in the on-going business of Woodbine Auto Wreckers?
A Yes. I don’t know the date.
Q Approximately, when did that occur?
A In June 1974. He told me he was not going to put any more money into the business. I think that is about the extent of it.”

—the suit to dissolve—

On September 6, 1974, appellee Robert F. Whittlesey filed a bill of complaint to dissolve the partnership, praying further an accounting by Laddon, that Laddon be enjoined from contracting on behalf of the partnership, and that he, Whittlesey, be permitted to continue the business of the Company after dissolution. Four years later, on December 13, 1978, the court passed the following Memorandum and Order:

“The Court has previously concluded that the partnership in this case was dissolved on June 15, 1974. The Court has had numerous hearings and has reviewed the several memoranda submitted by counsel. The following Order is based on a thorough review of all of this data and the presentations of counsel and the ultimate conclusion that the dissolution of the partnership was caused by the wrongful actions of the defendant, Samuel E. Laddon.
It is, by the Circuit Court for Montgomery County, Maryland, on this 13 day of December, 1978,
ORDERED, that a judgment is entered in favor of the plaintiff, Robert F. Whittlesey, against the defendant, Samuel E. Laddon, in the sum of Nine Thousand Five Hundred Sixty-one Dollars and Eighty-seven Cents ($9,561.87) with interest; and it is further
ORDERED, that the defendant, Samuel E. Laddon, shall pay unto the plaintiff, Robert F. Whittlesey, the sum of Eleven Thousand One Hundred Eighty Dollars ($11,180.00) as and for his attorney’s fee; One Thousand Fifty Dollars ($1,050.00) as and for his appraisal fees; and Three Hundred and Fifty Dollars ($350.00) as and for his accountant’s fee; and it is further
ORDERED, that prior to any other disbursements that the partnership assets shall be expended to secure total payment of the existing first trust on the real property in Carroll County, Maryland; and it is further
ORDERED, that the next priority payment shall be to the plaintiff, Robert F. Whittlesey, in a sum sufficient to defray the judgments entered hereinabove; and it is further
ORDERED, that the next priority in payment shall be a distribution of the capital contributions made by the plaintiff and defendant and thereafter the net profits, if any, shall be distributed to the plaintiff and the defendant, and it is finally
ORDERED, that the defendant, Samuel E. Laddon, shall pay the costs of these proceedings.” (emphasis added).

Appellant has asked five questions which are abstractly meaningless, but contextually indicate error in the court’s conclusions. Perhaps during the four years between commencement and conclusion, the court was so often carried off in tangents that it lost direction in reaching its conclusions. The parties did little to help keep it on course. Indeed, we frequently found the briefs and issues raised and responded to on appeal more confusing than clarifying.

Regrettably, the court also declined the opportunity to assist our review by clarification. After receiving the Memorandum and Order of December 13, 1978, appellant requested by letter some explanation of the result reached:

“My client desires that I entertain an appeal to the Special Court of Appeals, and I would appreciate your supplementing your Memorandum and Order of December 13,1978, with an extended Findings of Fact and Conclusions of Law, in accordance with Maryland Rule 18(c) [sic].”

The court responded by a supplemental memorandum that when analyzed simply says, “it’s in the record, you find it”:

“This Memorandum supplements the Court’s Memorandum and Order of December 13, 1978, in accordance with Maryland Rule 18 (b).
The findings and conclusions filed in my Memorandum and Order of December 13,1978, were based upon the following:
1. The demeanor of the witnesses who gave testimony in the case.
2. The examination of the Special Master who was appointed in this case, and the report that he submitted to me.
3. The consideration of the exhaustive hearings held before this member of the Court.
4. The consideration of several items of evidence received at the various hearings.
5. The review of the most thorough memoranda of law submitted to the Court by counsel for both parties, and
6. The review of the proposed findings of fact and conclusions of law submitted by counsel for both plaintiff and defendant.”

Again, appellant tried to find out how the result was reached:

“This will acknowledge receipt of your Memorandum of February 27, 1979.
I believe that Rule 18 (b) contemplates some disclosure of the facts found by the trial court and a brief discussion of law as applied to those facts so that the Appeals Court may properly evaluate the conclusions in your Memorandum of December 13, 1979 [sic].
I would appreciate your preparing such a memorandum so that the record before the Court of Appeals may be complete.”;

and again appellant was denied it:

“I have your letter of March 6, 1979, a copy of which was delivered to the Honorable Joseph M. Mathias. I do not agree with your interpretation of Rule 18 (b). After the many hearings on motions; evidence; master’s report; conferences; and memoranda of counsel, I am not going to burden this record with any further material.”

Reversal may have been avoided had his honor provided us with his reasoning rather than leaving us to speculate; however, after thorough and repeated review of the record extract, we are unable to find aught to support his conclusions.

A painstaking review of the record extract revealed a singular agreement between the parties at the start of the case. Laddon’s answer to Whittlesey’s bill for dissolution concurred that the partnership be dissolved. However, Laddon objected to Whittlesey’s continuation of the business and prayed that it be wound up and the assets disposed of at public sale. There followed substantial infighting of peripheral pertinence, the most significant of which was the submission to a master-auditor for the determination of the date of dissolution, to determine capital contributions and to report. The record discloses that by stipulation June 30, 1975 was used as a cut-off date to calculate the capital contributions. The ultimate findings of the master-auditor, as testified and reported by him, disclosed that the capital contributions from the commencement in 1973 through June 30, 1975 were for

Whittlesey — $34,911.21

and for

Laddon — 15,787.46

providing an imbalance in Whittlesey’s favor of $19,123.75. The court by order of April 2, 1976 adopted those findings. Were that imbalance distributed equally, as the testimony indicating an equal partnership reveals the parties intended, Laddon would have been indebted to Whittlesey in an amount equal to one-half of that difference, or $9,561.87. Since the court had adopted these findings we must conclude, in light of the subsequent order of December 13,1978 provided, inter alia, judgment against Laddon in favor of Whittlesey in that precise amount, that the judge reached that figure by the same route we have followed here. This figure would have been meaningful in the overall accounting upon termination for purposes of distribution, and undoubtedly, if the date of dissolution had been found to be June 30, 1975, that much of the court’s conclusion from an accounting view would have been correct, at least to indicate the respective capital contributions. However, in the same memorandum of April 2, 1976, in which he adopted the master-auditor’s findings as to capital contributions — which had been based on the stipulated date of June 30, 1975 — the memorandum continued:

“It is further found that the date of the dissolution of the partnership would be June 15, 1974.”

The question of appellant’s capital contributions becomes important only in balancing out his equity in those assets. While he is liable to be debited for an imbalance in capital contributions for liabilities made prior to dissolution, it is obvious that he may not be forced to contribute to capital contributions for “new” liabilities made after that date. Significantly then, if . the “capital contributions” between the date of dissolution found to be June 15,1974 and the June 30, 1975 date stipulated to the master-auditor, were solely for payments of a liability incurred for capital purposes prior to dissolution (which appears from the record as most likely but not certainly), appellant may be charged with his share of that continuing liability under § 9-607 (a) until the business is terminated (§ 9-601) — but only if the court has ruled that the business may not be continued as prayed for by appellee.

—continue or conclude—

Thus, the court must first determine whether it will accede to the wishes of appellee and permit him to continue the business, or, as first prayed by appellant, that the “partnership business be wound up and disposed of at public or private sale____” This has not been definitely decided and is crucial to the disposition of the case. Although Whittlesey was “designated with the authority to conclude the affairs of the partnership” by order of May 11, 1977, he is not told, nor has he indicated how or when it is to be accomplished. We only know that, these two years later, the partnership business appears still to be in limbo.

Even assuming the court will again on remand determine that Laddon was the wrongful cause of dissolution as indicated in the December 13, 1978 order, if it is to be continued by Whittlesey, Laddon is nonetheless entitled to be paid the value of his interest effective the date of dissolution less damages for breach of the agreement. § 9-609 (b) (3) (ii). If the business is not to be continued by Whittlesey, Laddon is entitled to have the partnership property applied to discharge its liabilities and to have the surplus applied to pay in cash the net amount owing the partners, less any damages for dissolution caused by the wrongful breach. § 9-609 (b) (3) (i).

It would appear that termination of the partnership’s business was the conclusion anticipated by the court without expressly so holding, when on May 11, 1977 it designated Whittlesey as “the authority to conclude the affairs of the partnership.” While that inferentially decides Whittlesey is not to be allowed to continue the business and Laddon’s request to conclude was granted, the court should determine why the winding up partner has not, for two years, wound up the business and what the cause and consequences are of the delay.

Assuming, as we must, that the partnership is still in a state of being “wound up”, the court must distinguish between debts incurred of a continuing nature prior to dissolution (such as the first trust on the property when purchased by them and the bank loan used as capital at commencement of their partnership) which continue to be obligations of the partners pursuant to § 9-607, and any new capital contributions (as for purchases of inventory, etc.) which may have been volunteered in anticipation of continuing the business after dissolution as prayed by appellee. Any new capital contributions would hardly be chargeable to the appellant even under § 9-401 (2). But if either partner was compelled to pay the liabilities incurred prior to dissolution to preserve the partnership assets, he is entitled to recover from the partnership whether designated as winding up partner or not. § 9-401 (2). Only if the partnership assets are insufficient to recompense Mm for these payments, is he entitled to recover from the other partner pursuant to that partner’s obligation under § 9-611 (4).

On the other hand, if Whittlesey is to be permitted to continue the business as his own, even such prior incurred capital contributions and liability payments as he may have made after the date of dissolution should not be made Laddon’s obligation. To do otherwise would be to benefit the continuing business and the surviving partner at the expense of the withdrawing partner.

A peripheral problem at which the record extract hints but provides little or no evidence to support, relates to the two primary liabilities of the partnership — the deed of trust and the bank note as indicated. According to recitations in a Request for Order for Contribution, payment has been made in full by Whittlesey (possibly as winding up partner) to the bank pursuant to court order in another case. The deed of trust, on the other hand, has apparently been acquired by Jane E. Laddon (presumably appellant’s spouse), who has by another court action obtained judgment for $4,253.31 against Whittlesey, who has had payment for half of that amount assessed against Laddon by third party action. Inferentially, as payments came due, Jane Laddon has sued Whittlesey, since the recitations indicate a second suit against appellant in the same amount was then pending.

Nothing in the record extract indicates to us the source of funds from which Whittlesey paid off the bank note, nor do we understand why the district court entered judgment for Jane Laddon against Whittlesey (and he for contribution against Laddon), presumably as an indebtedness evidenced by a note of the partners secured by a deed of trust of their partnership property. These are matters which must be considered in the winding up and distributive process.

One final concern raised by appellant is also one with which we agree that the court erred absent some adequate explanation. The language of the order that Laddon pay “unto the plaintiff, Robert P. Whittlesey ... his attorney’s fee;” “his” (emphasis added) appraisal and accountant fees, and the fact that the bills were not submitted as evidence in the case or any phase of it, but were simply appended to memorandums submitted at conclusion, compel us to remand for a proper introduction of these bills to assure evidentiarily that they were liabilities properly incurred in the conduct of business by Whittlesey on behalf of the partnership or for the preservation of its business or property. § 9-401 (2). If that is not so, appellant is correct in contending that he is not compelled to pay attorney’s fees or litigation expenses even to a successful litigant (a status which our reversal seriously jeopardizes). Empire Realty Co. v. Fleisher, 269 Md. 278 (1973).

---epilogue—

Appellee’s Statement of the Case indicates that the sums were incurred by him as “winding up partner”, which, while a likelihood, needs evidentiary support especially since the original suit for dissolution was filed by him September 6, 1974, and his designation by the court as winding up partner was received by him some three years later, on May 11,1977. Furthermore, testimony disclosed evidence of other litigation between the parties wherein it appeared same counsel did or may have represented appellee. The court should have ascertained and charged the partnership only with the liabilities incurred by the partnership or on its behalf by appellee. Laddon would be responsible, if at all, only if it were a justifiable partnership liability which the partnership assets cannot pay upon distribution pursuant to § 9-611.

Appellee’s reliance here upon § 9-401 (6) and (2) of the Act is misplaced. This is not an award of compensation to the winding up partner pursuant to § 9-401 (6), nor is it justified in the records as a partnership indemnification of a partner “for the preservation of its business or property.” § 9-401 (2). It is expressly set forth in the order as appellee’s attorney’s fee, etc. No reference is made to Laddon’s share thereof, which itself would only become due as we have said, if the partnership assets are inadequate to pay its justified debts.

It appears that despite four years having elapsed since this case commenced, the court was premature in issuing its final judgment before deciding the fate of the partnership business which appears from the record extract to be in a state of purgatory still awaiting the expiation of its partners’ sins. We therefore reverse that judgment and remand for further proceedings to be held and concluded in light of our observations in this opinion and such other portions of the Uniform Partnership Act as may become relevant. In addressing the problems we have highlighted, or others which may appear, the court is not bound to the record as it exists but is free to proceed as will best enlighten it. It may require further argument, briefs, hearings or evidence as it may deem necessary to provide the foundation for its resolution of this seemingly simple controversy immensely complicated by the development of personal animosities between the partners. As pointed out by the trial judge in declining to compel a proposed sale over two years after the bill for dissolution was filed,

“[i]t is patently clear that neither party is willing to alter their position, but prefer to watch the only real asset dissipate. So be it.”

That sentiment is so strongly supported by the record, it may be appropriate to add an appellate “amen” as well.

Judgment reversed.

Case remanded for further proceedings as indicated by this opinion.

Costs to be apportioned equally between the parties.

      . A correction of $25 in the computations taken from the testimony has been accounted for here.

      . And we are not compelled to comb the record itself, passing it from judge to judge, seeking matter that is required by rule to be extracted for our review. Md. Rule 1028 b 1; see Eldwick Homes Ass’n v. Pitt, 36 Md. App. 211 (1977).


source: Caselaw Access Project

author: Couch, J.,

license: Public Domain

text:
    MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY v. DELP AND CHAPEL CONCRETE AND CONSTRUCTION COMPANY et al.
    [No. 65,
    September Term, 1979.]

      Decided November 6, 1979.

      The cause was argued before Lowe, Mason and Couch, JJ.

      Nell B. Straehan, with whom was Francis D. Murnaghan, Jr., on the brief, for appellant.

      H. Emslie Parks, with whom were Wright & Parks on the brief, for appellees.
   Couch, J.,

delivered the opinion of the Court.

This appeal arises from a suit brought by appellees, Delp and Chapel Concrete and Construction Company (hereinafter D & C), a Maryland corporation, Andrew V. Caldwell, Jr., D & C’s trustee in receivership, R. John Chapel, Virginia Chapel, Logan Delp and Eulalia Delp, against appellant, Mercantile-Safe Deposit and Trust Company (hereinafter Mercantile). D & C’s declaration contained three counts. In Count One D & C sought recovery for Mercantile’s alleged wrongful dishonor of twelve checks drawn on D & C’s checking account with Mercantile. In Count Two the corporation and the individuals sought recovery for Mercantile’s alleged conversion of the funds in the checking account. In Count Three all appellees sought recovery for Mercantile’s alleged malicious interference with their business. Both compensatory and punitive damages were claimed in each count. Mercantile counterclaimed against D & C and the individuals for the balance due it on an unpaid debt of D & C. Prior to trial, Mercantile moved to dismiss the individual plaintiffs from Counts Two and Three; the motion was denied without prejudice. The case proceeded to trial before a jury in the Circuit Court for Baltimore County, during which a timely motion for a directed verdict was made at the close of plaintiffs’ case, and renewed at the close of all the evidence. These were also denied.

The jury returned a verdict for D & C on Count One (wrongful dishonor), awarding compensatory damages of $9,343.60 and punitive damages of $25,000.00. The verdict on Count Two (conversion) was returned in favor of all the appellees. Each appellee, excluding Logan Delp, whose absence during the trial led the trial court to rule that he was not entitled to punitive damages, was awarded both compensatory and punitive damages on Count Two. Mercantile prevailed on Count Three (malicious interference with business) and upon its counterclaim. Contented with the verdicts on Count Three and the counterclaim, Mercantile concerns itself in this appeal only with the judgments resulting from the verdicts rendered against it on Counts One and Two. No cross appeal has been filed by appellees.

The events leading up to this appeal began in January of 1974 when John R. Chapel, general manager of D & C, met with Frank Musotto, a commercial loan officer with Mercantile, in order to arrange financing for the fledgling corporation. Chapel was given various forms to fill out. Upon D & C’s opening of a checking account with Mercantile and the signing of personal guarantees by John and Virginia Chapel and Logan and Eulalia Delp, Mercantile approved D & C’s request for an unsecured line of credit and agreed to lend D & C a maximum of $10,000.00 on this line of credit. D & C also obtained two secured installment loans from Mercantile. The first was a $2,100.00 loan for a station wagon, secured by the vehicle; the loan was dated February 21,1974. On August 2, 1974 D & C borrowed $7,000.00 to purchase equipment. This loan was secured by the equipment. The obligations under these loans were met by D & C without incident.

The line of credit transactions are the source of the present conflict. Mercantile made twelve advances under its terms to D & C between March 5 and September 14,1974. The majority of the notes were paid or formally renewed on or before the date of maturity, with the exception of the following notes: the note of April 17 was paid one day late (due April 30 and paid May 1); the note of May 7 was paid four days late (due June 6 and paid June 10); and the note of May 20 was paid seven days late (due June 3 and paid June 10). The last note, dated September 14 and due on October 14 (the actual due date was Sunday, October 13, 1974) was not paid on the due date. John Chapel testified at trial that he requested of Mercantile and received an oral two week extension of the due date until October 31. The existence of the extension was disputed by the testimony of the Mercantile officers, but the jury apparently accepted Mr. Chapel’s version. Nonetheless, it was undisputed at trial that D & C failed to pay the September 14 note upon the extended due date, October 31.

Frank Musotto, the commercial loan officer in charge of D & C’s account, reviewed the terms of the September 14 note on November 4,1974 and, relying upon a cross-default clause contained in it, decided to charge the D & C checking account for the principal and interest of the September 14 note and the remaining balances on the two installment loans. The cross-default clause of the September 14 promissory note states as follows:

“Upon the happening of any of the following events, each of which shall constitute a default hereunder, all liabilities of each maker to bank shall become immediately due and payable: (a) failure of any obligor ... to perform any agreement hereunder, to pay interest hereon promptly when billed, or pay any other liability whatsoever to bank when due;...(d)... the insolvency of any obligor.”

Mr. Musotto stated two reasons for the decision to set off the loans against the checking account: the first, of course, was the overdue status of the September 14 note; the second reason given by Musotto was information he received from D & C’s insurance agent that the corporation was going out of business. This last point was disputed at trial by the insurance agent, who testified he recalled no phone conversations with Musotto between October 14 and November 4.

Having decided to exercise the set-off rights embodied in the note, Musotto directed both the Commercial Loan and the Installment Loan Departments, on November 4, to charge D & C’s checking account with the balances on the September 14 note and the two installment loans; the charges, to the extent funds were available, were made the same day. Musotto further authorized that D & C’s checking account be “frozen” or placed “on status” until the charges were paid. According to the Mercantile officer’s testimony, the “freezing” of the account meant that checks could not be routinely paid; the account would have to be handled on an individual basis rather than by computer.

The actions taken by Mercantile on November 4 resulted in nine checks drawn against the D & C account being returned unpaid and the funds applied to the installment loans instead. The nine checks were as follows:

Check No. Amount Dated Payee

1002 208.24 10-31 John Chapel

855 15.00 10-31 John Chapel

1000 35.02 10-31 Virginia Chapel

854 50.00 10-31 Logan Delp

1003 228.29 10-31 Logan Delp

841 206.12 10-21 Eulalia Delp

1001 65.21 10-31 R. Leopold

998 73.32 10-31 V. Leopold

993 134.82 10-24 M. Shaw

These returned checks were stamped with a red box marked “NSF” and bore an additional handwritten notation “account closed”. All of the above checks were either paid the second time presented or were replaced with new checks to the payees which were paid when presented. Three other checks, listed below, were presented later in November and returned marked “NSF” but not “account closed”.

Check No. Amount Dated Payee

842 8,247.58 10- 23 IRS

863 18.63 11- 18 American Radio Telephone

864 30.80 11-19 Postmaster

Chapel learned of Mercantile’s charges against the account on November 5 when he called Blake Hampson, an employee of the bank who worked under the supervision of Musotto, to request an extension of the September 14 note. Hampson informed him of the set off of the note and the two installment loans and that checks were being returned. Hampson met with Chapel and the corporation’s attorney, Robert Powell, at Powell’s office on November 11 or 12. D & C acknowledged the propriety of the $3,575.83 set off (promissory note) but requested that the amount charged to pay off the two installment loans, $5,337.79, be reversed. Chapel and Powell were concerned that an outstanding check payable to the IRS for withholding taxes in the amount of $8,247.58 would not be honored upon presentment. Mercantile, without conceding any error, agreed to reinstate the two installment loans and return $5,337.79 to the corporation’s account. On November 21, 1974, D & C’s account was credited with $5,337.79.

Appellant raises a multitude of issues on appeal which we shall address selectively:

“I. Was it error to submit the question of interpretation of written contracts to the jury?
A. Was the bank entitled as a matter of law to setoff defaulted debts against the plaintiff corporation’s checking account pursuant to the corporation’s written contracts with the bank?
B. If a factual question was presented, was it error to refuse to instruct:
(1) that parties are bound by the terms of written contracts (including terms which define ‘default’)?
(2) that upon default as defined in the written contracts a bank may legally setoff against the debtor’s checking account?
II. Was it error to permit the plaintiff corporation (and individual plaintiffs not customers of the bank) to recover punitive damages:
(1) where the bank, in asserting its legal rights, relied on the terms of the written contracts?
(2) where the court refused to instruct the jury that if defendant acted in reliance on written documents and asserted its legal rights, no malice could be inferred?
(3) where there was insufficient evidence to sustain a finding of actual malice?
III. In a wrongful dishonor suit:
A. Was it error to permit the jury to find that under the facts before it the checks were wrongfully dishonored?
B. Was it error to permit the jury to award compensatory damages where no injury or damages were proved?
C. Was it error to refuse to instruct the jury on how to measure damages for wrongful dishonor?
IV. Was it error to permit the individual plaintiffs to sue the bank for an alleged conversion of the corporation’s checking account funds?
A. Was it error to permit individuals who have no property interest in the funds allegedly converted to bring the conversion suit?
B. Was it error to permit the individuals to recover in the conversion action by virtue of being named as payees on some of the returned checks?
V. Was it error to refuse to instruct the jury on how to measure damages in the conversion action?
VI. Was it error to permit plaintiffs to obtain multiple recoveries for one loss?”

Mercantile’s Decision to Set Off the Three Obligations Against D & C’s Checking Account

A fundamental question going to the heart of the appellees’ allegations of wrongful dishonor and conversion must be answered first before the propriety of the trial court’s submission of Counts One and Two to the jury can be considered. The question is this: Whether Mercantile was entitled as a matter of law to set off defaulted debts against D & C’s checking account pursuant to D & C’s written contracts with Mercantile and, as a result, did the trial court err in failing to grant Mercantile’s motion for directed verdict. Since we shall conclude that the motion for directed verdict should have been granted, we need not discuss the propriety of the trial court’s instructions to the jury.

The interpretation of a written contract, as a general matter, is a question of law for the court. See University National Bank v. Wolfe, 279 Md. 512, 521 n. 7, 369 A.2d 570 (1977); Allen Engineering Corp. v. Lattimore, 235 Md. 182, 187, 201 A.2d 13 (1964); Severin v. Green, 166 Md. 305, 307, 170 A. 731 (1933); see generally, 5 M.L.E., Contracts, § 153 (1960). The terms of a written contract, however, may be modified or waived by the subsequent conduct of the parties. University National Bank v. Wolfe, supra at 523; Sullivan v. Mosner, 266 Md. 479, 491, 295 A.2d 482 (1972) (subsequent oral agreement). Whether the subsequent conduct of the parties amounts to a modification or waiver of their contract, in this instance the terms controlling the due date of the September 14 note, is generally a question to be decided by the trier of fact. University National Bank v. Wolfe, supra at 523; Hoffman v. Glock, 20 Md. App. 284, 289, 315 A.2d 551 (1974).

The question, then, reduces itself to one of whether there was any evidence of subsequent conduct which presented a factual issue of modification or waiver of the written terms of the September 14 note. We conclude that there was not. Appellees argue that there was ample evidence that a modification and/or waiver occurred with respect to the default term in the line of credit loan. The evidence they cite is Mr. Chapel’s testimony that in the past, two week extensions for payment due on the loan had been granted orally. According to appellees, the record of line of credit notes, which shows notes paid after the due date, supports their theory of modification. Mr. Chapel also testified that he was granted an oral extension on the note due October 14 to October 31. He further stated that he had always received written notice of the past due status of a note and that in this particular instance he did not.

While the evidence of an extension of the due date to October 31 was contradictory, there was no dispute that October 31 came and went without payment of the note by D & C. The line of credit transactions reveal no basis for the appellees’ contention that two week oral extensions had been granted in the past, and upon the passage of that period a further grace period was granted. As set forth previously, there were three notes which were paid, respectively, one day late (note of April 17, due April 30, paid May 1), four days late (note of May 7, due June 6, paid June 10) and seven days late (note of May 20, due June 3, paid June 10). The past practice of Mr. Chapel, with the exception of the three notes listed above, had been to go to the bank and formally renew the note if more time was needed by the corporation to make the payment. If Mercantile’s determination of default and set off against the checking account had occurred within the period of the avowed extension, i.e., prior to October 31, 1974, a factual dispute might exist which would require the submission of the issue of modification to the jury. That, however, is not the case here. Robert Powell, D & C’s attorney, indeed admitted the default of the September 14 note in a letter dated November 14, 1974 to Blake Hampson of Mercantile and, as we observed earlier, the factual dispute existed only as to the alleged extension to October 31. There is no dispute that the “extended” due date of October 31 was not met. The trial court, therefore, should have ruled as a matter of law that the September 14 note was in default and that under its terms the two secured installment loans were in default as well. The September 14 note provides:

“Upon the happening of any of the following events, each of which shall constitute a default hereunder, all liabilities of each maker shall become immediately due and payable ...”

The events relied upon by Musotto, the Mercantile officer who determined that all three obligations were in default, were the past due status of the September 14 note and the insolvency of I) & C on November 4. We need not address the insolvency question since the cross-default clause provides a sufficient legal foundation for Mercantile’s exercise of its right under the note to determine all obligations immediately due and payable. Since no challenge is made by appellees to the propriety of the cross-default clause, and there is no evidence that Mr. Chapel made any protest as to the contents of the September 14 note, I) & C is bound by its provisions. See Sullivan v. Mosner, 266 Md. at 495 (1972).

The September 14 note also contained a set off clause, which follows:

“Upon the occurrence of any default hereunder, Bank shall have the right immediately and without further action by it to set off against this Note all money owed by Bank in any capacity to each obligor, whether or not due; and Bank shall be deemed to have exercised such right of set off and to have made a charge against any such money immediately upon the occurrence of such default even though such charge is made or entered on the books of Bank subsequent thereto.”

Appellees’ position here and at trial, having never assumed that D & C’s debts were due, did not question the propriety of Mercantile’s alleged right to recover the debts through the use of a set off against the checking account. Their position has remained constant that the terms of the September 14 note were modified by the subsequent conduct of the parties and therefore was not due and payable when Mercantile exercised its right of set off as provided in the note itself. Since this particular point is not disputed by appellees, Md. R. 1085, we shall avoid the niceties of the law governing a bank’s right to set off; suffice it to note that according to the Maryland cases Mercantile has a right to set off matured debts of a depositor against the depositor’s checking account. See Messall v. Suburban Trust, 244 Md. 502, 510, 224 A.2d 419 (1966) (creditor permitted to set off accelerated debt); see also Union Trust Co. v. Mullineaux, 173 Md. 124, 194 A. 823 (1937); Hayden v. Citizens National Bank of Baltimore, 120 Md. 163, 87 A. 672 (1913); First Denton National Bank v. Kenny, 116 Md. 24, 81 A. 227 (1911); Records v. McKim, 115 Md. 299, 80 A. 968 (1911); see generally, 4 M.L.E., Banks and Trust Companies, § 118 (1960); 5A Michie, Banks and Banking, §§ 119b-120 (1973).

Having established the basic legality of Mercantile’s set off of the defaulted note and installment loans against D & C’s checking account, we shall now consider whether Mercantile’s motion for a directed verdict on Counts One and Two should have been granted. This discussion will essentially resolve appellant’s issues III and IV and we need not go any further.

Wrongful Dishonor

Count One, which alleges Mercantile’s wrongful dishonor of checks drawn on D & C’s checking account, is premised upon the theory that the set off against the corporate checking account was improper. This, we have decided, was not the case. In reviewing the propriety of the denial of Mercantile’s motion for directed verdict we must, of course, consider all evidence and inferences rationally drawn therefrom in the light most favorable to the party against whom the motion is made. If there is in the record any legally relevant and competent evidence to prove the appellees’ case then we must uphold the trial court’s denial of the motion. Boggs v. Citizens Bank & Trust Co., 32 Md. App. 500, 502, 363 A.2d 247 (1976). We find no such evidence here.

The Commercial Law Article of the Annotated Code of Maryland, (1975), § 4-402, (hereinafter UCC) sets forth the cause of action known as wrongful dishonor:

“§ 4-402. Bank’s liability to customer for wrongful dishonor.
A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item. When the dishonor occurs through mistake liability is limited to actual damages proved. If so proximately caused and proved damages may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case. (An. Code 1957, art. 95B, § 4-402; 1975, ch. 49, § 2.)”

A payor bank, in this instance Mercantile, generally has a duty to its customer to pay items “properly payable” and drawn against the customer’s account. UCC §§ 4-401; 4-104 (1) (i). If this duty is breached, then the bank is liable to its customer for wrongful dishonor under § 4-402. Comment 2 of that section states, “ ‘Wrongful dishonor’ excludes any permitted or justified dishonor...” The actions taken by Mercantile amount to a permitted, rather than wrongful, dishonor. Cf. Loucks v. Albuquerque Nat’l. Bk., 76 N.M. 735, 418 P.2d 191 (1966) (improper set off resulted in wrongful dishonor of plaintiff’s checks); see generally, White & Summers, Uniform Commercial Code, § 17-4 (1972).

There were a total of twelve D & C checks which were allegedly dishonored by Mercantile. Of those twelve checks, nine were charged to D & C’s account on November 4 and returned to the payees for non-sufficient funds on November 5. While the posting of an item (in this instance the entering of a debit to the customer’s account), § 4-109 (d), is a measuring point in the process of determining when an item may be finally paid, it does not mean that Mercantile’s set off was too late to include those funds. See § 4-109 Comment. Mercantile’s return of the nine checks is perfectly acceptable under § 4-301 which provides:

“(1) Where an authorized settlement for a demand item... received by a payor bank otherwise than for immediate payment over the counter has been made before midnight of the banking day of receipt the payor bank may revoke the settlement and recover any payment if before it has made final payment... and before its midnight deadline it
(a) Returns the item ...”

Mercantile’s charges against the account on November 4 used all available funds, thus the bank’s return of the checks for what Mercantile termed “non-sufficient funds” amounted to a rightful dishonor since the set off was exercised prior to midnight of the banking day (November 5) following receipt of the checks on November 4. See § 4-104 (1) (h); see generally, White & Summers, supra at § 17-7 for an excellent discussion of this problem.

Of the three remaining checks dishonored, only the IRS check was included in the jury award. The IRS check for $8,247.58 was returned marked NSF (non-sufficient funds) on November 12. The saga of the IRS check is a little more complex than that of the other checks.

On November 11, 1974 John Chapel, Robert Powell, who was D & C’s attorney, and Blake Hampson met at Powell’s office to discuss the bank’s charges against the account. Understandably concerned that the IRS would take action against D & C if the check, which was dated October 23,1974 and sent to the IRS before the set off occurred, was not paid, John Chapel requested that the set offs be reversed immediately and the loans reinstated. While Hampson conceded no error on the part of the bank, he did agree to the bank’s writing a letter to Mr. Powell stating that the bank would reverse their position on the installment loans and reinstate the $5,336.79, the pre-November 4 balance on the installment loans, in the checking account. According to Chapel’s testimony Hampson represented that Mercantile’s employees would monitor the account and the IRS check would not be rejected. The next day, November 12, the check was returned by Mercantile to the IRS. On November 13 Hampson stated to Chapel that the account was open and that checks would be honored. Chapel was notified by the IRS on November 14 that the check had been returned. The check was resubmitted to Mercantile by the IRS. Hampson called Chapel on November 19 and informed him that Mercantile had honored the IRS check on that day and that D & C’s account would be overdrawn by $800 after the re-deposit of the installment loans. A letter, also dated November 19, from Hampson to Powell, informed Powell that the installment loans had been reinstated “as of this date”. The credit to the account actually was made on November 21, 1974.

Our inquiry focuses upon the dishonor of the check on November 12. The checking account balance of November 12 was $954.22. Appellees argue that the balance should have been $6,292.01, representing the actual balance of $954.22 plus $5,337.79, the amount of the two installment loans, in other words, the reinstatement of the loans should have taken place immediately after the November 11 meeting. Appellees further contend that Mercantile had an obligation to reinstate that portion of the $3,575.83 (September 14 note) necessary to pay the IRS check. The answer quite simply to D & C’s argument is that while Mercantile did agree to reinstate the amount of the set off attributable to the two installment loans as an accommodation to its customer, it never made any such agreement as to the September 14 note. Thus, even if the balance on November 12 had been $6,292.01, it would not have been sufficient to cover the face amount of the IRS check. Appellees rely upon UCC § 4-401 (1) as authority for their position that the IRS check should have been drawn on insufficient funds. That section, which provides in pertinent part:

“As against its customer, a bank may charge against his account any item which is otherwise properly payable from that account even though the charge creates an overdraft.”,

refers only to the bank’s discretion in payment of items even though it creates an overdraft; it places no affirmative obligation upon the bank to pay the item. Thus, there was no evidence upon which a claim for wrongful dishonor of the IRS check could be based.

We therefore conclude that appellant’s motion for directed verdict on Count One should have been granted.

Conversion

We think it obvious at this juncture that neither D & C nor the individual plaintiffs have a cause of action in conversion of the checking account funds, since Mercantile’s set off of the three obligations was lawful. Conversion necessarily involves the idea that the interference with another’s property be wrongful, Interstate Ins. Co. v. Logan, 205 Md. 583, 588-89, 109 A.2d 904 (1954); Gray v. Frazier, 158 Md. 189, 192, 148 A. 457 (1930); Western Md. Dairy v. Md. Wrecking & Equipment Co., 146 Md. 318, 327, 126 A. 135 (1924); Kirby v. Porter, 144 Md. 261, 266, 125 A. 41 (1923); see generally, 5 M.L.E., Conversion, § 24 (1960). Mercantile’s actions simply cannot be characterized as anything but legal. The appellant’s motion for directed verdict on Count Two was erroneously denied.

Having concluded that Mercantile’s motion for directed verdict on Counts One and Two should have been granted, we see no necessity for reaching the other issues raised by Mercantile.

Judgment reversed.

Costs to be paid by appellees.

      . D & C was formed in July of 1973.

      . The D & C checking account showed a balance of $8,261.70 on November 4,1974, which was insufficient to meet the entire indebtedness of $8,913.62. The bank’s debits that day included $3,575.83, the principal and interest on the September 14 note, and $4,685.87, a major portion of the amount due on the two installment loans. The balance on the installment loans, $651.92, was debited against the account on November 7, 1974 after more funds became available.

      . Section 4-109 (d) provides in pertinent part:
      “The ‘process of posting’ means the usual procedure followed by a payor bank in determining to pay an item and in recording the payment including one or more of the following or other steps as determined by the bank: (d) entering a charge or entry to a customer’s account.”


author: Thompson, J.,

text:
    DAVID ALBERT PFEIFFER v. STATE OF MARYLAND
    [No. 119,
    September Term, 1979.]

      Decided November 7, 1979.

    The cause was argued before Thompson, Moylan and MacDaniel, JJ.

      George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Warren

      B. Duckett, Jr., State's Attorney for Anne Arundel County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

On the evening of December 12, 1977, shortly after 11:00 p.m. Trooper Greg Presbury of the Maryland State Police stopped David Albert Pfeiffer, the appellant, on Maryland Route 3 in Anne Arundel County. Presbury was shot and later died from his wound's and appellant was also shot. Julianna Snyder and Rita Jones, communications officers with the Maryland State Police, received a transmission from Trooper Presbury on December 12,1977, at approximately 11:20 p.m. After doing a license check on the name supplied by Trooper Presbury, “Yancey Wesley Vine,” Ms. Snyder discovered that there was no record of a driver’s license for that name. According to Ms. Jones, when Trooper Presbury supplied the tag number for the vehicle, her check indicated that the tags were registered to an “Anna May Jones” on Falls Road in Cockeysville, who coincidentally was her aunt. When she advised Trooper Presbury that she knew the subject and that the tags were registered to a ’73 Gremlin which had been traded, Trooper Presbury informed her that the tags were on a '65 or ’66 Chevrolet. The Trooper requested a back-up, stating that “something looked weird.” In a few minutes an unknown citizen came on the radio and liis only words were, “Send help, your trooper’s been hurt.”

James Lane was driving on Route 3 when he heard shots and saw a police car on the side of the road behind another car. Lane stated that he heard “four or five rapid fire shots” and saw “somebody started running from the back part of the car that had the flashing blue light on it; and he fell just like somebody hit him from behind with something. I assumed it was a bullet; and he went down on the ground; and he faded right into the ground.” Lane stated that he was unable to identify the man who did the shooting but the man was somewhere between the police car and the guardrail. Lane saw the man depart in a dirty blue or dark green Chevrolet at a high rate of speed with the lights out. Another passerby, Gene Fogle, saw the trooper lying on the ground behind the police car and observed another individual running to get to his car parked in front of the police car. Fogle testified that the individual took off in a fast manner. Fogle then went to the police car and radioed for help. Another witness, Joseph Malone, Jr., who lived approximately fifty yards from Route 3, testified that on December 12,1977, he saw a police car and a dark car on Route 3 and noticed someone raise the hood of the dark car. Presbury’s body was found to be forty-two feet from the rear of the police car. Six .45 caliber shell casings and one bullet were recovered at the scene of the crime.

A dark green car was discovered without license plates the day after the shooting near the Edison Electric Company which was owned by John Raap, appellant’s former employer. The car contained blood on the driver’s side. John Raap testified that he was with appellant during the early evening prior to the shooting and that appellant seemed stable at that time. Later that evening appellant returned wounded and armed, seeking help and threatening Raap. Raap said appellant “was hysterical or out of his mind.” Raap then accompanied appellant in search of John Hayslip. After finding Hayslip, appellant let Raap go. Hayslip said that he attempted to console appellant, and tended to his wounds. Appellant repeatedly told Hayslip that he had shot a police officer.

Thomas Mathias, a co-worker of appellant’s, said that during the month they had worked together appellant had confided that he disliked driving his car because it had stolen tags and “if he ever got pulled over by an officer that he would have to shoot it out with him because he was in violation of parole and he didn’t want to go back to prison.”

Appellant testified stating that he was armed because his life had been threatened by former inmates at the Maryland Penitentiary. He offered the following testimony as to what ensued between him and Presbury:

“I — got the car and he asked me for some ID so
I give him these two cards. You stipulated and uh,
I gave him these two cards and I said officer, listen,
I have no — I don’t have no driver’s license. I says
I just got out of the joint, that’s what I said, not, you know, not too educated and I just kind of stutter and
I said well, I mean I just got out of the Penitentiary.
I didn’t want to be disrespectful to him.
“So I approached him and he asked me ... he said something again. I don’t know what he said... I says officer, what’d you say? I — looks like somebody gettin’ — maybe he thought I was indignant or somethin’, you know, making — funny kind of motions and all, I approached him, I says what’d you say officer — and heavy traffic was — heavy traffic was coming by and I guess he couldn’t hear me. Too good. Oh well, at that point he put his, one of his hands real fast down by his side like going for his service revolver ... I said man, I said what’s this. So I got scared, took a couple steps back, then first thing I know I seen a flash and heard a bang, you know what I mean. Like a — I went down and I was scared and confused at that time. I don’t know what was going on. So trying to — on my hands and knees trying to crawl away and I hear another bang. I think that time I got hit in the hip, the buttock, I’m not sure but it felt like it there.
Q. You were armed at this time?
A. Yes I was armed but I didn’t display no weapon.
Q. What were you armed with?
A. A 45 automatic.”

Testimony was presented as to appellant’s mental capacity by Raap and Hayslip. Both stated that appellant had violent shifts of mood. Medical records were also introduced showing appellant, 40 years of age at the time of the trial, was placed in mental institutions twice when a teenager. The records and reports from the Clifton T. Perkins Hospital, where he had been examined to determine his capacity to stand trial and his sanity at the time of the crime, were also introduced into evidence. All of the reports were admitted subject to exception as was the testimony of two experts, who had examined the appellant at Perkins. Both experts had found appellant sane at the time of the crime and able to stand trial. A summary of their other testimony follows.

Edmond Rozecki, a psychologist diagnosed appellant as being sociopathic, with strong antisocial tendencies. He testified that:

“[T]his individual shows poor judgment and failure to learn from experience. He has antisocial behavior without apparent compunction, in other words his behavior is almost feelingless. He possesses a specific loss of insight. He is not capable of looking into the meaning of his behavior, from a viewpoint such as most normal people demonstrate. He mimics human personality,' but really is unable to feel — he doesn’t have the feeling. He definitely is emotionally immature. I mentioned before he — his — he uses poor judgment and as you study some of the previous history that goes back, not to 1957 but 56 and even further, this type of poor judgments and immaturity existed then.
“His behavior is guided by impulse and current needs. When he does something, he’s doing it N-O-W, NOW. He’s not thinking, what does it mean five minutes from now or the next day. His whole attitude and thinking is along these lines.
“He’s definitely a very aggressive personality. Person. The future if it exists for him is in a very vague and faint way and as a result he has to gratify his needs now. He treats other people as objects, instead of persons — as a person, and he has no feeling of guilt about it. It’s a — he acts on impulse as I mentioned and without forethought. And he achieves his own satisfactions without concern for the effects his actions will have on others.
“This describes — he’s also a person, I mentioned, he doesn’t learn from experience. The more you punish him the punishment is not gonna make him better. You give him punishment, it just confirms in his mind how horrible the world is on the outside. He’s a — definitely that type of person and that’s when I use the term sociopathic, I’m talking of that kind of a person.
“This kind of a person for instance, when he is involved in a crime, the crimes are senseless. They make no sense.”

Dr. Michael Spodak, a psychiatrist, testified:

“Q. Well with respect to the capacity of Mr. Pfeiffer to control himself on a day-to-day environment, I wonder if you would explain to His Honor with respect to his personality profile, how that profile might affect his capacity to make judgment, insight, control himself, and to react to threatening situations?
“A. Well first to say that the diagnosis that we made was consistent with diagnoses made from hospital reports we reviewed dating back perhaps twenty years or more, including Taylor Manor and some of the state hospitals. And the reason I mention that is because, again the suggestion that this has gone on for essentially all his life and reviewing some of their reports which describe him as being rebellious, hostile, aggressive and so on, suggests that there are many times in his life when he is unable to control those aggressive feelings; they get him in trouble not only with the law, but also in terms of being committed, two physician commitments to State hospitals and so on. And that he goes through life some of the time being able to control himself, and some .of the time he kind of erupts.”

Dr. Spodak also testified as to how appellant would act in a fast moving traumatic situation where he feels threatened. He stated:

“I think that there are times that he might overreact and there are times that he might not and some of that would depend on the specifics of the situation. I think that as a general thing because of these personality features he would be more likely to overreact than someone without those personality features.”

Judge E. Mackall Childs, sitting without a jury in the Circuit Court for Anne Arundel County, found the appellant guilty of murder in the first degree and imposed a life sentence. His findings as to intent were:

“Now there are cases that have been held that if the slightest interval of time elapses so that the accused can form an intent or make a decision either to act or not to act, that constitutes sufficient intent to constitute murder in the first degree. The Court does not have to speculate as to that intent however because we have the testimony of Mr. Thomas Mathias who as early as one month prior to this unfortunate event on the 12th of December, heard the defendant say that if he were ever to be stopped by a patrolman in this particular car he would have to shoot it out with him.
“So that intent is not necessarily directed toward Trooper Presbury, but any Trooper; was fully formed, at least within the period of one month prior to December 12th of 1977. It was not only formed, it was expressed. And it happened just as Mr. Pfeiffer said it would happen, that he would shoot it out, with the policeman because he knew and defense counsel concedes that regardless of what Mr. Pfeiffer thought the officer would do, the officer had a right to make an arrest at that particular point, and it is extremely unlikely that any officer under these circumstances would issue a warning ticket.
“Other witnesses such as Mr. Hayslip and Mr. Raap testified that immediately after he came into their presence he was at that time attempting to fabricate a story and as I recall the testimony, even Mr. Hayslip who himself was probably the closest thing to a friend that Mr. Pfeiffer had, prior to this period, told him that he wanted nothing to do with the fabrication; he further testified that Mr. Pfeiffer had said that the reason he shot the policeman was that he was picked up dirty, which the Court understands to mean that when he was picked up he was then subject to arrest for various items and he knew it and he was going to avoid being returned to prison, even if it meant grievously wounding or killing whoever attempted to do it.”

At the conclusion of the opinion defense counsel inquired as to whether or not the trial judge had refused to consider the testimony of the two experts and the medical records. The judge responded that counsel’s surmise was correct and that this evidence had been stricken. During the course of his opinion he had stated his view that mental evidence could not be considered in determining intent. The next day the trial judge wrote a memorandum to clarify his rulings saying in part:

“Although the court reviewed the medical records offered by the defense, it did not consider them in arriving at its conclusion as to intent in view of the testimony of the witnesses, Thomas Mathias, John Raap and John Hayslip who had the opportunity of talking to the defendant immediately before the crime (Mathias and Raap) and immediately after (Raap and Hayslip). The court considered their direct observations far superior to the theoretical opinion evidence offered by the reports and the expert witnesses. Consequently, the medical records were stricken and the professional testimony disregarded, Spears v. State, 38 Md. App. 700, on the premise that the doctrine of diminished intention plays no part in Maryland Law. Armstead v. State, 227 Md. 73, 22 ALR 3rd 1229, [175 A.2d 24 (1961)]; and that Pfeiffer’s dispassionate plan which he expressed to Mathias to “shoot it out” with any policeman who stopped him while driving his car was carried out, as planned, in a calculated and cold-blooded manner.”

I Medical Evidence

Appellant contends the trial judge was in error in striking the medical evidence. Assuming, without deciding, there was error we have no difficulty in finding beyond any reasonable doubt the error did not contribute to the verdict. Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976). The judge stated he considered the testimony of the witnesses who talked to the appellant before and after the crime more important in determining intent than the theoretical medical evidence. Not only are we unable to say this finding was clearly erroneous, we entirely agree with it and have no doubt whatsoever the appellant was capable of and did in fact, wilfully deliberate and premeditate the killing, as required to support a verdict of murder in the first degree. Armstead v. State, supra.

II Sufficiency of the Evidence

Appellant argues the evidence was insufficient to support the verdict because he testified to facts which would support a finding that he shot only in self-defense. There was no obligation for the trial judge, as the trier of the facts, to accept this testimony. Rasnick v. State, 7 Md. App. 564, 256 A.2d 543 (1969), cert. denied, 257 Md. 735 (1970), cert. denied, 400 U.S. 835, 91 S.Ct. 70 (1970). He argues further that the facts found by the trial judge as to his intent were improbable, but as we stated above, they do not appear improbable to us.

Judgment affirmed.

Appellant to pay the costs.

ACTION ON RECONSIDERATION

David Albert Pfeiffer moves that we reconsider our affirmation of the judgment in this case in view of Brown v. State, 44 Md. App. 71 (1979). We grant the motion and strike out the order for the mandate in our original opinion and insert in lieu thereof the following:

III Motion for Reconsideration

In Brown v. State, 44 Md. App. 71 (1979), this Court held the failure to allege malice in an indictment for murder constituted reversible error because malice is an essential element of the crime. In the instant case the indictment, except for names and dates, was identical with that discussed in Brown, supra, thus, consistency requires that we make a similar decision in this case. Inasmuch as the failure to allege a crime is jurisdictional, the question may be raised at any time even though it was neither raised below nor in the appellant’s brief. Andresen v. State, 24 Md. App. 128, 153, 331 A.2d 78, cert. denied, 274 Md. 725 (1975), aff'd. 427 U.S. 463, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976).

Judgment reversed.

Pursuant to Maryland Rule 1082 f, costs are not reallocated.

      . The plea of not guilty by reason of insanity was withdrawn before trial.

      . See: Md. Code, Courts & Judicial Proceedings Art. § 9-120.

      . The State did not follow up its objections to the admission of the medical reports and the testimony of the two experts with a motion to strike.

      . When Armstead v. State, supra, was decided, very few courts recognized the doctrine of diminished responsibility. Our research discloses that now a majority of jurisdictions admit psychiatric opinions as evidence that the defendant aid not have the required specific intent, especially in first degree murder cases. Some cases have even held that the refusal to admit such evidence constituted a denial of due process. It may well be that the present Court would arrive at a different conclusion today. See: United States v. Erskine, 588 F.2d 721 (9th Cir. 1978); Hughes v. Mathews, 576 F.2d 1250 (7th Cir.), cert. dismissed, 99 S.Ct. 43 (1978); United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972); Rhodes v. United States, 282 F.2d 59 (4th Cir.), cert. denied, 364 U.S. 912 (1960); Johnson v. State, 511 P.2d 118 (Alas. 1973); People v. Wetmore, 22 Cal.3d. 318, 583 P.2d 1308, 149 Cal. Rptr. 265 (1978); Becksted v. People, 133 Colo. 72, 292 P.2d 189 (1956); State v. Donahue, 141 Conn. 656, 109 A.2d 364, appeal dismissed, 349 U.S. 926, 99 L.Ed. 1257, 75 S.Ct. 775 (1954); State v. Moeller, 50 Haw. 110, 433 P.2d 136 (1967); State v. Clokey, 83 Idaho 322, 364 P.2d 159 (1961); State v. Gramenz, 256 Iowa 134, 126 N.W.2d 285 (1964); Koester v. Commonwealth, 449 S.W.2d 213 (Ky. 1969); People v. Fields, 64 Mich. App. 166, 235 N.W.2d 95 (1975); State v. Anderson, 515 S.W.2d 534 (Mo. 1974) (by statute); State v. McKenzie, Mont., 581 P.2d 1205 (1978) (by statute); Starkweather v. State, 167 Neb. 477, 93 N.W.2d 619 (1958); State v. Sikora, 44 N.J. 453, 210 A.2d 193 (1965); State v. Padilla, 66 N.M. 289, 347 P.2d 312 (1959); People v. Colavecchio, 11 App. Div.2d 161, 202 N.Y.S.2d 119 (4th Dept. 1960); State v. Nichols, 3 Ohio App.2d 182, 209 N.E.2d 750 (1965); State v. Booth, 284 Ore. 615, 588 P.2d 614 (1978) (by statute); Commonwealth v. Walzack, 486 Pa. 210, 360 A.2d 914 (1976); State v. Fenik, 45 R.I. 309, 121 A. 218 (1923); State v. Green, 78 Utah 580, 6 P.2d 177 (1931); State v. Ferrick, 81 Wash.2d 942, 506 P.2d 860, cert. denied, 414 U.S. 1094 (1973); Schimmel v. State, 84 Wis.2d 287, 267 N.W.2d 271 (1978).
      The following jurisdictions have refused to recognize the doctrine of diminished responsibility: State v. Janovic, 101 Ariz. 203, 417 P.2d 527, cert. denied, 385 U.S. 1036 (1966); Bethea v. United States, 365 A.2d 64 (D.C. 1976), cert. denied, 433 U.S. 911 (1977); Bates v. State, Del., 386 A.2d 1139 (1978); Bradshaw v. Florida, 353 So.2d 188 (Fla. App. 1977); State v. Rideau, 249 La. 1111, 193 So.2d 264 (1966), cert. denied, 389 U.S. 861 (1967); State v. Park, 159 Me. 328, 193 A.2d 1 (1963); Commonwealth v. Mazza, 366 Mass. 30, 313 N.E.2d 875 (1974); Painter v. Commonwealth, 210 Va. 360,171 S.E.2d 166 (1969); State v. Flint, 142 W.Va. 509, 96 S.E.2d 677, cert. denied, 356 U.S. 903 (1957).
      In the following jurisdictions the situation is unclear: Woods v. State, 214 Ga. 546, 105 S.E.2d 896 (1958); Grimaldi v. State, 90 Nev. 83, 518 P.2d 615 (1974); Fox v. State, 73 Nev. 241, 316 P.2d 924 (1957); State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1976) and State v. Cooper, 286 N.C. 549, 213 S.E.2d 305 (1975).

        See also, Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage, 77 Colum. L.Rev. 827 (1977); Lewin, Psychiatric Evidence in Criminal Cases for Purposes Other Than the Defense of Insanity, 26 Syracuse L.Rev. 1051 (1975); Diminished Capacity — Recent Decisions and an Analytical Approach, 30 Vand.L.Rev. 213 (1977); Model Penal Code 4.02(1) (proposed Official Draft 1962).


author: Gilbert, C. J.,

text:
    DENNIS GARY COOPER v. STATE OF MARYLAND
    [No. 141,
    September Term, 1979.]

      Decided November 7, 1979.

      The cause was argued before Gilbert, C. J., and Morton and Wilner, JJ.

      John W. Same, Jr., District Public Defender, for appellant.

      Valerie A. Leonhart, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Donaldson C. Cole, Jr., State’s Attorney for Cecil County, and Paul S. Podolak, Assistant State's Attorney for Cecil County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The appellant, Dennis Gary Cooper, in this Court assails the judgment of the Circuit Court for Cecil County in an effort to have that judgment reversed. To accomplish that end, Cooper has raised half a dozen issues, ranging from a defective criminal information in the first instance to erroneous advisory jury instructions.

THE FACTS

Cooper was tried before a jury on a four-count indictment filed March 20,1978, charging larceny of goods “of the value of One Hundred Dollars and upwards.” The indictment was in the normal form and as such contained the usual counts of receiving, petit larceny and receiving goods under the value of one hundred dollars. Additionally, the State’s Attorney for Cecil County, lodged a Criminal Information against Cooper. It was filed on July 18, 1978 and contained two counts. The first charged Cooper with the common law offense of misprision of felony. The second count, which is the subject of this appeal, asserted that:

“COOPER ... willfully, unlawfully and knowingly did aid, harbor and assist Roy Dean Duncan after the commission of two felonies, (1) Grand Larceny, and (2) Receiving Stolen goods over $100.00, and did so with full knowledge of said crimes----”

The jury found verdicts of not guilty as to each count of the indictment and as to the first count of the Information. Cooper was found guilty, however, of the second count of the Information, aiding and abetting Duncan, “after the commission of two felonies.” The trial judge imposed a sentence of eight years imprisonment but suspended the last year of that term and ordered that Cooper be placed on probation for a period of five years. Of course, the probationary period would not commence until the expiration of the period of incarceration.

From the record it is apparent that Cooper pleaded guilty to the unrelated offense of forgery. That plea was entered some three months after trial in the instant case. The sentence imposed was exactly the same as that in the matter now before us and was made concurrent therewith. No appeal was entered from that sentence.

Even if Cooper were to win, yet he would lose, because, as applied to him, our striking down of one identical concurrent sentence would leave Cooper substantially where he is, viz, incarcerated for a period of eight years with the last year suspended, and Cooper’s then being placed on probation for an additional five-year period. Thus, Cooper’s “victory,” if achieved, would be akin to that of Pyrrhus, King of Epirus (319-272 B.C.) and, consequently, no victory at all except possibly to allow parole to be more favorably considered. Under the circumstances, our subsequent discussion is largely academic as applied to Cooper.

From the record it is apparent that Roy Dean Duncan stole certain personal property belonging to James R. West, from a “furniture type truck” which was also owned by West. The property, described as “stuff” by West, consisted in part of “Rogers Stainless Steel Silverware [s/e], knives, forks and spoons,” some “sets of steak knives,” Corning ware, ladies’ wallets, an FM-AM radio, two deep fryers, a hot plate, costume jewelry, an electric clock, lawn chairs, and a “hot dog cooker.” West’s cost of the items taken totaled $588.

Duncan pleaded guilty to the theft and was sentenced to a term of two years.

Apparently, after the burglary, Duncan went to Cooper’s home, a trailer. There he talked to Cooper’s wife, Wanda, and obtained Wanda’s permission to stay in the trailer provided he gave “her hálf the things that... [he] got out of the truck.” Duncan denied that he talked to Cooper before the crime. Duncan did not, according to his testimony, tell Wanda how he had obtained the items. He said that he went to Cooper’s trailer “because ... where I was staying the man told me I’d have to move out because he was going to do something.” Duncan testified that he gave some of the items to Lou Ann Bakeoven, a friend with whom he had been living. Cooper went with him when he took the items to Lou Ann’s. Duncan denied that he sold any of the stolen property, but he gave “it all away.” Cooper was not living in the trailer according to him and Duncan, although his wife did reside there. Duncan stayed in the trailer for “about a month and a half.” Cooper was in and out of the trailer as he and his wife were “breaking up or getting back together, or something.”

Trooper Robert Faul of the Maryland State Police received information in July 1977 from an unidentified individual about a larceny from a liquor store. Subsequent investigation led the trooper to believe that the informant was actually speaking of the theft from West’s truck. Following up on the information he had, Faul spoke to Cooper who told the trooper that he, Cooper, had seen the “property which matched the description of the stolen property.” Faul had spoken to Cooper “on numerous occasions” between September 1977 and the time Cooper was arrested in January 1978. “The topic of conversation,” Faul said, “could very well have been points that I was investigating. I was charged with the investigation of the crime. He [Cooper] was a suspect at that time and was not charged with it.”

The investigation obviously led Faul to conclude that Cooper was involved in the theft because he arrested Cooper on January 23, 1978, and charged him.

As we have already observed, the trier of fact, the jury, apparently did not share Faul’s belief as it convicted Cooper only of aiding and abetting after the fact.

I.

THE CRIMINAL INFORMATION

Cooper asserts that although his trial counsel did not raise the specter of the second count of the Criminal Information’s not charging an offense cognizable under Maryland law, nevertheless, the issue can be raised at any time. Md. Rule 736 a 2.

That rule provides:

“a. Mandatory Motions.
A motion asserting one of the following matters shall be filed in conformity with this Rule. Any such matter not raised in accordance with this Rule is waived, unless the court, for good cause shown, orders otherwise:
2. A defect in the charging document, other than its failure to show jurisdiction in the court or to charge an offense which defenses can be noticed by the court at any time. ” (Emphasis supplied.)

As used in Rule 736 a 2, the noun “ ‘Court’ means the Circuit Court for any county ...,” but it does not mean this Court. Md. Rule 5 i. Notwithstanding the rule, the question of jurisdiction, it has been repeatedly held, may be raised at any time. Tate v. State, 236 Md. 312, 203 A.2d 882 (1968); Bowen v. State, 206 Md. 368, 111 A.2d 844 (1955); Berlinsky v. Eisenberg, 190 Md. 636, 59 A.2d 327 (1948); Carroll v. State, 19 Md. App. 179, 310 A.2d 161 (1973); Waldrop v. State, 12 Md. App. 371, 278 A.2d 619, cert. denied, 263 Md. 722 (1971). Ergo, if the “failure... to charge an offense” is jurisdictional, then it too may be raised at any time, including on appeal, even though it was not raised and decided in the trial court. Carroll v. State, supra, 19 Md. App. at 181, 310 A.2d at 162.

We are required to focus our attention upon the charging instrument, the Criminal Information, in order to determine whether that writing charges an offense under the law of Maryland, and if the answer to that query is in the negative, we must then address ourselves to whether the defect is jurisdictional.

We begin our discussion by analyzing the second count of the Criminal Information, the count upon which the appellant was convicted. The essence of the offense charged in that count is that Cooper “willfully, unlawfully and knowingly did aid, harbor and assist... Duncan after the commission of two felonies, (1) Grand Larceny, and (2) Receiving Stolen Goods over $100.00, and did so with full knowledge of said crimes....”

Appellant’s assault on the phraseology of the charge is bimanous. On the one hand he asserts that the language of the count does not state an offense because it fails to allege the elements necessary to constitute the common law offense of accessory after the fact.

Sir William Blackstone, in IV Commentaries of the Law of England* 37 states:

“An accessory after the fact may be, where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists the felon. Therefore to make an accessory ex post facto, it is in the first place requisite that he knows of the felony committed. In the next place, he must receive, relieve, comfort, or assist him. And, generally, any assistance whatever given to a felon, to hinder his being apprehended, tried, or suffering punishment, makes the assistor an accessory.” (Footnotes omitted.)

The more modern writers are in agreement that there are four necessary ingredients to constitute the crime of accessory after the fact:

1) A completed felony must have been committed by another prior to the accessoryship;
2) The accessory must not be a principal in the commission of the felony;
3) The accessory must have knowledge of the felony; and
4) The accessory must act personally to aid or assist the felon to avoid detection or apprehension for the crime or crimes.

R. M. Perkins, Criminal Law 667 (2d ed. 1969); accord, Clark & Marshall, A Treatise on the Law of Crimes § 8.06 (M. F. Wingersky, 6th ed. 1958); 22 C.J.S., Criminal Law §§ 95-99 (1961); H. Ginsberg & I. Ginsberg, Criminal Law and Procedure in Maryland 13-14 (1940); 1 Hale, Historia Placitorum Coronae, (The History of the Pleas of the Crown) 618-622 (1st Am. ed. 1847); 1 Wharton’s Criminal Law § 33 (C.E. Torcia, 14th ed. 1978).

A reading of the Criminal Information will disclose that the first three elements of the crime of accessory after the fact are unmistakably present. It is the fourth ingredient that Cooper perceives as missing from the charge. The State, however, reads the count as alleging all four of the requisites. It reasons that “[t]he information states in part that Appellant ‘did aid, harbor, and assist ... Duncan....’ The term ‘harbor’ includes the concept of acting with the intent to shield the one assisted from the law.” (Emphasis supplied.) The verb harbor is defined to mean: “To receive clandestinely and without lawful authority a person for the purpose of so concealing him that another having a right to the lawful custody of such person will be deprived of the same. Jones v. Van Zandt, 5 How. 215, 227, 12 L.Ed. 122.” Black’s Law Dictionary 876 (3rd ed. 1933). See also Watson v. State, 208 Md. 210, 218, 117 A.2d 549, 552 (1955); Baumgartner v. Eigenbrot, 100 Md. 508, 513, 60 A. 601, 603 (1905); McClain v. State, 10 Md. App. 106, 114-15, 268 A.2d 572, 576-77, cert. denied, 259 Md. 733 (1970); Robinson v. State, 5 Md. App. 723, 728, 249 A.2d 504, 507, cert. denied, 254 Md. 719 (1969); Agresti v. State, 2 Md. App. 278, 280, 234 A.2d 284, 285-86 (1967); Regina v. Butterfield, 1 Cox, C.C. 39 (Yorkshire Winter Assizes, 1843); Archbold, Criminal Practice and Pleading *18; 1 Hale, supra, 618; L. Hochheimer, Laws of Crimes and Criminal Procedure § 36 (1897).

Inasmuch as harbor means to receive the person with intent to conceal that person so as to avoid his arrest, the element Cooper perceives as missing from the Criminal Information is not in fact missing at all. We think the Information properly charged the offense of accessory after the fact.

On the other hand, Cooper avers that inasmuch as the Information asseverated that Duncan had committed “two felonies (1) Grand Larceny and (2) Receiving Stolen Goods over $100.00” it failed to charge an offense cognizable under the laws of this State. Appellant contends that one may not be both the thief and a receiver of the goods, then, “it is axiomatic that there is no crime for aiding a thief-receiver.” Recognizing that the issue was not raised in the trial court, and if short of being jurisdictional, is not properly before us, Md. Rule 1085; Phenious v. State, 11 Md. App. 385, 274 A.2d 658, cert. denied, 262 Md. 748 (1971), Cooper points to Md. Rule 736 a 2 as permitting the matter to be raised “at any time,” including before this Court. Phenious makes clear that “[i]f the indictment [or information fails] to charge an offense ... there is a matter of jurisdiction and we are permitted to review the question whether or not it was tried and decided below, Baker v. State, 6 Md. App. 148, 151, 250 A.2d 677 [(1969)].” 11 Md. App. at 390-91, 274 A.2d at 661.

We do not view the charging of two felonies in one count as jurisdictional, but rather as a question of duplicity which must be raised in the trial court. Whenever a count in an indictment or Criminal Information charges more than one criminal offense, it is duplicitous and, therefore, defective. Kirsner v. State, 183 Md. 1, 36 A.2d 538 (1944); Jackson v. State, 176 Md. 399, 5 A.2d 282 (1939); Ayre v. State, 21 Md. App. 61, 318 A.2d 828 (1974); L. Hochheimer, supra at 144.

We observed in Ayre that:

“When a statute creates an offense and specifies several different acts, transactions, or means by which it may be committed, an indictment for violation thereof may properly allege the offense in one count by charging the accused in conjunctive terms with doing any or all of the acts, transactions, or means specified in the statute. This is the rule of Leon v. State, 180 Md. 279, 286 [, 23 A.2d 706, 710 (1942)] as construed in Morrissey v. State, 9 Md. App. 470, 475-476 [, 265 A.2d 585, 587-88 (1970)]. See Bonneville v. State, 206 Md. 302 [, 111 A.2d 669 (1955)]; Sturgill v. State, 191 Md. 75 [, 59 A.2d 763 (1948)]; Thomas v. State, 173 Md. 676 [, 197 A. 296 (1938)]; Reynolds v. State, 141 Md. 637 [, 119 A. 457 (1922)]; Pritchett v. State, 140 Md. 310 [, 117 A. 763 (1922)]; Stearns v. State, 81 Md. 341 [, 32 A. 282 (1895)]. See also 41 Am. Jur. 2d, Indictments and Informations, § 218. We said in Morrissey, at 476 [, 265 A.2d at 588]:
While the rule is that an indictment or information should not charge the commission of two or more substantive offenses in the same count, it is not objectionable to charge in one count [in conjunctive terms] several related acts which enter into and constitute one offense, although when separately considered they may be distinct offenses. *** Thus, if the acts alleged are of the same nature and so connected that they can be construed as stages in one criminal transaction, they may be joined in one count, although separately considered they are separate offenses.’ ”
21 Md. App. at 65-66, 318 A.2d at 831. (Footnote omitted.)

In our view the two statutory crimes of larceny of more than $100 and receiving of stolen goods are two separate and distinct crimes and do not permit of joinder in one count. Pritchett v. State, supra. We agree with appellant that the second count of the information was duplicitous. Notwithstanding its duplicity, it does state an offense. In fact, it improperly states two offenses; either of them, however, are within the jurisdiction of the circuit court. We conclude that the information, while hardly a model to be emulated, does set out an offense over which the Circuit Court for Cecil County had jurisdiction. The duplicity issue, were it properly before this Court, would have merit, but it is a matter that should have been raised and decided in the trial court. It may not be raised for the first time here. Md. Rule 1085.

THE SUFFICIENCY OF THE EVIDENCE

The State notes, and we agree that the question of the sufficiency of the evidence is not before this Court inasmuch as the appellant made no motion for judgment of acquittal at the close of all the evidence. Md. Rule 756 a. See Williams v. State, 19 Md. App. 204, 310 A.2d 593 (1973); Martin v. State, 10 Md. App. 274, 269 A.2d 182 (1970).

THE CIRCUIT COURT ESTABLISHED AND APPLIED A REBUTTABLE PRESUMPTION IN FAVOR OF THE POLICE

It is apparent that what appellant argues is that the hearing judge believed the statement of the accused was voluntary vis a vis involuntary as the appellant claimed. The appellant directs our attention to the remarks of the trial judge when he denied a motion to suppress the statement made to the troopers by the appellant. The judge said:

“I have to be more convinced than I am with this evidence that any such thing occurred. I just don’t think that the Troopers, having this drilled into them day after day and knowing what happens to cases when they come to court if they don’t give the Miranda Rights, I can’t imagine them failing to give them. And I can’t imagine them compromising themselves as they give them. In the absence of stronger evidence here, I am not going to believe it.”

If that were all the judge said, the appellant might have a strong point, but that is not all that was said. Before the above-quoted words were stated, the judge opined:

“Weighing the credibility of all witnesses in this matter, the Court is satisfied by a preponderance of the evidence that the statement, whatever it may have been, was made voluntarily, that anything that happened prior to January 23, 1978, did not fall within the Miranda Ambit Nor the traditional voluntariness ambit, because there was no — the Defendant was not in custodial care, and therefore, the rules of Miranda would not apply. Moreover, it is abundantly clear that whatever may have happened prior to January 23, 1978, that the rights were explained to him, and the Court adopts the version of the Trooper that the rights were explained to him before he signed the statement, as he indeed practically admitted. Because he said he read the preamble before he signed the statement, and also the explanation of rights were made to him before he signed the statement. I would reject the Defendant’s testimony and adopt the Trooper’s testimony about the question of bond and being furnished or not and things might go well, that sort of thing.”

When the judge’s remarks are read as a whole it is clear that he placed the burden of showing voluntariness, by a preponderance of the evidence, Mulligan v. State, 18 Md. App. 588, 308 A.2d 418 (1973), squarely upon the State and not on the appellant.

THE JOINDER FOR TRIAL OF THE INDICTMENT AND THE INFORMATION

Appellant next complains that the trial judge improperly permitted the joinder of the indictment and the Criminal Information. The issue was not raised and decided in the trial court, and it is, therefore, improperly before us. Md. Rule 1085. We decline to consider it.

THE TRIAL JUDGE’S JURY INSTRUCTIONS WERE ERRONEOUS

Appellant next says that the trial judge improperly, instructed the jury on the law of accessory after the fact. Recognizing that no exception was taken to the judge’s instructions, and that ordinarily the matter would not be preserved for appellate review, Md. Rule 757 f, h, appellant invites us to “take cognizance of and correct any plain error in the instructions material to the rights of the [appellant] even though the error was not objected to” as provided in Md. Rule 757 h. Brown v. State, 14 Md. App. 415, 422, 287 A.2d 62, 65 (1972).

Assuming arguendo that the instruction left something to be desired, the appellant did not comply with Md. Rule 757 f. To hold that the issue is now properly before us, we must determine that it is plain error within the meaning of Brown. Md. Rule 757 h. We decline to accept appellant’s invitation for the reason that we view the error as one of omission which could have been readily cured by the judge had the appellant requested a supplementary instruction. That appellant now chooses to characterize the omission as a commission in order to bring it within Brown’s sphere is unavailing. We perceive no merit in appellant’s contention.

One final word is in order. Appellant enumerates six reasons why he believes his trial counsel was so ineffective as to deny appellant his constitutional right to “genuine and effective representation.” State v. Merchant, 10 Md. App. 545, 550-51, 271 A.2d 752, 755-56 (1970). The issue, as with many others in this appeal, was not raised and decided in the trial court and may not be raised for the first time on appeal. Md. Rule 1085. Appellant, however, is not left without a forum to air his grievance. He has available to him the Maryland Post Conviction Act, Md. Ann. Code art. 27, § 645A. If and when appellant proceeds under that act, a court will then decide the matter of the effectiveness vel non of counsel.

Judgment affirmed.

Costs to be paid by appellant.

      . A Criminal Information is “a charging document in which the accusation is made by the State’s Attorney....” Md. Rule 702 d.

      . The Court of Appeals, in Pope v. State, 284 Md. 309, 396 A.2d 1054 (1979), held that the common law offense of misprision of felony was no longer viable in Maryland. In fairness to the State’s Attorney for Cecil County, it should be noted that this Court had earlier held that the common law crime of misprision was still an offense in this State. Pope v. State, 38 Md. App. 520, 382 A.2d 880 (1978). The Court of Appeals’s decision, postdating the trial in the instant case by four months, reversed our holding. Pope v. State, supra.

      . Such a sentence would seem to pose some difficulty at a later stage if, as here, the last year is suspended, and the appellant placed on probation at the expiration of the first seven years. What happens should he be released on parole at the end of two years? Does he then continue on parole until the end of the seventh year when he goes on probation for another five years? Is he on parole at the same time he is on probation?

      . But see Stone v. State, 43 Md. App. 329, 405 A.2d 345 (1979).

      . Pyrrhus’s victory over the Romans at Asculum in 279 B.C. was won at such a great cost that it was tantamount to not winning, hence, the term “Pyrrhic victory.” Morris, Dictionary of Word and Phrase Origins, 470-71 (1977).

      . Duncan’s appeal, if there be one, is not presently before us.

      . A host of Maryland cases so hold, including: Hardesty v. State, 223 Md. 559, 165 A.2d 761 (1960); Bell v. State, 220 Md. 75, 150 A.2d 908 (1959); Heinze v. State, 184 Md. 613, 42 A.2d 128 (1945); Beard v. State, 42 Md. App. 276, 399 A.2d 1383 (1979); Hinton v. State, 36 Md. App. 52, 373 A.2d 39 (1977); Wilson v. State, 6 Md. App. 397, 251 A.2d 379 (1969); Jefferies v. State, 5 Md. App. 630, 248 A.2d 807 (1969); Grimes v. State, 4 Md. App. 607, 244 A.2d 456 (1963), cert. denied, 252 Md. 731 (1969); Osborne v. State, 4 Md. App. 57, 241 A.2d 171 (1968).