author: Orth, C. J.,

text:
    TYRONE WAYNE PINKETT v. STATE OF MARYLAND
    [No. 631,
    September Term, 1975.]

      Decided March 2, 1976.

      The cause was argued before Orth, C. J., and Powers, Lowe and Melvin, JJ.

      John W. Souse, Jr., District Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Michael James Kelly, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sidney S. Campen, Jr., State’s Attorney for Talbot County and Philip C. Foster, Assistant State’s Attorney for Talbot County on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

Tyrone Wayne Pinkett was charged with the commission of three offenses under separate charging documents — two statements of charges, and an arrest warrant — filed in the District Court in Talbot County. Detective Corporal Walter E. Chase of the Easton Police Department prepared and executed the statements of charges on 15 November 1974. The applicant was Lt. Edward Blessing of that Department. Statement of Charges No. 063764 alleged that on 14 November 1974 at 2255 hours at Harrison Street, Easton. Maryland, Pinkett unlawfully possessed a concealed weapon, to wit, a sawed-off shotgun in violation of Code, art. 27, § 36 (a). The “factual information or observations (probable cause)” set out by Blessing as the basis for the charge were: “On 11-14-74 at 2255 hrs. the applicant stopped a 1968 Ford, Md. Tag # 6841 for a Motor Vehicle Violation in Easton, Md. While making the stop the defendant appeared to be putting something under the seat or on the floor. A consent search was granted by the operator of the car for the applicant to search under the front seat. In doing so I found a sawed off Shot Gun and shells to fit the gun. The defendant was sitting in the rear left side of the car.”

Statement of Charges No. 063765 alleged that on the same date, time and place, Pinkett “did unlawfully possess a sawed off Shot Gun, and other items mentioned above, the charge is being a Rogue and Vagabond Art. 27 Sec. 490.” The “other items mentioned above” were set out in the “factual information and observations” of Blessing, stated as the probable cause for the charge. Blessing recounted the stopping of the car and the actions of Pinkett. He added: “After finding the gun I observed several nylon stockings, several pairs of gloves and clothes line rope. In the past several weeks there has been armed robberies in this area where the Police Investigations have revealed items such as has been mentioned were used while committing the crimes.”

On each Statement of Charges, Pinkett stated, under date of 15 November 1974, that he had read, or that there had been read to him, the contents of the document and acknowledged that he had received a copy of it. Return was made to the judicial office on 16 November.

The Arrest Warrant was issued by a judicial officer on 17 November 1974 on the sworn application of Chase. It alleged that Pinkett “did on or about November 14, 1974 at Talbot County aforesaid: Unlawfully wear, carry or knowingly have in his possession a Hand-Gun; and him, the said Tyrone Wayne Pinkett, allegedly having been convicted of a crime of violence, in violation of Art. 27, Sec. 445 (c).” The formal charge was designated as a violation of that statute. Chase certified that he executed the warrant at 7:40 P.M. on 17 November 1974 at “Sheriff’s Dept.” The judicial officer certified that it was returned on 18 November.

Pinkett was tried in the District Court on 7 February 1975 and convicted on all three charges. He was sentenced to 3 years on the concealed weapon conviction and to a concurrent 3 years sentence on the rogue and vagabond conviction. A sentence of 3 years was imposed on the conviction of possessing a handgun after having been convicted of a crime of violence, to run consecutively to the other sentences. Pinkett appealed.

The appeal was set for trial in the Circuit Court for Talbot County on 2 May 1975. What happened thereafter is a procedural nightmare with serious substantive consequences. When Pinkett appeared in court on 2 May 1975, the State filed a criminal information charging him with four offenses. This charging document informed the court that on 14 November 1974, Pinkett:

I — “unlawfully did wear, carry or knowingly transport a handgun, to wit: a short barreled shotgun, in a vehicle while travelling upon the public roads and highways in this State”, in violation of art. 27, § 36B (b);
II — was a rogue and vagabond in violation of art. ' 27, § 490;
IIÍ — “unlawfully did wear, carry or knowingly have in his possession a pistol, to wit: a .22 caliber revolver, the said Tyron Pinkett having been convicted of a crime of violence”, in violation of art. 27, § 445 (c);
IV — “unlawfully did carry or knowingly transport said handgun in a vehicle travelling upon the public' roads and highways in this State” in violation art. 27, § 36B (b).

The State informed the court that it wished to arraign Pinkett on the information and “to nolle pros the charging document which has been transferred to the Circuit Court from the District Court, an arrest warrant, on which a conviction has previously been obtained. We will nolle pros the arrest warrant first.” Upon inquiry by the court, the State explained that it wished to take this action because the charging document “lists the improper section number for the conviction. The sentence on the conviction will indicate it was to be served concurrently with another conviction, so the actual length of sentence in the District Court is not altered by this.” The State moved “to nolle pros statement of Charges No. 063764 from the District Court” and the motion was granted. The record does not disclose that Pinkett consented to the nolle prosequi. Defense counsel said that before a plea was tendered he desired to make a statement to clarify the record. He said:

“As read by the Clerk, counts 1 and 4, and any counts for which the defendant has never been tried and, therefore, I am assuming and want for clarification on the record that the Circuit Court for Talbot County is thus assuming original jurisdiction as to counts 1 and 4 and counts 2 and 3 are here de novo from the District Court, and will be tried de novo.”

The prosecutor said, “The State agrees with that” and added, “I believe Mr. Moore (Philip W. Moore, 3rd, Esq., defense counsel) feels he has a direct appeal right as to any new charges but would not have an appeal right as to the de novo charges.” This statement went unanswered. Pinkett was arraigned on the information, pleaded not guilty and prayed a trial by jury. Trial was set for 13 May.

The case came on for trial as set. Before trial commenced, at a bench conference out of the presence of the jury, the court suggested that the 4th count be amended by adding “to wit: a .22 caliber revolver” after the word “handgun”, to distinguish it from a short barreled shotgun. This was subsequently done in open court without objection. At the bench conference defense counsel told the court: “It is my intention to file a motion to dismiss the two transportation charges as soon as the jury is empanelled because we can’t do it until then on the grounds of double jeopardy.” The prosecutor said: “The plea of double jeopardy doesn’t arise until some testimony is taken, does it. The way I understand it, as soon as the jury is empanelled.” The court suggested that after the jury was empanelled, the motion could be heard out of their presence. In open court, Pinkett waived re-arraignment on all counts as amended. The jury was duly selected, placed in the jury box and sworn. All witnesses were sequestered.

Out of the jury’s presence, Pinkett moved the court “to dismiss the criminal information charging [him] with violations of Article 27, § 36B (b).” These violations were charged in counts I and IV of the information. Pinkett claimed he was placed twice in jeopardy as to them when the jury was empanelled because he had already been charged and convicted on them in the District Court. He claimed that he had “been tried once under all of the facts and with the exact same proof that the State intends to try [him] a second time for charges involving Art. 27, § 36B (b). As a result, [he] is now being placed in double jeopardy for the handgun charges, and the two new informations charging violation of Art. 27, § 36B (b) should be dismissed.” Pinkett pointed out in his motion:

“[I]f the State is permitted to try the Defendant on the new charges,, then the intent of the District Court Article allowing District Court criminal trial with a de novo appeal to the Circuit Court is being defeated, because the State cannot by its actions allow appeals as a matter of right by adding new charges, or conversely, inhibit and otherwise unfairly influenced the District Court Appellate processes by threatening to add new charges after a complete and total trial on the old charges.”

After argument of counsel, the court denied the motion.* ****

The trial proceeded. Motions for judgment of acquittal were made and denied at the close of evidence offered by the State and at the close of all the evidence. The jury, being duly charged, convicted Pinkett under all four counts of the information. He was sentenced to one year on count I, to a three year sentence on count II, to run consecutively to the sentence imposed on count I, and to a three year sentence on count III, to run consecutively to the sentences imposed on counts I and II. No sentence was imposed on count IV, the court stating that “sentence be suspended” thereon. Pinkett was to serve a total time of seven years, commencing with 14 November 1974 — “You have been given full credit for the time you have been lodged in jail pending the disposition of this case.” Pinkett noted a direct appeal to this Court.

Summary

Charging Documents Tried in District Court

Statement of Charges No. 063764:

possession of a concealed weapon, a sawed off shotgun; art. 27, § 36 (a). Nolle prosequi entered on appeal in Circuit Court.

Statement of Charges No. 063765:

rogue and vagabond; art. 27, § 490.

Arrest Warrant:

possession of a handgun, having been convicted of a crime of violence; art. 27, § 445 (c).

Criminal Information tried in the Circuit Court

Count I:

transporting a short barreled shotgun in a vehicle on public roads; art. 27, § 36B (b). Motion to dismiss denied.

Count II:

rogue and vagabond; art. 27, § 490.

Count III:

possession of a .22 caliber revolver having been convicted of a crime of violence; art. 27, § 445 (c).

Count IV:

transporting a .22 caliber revolver in a vehicle on public roads of Maryland; art. 27, § 36B (b). Motion to dismiss denied.

The one thing standing certain from the confused complexity of the proceedings below is that Pinkett’s appeal from the judgments entered against him in the District Court has never been properly determined by the Circuit Court. The convictions of the crimes charged by the two statements of charges and the arrest warrant and the sentences imposed on those convictions constituted final judgments. As final judgments, there was the right of appeal from them to the Circuit Court, Courts Art. § 12-401 (a), and the appeals were to be tried de novo therein, § 12-401 (c). It may be that, because the State was obliged to pi'osecute Pinkett afresh on the crimes charged in the District Court, it could enter a nolle prosequi in open court as to all or any one of them, Maryland Rule 711, although we do not believe this is the usual practice on appeal from the District Court and do not recommend it. If it is done without the consent of the accused, however, even though before the de novo trial has commenced, we think it must have the same effect as a nolle prosequi entered without the consent of the accused after trial has commenced. That is, it operates as an acquittal, for the accused has already been once tried and convicted. In other words, by entering a nolle prosequi in such circumstances, the State abandons the prosecution of that charge and confesses that the accused is not guilty of it. See Greathouse v. State, 5 Md. App. 675, 685-686 (1969), cert den. (1969). The effect of the State’s action here is that upon the proceedings in the Circuit Court, Pinkett was not guilty of the crime of which he was convicted in the District Court as charged by Statement of Charges No. 063764, namely, that he “did unlawfully possess concealed weapons, to wit, a sawed off Shot Gun, Art. 27, § 36 (a).” Our view is indicated in Friend v. State, 175 Md. 352 (1938) where the Court said, at 355-356: “The nolle prosequi, if it could be legally entered, would effect a final disposition of the entire prosecution originating before the justice of the peace, and would place the defendant on his deliverance, in so far as that proceeding was concerned.”

Our disposition of the judgment under Statement of Charges No. 063764 leaves unresolved the appeal from the judgments under Statement of Charges No. 063765 and the Arrest Warrant. At the proceedings on 2 May 1975, as we have indicated, defense counsel suggested that as Pinkett had “never been tried” on Counts I and IV of the information but had been tried in the District Court for the offenses charged in Counts II and III, that the Circuit Court for Talbot County was assuming original jurisdiction as to Counts I and IV, and that Counts II and III “are here de novo from the District Court, and will be tried de novo.” The State agreed that this was so, and further compounded the confusion by expréssing a belief that defense counsel felt that he had a direct appeal to the Court of Special Appeals “as to any new charges but would not have an appeal right as to the de novo charges.” The trouble with this is that it is clear that the appeal to be tried de novo as provided by Courts Art. § 12-401 (c) must be tried on the charging document on which the trial was had in the District Court. Md. Rule 1314 a, concerning appeals from the District Court, declares: “Where an appeal is to be heard de novo, it shall be tried according to the rules of procedure governing cases instituted in the appellate court, except the rules relating to form and sufficiency of the pleadings . .. .” Md. Rule 725 a, applicable to the circuit courts, states: “Pleadings in a criminal proceeding shall be . . . the charging document where ... an appeal has been taken from a judgment in the District Court; . . . .” The rationale of the requirement that the appeal be tried on the charging document under which prosecution was had in the District Court is manifest. “De novo” is defined by Black’s Law Dictionary (1951) to mean “Anew; afresh; a second time.” The American Heritage Dictionary (1969) gives “again” as the meaning of both “anew” and “afresh.” If the trial in the circuit court is not upon the same charging document as was the trial in the District Court, the trial in the circuit court would be an original trial, not a trial anew, afresh, or again, so as to be a trial de novo. That trial in the circuit court on appeal from the District Court must be on the same charging document is patent when the crimes charged are within the exclusive original jurisdiction of the District Court. See Kirsner v. State, 24 Md. App. 579, 582 (1975). We see no justification whatsoever for a different rule as to crimes over which the District Court and the circuit court have concurrent jurisdiction and as to which jurisdiction is originally assumed by the District Court.

The short of it is that we find plain intent from the statute and rules that a trial de novo in a criminal case on appeal to the circuit court from a final judgment of the District Court shall proceed only on the same charging document which was the basis of the original trial. A trial of the appeal under any other charging document is void. The de novo trial washes out the trial in the District Court but not the basis for it. Thus, the requirement that the appeal be tried under the same charging document may not be obviated by agreement, nor may it be waived, either expressly or by failure to object. We shall vacate the judgments entered in the Circuit Court for Talbot County under Counts II and III of the criminal information and remand the case with direction to try the appeal from the judgments of the District Court on Statement of Charges No. 063765 and the Arrest Warrant. Any attempt, thereafter, to prosecute Pinkett under Counts II and III of the information may be avoided by invoking the constitutional prohibition against being placed twice in jeopardy for the same offense.

Our finding that the action of the State with respect to Statement of Charges No. 063764 placed Pinkett on his deliverance insofar as that charge was concerned, our vacating the judgments of the Circuit Court entered under Counts II and III of the information, and our remand with direction to try the appeal noted from the District Court on Statement of Charges No. 063765 and the Arrest Warrant, disposes of Pinkett’s appeal to the Circuit Court. Left unresolved is the status of the judgments entered in the Circuit Court under Counts I and IV of the information.

Pinkett asks: “Was it proper to try [him] in the Circuit Court on the basis of an information filed after the appeal was instituted and on charges other than those of which he had been convicted in the District Court?” We have found that it was not proper to try him in the Circuit Court on the basis of the information on charges of which he had been convicted below. We now conclude that it was proper to try him in the Circuit Court on the basis of the information on charges other than those of which he had been convicted below. Pinkett argues: “A de novo trial in the Circuit Court on appeal from the District Court may be had only on the same charge of which [he] was convicted in the District Court, and on no other charge.” With this we are in accord, as it is the teachings of Kirsner v. State, supra. But with regard to Count I and Count IV of the information, the trial in the Circuit Court was not a de novo trial. The offenses presented in those counts had not been tried in the District Court. They were new charges, as defense counsel expressly made clear for the record at the proceedings in the Circuit Court on 2 May 1975. Pinkett claims that he could not be tried in the Circuit Court on those charges because to do so would put him twice in jeopardy. But he could not be twice put in jeopardy unless he had been once in jeopardy, and he had not been put in jeopardy in the District Court on the offenses presented in Counts I and IV because he had not been charged there with those offenses. Pinkett believes that Cohen v. State, 173 Md. 235 (1937) supports his contention. Cohen, however, asserted, at 238, that “one cannot be twice put in jeopardy for the same offense . . . .” (emphasis added) The prohibition against putting an accused twice in jeopardy applicable to criminal prosecutions in Maryland courts is now a constitutional matter, flowing from the fifth amendment to the Constitution of the United States through the fourteenth amendment. Benton v. Maryland, 395 U. S. 784 (1969). As we pointed out in Thomas v. State, 26 Md. App. 232, 238 (1975), Maryland is not at liberty to interpret the fifth amendment more restrictively than does the Supreme Court of the United States. The Supreme Court in Blockburger v. United States, 284 U. S. 299 (1932), revitalized in Gore v. United States, 357 U. S. 386 (1958), asserted that the defense of double jeopardy may be successfully interposed only if the offenses charged require proof of the same facts. If the offense to which the constitutional challenge is made necessitates the proving of a fact or facts not necessary to establish conviction of the prior charge, a plea of double jeopardy does not prevail. The misdemeanors charged under Counts I and IV of the information were created by Code, art. 27, § 36B (b). See note 10, supra. Counts I and IV charged Pinkett under that part of the statute which prohibited the wearing, carrying or knowingly transporting of a specified handgun in a vehicle while travelling upon the public roads and highways of this State. To prove these charges it was necessary that the State establish that the handgun was worn, carried or knowingly transported by Pinkett in a vehicle travelling upon the public roads and highways of this State. This fact concerning a vehicle so travelling was not necessary to prove that Pinkett was in possession of a concealed weapon in violation of art. 27, § 36 (a) as charged in Statement of Charges No. 063764, or to prove that Pinkett was a rogue and vagabond in violation of art. 27, § 490 as charged in Statement of Charges No. 063765, or to prove that Pinkett was in possession of a handgun having been convicted of a crime of violence in violation of art. 27, § 445 (c) as charged in the Arrest Warrant. The offenses tried in the District Court were not the same offenses charged under Counts I and IV of the criminal information; they were separate and distinct. Therefore, the double jeopardy prohibition did not apply to bar the prosecution of Pinkett under Counts I and IV of the criminal information. See Stevens v. State, 27 Md. App. 460, 462-467 (1975).

Pinkett further challenges his prosecution under Counts I and IV of the information on the grounds of merger, splitting action, and collateral estoppel. Merger of offenses was not involved here. The test under the modern doctrine of merger is whether one crime necessarily involves the other, that is, when the facts necessary to prove the lesser offense are essential ingredients in establishing the greater offense, the lesser offense is merged into the greater offense. Moore v. State, 23 Md. App. 540, 548 (1974). The doctrine operates to merge a conviction for a lesser included offense into a conviction for a greater offense. It is not applicable here. Nor is the State collaterally estopped from prosecuting Pinkett under Counts I and IV. The doctrine of collateral estoppel as explicated in Ashe v. Swenson, 397 U. S. 436 (1970) does not apply in the circumstances here. Ashe held that after a jury determined that the accused was not one of the robbers the State could not relitigate the identical issue at a second trial It does not stand for the proposition that where an accused is convicted of one crime he may not be prosecuted for another crime arising out of the same factual circumstances.

Pinkett points out that Counts I and IV charged violations of the same statute, art. 27, § 36B (b), on the same date, at the same time — the only difference being that one charge related to a shotgun and the other to a revolver. “We do not believe that this single transaction can be broken down into constituent elements to form separate crimes, any more than larceny can be broken down to support separate convictions for each item taken in a single asportation.” When we look at the prohibition spelled out in the statute in the light of the legislative findings and declaration of policy announced in § 36B (a), the penalties authorized by § 36B (b) and (e), and the separate misdemeanor provisions of § 36B (d), we are convinced that the legislative intent was that a person wearing, carrying, or transporting more than one handgun is guilty of more than one crixne. Ellingham v. State, 163 Md. 278 (1932), cited by Pinkett, was concerned with a continuing offense, and does not persuade us to the contrary.

Pinkett also argues that he was not waiving any rights insofar as new charges were concerned by noting an appeal to the Circuit Court from the judgments entered in the District Court. The State has not suggested, nor do we, that Pinkett waived any double jeopardy claim by so doing. As we have indicated, we believe that Pinkett was not put twice in jeopardy by prosecution under Counts I and IV. No question of waiver is involved.

We hold that the Circuit Court did not err in denying the motion to dismiss Counts I and IV of the criminal information.

During the course of the trial in the Circuit Court Lt. Blessing testified on behalf of the State that he had stopped a car driven by Nathaniel Ennals in which Pinkett was a passenger. Subsequently he searched the car. “I am looking for weapons, a chrome barrel revolver I knew had been used in the Easton Manor Motel robbery.” He found such a revolver in the crack “where the back seat and the rest came together . . . and this was the same type chrome weapon that had been used in the motel robbery.” It was a .22 caliber and was loaded with nine “long” cartridges. He also found gloves, rope, and nylon stockings. Such articles, he said, had been used in recent armed robberies in Dorchester, Talbot and Queen Anne’s Counties.

Nathaniel Ennals testified on behalf of the State. He said that he, Pinkett and two others, Victor Jones and Donald Sanders, had decided to rob a motel. They had nylon stockings for masks, gloves, and rope. He identified the revolver, which had been admitted in evidence, as the weapon which Pinkett had. “He had it in his hand and showed it and displayed it.” They went to two motels. At one the manager would not open the door and at another there were too many people around. They drove back to Easton and were stopped by the police.

Pinkett testified on his own behalf. He denied he had a pistol, asserted he did not own a pistol, and claimed “I never carried a weapon in my life. . . . Ennals has got a vivid imagination.” He said none of what Ennals said was true. He never saw the pistol before he was arrested. On cross-examination he was asked about the weapon:

“Q. What about this pistol, you say you have never seen this pistol before?

A. I saw it in Court.

Q. Isn’t it a fact you and Nathaniel Ennals, in the holdup at the Easton Manor Motel, used that pistol?

Mr. Moore: I object.

The Court: Overruled.

Q. Is that a fact, one of you, either one?

A. Would you say that again?

Q. Did you and Nathaniel Ennals, in the company of two people, hold up the Easton Manor Motel?

A. No.

Q. You are under oath.

A. Yes.

Q. Do you know what perjury is?

A. Yes, I do know what it is.

Q. Mr. Pinkett, we will leave that for now. You didn’t see any weapons, no one discussed robbery and all this testimony of Ennals is incorrect, is that what you are saying?

A. Yes, it is.

Q. And you didn’t discuss any robbery?

A. We didn’t discuss any robbery with him or anybody else.”

Pinkett urges that the court committed reversible error in overruling his objection. He claims that “[t]he introduction of information about another crime (a felony at that!) at another time, in another place, was totally irrelevant to the matter at hand. (And, it was a crime for which he had never been charged, much less convicted).”

Defense counsel had opened the door on the Easton Manor Motel robbery on the cross-examination of Ennals. He was permitted to elicit, over objection, that Ennals, Jones and Sanders had appeared in a line-up concerning a robbery at the Easton Manor Motel, that Ennals was “currently charged with the armed robbery of that Motel” and that Ennals did not know who else was charged with that crime. Defense counsel returned to the subject later in his cross-examination:

“Q. You testified earlier you had been identified in a line-up as having committed a robbery at Easton Manor Motel?

A. Yes, I have been identified.

Q. And that took place in November?

A. I don’t know when it took place. I wasn’t there.

Q. This robbery was based on somebody walking into the motel?

A. I don’t know how it came about.”

As part of the case for the defense, Pinkett’s counsel called Detective Sergeant Walter E. Chase, Sr. of the Easton Police Department. The transcript reads:

“Q. In the course of that investigation [of the arrest of the occupants of the Ennals’s car] have you made any effort to determine whether or not any of the occupants of that car were participants in various robberies that have taken place in Talbot County?

Mr. Foster [Assistant State’s Attorney]: I object and ask to treat this as a continuing objection to any matter not related to this charge.

Mr. Moore [Defense Counsel]: It came up earlier in this matter.

The Court: I overrule the objection.

Q. Do you remember the question?

A. No, sir. Rephrase it.

Q In the course of your investigation did you investigate whether or not or the extent to which the occupants of the car had been involved in various robberies that had taken place along Route 50?

A. Yes, sir.

Q. At any time during that investigation was there a line-up in which you participated?

A. Yes, sir.”

Chase said that Pinkett, Ennals, and Jones were in the line-up. Ennals was identified as one of the robbers of the First Western Motel. On cross-examination Chase said that four men had been involved in that robbery and that the chrome plate revolver found in the car had been used in the robbery, although at the time the barrel had not been sawed off.

In the light of what the defense had adduced about other robberies, and considering the rule that evidence of other crimes can be admitted to prove the specific crime charged when it tends to establish “(D motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, (5) the identity of the person charged wdth the commission of a crime on trial,” Cothron v. State, 138 Md. 101, 110 (1921), we conclude that the overruling of the objection was not error.

As we have decided that the judgment entered in the Circuit Court on Pinkett’s conviction of being a rogue and vagabond under Count II of the criminal information must be vacated in that he is entitled to a de novo trial in the Circuit Court on appeal from the judgment entered in the District Court on his conviction of being a rogue and vagabond under Statement of Charges No. 063765, we have no need to decide Pinkett’s allegation that the evidence adduced at the Circuit Court trial was not sufficient in law to sustain the conviction.

Pinkett’s brief presents three pro se contentions relating to corroboration of the testimony of the accomplice, Ennals, the legality of the search and the chain of custody of the tangible evidence seized. Pinkett’s counsel frankly states that he is unable to support them and, as they are presented, we perceive no grounds for reversal on this appeal with respect to them.

Judgments under count one and count four of the criminal information affirmed;

Judgments under count two and count three of the criminal information vacated;

Case remanded for de novo trial in the Circuit Court for Talbot County on appeal from the District Court on Statement of Charges No. 063765 and Arrest Warrant No. 222597.

      . As originally prepared, the Statement of Charges read that Pinkett “did unlawfully possess a concealed weapon, to wit a sawed off Shot Gun.” On the original document in the record before us the “a” before “concealed weapon” was stricken and an “s” added to “weapons”. A comma was inserted after “Gun” and the words “and a” added and crossed out. Also added, in handwriting, was the phrase “Art. 27 Sec. 36 (a).” The prosecutor later told the Circuit Court: “The only amendment was an insertion of a section number, according to the records from the District Court, and it looks as if this was inserted by Judge North’s hand. It is not my hand.” John C. North, II is an associate judge of the District Court, District 3. It appears that he presided at a bail review on 18 November 1974 and that Charles E. Edmondson, then an associate judge of the District Court, District 2, presided at the trial in the District Court.

      . Chase applied for a warrant for the arrest of three persons, one of whom was Pinkett. The facts stated to show that there was probable cause to believe that a crime was committed were: “On Nov. 14, 1974 the defendants were picked up in the City of Easton, Md. with a chrome — 22 cal. 9 shot revolver — Serial N 29234 in their possession. The barrel of the revolver had a portion of it sawed off and the brand name burned off. The applicant has proof that the defendants are convicted felons.” Code, art. 27, § 445 (c) was alleged to have been violated.

      . The two Statements of Charges were docketed as Criminal 979. The Arrest Warrant was docketed as Criminal 983.

      . Charging document No. 063764 was a statement of charges and not an arrest warrant. As we have set out, it charges the unlawful possession of a concealed weapon, a sawed-off shotgun, in violation of art. 27, § 36 (a).

      . The written motion filed contained this rather confused explanation: “On April 30, 1975 the defendant was informed that the State uroposed to add two additional charges to those charges tried in the District Court, one from which the Defendant was appealing. On May 2, 1975 the Defendant was arraigned on the charge of possession having been convicted of a crime of violence, both of which are appeals. The State nolle prossed the earlier conviction of 36A and added two additional charges charging the Defendant with transporting and carrying a handgun (Art. 27, § 36B (b)). The State charged two separate offenses, two for carrying a pistol and the other for carrying a sawed-off shot gun.”

      . The court gave these reasons:
      “We believe that although some of the evidence might be admissible in the trial of this case, while the evidence that will be used to prove the matter set forth in this case from what might have been admissible under the first charge or information, we don’t believe a conviction, even though it was,_ we don’t believe it should have been properly sustained by the evidence because here you have a charge in the Court below which resulted in a conviction for violating section 36 a of Article 27, and that conviction was patently wrong because the evidence offered to support it was evidence of hand guns, and hand guns are specifically excepted from 36 a and, furthermore, that had nothing to do with the transportation of dangerous weapons in a vehicle on a highway, which is part of the evidence that would have to be offered to sustain a conviction in the present case, so we don’t believe there is an identity of offense for double jeopardy purposes. . . .”

      . Code, art. 27, § 36 (a) proscribes the wearing or carrying, concealed, o>openly with intent to injure, certain named weapons, including “any other dangerous or deadly weapon of any kind, whatsoever (penknives without switchblade and handguns, excepted). . . .” Handguns were excepted by ch. 13, Acts 1972. See Howell v. State, 29 Md. App. 646 (1976), n. 8 at 655-656.

      . Under Code, art. 27, § 490 a person shall be deemed a rogue and vagabond if he is apprehended having upon him any pistol or other offensive weapon at places and under circumstances from which may be presumed an intent feloniously to assault any person. Tillery v. State, 12 Md. App. 624, 627-628 (1971); Jett v. State, 12 Md. App. 568, 574-575 (1971).

      . Code, art. 27, § 445 (c) provides: “It shall be unlawful for any person who has been convicted of a crime of violence, or of any of the provisions of this subtitle [“Pistols”, §§ 441-448] or who is a fugitive from justice or a habitual drunkard, or addicted to or an habitual user of narcotics, barbiturates or amphetamines, to possess a pistol or revolver.”

      . “Any person who shall wear, carry, or transport any handgun, whether concealed or open, upon or about his person, and any person who shall wear, carry or knowingly transport any handgun, whether concealed or open, in any vehicle traveling upon the public roads, highways, waterways or airways or upon roads or parking lots generally used by the public in this State shall be guilty of a misdemeanor; and it shall be a rebuttable presumption that the person is knowingly transporting the handgun;. . . .” Code, art. 27, § 36B (b).
      The term “handgun” includes a short-barreled shotgun. Art. 27, § 36F (a). “Short-barreled shotgun” means a shotgun having one or more barrels less than 18 inches in length and any weapon made from a shotgun, whether by alteration, modification or otherwise, if said weapon as modified has an overall length of less than 26 inches. § 36F (a) (3). For definition of “Shotgun” see § 36F (a) (5).

      . “ ‘Indictment’ shall include a grand jury indictment, a criminal information and a charging document as defined in Maryland District Rule 702 (Definitions).” Md. Rule 702 a. “Charging document” includes an arrest warrant and a statement of charges. Maryland District Rule 702 a.

      . There seemed to be some confusion at the Circuit Court trial whether Statement of Charges No. 063764 purported to charge an offense under art. 27, § 36 (a) or § 36A. If the sawed-off shotgun was a handgun, it was, as we have indicated, expressly excluded from the provisions of § 36 (a). Section 36A, however, was patently not applicable. It concerns the carrying of a deadly weapon on any school property, and there was nothing to show that Pinkett carried the shotgun on school property. The trial judge concluded that the offense was charged under § 36 (a). See note 6, swpm.

      . The right of appeal from a final judgment to the Court of Special Appeals bestowed by Courts Art. § 12-301, does not permit an appeal from a final judgment of a court entered or made in exercise of appellate jurisdiction in reviewing the decision of the District Court. Courts Art. § 12-302 (a). Prior to 1 July 1975, the Court of Special Appeals was authorized to require by writ of certiorari that a decision be certified to it for review in such a case. On and after that date, such writs of certiorari are the province of the Court of Appeals. Courts Art. § 12-305. See Acts 1975, ch. 447.

      . The jurisdiction of the District. Court is concurrent, with that of the circuit court with respect to a common law or statutory misdemeanor in which the penalty may be confinement for three years or more or a fine of $2,500 or more. Violations of art. 27, § 36 (a), § 445 (c), and § 490 are each a, statutory misdemeanor and, as to each, imprisonment of three years is authorized. The penalties for the crimes created by §§ 36 (a) and 490 are set out in those sections. The penalty for the offense created by § 445 (c) is provided by § 448. See Courts Art. § 4-302 (c).

      . No question was raised about the propriety of couching the charges in the information in disjunctive rather than conjunctive terms. See State v. Beers, 21 Md. App. 39 (1974); Ayre v. State, 21 Md. App. 61 (1974); Thompson v. State, 26 Md. App. 442 (1975).

      . The Court said, 397 U. S. at 446:
      “The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.”

      . Section 36B (a) reads:
      “The General Assembly of Maryland hereby finds and declares that:
      (i) There has, in recent years, been an alarming increase in the number of violent crimes perpetrated in Maryland, and a high percentage of those crimes involved in the use of handguns;
      (ii) The result has been a substantial increase in the number of persons killed or injured which is traceable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity;
      (iii) The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and
      (iv) Further regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens.”

      . We do not reach the question whether the defense of double jeopardy is jurisdictional or constitutional in application. In Johnson v. State, 3 Md. App. 105, 108-109 (1968), decided under the common law, we did not decide that point, but assumed for the purpose of decision that the defense of double jeopardy was jurisdictional. Jourdan v. State, 275 Md. 495, 506-507 (1975) indicates that the defense of double jeopardy is to be treated as a constitutional right which may be waived rather than a matter of the jurisdiction of the trial court which may not be even though constitutionally created.


source: Caselaw Access Project

license: Public Domain

text:
    FRANK CONRAD et al. v. DEPARTMENT OF NATURAL RESOURCES
    [No. 643,
    September Term, 1975.]

      Decided March 2, 1976.

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

      R. Edwin Brown, with whom was F. Archie Meatyard, Jr. on the brief, for appellants.

      Glenn B. Harten, Special Attorney and Edward F. Lawson, Special Assistant Attorney General, with whom were Francis B. Burch, Attorney General and Nolan H. Rogers, Special Assistant Attorney General on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

We are called upon in this appeal to decide if the Circuit Court for St. Mary’s County erred in denying additional compensation in a condemnation action to persons displaced from a dwelling occupied by them. We hold that it did not err.

ST A TEMENT OF THE CASE

On 7 October 1974 a jury was empanelled in the Circuit Court for St. Mary’s County, sworn and charged to ascertain and determine whether it would be necessary for James B. Coulter, Secretary, Department of Natural Resources, acting for and in behalf of the State of Maryland (the State) to acquire certain property and “to inquire into, ascertain and jointly and impartially value the damages” which Frank Conrad and Waneta Conrad, his wife, and James McLearen and Martina McLearen, his wife (Condemnees) would sustain by its taking. The jury found that it was necessary for the State to acquire the property and fixed the damages to be sustained by the Condemnees for their fee simple interest and estate in the parcel of land and improvements thereon in the amount of $15,000. Judgment nisi against the State in favor of Condemnees in the sum of $15,000 was entered on 7 October and final judgment on 14 October. This judgment is not challenged.

It appears that following the return of the inquisition by the jury, Condemnees moved in open court that they be awarded $4,000 as displaced persons as was allowed by law. On 13 January 1975 they filed a Motion for Additional Payment. The Motion was heard on 6 March and denied by order of the court on 26 May. The appeal of Condemnees from that order is before us.

THE FACTS

The record on this appeal is a statement of the case prepared by the parties with the approval of the lower court and filed with the clerk thereof as authorized by Maryland Rule 1026, § e. As this statement supersedes, for the purposes of appeal, all parts of the record other than the judgment from which the appeal is taken and any opinion of the lower court, we set it out.

“On or about the 5th day of June, 1967, Spencer P. Ellis, Director, Department of Forests and Parks, acting for and on behalf of the State of Maryland, filed a condemnation action in the Circuit Court for St. Mary’s County, Law No. 3849, against Frank Conrad and Waneta Conrad, his wife; James McLearen and Martina McLearen, his wife; and Edward J. Spence and Claudine Spence, his wife, for the condemnation of the property in these proceedings, being Lots 25 and 26, Block 31, as shown on the plat of Point Lookout, in Liber JMM No. 5, Folio 341. The land condemned was improved by a one story frame dwelling. The defendants, Frank Conrad and Waneta Conrad, his wife, and James McLearen and Martina McLearen, his wife, have occupied and used the dwelling in question since the time of purchase, as a second home.
The property condemned was acquired by the named defendants by deed from May Harris, widow, sole heir and administratix of the Estate of Frank W. Dowling, dated June 29, 1964, and recorded among the land records of St. Mary’s County, Maryland, in Liber 114, at Folio 119, and the interest of the defendants, Edward J. Spence and Claudene Spence, his wife, was conveyed to the defendants, Frank Conrad and Waneta Conrad, his wife, by deed dated the 28th day of March, 1967, recorded the 14th day of April, 1967, in Liber 133 at page 68, one of the Land Records of St. Mary’s County, Maryland, a photocopy of said deed being attached to this Statement of the Case.
Before the trial of the condemnation case, Spencer P. Ellis resigned as Director of the Department of Forests and Parks, and James B. Coulter, Secretary, Department of Natural Resources, became the plaintiff.

The case was tried on October 7, 1974. At the trial Joe Plochek, Assistant Director of Program Open Space, Department of Natural Resources, testified in behalf of the State. The statement of the case set out verbatim portions of his testimony obtained on direct and cross-examination. We give a compendium His duties were “to coordinate the land acquisition for the state areas under natural resources, and also to coordinate the development of the state areas with the Department of Natural Resources.” He was familiar with the Point Lookout State Park project. An appropriation was obtained from the General Assembly in 1962 — “[g]eneral construction loan, 1962, Forest and Parks” — and the first parcel of land in Point Lookout was purchased 15 November 1963. The Department of Natural Resources adopted Program Open Space. “It took over the acquisition program that was started under general construction, loan money” prior to 1971. “It’s just a new . . . funding process in 1969 they went on the acquisition program went on to the transfer tax money which took it out of general construction loan money, bond money.”

The statement of the case continued:

“An inquisition condemning the property was returned on the same date in the amount of $15,000.00 Following the return of the inquisition, a motion was made in open Court by the defendants that they be awarded payment in the amount of Four Thousand Dollars ($4,000.00) as displaced occupants, under the provisions of Section 12-204(b)(l) of the Real Property section of the Annotated Code of Maryland. The defendants had not acquired a comparable replacement dwelling.”

Waneta Conrad, one of the Condemnees, was called to testify in their behalf on the motion. A verbatim transcript of her testimony was given in the statement. We summarize it. She and the other Condemnees “personally” owned the property condemned. She, “as owner, occupied that property for more than ninety days prior to the condemnation. . . .” She had ascertained the rental value of the property. “[T]here is nothing that rents cheaper than a hundred dollars a week, and I figure we could get one twenty-five [per week] for the twenty seasonal weeks . . .” from May through October. That period was the normal rental season for recreational property. She had investigated other units in the neighborhood and was satisfied that the fair rental of her property was $125 per week. The Condemnees were claiming the rental value “rather than going into another property.” The statement of the case continued:

“The Court took the motion of the defendants for additional payment under advisement. The condemnation award was paid to the Clerk of the Court on or about January 7, 1975, and the plaintiff acquired title to the defendants’ property.
The defendants on January 13, 1975, filed a motion for additional payment, pursuant to the provisions of Section 12-204 in the amount of Four thousand dollars ($4,000.00) and of payment of Four Hundred Dollars ($400.00) moving expenses, pursuant to the provisions of Section 12-205, and a pro rata portion of the land taxes in the amount of Eighty-seven dollars and eighty-seven cents ($87.87), pursuant to Section 12-110 (a) and (c). The defendants further moved that they be awarded interest in the amount of Two Hundred and twenty-five dollars ($225.00) to cover interest at the legal rate from October 7, 1974, the date of the inquisition, through January 7, 1975, the date of payment into Court.
The Court by its Order dated May 26, 1975, denied the defendants’ motion for additional payments under Section 12-204 (a); the defendants’ motion for additional payments under Section 12-205 (a) (1); and the defendants’ motion for payment of interest.”

THE LAW

Additional payments to displaced persons are provided under two sections of the Real Property Article. Section 12-202 states that a public or private agency shall make such payments, but § 12-203 places a limitation thereon. “The additional payment authorized by § 12-202 shall be made only to a displaced person who purchases and occupies a replacement dwelling which is decent, safe, and sanitary. . . .” Section 12-204 (a) prescribes: “[T]he public or private agency shall make a payment to or for any displaced person displaced from any dwelling and not eligible to receive a payment under § 12-202, if the dwelling actually and lawfully was occupied by the displaced person for not less than 90 days prior to the initiation of negotiations for acquisition of the dwelling.” Real Prop. Art. § 12-201 (h) defines “public agency”:

“ ‘Public agency’ means the state, a political subdivision, or any of their agencies, boards, or commissions having the right to acquire land for public purposes through the use of eminent domain or by negotiation. The term does not include the Department of General Services if acquiring land for Program Open Space or any political subdivision, other than Baltimore City, Baltimore, Anne Arundel and Montgomery counties, the Board of Education of Montgomery County, the board of trustees of Montgomery College or any board or agency of any of them, or any agency, board, or commission of the subdivision when acquiring property for a public purpose for which relocation assistance is not required by federal law.” (emphasis added)

The provisions of § 12-201 (h) came into their present form through Acts Í973, ch. 696, effective 1 July 1973, and ch. 578, approved 21 May 1973 and effective from date of passage, and Acts 1974, ch. 12, § 2, generally effective 1 July 1974. Code, art. 21, § 12-201 (a), read:

“The term ‘condemning authority’ shall mean the State, a political subdivision or any agency thereof, or any board or commission having the right to acquire land for public purposes by eminent domain proceedings, and any public or private utility company, railroad or other organization, body or agency having the right to acquire land for a public purpose through the use of eminent domain. This term shall not include any political subdivision other than Baltimore City or any agency thereof, or any board or commission when acquiring property for a public purpose and such purpose is not wholly or partially financed by federal funds.”

Chapter 696 of Acts 1973 rewrote subsection (a) of art. 21, § 12-201. Under the heading “Condemning authority”, it defined “Public Agency” in paragraph (1) and “Private Agency” in paragraph (2). It added the provision: “The term [public agency] does not include the Department of General Services if acquiring land for Program Open Space . . . .” Acts 1974, ch. 12, § 2, adopting the Real Property Article, codified as its § 12-201 (h) the former art. 21, § 12-201 (a) (1), making only changes in style.

Fifteen years ago the General Assembly enacted legislation with the expressed intent to provide a means whereby any county or city, or the State Department of Forests and Parks may acquire by purchase and otherwise, and through the expenditure of public funds, the fee or lesser interest in real property “in order to preserve, through limitation of their future use, open spaces and areas for public use and enjoyment.” Preamble, Acts 1960, ch. 63. It declared, § 1, codified as art. 66C, § 357A (a): “The acquisition of interests or rights in real property for the preservation of open spaces and areas constitutes a public purpose for which public funds may be expended or advanced.” An open space or an open area was defined to be any space or area characterized by great natural scenic beauty or whose existing openness, natural condition, or present state of use, if retained, would enhance the present or potential value of abutting or surrounding urban development, or would maintain or enhance the conservation of natural or scenic resources. The intent and purpose of the legislation remained steadfast through amendments and revision. See Nat. Res. Art. § 5-1201 and S 5-1202.

In 1970 the General Assembly declared there was a need for a program to make funds available to State agencies and subdivisions in order to expedite the acquisition of outdoor recreation and open space areas “before the escalating cost of land prevents its purchase for public use and before potential areas are devoted to some other use” and “to accelerate the development of needed outdoor recreation facilities. Acts 1970, ch. 606, codified as art. 66C, § 357B (a), under the subtitle “Program Open Space”. In effectuating the purposes of § 357B, the General Assembly had established a funding program the previous year. Acts 1969, ch. 403, authorized the creation of a State debt of sixty million dollars to be known as the “Outdoor Recreation Land Loan of 1969” or “Program Open Space”. See art. 66C, § 357B (c). Section 5 (b) of ch. 403, Acts 1969, provided that one-half of the funds available be appropriated by named State agencies, one of which was the Department of Forests and Parks. “These funds shall be used for State acquisition projects.” Section 11 of the Act designated, for the fiscal year 1970, the allocation of the funds appropriated by § 5 (b). Under the heading “State Parks”, item (4) allocated $191,000 for “Point Lookout (St. Mary’s County: Land Acquisition (approximately 191 acres)).” Subsequent amendments of art. 66C, § 357B were in furtherance of the purpose of the legislation, and the revision leading to the repeal of the law by Acts 1973, 1st Sp. Sess., ch. 4, § 2, effective 1 January 1974, made, in the main, only stylistic changes. The Program Open Space provisions now appear in Nat. Res. Art. §§ 5-901 to 5-907.

Originally, the Program Open Space legislation, in apportioning the funds, included the Department of Forests and Parks as one of the State agencies to share in one half of the funds available under the Program to be used for acquisition projects. Code, art. 66C, § 357E (a). Acts 1972, ch. 626, designated former § 357E as § 357D and rewrote it. As rewritten, the State agencies specified to receive one half of the funds available under the Program, to be used only for land acquisition projects, were the Department of Natural Resources and the St. Mary’s city commission. Art. 21, § 357D (a). As revised by Nat. Res. Art. § 5-903 (a), it reads: “One half of the funds available under this program shall be used for recreation and open space purposes by the department and the St. Mary’s City Commission.”

As we have indicated, note 2, supra, the Department of Forests and Parks was made a part of the Department of Natural Resources by Acts 1969, ch. 154, effective 1 July 1969. By ch. 348, Acts 1972, the legislature made clear the role of the Department of Natural Resources by adding a third paragraph to Code, art. 66C, § 343 (now Nat. Res. Art. § 5-201 (b) with stylistic changes) declaring:

“From and after July 1, 1972, all rights, powers, duties, obligations, and functions heretofore conferred upon or exercised by the Department of Forests and Parks shall be transferred to and exercised by the Department of Natural Resources; and all references to the Department of Forests and Parks appearing in this Code, in other laws of the State, or in ordinances, resolutions, rules, regulations, legal actions, directives, or documents, shall be deemed to mean the Department of Natural Resources.”

By Acts 1969, ch. 403, § 9, codified as art. 78A, § 19A (a), a Land Acquisition Division was created under the Department of Public Works with the direction: “Land for State projects funded under . . . ‘Program Open Space’ shall be acquired exclusively by this Division. The Land Acquisition Division is charged with the sole responsibility to acquire land for State projects funded under . . . ‘Program Open Space’. . ..” By Acts 1970, ch. 97, § 3, the Land Acquisition Division was removed from the Department of Public Works and placed under the Department of General Services. Section 19A (a) of art. 78A was enacted in its present form by Acts 1972, ch. 72, passed as an emergency measure, approved 17 April 1972 and effective from the date of its passage. It reads, in part pertinent to our inquiry:

“There shall be a land acquisition division under the Department of General Services. Land for all public improvements . . ., including those State projects funded under . . . ‘Program Open Space’ shall be negotiated exclusively by this division; and all State acquisitions shall be made in the name of the using State agency or in the name of the principal department of the State government of which the using agency is a constituent part. ... All eminent domain proceedings filed by the State of Maryland in the name of a director or secretary and now pending in the courts of the State shall be valid, legal and effective without the necessity of joining the Secretary of General Services as a party to each proceeding.” *

The power of eminent domain is a prerogative of sovereignty limited by § 40, Art. Ill of the Constitution of Maryland. Boswell v. Prince George’s County, 273 Md. 522, 530 (1975); Ridings v. State Roads Comm’n., 249 Md. 395, 399 (1968). Real Prop. Art. § 12-207 (i) provides: “If any interest in land is to be acquired by exercise of the power of eminent domain, the public agency concerned shall institute a formal condemnation proceeding.” Md. Rule U4, § a requires: “A proceeding for condemnation shall be brought by the State, municipal or other corporation, commission, board, body or person seeking to have the property condemned, . . . .”

Summ,ary of the Law

In 1960 the Department of Forests and Parks received legislative authority to acquire land in order to preserve open spaces and areas for public use and enjoyment. In 1969 the Department of Forests and Parks was made a part of the Department of Natural Resources. In that year, also, the legislature established a funding program for the acquisition of land under Program Open Space, and a Land Acquisition Division was created under the Department of Public Works to acquire land for State projects so funded. Some of the funds were allocated for the acquisition of land by the State at Point Lookout and were made available to the Department of Forests and Parks. In 1970 legislation was enacted implementing Program Open Space, and the Department of Forests and Parks was again designated as one of the agencies to which funds to acquire such land were available. In 1970 the Land Acquisition Division was placed under the Department of General Services. In 1972 the General Assembly made clear that all the rights, powers, duties, obligations and functions theretofore exercised by the Department of Forests and Parks were to be exercised by the Department of Natural Resources. The same year the legislature spelled out once more that land for Program Open Space was to be negotiated exclusively by the Land Acquisition Division under the Department of General Services. All such acquisitions, however, were to be made in the name of the using State agency or in the name of the principal department of the State government of which the using agency is a constituent part. It was expressly provided that all eminent domain proceedings then pending in the name of a director or secretary were valid, legal and effective without the necessity of joining the Secretary of General Services as a party.

ISSUE FOR DECISION

The trial judge disposed of the request for additional payments by finding that the Condemnees were not eligible for the payments because it was not established that the dwelling “actually and lawfully was occupied by [them] for not less than 90 days prior to the initiation of negotiations for acquisition of the dwelling.” His opinion noted that Waneta Conrad testified that she had occupied the dwelling for more than 90 days prior to the “condemnation” of the property, but, he pointed out, “There was no testimony . . . that any of the Defendants actually and lawfully had occupied the premises for the required time prior to the initiation of negotiations for its acquisition.” Condemnees look askance at this reason for denying their request. They state baldly that in view of Mrs. Conrad’s testimony, the court should have allowed payment. They declare that payments under Real Prop. Art. § 12-204 (a) are mandatory and not discretionary. They assert that if the court was not satisfied that they had been in possession for the required time, “it should have questioned the witness sua sponte or at the very least ordered a further hearing to make certain that the intent of the statute was satisfied.” They add: “Furthermore, since the Court had before it an Affidavit filed by Mrs. Waneta Conrad, averring that she and the other [Condemnees] had possession of and occupied the condemned property continuously from the time of purchase up to and including the date of trial, and that [the Condemnees] occupied the premises for more than ninety days before commencement of negotiations, the Court erred in not setting the matter for further hearing or awarding additional payments to the [Condemnees].”

DECISION

We first observe that payments under § 12-204 (a) are not to be automatically made. Those who desire additional payments as displaced persons have the burden of establishing that they are entitled to them. One of the criteria for eligibility is that the displaced person shall have occupied the dwelling “for not less than 90 days prior to the initiation of negotiations for acquisition of the dwelling.” The trial judge, looking at the testimony of Mrs. Conrad, thought that the Condemnees had not proved the required occupancy. But the statement of the case, signed by the Condemnees, the State, and the trial judge, and filed pursuant to Rule 1026, § e, includes the flat statement: “The defendants, Frank Conrad and Waneta Conrad, his wife, and James McLearen and Martina McLearen, his wife, have occupied and used the dwelling in question since the time of purchase, as a second home.” The time of purchase, according to the statement, was 29 June 1964. We next observe that the statement of the case filed pursuant to Rule 1026, § e, “shall be treated as superseding, for the purposes of the appeal, all parts of the record other than the judgment from which the appeal is taken and any opinion of the lower court. ...” The statement does not indicate when negotiations were started by the State to acquire Condemnees’ property, and the affidavit to which Condemnees refer in their brief is not included therein. Thus, the affidavit is not before us in any event. On the record we are permitted to consider, the judgment of the court below on the evidence was not clearly erroneous and we may not set it aside. Md. Rule 1086.

Of course, even if Condemnees had, in fact, occupied the dwelling for not less than 90 days prior to the initiation of negotiations for its acquisition, this would not, in itself, entitle them to the additional payments. The clear dictate of § 12-204 (a), considered in the light of § 12-201 (h), is that no additional payments shall be made to displaced persons when the land is acquired by the State for Program Open Space. The trial judge, in his opinion, did not base his decision with respect to the additional payments under § 12-204 (a) on this ground, but the question was tried and decided below on the request by Condemnees for moving expenses under § 12-205. Under that section the “public or private agency” shall make payment for moving expenses on proper application by a displaced person. Section 12-201 (h) comes into play just as it does with respect to § 12-204 (a). In denying the request for moving expenses, the judge referred to § 12-201 (h). He found that, although Program Open Space did not exist when this action was commenced, Plochek had made it clear “that Program Open Space took over the administration of acquisitions and development formerly carried on by the Department of Forests and Parks.” Such acquisitions, the judge said, were actually negotiated by the Department of General Services, pursuant to art. 78A, § 19A, and coordinated with the Department of Natural Resources and Program Open Space. “It was Mr. Plochek’s function to coordinate the acquisition of land at Point Lookout for Program Open Space with [the Department of General Services], which would actually carry on negotiations.” He thought that the statute was not well drafted and that the exact relationship of the Department of General Services to Program Open Space was not clear. But, he concluded, the intent of the legislature “appears to have been to excuse takings for Program Open Space from liability for moving expenses under § 12-205 (a) (1).” He found: “that the instant case involves an acquisition for Program Open Space has been made adequately to appear.”

It is patent that the Department of General Services is not a private agency within the meaning of the Relocation and Assistance subtitle of the Real Property Article. See footnote 6, supra. Therefore, if the Condemnees’ property was acquired by General Services for Program Open Space, General Services is not a public agency within the meaning of the subtitle either. Section 12-204 (a) directs that additional payments shall be made to displaced persons by a public or private agency, and if General Services is neither one in the contemplation of the statute, the Condemnees here would not be entitled to the additional payments they seek as displaced persons in any event. Condemnees ignore this hurdle they would have to overcome even if they met the occupancy requirements. But the Program Open Space question, in reality, goes to the heart of the matter. The State meets it squarely: “Assuming, without admitting, that the [Condemnees] had established that they had actually occupied the dwelling for the necessary period preceding negotiations for its acquisition, they still would not be entitled to benefits as displaced persons for the same reason they are not entitled to moving costs under [Real Prop.] Section 12-205 (a) (1) i.e. the instant acquisition is for Program Open Space and as such is exempted from the effect of [Real Prop.] Section 12-204. This Section requires payments by ‘public agencies’ under certain circumstances. [Real Prop.] Section 12-201 (h) excludes from the definition of ‘public agency’ the Department of General Services ‘if acquiring land for Program Open Space’.”

As we have indicated, we believe that when land is acquired by the State for Program Open Space, the provisions of Real Prop. Art. § 12-204 (a) for additional payments to displaced persons are not applicable. We think it advisable, in the circumstances here, to decide whether the State acquired Condemnees’ property for Program Open Space.

In the light of the law we have discussed, the condemnation proceedings pursued by the State were completely consistent with an acquisition of Condemnees’ land under Program Open Space. When the action was commenced in June 1967 by the Director of the Department of Forests and Parks, that Department had enjoyed the authority for seven years to acquire real property to preserve open spaces and areas like Point Lookout for public use and enjoyment. Program Open Space simply provided the means to facilitate the acquisition of property for the purposes earlier declared. It is manifest that the Point Lookout land, consisting of 191 acres, was to be acquired under the Program because of the allocation of funds for that express purpose for the fiscal year 1970, as we have seen. The substitution of the Secretary of the Department of Natural Resources for the Director of Forests and Parks as the plaintiff in the case, to act in behalf of the State, merely reflected statutory changes in the structure, powers and responsibilities of the departments and agencies. And, as we have indicated, the law clearly provides that although land under Program Open Space is to be acquired through negotiation by a land acquisition division under the Department of General Services, all acquisitions shall be made in the name of the using State agency or the principal department of the State of which the using agency is a constituent part. The General Assembly in 1972 flatly declared, as we have pointed out: “All eminent domain proceedings filed by the State of Maryland in the name of a director or secretary and now pending in the courts of the State [as was the proceeding here] shall be valid, legal and effective without the necessity of joining the Secretary of General Services as a party to each proceeding.”

We conclude that the court below was correct in its judgment that the Condemnees’ land was acquired by the State for Program Open Space. The procedural history of the action and the evidence supplied by the testimony of Plochek, considered in the light of the various enactments of the General Assembly relating to Program Open Space, were sufficient in law to support the court’s holding. As the land was acquired by the State for Program Open Space, Condemnees were not entitled to additional payment as displaced persons. We so declare as an alternative reason for affirming the denial of the lower court of the application of Condemnees for additional payment under Real Prop. Art. § 12-204 (a). Those parts of the order dealing with moving expenses, taxes and interest are not before us.

Order of 26 May 1975 of the Circuit Court of St. Mary’s County denying additional payments pursuant to Real Prop. Art. § 12-204 (a) affirmed; costs to be paid by appellants.

      . Rule 1026, § e, formerly Rule 1026, § g (see amendment adopted 16 June 1975, effective 1 July 1975), provides:
      “When the questions presented by an appeal can be determined by this Court without an examination of all the pleadings and evidence, the parties with the approval of the lower court may prepare and sign a statement of the case showing how the questions arose and were decided, and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by this Court. Such statement, when filed with the clerk of the lower court shall be treated as superseding, for the purposes of the appeal, all parts of the record other than the judgment from which the appeal is taken and any opinion of the lower court, and, together with such judgment and opinion, shall be certified to this Court as the record on appeal.”
      See Hoffman v. Clock, 20 Md. App. 284, 295 (1974); McAlily v. Bailey, 18 Md. App. 413, 416-418 (1973). Compare Rule 1026, § e, as to which the procedure therein authorized is followed in the court beiow, with Rule 1028, § g, as to which the procedure therein authorized is invoked after the record reaches this Court.

      2. The docket entry under date of 7 October 1974 reads that the court granted “Plaintiff’s Motion to Amend to ‘James B. Coulter, Sec., Dept. Natural Resources’ in lieu of Spencer P. Ellis, Director, et al.” The State, in its brief, explains the amendment thus: “Subsequent to filing of the suit, but prior to trial, the Department of Natural Resources absorbed the functions of the Department of Forests and Parks and James B. Coulter, Secretary to the Department of Natural Resources, was substituted as plaintiff.”
      By Acts 1969, ch. 154, the Department of Forests and Parks was made a part of the Department of Natural Resources. Code, art. 66C, § 343 (1970 Replacement Vol.) and art. 41, § 233 (a) (1971 Replacement Vol.), both repealed by Acts 1973, 1st Sp. Sess., ch. 4, § 2, effective 1 January 1974. By Nat. Res. Art. § 1-102 (a) (4) and (5) the forest service and park service are included within the Department of Natural Resources. See Revisor’s Note to § 1-102 for explanation of omission of “department and agency” with respect to the forest and park services. Nat. Res. Art. § 5-201 (b) provides:
      “Every right, power, duty, obligation, and function conferred upon or exercised by the Department of Forest and Parks is transferred to and exercised by the department. Every reference to the Department of Forest and Parks which appears in the Code, other laws of the state, or in any ordinance, resolution, rule, regulation, legal action, directive, or document, means the department.”
      Reference to “the department” means Department of Natural Resources. Nat. Res. Art. § 5-101 (c). The Revisor’s Note to subsection (b) of § 5-201 states that the subsection was added as the third paragraph of art. 66C, § 343 of the Code by ch. C48, Acts 1972.

      . In their brief, the Condemnees state: “The denial of moving expenses and interest are not issues in this appeal. Appellees concede that the trial court was in error and have paid Appellants’ moving expenses.” In its brief, the State denies that it concedes that “the trial court was in error” in denying the payment of moving expenses. The State asserts: “The moving expenses were paid by the Department of General Services because the [Condemnees] were entitled to moving expenses under the provisions of [Real Prop. Art.] Section 12-112 and not because [they] were legally entitled to payment under [Real Prop. Art.] Section 12-205.” In any event, only that part of the order denying payments to Condemnees as displaced persons under Real Prop. Art. § 12-204 (a) is before us.

      . “ ‘Displaced person’ means any person who moves from land, or moves his personal property from land, as a result of the whole or partial acquisition of the land, or as a result of a written order of the acquiring agency to vacate land for a public works program or project undertaken by the public or private agency.” Real Prop. Art. § 12-201 (c).

      . Subsection (b) of § 12-204 sets out the elements of the additional payment. Paragraph (1) of subsection (b) provides that the payment may be “The amount necessary to enable the displaced person to lease for a period not exceeding four years, a decent, safe, and sanitary dwelling of standards adequate to accommodate the person in areas not generally less desirable in regard to public utilities and public and commercial facilities, and reasonably accessible to his place of employment, but not exceeding $4,000; . .. .” Paragraph (2) of subsection (b) concerns payment of an amount necessary to enable the displaced person to make a down payment on the purchase of a dwelling.

      . A “private agency” is “any public or private utility company, railroad, or other organization having the right to acquire land for a public purpose through the use of eminent domain or by negotiation.” Real Prop. Art. § 12-201 (g).
      Real Prop. Art. § 12-201 (h) and § 12-202 and § 12-204 formerly appeared as Code, art. 21, § 12-201 (a) (1), § 12-202, and § 12-204, respectively, which were repealed by Acts 1974, ch. 12, § 1, effective 1 July 1974. According to the Revisor, the Courts Article made changes as to style.

      . So provided by Real Prop. Art. § 15-101. However, Real Prop. Art. § 15-103 provides:
      “Except as expressly provided to the contrary in this article, transactions validly entered into before the effective date and the rights, duties, and interests flowing from them remain valid thereafter and may be terminated, completed, consummated, or enforced as required or permitted by any statute amended or repealed by this article as though such repeal or amendment had not occurred.”

      . Former art. 21, § 12-201 (a) (2) became Real Prop. Art. § 12-201 (g).

      . The “department” means Department of Natural Resources. Nat. Res. Art. § 5-101 (c).

      . The life of the Division was limited: “The Division shall be established for a period necessary to carry out a five-year acquisition program and shall cease to exist when it has fulfilled its responsibilities under the program.” The limitation was removed by Acts 1970, ch. 97, § 3.

      . The Secretary of General Services, with the approval of the Governor, appoints a chief of the land acquisition division, who serves at the pleasure of the Secretary. The chief of the division, who shall be experienced in the field of land acquisition, is responsible to the Secretary for discharging the functions of the division. Code, art. 78A, § 19A (b).

      . Art. Ill, § 40 of the Constitution of Maryland provides: “The General Assembly shall enact no Law authorizing private property, to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a Jury, being first paid or tendered to the party entitled to such compensation.
      The case sub judice does not arise under the “quick-take” statutes authorized by § § 40A-40D.