author: Lowe, J.,

text:
    JANICE RENWICK v. FRED RENWICK JANICE RENWICK v. FRED RENWICK
    [No. 190,
    [No. 191,
    September Term, 1974.]
    September Term, 1974.]

      Decided January 14, 1975.

      The cause was argued before Powers, Gilbert and Lowe, JJ.

      Arnold H. Ripperger, with whom were Mary Ellen Brooke and Brooke & Ripperger on the brief, for appellant — cross-appellee.

      Marvin I. Singer for appellee — cross-appellant.
   Lowe, J.,

delivered the opinion of the Court.

If the attainment of maturity is determined by age alone, Dr. and Mrs. Renwick had achieved that state when they were married in 1965 at the respective ages of 36 and 29. If education is a necessary ingredient, his Doctorate of Philosphy in Economics and her training as a nurse would seem to meet that criterion. Even if it were measured by one’s position in life, Dr. Renwick’s professorship of finance at New York University and Mrs. Renwick’s position as instructor of nursing education would obviously meet the standard. If, however, maturity is determined by the ability to resolve differences, the Renwicks are found wanting. Four state courts during a four year period have been unable to help them resolve their differences, nor do we find ourselves able to complete the task.

The Facts

After their marriage in 1965 the Renwicks resided in New Jersey where four children were born to them. Irreconcilable differences arose in 1970, and Dr. Renwick removed himself to Reno, Nevada, where he commenced divorce proceedings unilaterally on June 18, 1970. He received a decree on July 13,1970.

Meanwhile, back in New Jersey, Mrs. Renwick discovered that her home was titled in Dr. Renwick’s name alone, and he had transferred it to his brother. The brother promptly dispossessed both the wife and the children soon after she filed suit for divorce, custody and support in May of 1970. Mrs. Renwick’s New Jersey decree was not obtained until March 1, 1971 due to the inability to serve process upon Dr. Renwick who was still in Reno. Ultimately he was served in New York where he had been reemployed following his return from Reno. Dr. Renwick did not appear, answer or specially appear to contest service. Neither did he apprise the New Jersey court of his Nevada decree. Mrs. Renwick’s New Jersey decree awarded her custody of the children and provided for their support and alimony.

Dr. Renwick’s Nevada decree included precious little support for the children and even that requirement was not fulfilled by him. Although reemployed by New York University, he decided to move to Charles County, Maryland where his mother and brother resided. Mrs. Renwick and her children moved to the Ohio home of her parents before finding the home there where she now resides.

In December of 1972 Dr. Renwick picked up the children and brought them to his home in Maryland for a period which he claimed his wife and he had agreed would be indefinite. Mrs. Renwick denied that allegation and stated that the visit was to be limited to the Christmas holidays. Mrs. Renwick’s version is supported by her subsequent acts. When the children had not returned to her by the first of the new year, she immediately commenced efforts to obtain their return. Her initial efforts by telephone were to no avail. Knowing Dr. Renwick had renewed his position with New York University, she instituted Habeas Corpus proceedings in that jurisdiction. His assertion of a Maryland domicile terminated the New York proceedings. Mrs. Renwick then instituted dichotomized proceedings in the Circuit Court for Charles County, petitioning for issuance of a Habeas Corpus Writ on behalf of the children and for enforcement of the New Jersey support and alimony decree of March 1, 1971. Dr. Renwick responded by answer and a petition for custody, to vacate the New Jersey decree, and to enforce the Nevada decree.

The chancellor denied the Petition for Writ of Habeas Corpus on July 10, 1973, overruled Mrs. Renwick’s Motion Raising Preliminary Objection to Dr. Renwick’s Petition for Custody on August 6, 1973 and proceeded to hear testimony on the custody question. The chancellor’s reasons for denying the preliminary petitions and concluding that the Charles County Circuit Court had jurisdiction to hear the custody question were rested upon Md. Code, Art. 16, § 66 (a) (now Courts Art. § 3-602).

In a written opinion dated August 29, 1973, the chancellor found as facts that:

1) Dr. Renwick “did not acquire a bona fide legal domicile in Nevada and that the Court there lacked jurisdiction to award him a legal divorce.”
2) “. . . Mrs. Renwick was a legal resident of New Jersey when she filed suit and she and the children continued to reside there until several months after the decree was signed. Mr. Renwick was personally served with process although he chose not to appear. The New Jersey decree is therefore, valid as to divorce. It is also valid as to support payments and custody of the children,. . . .”
3) Having found custody jurisdiction here, the best interests of the children were found to be with Dr. Renwick to whom the chancellor awarded custody.
4) Back alimony and support were due Mrs. Renwick in the amount of $16,590.00.
5) The costs of the proceedings were to be paid by Dr. Renwick in addition to $700.00 toward Mrs. Renwick’s counsel fees.

On December 6, 1973, pursuant to that opinion an Order was signed from which Mrs. Renwick appeals:

a) the denial of the Petition for Writ of Habeas Corpus and Motion Raising Preliminary Objection;
b) the award of custody of the children to Dr. Renwick; and
c) the amount of counsel fees and expenses awarded Mrs. Renwick.

A cross appeal by Dr. Renwick, on the other hand, questions:

1) the invalidation of the Nevada decree; and

2) the money judgment for child support and alimony.

While these conclude the questions to which we must respond in Appeal No. 190, Appeal No. 191 concerns the same parties and derivative issues. It arose from Mrs. Renwick having taken the children back to Ohio and keeping them there notwithstanding the Charles County decree. This refusal to conform to the custody decree caused her to be found in contempt of the Circuit Court for Charles County. Not having purged herself of that contempt, she was inter alia prohibited from undertaking to collect the pecuniary proceeds of the former decree by Order of March 1, 1974. She had undertaken to accomplish that purpose by proceedings begun in New York.

In reviewing a melange of jurisdictional, procedural and custodial issues such as these, appellate courts must apply differing standards:

“In our review the clearly erroneous rule [Md. Rule 1086] applies to the chancellor’s factual findings. But for the reasons set out in Sullivan v. Auslaender, 12 Md. App. 1, we must exercise our best judgment in determining whether the conclusion as to custody the chancellor reached on those facts was the best one, best, that is, for the welfare, benefit and interest of the child.” Widdoes v. Widdoes, 12 Md. App. 225, 233. [Emphasis added].

For reasons hereafter assigned we will have no need to exercise our “best judgment.” We have concluded that factual findings of the chancellor deprived him of in rem custody jurisdiction and the absence of jurisdiction, in turn, nullified his conclusion that custody should be removed from the mother. Based upon the same factual findings, however, the money judgment stands, but on a different legal foundation since it is derived from the in personam support award made in New Jersey.

The factual gudgeon around which these jurisdictional questions turn is the finding by the chancellor that:

“Based on the evidence in the record ... we hold that Mr. Renwick did not acquire a bona fide legal domicile in Nevada . . . .”

Seeing nothing in our review of the record to justify declaring that such finding is “clearly erroneous,” Md. Rule 1086, we affirm the consequent holding that “ . . . the Court there lacked jurisdiction to award him a legal divorce.” Naylor v. Naylor, 217 Md. 615, 623. We must then answer three further jurisdictional questions:

1) whether the New Jersey decree was valid as applied to the divorce and custody proceeding;
2) whether the New Jersey decree was valid as applied to support and alimony; and
3) whether the Circuit Court for Charles County had jurisdiction.

Divorce and Custody, In Rem

Although Mrs. Renwick filed suit in New Jersey in May of 1970, service of process on Dr. Renwick was not obtained until October 20, 1970. Process was personally served upon him in New York, following his return from Nevada. Having himself relied upon the contention that his Nevada decree, based on nothing more than his alleged domicile and constructive service of process, was valid, Dr. Renwick is hard-pressed to protest that same reasoning when applied to the out-of-state service upon him. In any case, the New Jersey court is expressly given jurisdiction in divorce suits by statute when either party is a bona fide resident of New Jersey at the time the cause of action arose and has been such for two years preceding the commencement of the action. N.J. R.S. 2A:34-10. Mrs. Renwick more than fulfilled those criteria.

The validity of the divorce is actually incidental to our main concern, viz., Mrs. Ren wick’s claim to custody under the New Jersey decree. We find both Maryland and New Jersey in accord with text writers that custody is in the nature of an in rem proceeding (i.e., “status” of the child) and jurisdictional requirements are satisfied by the domicile of the children. Seidlitz v. Seidlitz, 23 Md. App. 327; Edwards v. Edwards, 8 N.J. Super. 547; Nelson on Divorce (2nd ed.) § 15.32, at 287.

Once again, relying on the findings of the chancellor, we are in accord with his conclusion that the New Jersey divorce decree and custody award to Mrs. Renwick were valid.

Support and Alimony, In Personam

Having accepted the chancellor’s finding that Dr. Renwick was not domiciled in Nevada, there is no evidence that he was, during the crucial period, domiciled (as distinguished from residing) any place other than New Jersey. The short answer to the questioned money judgment deriving from the support and alimony provisions of the decree is that service by the New Jersey court on a domiciliary outside his domicile was obviously valid. Nelson on Divorce, (2nd ed.), § 23.16. However, we need not rely upon that rationale to uphold the support and alimony judgment.

We will assume arguendo that Dr. Renwick was when served a man without a domicile, a vagrant spouse, if you will. In permitting ourselves this assumption we specifically avoid deciding whether that status can indeed be validly attained. We further note that alimony and support are manifestations of the husband’s common law liability to provide for his wife and children respectively. It follows then that alimony and support are actions in personam and, as such, require that a judgment against a non-resident defendant based only on constructive service be void. The traditional view, and the current Maryland rule, McSherry v. McSherry, 113 Md. 395, is that a non-resident defendant must be served within the territorial jurisdiction of the court, or appear personally or through counsel, in order for in personam jurisdiction to obtain. The majority of states give continuing vitality to that concept, requiring presence or consent for the rendition of any judgment personally binding upon a litigant, the enforcement of which necessitates execution, attachment or contempt powers of the court. However, we are dealing with a New Jersey decree and its court has somewhat relaxed its service of process requirements in the domestic relations area.

The constitutional due process basis for the rigid person al-service-within-the-jurisdiction prerequisite, has during recent years been eroded by the Supreme Court, most significantly in the landmark case of International Shoe Co. v. Washington, 326 U. S. 310. There the Court espoused what has become known as the “minimum contacts” theory:

“ . . . due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” [Emphasis added].

The New Jersey Superior Court has analogized the logical underpinnings of International Shoe and its progeny to in personam actions for support, and extended the “minimum contacts” theory to hold that the “last matrimonial domicile” is the proper forum to litigate support, as well as divorce and custody:

“The existence of a marital domicile in a state has as many consequences as economic activity does (McGee v. International Life Ins. Co., 355 U.S. 220) and should satisfy due process requirements so as to permit in personam jurisdiction for the award of alimony and child support against a vagrant spouse.” Egbert v. Egbert, 125 N.J. Super. 171.

We are, as a general principle, bound to “take judicial notice of the common law and statutes of every state,” Courts Art. § 10-501, and to give full faith and credit to the decrees of our sister states. Constitution of the United States, Art. IV, §1-

However, in a suit to enforce a foreign judgment, the jurisdiction of the court which rendered it is open to judicial inquiry. Adam v. Saenger, 303 U. S. 59, 62. Where the question of fact or law on which jurisdiction depends was not litigated in the original suit, it is a matter to be adjudicated in the suit founded upon the judgment, Adam v. Saenger, supra. If the rendering court acted without jurisdiction, the full faith and credit clause does not operate and the foreign judgment is of no force and effect. Williams v. North Carolina, 325 U. S. 226; Upham v. Upham, 238 Md. 261.

Thus, in the present case, the enforceability in Maryland of accrued alimony and support payments under the New Jersey decree depends upon whether the substituted service on Mr. Ren wick provided the court with jurisdiction over his person. In making that determination, we must decide 1) whether the New Jersey court complied with its own law regarding service of process, Treinies v. Sunshine Mining Co., 308 U. S. 66, 77; Van Wagenberg, 241 Md. at 161; and if so, 2) whether the New Jersey law comported with due process.

When the New Jersey court first authorized substituted service in alimony and support actions, the court carefully reviewed statutory service of process requirements. Noting that there were no rules specifically dealing with alimony and support, the court turned to the rules generally governing civil practice:

“Superior Court, R. 4:4-4 particularizes the methods of service to secure in personam jurisdiction over a defendant. By subparagraph (a) service of a summons and complaint shall be made on an individual by among other methods delivery of copies ‘to him personally; or by leaving a copy thereof at his dwelling house or usual place of abodfe with a competent member of his family of the age of 14 years or over then residing therein.’ This rule does not state that this service must be accomplished in this State nor that it cannot be served elsewhere than in this state.” Wright v. Wright, 114 N.J. Super. 439.

Having concluded that there was no statutory bar, the Wright court authorized personal service in another state for an in personam alimony and support action where the defendant continued to maintain minimum business contacts with the state. In Egbert v. Egbert, 125 N.J. Super. 171, the court went even farther, holding that the fact that New Jersey was the “last matrimonial domicile” alone constituted sufficient “minimum contacts” to allow out-of-state service for an in personam judgment for alimony and support. We hold that the personal service on Mr. Renwick in New York was in accordance with New Jersey law.

On the Constitutional question, we return to the Maryland courts and the United States Supreme Court for authority. The Court of Appeals has found constitutional a sister state’s expansion of in personam out-of-state service beyond the business sphere and subject areas specifically delineated in the long-arm statute. Van Wagenberg v. Van Wagenberg, 241 Md. 154. That reasoning is equally applicable to the present case. As International Shoe makes clear, “fundamental fairness” is the touchstone. Here, Mr. and Mrs. Renwick had lived for several years in New Jersey and borne four children. Mr. Renwick knew his wife and children remained there without his support. He was personally served, though in New York, and thus had actual notice of the proceedings. We think the New Jersey court’s action was fundamentally fair to Mr. Renwick. We hold that the New Jersey exercise of in personam jurisdiction complied with due process. The chancellor therefore correctly chose to enforce the support and alimony provisions of the New Jersey decree and properly entered a judgment against Dr. Renwick for $16,590.00.

Maryland Jurisdiction

We now reach the most basic jurisdictional concern and that is whether the Circuit Court for Charles County has such jurisdiction as would enable it to review the custody award of the New Jersey decree. The chancellor relied solely upon Md. Code, Art. 16, § 66 (a); however, we fail to see how that section conferred jurisdiction. Having determined that the custody of the children had properly been awarded the mother by the New Jersey decree, it is obvious that the domicile of the child is that of the parent with legal custody. Miller v. Miller, 247 Md. 358, 364, viz., Janice Renwick, via the New Jersey decree.

We have held that to exercise the authority jurisdictionally conferred by Md. Code, Art. 16, § 66 (a) to modify a custody decree, a court must have jurisdiction over the children, Seidlitz, supra, quoting Miller, supra. However, that jurisdiction cannot be obtained by fraud or trickery in bringing the children into Maryland. Cf. In Re Karol, 11 Md. App. 400, 408-409 quoting Margos v. Moroudas, 184 Md. 362, 368-369, and 42 Am. Jur., Process, § 35 at 32. Indeed the Court of Appeals has gone so far as to cite with approval the domicile rule set forth in the Restatement, Conflict of Laws, § 117 “that a state court has jurisdiction to determine custody of a child only if the domicile of the child is within the state.” [Emphasis added]. Miller, supra, at 362-363 citing Zouck v. Zouck, 204 Md. 285 and Naylor v. Naylor, 217 Md. 615. Whether or not actual domicile is a prerequisite, it is clear that “If the court does not have jurisdiction of the children it does not have jurisdiction . . . .” Seidlitz, supra, quoting with approval Nelson on Divorce, (2nd ed.), § 15.32, at 287.

In the instant case the chancellor found as a fact that:

“ . . . Mr. Renwick [took the children] for a visit to his home in Pomfret, Maryland at Christmas 1972, to be there with the agreement or understanding between him and his former wife that it was a Christmas visit and that it was not an indefinite stay.” [Emphasis added].

It is obvious that the wrongful detention of the children over the months (and over the violent opposition and propitious and energetic efforts of the mother to obtain their return) could in no way provide the children “domicile” in Maryland, nor could that wrongful detention, an act amounting to fraud or trickery, provide a court of equity with custodial jurisdiction. We reverse the modification of custody for lack of jurisdiction and hold that the mother’s custody may not be contested here under the circumstances shown.

Appeal No. 191

Since Mrs. Renwick’s petition for Writ of Habeas Corpus based upon wrongful detention of her children should have been granted, the contempt citation was erroneous as were its enforcement procedures enjoining her action to collect the judgment for alimony and support. The sanctions imposed for contempt were also founded upon the erroneous assumption of jurisdiction in the first instance. The contempt citation is reversed and the court below is directed to strike its injunction.

We hold, however, that the jurisdiction to obtain the money judgment was proper, founded as it was upon the valid New Jersey decree.

Counsel Fees and Expenses

We have reviewed the record in regard to appellant’s complaint of inadequate fees and expenses pursuant to the award authorized by Md. Code, Art. 16, § 5A. The record reveals evidence of respective incomes and assets as well as needs. Considering the impending judgment for alimony and support we cannot say that the chancellor’s award was clearly erroneous. Md. Rule 1086. Peterman v. Peterman, 14 Md. App. 310.

Appeal No. 190: judgment denying writ of habeas corpus and restraining appellant by order of July 10, 1973, reversed; judgment awarding custody to appellee by paragraph fourth rendered by decree dated December 6, 1973, reversed; judgment affirmed in all other respects.

Appeal No. 191: contempt citation dated January 31, 1971 reversed; imposition of sanctions by order of February 13, 1971, reversed.

Costs to be paid by appellee.

      . “Personal service or process upon the defendant beyond the limits of the state is a form of constructive service authorized in many jurisdictions by the statutes, which usually require that a copy of both the summons and complaint shall be delivered to the defendant, and prescribe the manner in which proof of service shall be made. Service in this manner, when authorized by statute, is usually equivalent to service by publication, and is sufficient to enter a decree granting a divorce, and a decree of divorce based upon this form of service has the same effect as if based upon any other form of constructive service. However, personal service outside the state is restricted to actions in rem, nor does it. . . confer jurisdiction on the court to render a personal money decree against the defendant unless the defendant is domiciled in the forum, when personal service in another state may give jurisdiction in personam.” Nelson on Divorce (2nd ed.) § 23.16. See also Md. Rule 107 for Maryland’s out-of-State personal service procedure.

      . The rationale justifying constructive service in divorce actions is that divorce is an in rem proceeding affecting a status. In Lister v. Lister, 86 N.J. Eq. 30, the New Jersey court explained:
      “A divorce suit is a ‘suit in rem. . . .’ [t]he essential characteristic ... [of which] is to be found in the power of the state ... to dispose of the subject matter of the suit. . . whether that subject matter be physical property or the status of one or both of the parties litigant.”

      . See, however, Maryland’s “long arm statute” in Courts Art. § 6-103, “ .. . which was to give the courts of the State personal jurisdiction over all out of state persons and corporations which constitutionally could be reached as having had sufficient Maryland contacts under the jurisdictional yard stick established by the Supreme Court ....” Gilliam v. Moog Industries, Inc., 239 Md. 107, 111.

      . The requirements were very early set forth in Pennoyer v. Neff, 95 U.S. 714. The expansion process is evident in International Shoe Co. v. Washington, 326 U. S. 310; Travelers Health Ass’n v. Virginia, 339 U. S. 643; McGee v. International Life Ins. Co., 355 U. S. 220, and Hanson v. Denckla, 357 U. S. 235; et al. Illustrative of the concept are the now common “long-arm statutes” throughout the country. E.g., Courts Art. § 6-103.

      . The Court of Appeals has approved, as complying with due process, a New York in personam judgment based on constructive service, holding that the “minimum contacts” theory was not limited to the business sphere. Van Wagenberg v. Van Wagenberg, 241 Md. 154; and infra.

      . The New Jersey court has judicially expanded the availability of substituted service to in personam support actions; a similar rule has been codified in California and approved by its court as complying with due process. Soule v. Soule, 14 Cal. Rptr. 417.

      . The chancellor may have been misled by the succeeding subsection (b) now Courts Art. § 6-202 (5) relating to venue in custody cases.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    ANGELO N. AMABILE et ux. v. JOSEPH I. WINKLES et ux.
    [No. 335,
    September Term, 1974.]

      Decided January 14, 1975.

      The cause was argued before Morton, Thompson and Powers, JJ.

      Benjamin Lipsitz, with whom was Eleanor Jean Lipsitz on the brief, for appellants.

      Charles E. Wehland for appellees.

       Note: Certiorari granted, Court of Appeals of Maryland, May 5, 1975.

   Thompson, J.,

delivered the opinion of the Court.

Judge James Macgill, sitting in Equity in the Circuit Court for Howard County, found that the appellees, Joseph I. Winkles and Mary Elizabeth Winkles, his wife, were entitled to a right of way 12 feet in width over the lands of the appellants, Angelo N. Amabile and Elisabeth E. Amabile, his wife, and granted an injunction requiring that the Amabiles remove all obstructions from the right of way. On appeal the Amabiles contest not only the existence of the right of way but the propriety of the remedy.

Mr. and Mrs. Winkles are the owners of a lot containing 1.07 acres situated on the north side of Fells Avenue. Their dwelling house is located at the top of a hill and can be reached by vehicles only by the right of way in question which leads to the rear of the property. The only access to the front of the dwelling is by means of 48 steps leading up from Fells Avenue.

Mr. and Mrs. Amabile, the appellants, own adjoining land to the west of the appellees comprising 3.924 acres which lies between Fells Avenue and Court House Drive to the North. In 1908, the land which is owned by all the parties to this proceeding was a part of a larger tract known as Lin wood Farms belonging to James M. Haines and his wife. By deed dated May 27,1908, Mr. and Mrs. Haines conveyed to August G. Schotta a 1.168 acre rectangular shaped parcel approximately 110 feet wide and extending from Fells Avenue to what is now Court House Drive. This parcel ran through the center of the Haineses’ holdings. In that deed Mr. and Mrs. Haines reserved for the benefit of the remaining property a right of way 12 feet in width without providing a metes and bounds description. The location of the right of way was not otherwise described in the deed, the particular language of which is set out in the margin.

On January 19, 1971, the Winkleses acquired their property from Laura M. Pfeiffer and other heirs of William F. Kirkwood in fee simple. In that deed they were granted “the right of ingress and egress over the right of way 12 feet wide mentioned in the aforesaid deed from Haines to Schotta.” In none of the intervening deeds was the right of way claimed by the Winkleses more specifically described.

On December 21, 1967, the Amabiles acquired their property, consisting of the Schotta property as well as part of the property retained by Haines in 1908, from Raymond W. Griffith and his wife. Their deed provided that they took the property subject to the right of way reserved in a deed dated May 27, 1908, from James M. Haines and others to August G. Schotta. The right of way is likewise not described with any more particularity in the Amabiles’ chain of title.

At the trial below, the Winkleses produced a topographic plat prepared by Purdumn and Jeschke dated December 19, 1967 which showed a roadway leading through Amabiles’ property from Fells Avenue to Court House Drive. The plat did not show a roadway leading from the Winkleses’ property to the Fells Avenue-Court House Drive road. They also produced a plat made by Leon A. Podolak and Associates dated January 12, 1972, showing the approximate location of a right of way leading from the Winkleses’ property to the lane described on the plat previously mentioned and running from Fells Avenue to Court House Drive. The surveyors explained they were unable to locate the original roadway precisely because recent grading and construction had obliterated all signs of what may have been the original roadway.

The trial judge summarized the testimony produced by the Winkleses in the following language:

“The complainants produced a number of witnesses who testified as to their recollection of where the right-of-way was located on the ground. Mr. John Kirkwood said that he was a son of the William F. Kirkwood to whom Mr. Haines had conveyed the property and that his father had erected a house on it in 1910. The witness was born there and remembered the property well before 1920. There were two accesses to the house, one directly from Fells Avenue up a flight of forty-eight steps, and the other from Fells Avenue across the Haines and Schotta properties. The roadway from Fells Avenue went to the Haines and Schotta dwellings and another portion branched off to the rear of the Kirkwood dwelling [now the Winkleses’ property]. This roadway was used for making heavy deliveries, such as coal, furniture and groceries, to the Kirkwood home since the only other way to reach it was by the flight of steps up the steep slope from Fells Avenue. During the years 1968 to 1971, according to Mr. Kirkwood’s recollection, the roadway into his father’s home was used six or seven times. He had walked the road in 1964 and said that at that time it was in grass. He described it at that time as being about twelve feet wide and said that it was visible to those persons who knew that it was there but he could not say whether or not persons who were ignorant of its existence would have observed it. He did say that there was a slight depression in the ground where the road ran and indicated on an exhibit the location of the depressed area which was approximately where the road was indicated on Mr. Podolak’s plat.
“Mrs. Winkles said that she had been born forty-three years ago and a block away from the property which she and her husband now occupy. As a child she remembered the Haines, Schotta and Kirkwood properties. She, with other children, would ride on the bread truck back to the houses on the properties. The road from Fells Avenue forked and one part ran easterly between the Haines and Schotta homes and the other went into the rear of the Kirkwood property. That part leading into the Kirkwood property was grown up in weeds and grass when she and her husband bought the property. They measured off the course of the driveway in March or April, 1971 and had it leveled out and graveled. Thereafter they moved into the house and used the driveway for deliveries. They also used it to go to and from work and their visitors used it. On November 6, 1971, Mr. Dilman, who was bulldozing and grading for Mr. Amabile, knocked on the door. He had already moved a large pile of earth onto the other end of the roadway entering into Fells Avenue and this prevented Mr. and Mrs. Winkles from getting their blue and white Chevrolet out. It is still sitting in their back yard. Both Mr. and Mrs. Winkles said that there was an indentation in the ground which showed the location of the driveway before they had graded it. There were several other witnesses, Mr. C. Orman Manahan, an attorney, and Mr. William E. Pfeiffer, who testified as to the existence of a driveway into the rear yard of the property now owned by the Winkles. Mr. Manahan observed it in 1943 or 1946 and Mr. Pfeiffer observed it during the period from 1954 to 1966.”

The trial judge then summarized the testimony of the Amabiles’ witnesses who had indicated that at various times they had not observed the small piece of the roadway leading to the Winkleses’ property from the Fells Avenue - Court House Drive roadway. He then found that the right of way referred to in the deeds was located as indicated on the two plats hereinbefore mentioned and that the Winkleses were entitled to use these rights of way as an easement appurtenant to their property and as a means of egress from and ingress to their property from Fells Avenue. After making the determination that the Winkleses were entitled to use the right of way as described, he directed the parties to produce further testimony as to whether the mistake of the Amabiles was innocent so as to entitle them to the benefit of the rule set out in Easter v. Dundalk Holding Co., 199 Md. 303, 305, 86 A. 2d 404 (1952):

“The courts aim to avoid the granting of injunctions when they would produce injustice, great hardship, or public or private mischief. Thus it is an accepted rule that where a landowner, by innocent mistake, erects a building which encroaches on adjoining land, and an injunction is sought by the owner of the land encroached upon, the court will balance the benefit of an injunction to the complainant against the inconvenience and damage to the defendant, and where the occupation does no damage to the complainant except the mere occupancy of a comparatively insignificant part of his lot, or the building does not interfere with the value or use of the rest of his lot, the court may decline to order the removal of the building and leave the adjoining landowner to his remedy at law.”

See also, Dundalk Holding Co. v. Easter, 215 Md. 549, 137 A. 2d 667 (1958), cert, denied, 358 U. S. 821.

He summarized the testimony received at the hearing on the nature of the Amabiles’ mistake as follows:

“At this subsequent hearing, Bernard F. Goldberg, Esquire, Attorney at Law, testified that he had examined the title to the property purchased by Mr. and Mrs. Amabile, but that he did not issue a title certificate. He was not able to advise Mr. Amabile as to the location of the rights-of-way referred to in the deed which he had prepared, but he specifically recalled that he did discuss with him, at the time of settlement, that there were rights-of-way across the property which the Amabiles were buying. He was not requested to make an attempt to locate the course of these rights-of-way.
“Mr. William G. Rasch, III, a surveyor, testified that in 1966 he had surveyed the property subsequently acquired by Mr. and Mrs. Amabile in the spring of 1966 and prepared a survey plat. He was aware of the rights-of-way referred to in the title deeds but he was unable to locate them on the ground. Likewise, Mr. Gary Watts, another surveyor, who did the site plans for Mr. and Mrs. Amabile on March 11, 1970 and who used the topographic survey prepared by Purdum and Jeschke, the firm of which Mr. Rasch was a member, said that he was unable to locate the rights-of-way on the ground.
“Harry M. Ashman, Esquire, the attorney for Mr. and Mrs. Winkles, testified that they had employed him with respect to the question of the rights-of-way. He wrote a letter which was referred to in the opinion of this Court. As a result of this letter, in September or October, 1971, there was a meeting on the Amabile property at which Mr. Amabile was present, along with Mr. Cohen, his attorney, and Mrs. Winkles and Mr. Ashman. At that time, according to Mr. Ashman, no apartments had been built on the property and there was a road from the Winkles property to Fells Lane. The meeting was held to discuss the right of Mr. and Mrs. Winkles to cross the Amabile property which at that time was being graded. Mr. Ashman told Mr. Amabile and his counsel that the right of the way of the Winkles was being bulldozed. The course of the right-of-way, as claimed by Mr. and Mrs. Winkles was pointed out to Mr. Amabile. Mr. Amabile made the statement that it was his ;property and that he could do with it what he wished. (Italics added)
“Mrs. Winkles testified that she had several discussions with Mr. Amabile, the first of which took place on her front lawn in August of 1971. At that time Mr. Amabile was in the company of three or four persons whom she understood to be surveyors. She got her deed and showed Mr. Amabile where her right-of-way was and on which she and her husband had just put crushed stone. Mr. Amabile told her that he thought they could come to some agreement. According to her, she and her husband had arranged to have the roadway leading from their property line graded and surfaced with crushed stone in March, 1971.
“J. Fred Cohen, Esquire, one of the attorneys for Mr. Amabile, testified that Mr. Ashman’s letter to Mr. Amabile had been forwarded to him and he arranged for a meeting which took place after November 17, 1971. At that meeting Mrs. Winkles claimed that her right-of-way went through the middle of Mr. Amabile’s property. Mr. Amabile said that he would give an alternative way out for Mr. and Mrs. Winkles. At that time the buildings were under construction on the Amabile property. Mr. Cohen advised his clients to go ahead and close the roadway which Mr. and Mrs. Winkles claimed was their right-of-way but to leave a way for Mr. and Mrs. Winkles to get out to Fells Lane.
“Mr. Amabile did not testify at this subsequent hearing but it will be recalled that he testified at the earlier hearing that he did observe the roadway which Mr. and Mrs. Winkles claimed was their right-of-way leading from their home to a roadway from Court Avenue to Fells Avenue and that he made this observation before he started grading the property. He consulted his attorneys but he did not hold up the work he was doing on the property to wait for answers. He had also spoken to Mrs. Winkles while she was standing on the roadway in question and reported that she had said to him, ‘This is my property; I don’t want anyone to run over it.’ Despite what Mr. Amabile observed and heard, he began his grading operations and proceeded to bulldoze away the road which Mr. and Mrs. Winkles had put in.” (Italics added)

Judge Macgill found that the actions of the Amabiles were not innocent within the meaning of Easter v. Dundalk Holding Co., supra, and directed that an injunction issue requiring the Amabiles to remove all obstructions on the right of way.

I Right of Way Established

The trial j udge found that the right of way was used more or less continuously from about 1920 until its use was blocked by the Amabiles in November of 1971. His findings are supported by the evidence. The Amabiles argue for reversal because there was no evidence produced showing the existence of the roadway in 1908 when the original tract of land was divided. To support this argument they rely on Hancock v. Henderson, 236 Md. 98, 202 A. 2d 599 (1964). We agree with the trial judge that Hancock v. Henderson is distinguishable because it turned on the fact that the deed allegedly creating the right of way did not indicate a clear intent to do so. In that case the Court said:

“The deed contained no express grant of a particular road in fee, or an easement therein, but the ‘together clause’ was slightly different from the usual form and read as follows: ‘Together with all and every, the rights, alleys, ways, waters, privileges, appurtenances and advantages, outlets or roadways, to the same belonging or in anywise appertaining.’ (Emphasis added.)”
“Even if we assume the phrase ‘outlets or roadways’ found in the deed were sufficient to convey an easement, failure of the appellees to prove the roadway was in existence or was agreed upon as a right of way in 1911 is fatal to substantiate an express grant of an easement. The rule that an easement conveyed in general terms may ultimately become fixed by metes and bounds through express agreement of the parties or by their actions was indeed stated in the Sibbel case in the form of a direct quotation from 28 C.J.S., Easements, Section 82. The principle had, however, been previously approved in this State in Stevens v. Powell, 152 Md. 604, 137 Atl. 312. But that rule presupposes a clearly indicated intention of the parties, or at least of the grantor, to convey an easement. Such intention is thereafter made manifest in the conveyancing instrument, albeit in general rather than specific language. Such is not the case here. In the early yet still important case dealing with easements, Oliver v. Hook, 47 Md. 301, 308, the opinion writer, referring there to a general ‘together clause’ said this:
‘If apt and appropriate terms had been used in the deed, such as “with the ways now used,” or “used with the land hereby conveyed,” they would have passed the right to such ways as had been actually used in connection with the part granted; not, however, as existing easements, but those terms would have operated to create new easements, for the benefit of the estate granted.’
“Since the appellees failed to prove the disputed roadway was in existence at the time of the severance of the parcel they now own, this claim of an express grant must also fail.” Id. at 100,101-102.

The appellant attempts to give this language, especially the last sentence, a meaning which was clearly not intended by the Court. In Hancock, the Court was dealing with a situation in which the intent to grant an easement was at the least unclear. It was in this context that they discussed the importance of the existence of the roadway at the time of the original division of the property. They determined that the failure to show that the roadway existed at the time of the original division of the property was fatal to the complainants’ attempt to prove an intent to grant an easement.

The 1908 deed, as set out herein in note 2, however, clearly shows an intent to create an easement. The fact that the way may not have been in existence at that time is therefore not crucial.

As the court in Hancock v. Henderson, supra, recognized, Sibbel v. Fitch, 182 Md. 323, 327, 34 A. 2d 773 (1943) and Stevens v. Powell, 152 Md. 604, 137 A. 312 (1927) stood for the proposition that:

“This principle of law is well settled, and after the location of the right of way which has been granted in general terms has been defined and fixed by the owners of the dominant and servient tenements by user in a particular location over a long period of time, it becomes as definitely established as if the grant or reservation had so located it by metes and bounds and the location of the right of way as thus defined can only be changed by agreement of the owners of the dominant and servient tenements.” Sibbel, supra at 327.

This proposition has been applied more recently in Millson v. Laughlin, 217 Md. 576, 142 A. 2d 810 (1958):

“The general rule is that where the location of an easement has been established by grant, by agreement or action of the owner of the servient tenement, in case of an implied grant, it may riot be changed .except by mutual agreement — 28 C.J.S. 763, Sec. 84, Greenwalt v. McCardell, 178 Md. 132, Sibbel v. Fitch, 182 Md. 323, 328.” Id. at 584.

The essence of the rule as applied to the.instant case is that where, as here, the intent of the original parties to create an easement is clear while the exact location of the easement is not, the location of the easement may be fixed by the acquiescence of the servient estate holders in the actual use of the easement by the dominant estate.

II The Remedy

The Amabiles first contend the decree was in error because it made reference to the Podolak plat, described above, which shows only a portion of the right of way and not the entire length thereof. The argument is well taken because it is true the decree makes reference only to that plat. The opinion of the chancellor however made reference to not only the Podolak plat but also to the Purdumn and Jeschke plat, also described above, which shows the remainder of the right of way leading to Fells Avenue. We shall direct that the decree be modified to conform to the trial court’s opinion.

If, in fact, the original roadway was not as shown on these plats the Amabiles are in no position to complain because the record shows they deliberately destroyed all existing evidence of the roadway after receiving notice of the Winkleses’ claim. In Hanley v. Stulman, 212 Md. 273, 129 A. 2d 132 (1957) the Court of Appeals said:

“The appellee, Edmondale, during the early months of 1955, began grading operations on the portion of its said property on which said road, or way, was located. On May 9, 1955, before grading operations had reached said road, Claude S. Hanley, one of the appellant’s co-tenants, notified the appellee, Leonard Stulman, President of the other appellee, by letter that any attempt to close said road would be vigorously opposed by him and other interested parties^ and on the same date had a professional photographer take a series of pictures of said road, showing its condition as of that date. Despite the aforesaid notice to the appellee, Leonard Stulman, the appellees continued grading operations and completely blocked and destroyed a portion of the aforesaid road and rendered it impassable.”
“[T]he Chancellor determined that he could grant no relief due to the fact that he could not, from the evidence, place ‘the complete and exact location’ of the road, where it is not connected on appellant’s Exhibit No. 1, set forth below. He held that even though the appellee had wrongfully destroyed the road, and the appellant and the public improperly had been deprived of its use, the appellant had not met the burden of ‘establishing by his evidence the exact location, description, width and course of the entire road.’ * * *”
* * * “The arm of an Equity Court is not so short, nor its authority so impotent, that it must permit a defendant to evade, with impunity, the broad and salutary principle of law that one cannot profit by his own wrongdoing. There is an ancient maxim in Equity that says: ‘Equity will not suffer a wrong without a remedy’. This principle, which is the somewhat restricted application to the equity jurisprudence of the more comprehensive legal maxim, Ubi jus, ibi remedium, is the source of the entire equitable jurisdiction. It is subject to certain limitations, none of which are applicable here. Pomeroy’s Equity Jurisprudence, pars. 423, 424.” Id. at 275, 276-77.

The Amabiles attempt to distinguish Hanley v. Stulman, supra, on the basis that the Winkleses improved a portion of their right of way and thus were the first to destroy evidence of where the old road had been located. The argument is not well founded because here the evidence established that the Winkleses’ improvements were in the old road and did not make precise locations impossible, whereas, the Amabiles’ grading and construction did make precise locations impossible.

The Amabiles attempt to distinguish Lichtenberg v. Sachs, 213 Md. 147, 131 A. 2d 264 (1957) on the basis that there the construction proceeded in defiance of an injunction. While in Lichtenberg the defiance of the claims of the dominant owner was more flagrant than in the instant case, there was ample evidence here that the Amabiles proceeded with utter disregard of the Winkleses’ rights. We note particularly the summation of the trial testimony quoted above where despite the fact that the location of the right of way was pointed out to Mr. Amabile, he stated “. . . it was his property and that he could do with it as he wished.”

Although the Amabiles’ counsel and surveyors stated they could not precisely locate the right of way, all agreed that the Winkleses had one. Thus Dundalk Holding Co. v. Easter, supra, relied on by the Amabiles, is not applicable. The distinction is made clear from the following quote from that case:

“A leading surveyor of the City had been employed to draw the description in the deed to Dundalk, and Dundalk relied on that description in building the wall. The ejectment case went to the jury on the conflicting testimony of the surveyor on whom Dundalk had relied and on that of other surveyors employed by Easter, and the jury resolved this difference of professional opinion in favor of Easter. There was nothing in that phase of the case to show that the mistake had been other than innocent and resulted from reliance on the work of an expert who later was thought by a jury to be wrong.” Id. at 557.

Unlike the Amabiles, Dundalk relied on his surveyor before, and not after, he had knowledge of the adverse claim. The proper rule to apply to the instant case is found in Columbia Hills Corp. v. Mercantile Safe Deposit and Trust Co., 231 Md. 379, 190 A. 2d 635 (1963):

“Under these circumstances, the important question in the instant case is whether the easement was apparent to appellant, which is purely one of fact. Judge Macgill in his opinion, carefully analyzing the evidence, found that appellant’s officers did have notice of the use of the relocated entrance so as to put the appellant on inquiry as to the rights of the appellee, and were charged with notice of such rights. Our review of the record before us shows that it supports his finding. Moreover, the notice to and knowledge of the physical existence of the relocated right-of-way on the part of the appellant, as found by the chancellor, makes immaterial the omission of the State Roads Commission in failing to record the deed of easement and plat of 1951 until 1957.” Id. at 381.

Further inquiry in the instant case would have revealed the evidence on which the Winkleses relied and which was found by the chancellor, and by us, to be adequate to support their claim. The Amabiles proceeded at their peril; they cannot now be heard to claim innocence. We are not impressed with the Amabiles’ further argument that further inquiry by the wrongdoer in the Columbia Hills Corp. case would have revealed a metes and bounds description, but further inquiry in the instant case would lead only to the location on the ground because from this a surveyor could at that time have readily furnished a metes and bounds description.

Ill Demurrer

The Amabiles finally contend their demurrer to the Bill of Complaint should have been sustained because the right of way was not described with particularity. It is true that neither the bill nor the deeds attached as exhibits did more than give reference to a right of way 12 feet in width over the Amabiles’ property. Paragraph 6 of the Bill of Complaint did, however, describe the right of way as “the aforesaid 12 foot right-of-way previously used by them and their predecessors in title, for ingress and egress” and alleged that “your complainants are unable to obtain access to the rear of their property . . . and there is no other means of vehicular access to your Petitioner’s property.”

The Court of Appeals in a somewhat analogous context stated, “Even though every particular circumstance is not stated, the bill will be held sufficient if it states the complaint with reasonable certainty, clearness and accuracy so as to apprise the defendant of the nature of the claim brought against him.” Smith v. Shiebeck, 180 Md. 412, 420, 24 A. 2d 795 (1942). See also, Hart v. Wagner, 184 Md. 40, 44, 40 A. 2d 47 (1944).

In Hart v. Wagner, supra, the court, after reciting the general rule quoted above, added:

“ ‘General certainty’ in equity pleadings is all that is necessary. Story’s Eq. Pl., Sec. 252, 3; Mewshaw v. Mewshaw, 2 Md. Ch. 12. In this connection it is also pointed out in the last cited authority that while there may be cases in which it is quite proper for parties to resort to demurrer, ‘this mode of defense is viewed with suspicion and disfavor, as indicative of an unwillingness to meet the plaintiff’s case. . . .’”Id. at44.

Further explication was given to the rule in Whiteley v. Schoenlein, 183 Md. 590, 39 A. 2d 692 (1944), where the Court stated at 595:

“. . . it is not necessary to state minutely all the circumstances which may conduce to prove the general charge. These circumstances are properly matters of evidence.”

We think the language of the Bill of Complaint quoted above, while not as exact as it might have been, was sufficient to give the Amabiles notice that what was claimed as a right of way was what had been used as such by the complainants, and their predecessors. Our conclusion is borne out by the evidence developed during trial that Mr. Amabile, at least, had already observed the roadway.

IV Modification of Decree

As we indicated above paragraph (1) of the decree is to be modified by adding the words:

“on a topographic plat prepared by Purdumn and Jeschke dated December 19, 1967 and also filed as an exhibit in these proceedings, and”

Decree to be modified, and as modified affirmed.

Appellants to pay the costs.

      . In the evidence the names of the streets vary somewhat from witness to witness. We have adopted those most generally used.

      . “By mutual agreement between the said James M. Haines and wife and the aforesaid August G. Schotta the buildings that may be erected on the property hereby granted and conveyed shall conform with a line heretofore established and determined by a large stone permanently imbedded in the land, and that the said James M. Haines and wife their heirs and assigns shall have access on and over a right of way twelve feet wide to such of the land of the grantors as is contiguous to that hereby granted and conveyed; also the right to construct lay under ground and repair when necessary a pipe line for the purpose of conveying water to any building or buildings that may be erected on the land of said grantors adjoining that hereby granted. The said James M. Haines and wife do furthermore grant and convey unto the said August G. Schotta his heirs and assigns a right of way over the land of which they are now seized and possessed and where they reside said right of way to be twelve feet wide and to be an extension of the present private roadway; also a right of way between the lands of the grantors and the grantee, each contributing one half of the same, in order that delivery wagons shall have access to such buildings as are now or may be erected on the lands of either of the parties hereto, said right of way to be twelve feet wide. Moreover the said James M. Haines and wife hereby grant and convey unto the said August G. Schotta his heirs and assigns the right to construct a pipe line to the reservoir now on the land of the grantors and to draw therefrom water for household purposes, and also to convey by drawn pipes all drainage from the property hereby conveyed into the stream or the run of said property.”


text:
    VICTOR JOHN WRIGHT v. STATE OF MARYLAND
    [No. 356,
    September Term, 1974.]

      Decided January 14, 1975.

      The cause was submitted on briefs to Morton, Thompson and Powers, JJ.
    Submitted by Robert W. Baker, Assigned Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, David B. Allen, Assistant Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and William Guiffre, Assistant State’s Attorney for Baltimore City, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Victor John Wright, appellant, was convicted for murder in the first degree and the unlawful use of a handgun by the Criminal Court of Baltimore, Judge Solomon Liss presiding with a jury. He received a life sentence for the murder and a five year consecutive sentence for the handgun violation.

FACTS

Stephen Christian testified that on June 9, 1973, at approximately 1 a.m., he and the victim, Gerald Miller, were sitting together behind an apartment complex in Baltimore City. The appellant approached the witness and asked him what relation the victim was to him. Upon being informed that Miller’s brother was his brother-in-law, the appellant said he was going to kill Miller and the witness should remain seated and not run or else he would “get” him. The appellant drew a handgun from his belt, walked behind the victim and shot him in the back of the head from a distance of 10 to 15 feet. The victim was seated with his head in his hands, apparently under the influence of narcotics. The appellant thereupon fled the scene. Christian then went to his mother’s apartment, called the operator and reported the shooting without giving his name. Christian identified the appellant, whom he had known for 6 years, as Miller’s murderer.

Miss Julia Taylor, the appellant’s girlfriend, testified that the appellant was with her at the time the murder was committed. The appellant did not testify.

I Sufficiency of the Evidence

The appellant contends that the evidence was insufficient to support his convictions because the testimony of Stephen Christian, the eyewitness, was “so fraught with inconsistencies regarding the critical issue of this case that it should be entirely disregarded.” Once again an appellant has attempted to come within the confines of what has become known as the Kucharczyk doctrine. Kucharczyk v. State, 235 Md. 334, 201 A. 2d 683 (1964). See Bailey v. State, 16 Md. App. 83, 294 A. 2d 123 (1972). Once again we hold that Kucharczyk is inapposite.

The appellant bases his contention on what he asserts are four inconsistencies in Christian’s testimony:

(1) On direct examination Christian testified that after the appellant told him he was going to kill the victim, “He (appellant) told me I had better sit down, I better not run or he will get me.” This was said just prior to the murder. On redirect Christian testified that the appellant also said that if he (Christian) said anything he would kill him. We find no material discrepancy in this testimony.

(2) On direct examination Christian was asked if he had said anything to the appellant after being informed that the appellant intended to kill the victim. Christian answered,

“Not that I can remember, I was shocked. I didn’t really believe him.” On cross-examination Christian testified that he said, “Think about it, something like that. ‘Don’t do that,’ I can’t remember what it was. It was so long ago.” This discrepancy clearly dealt only with minor or peripheral details and not with the core issues of the very occurrence of the corpus delecti or of the criminal agency of the appellant. As such Kucharczyk v. State, supra, does not apply. Bailey v. State, supra at 96.

(3) On direct examination, Christian said that after the shooting he ran up to his mother’s apartment and called the police to inform them of the shooting. On cross-examination, it was disclosed that he did not in fact talk with the police but that he gave the information to the operator. Here again the discrepancy goes to a very minor point and Kucharczyk does not apply. Bailey v. State, supra at 96.

(4) Several days after the murder Christian told the police that he had been at a store at the time of the murder and that when he returned to the scene Miller was already dead. He added that he had not come forward earlier with correct information because he was threatened. At appellant’s trial, however, Christian testified that he did not inform the police of what he knew because his mother would not allow him out. Kucharczyk does not apply because a witness’s trial testimony is contradicted by other statements which the witness has given out of court. Bailey v. State, supra at 95.

II Juror Misconduct

The appellant also contends that the trial judge erred in denying his motion for a new trial. That motion was based on an allegation that the foreman of the jury fell asleep during the court’s advisory instructions at the close of the case. There is no record of this occurrence in the transcript of appellant’s trial. The trial judge during the course of the hearing on appellant’s new trial motion clarified the situation:

“The Court: Let the record show that for a moment the foreman of the jury dozed and I awakened him immediately and there was no question whatsoever concerning his attention before or after.”

The disposition of a new trial motion is within the sound discretion of the trial judge and will not be disturbed on appeal unless a clear abuse of that discretion is shown. White v. State, 17 Md. App. 58, 67, 299 A. 2d 873 (1973). We find no abuse in the instant case.

In Hall v. State, 223 Md. 158, 162 A. 2d 751 (1960), the Court of Appeals dealt directly with the problem of a sleeping juror. The Court held that if a defendant alleges that a juror, or jurors, were guilty of misconduct, he is required to prove that the misconduct actually occurred and that he was prejudiced thereby. See also Holt v. State, 3 Md. App. 544, 547, 240 A. 2d 355 (1968). In affirming Hall’s conviction the Court, discussing his failure to show prejudice, stated at page 178:

“In addition, ‘[t]he length of time the juror was asleep is not shown, nor does it appear what testimony was introduced during that time, nor that it was of any importance or extent, nor whether favorable or unfavorable to the accused. There is no showing that the defendant was in any way prejudiced.’ Braunie v. State, supra, 105 Neb. at 358.”

In the instant case, while there is evidence that the foreman of the jury fell asleep, the trial judge stated that he “dozed for a moment”, the appellant has in no way shown how he was prejudiced by the foreman’s momentary inattention. We hasten to add that the problem could easily have been rectified if the appellant had objected at the time the foreman fell asleep and had asked the court to repeat the portion of the instructions, if any, the foreman had missed.

Ill Verdicts

In the case at bar, when the jury returned with its verdict, the following took place:

“The Clerk: Members of the jury, have you reached a verdict?
The Jury: Yes, we have.
The Clerk: Who shall say for you? Stand up, Mr. Wright. Members of the jury, how say you, is Victor J. Wright guilty of the matter wherein he stands indicted or not guilty?
The Foreman: Guilty.
The Court: Now, as to the first count, what is your finding?
The Foreman: First degree.
Mr. Cohen: I’m sorry, I didn’t hear.
The Foreman: Guilty of murder in the first degree.
The Court: As to the fourth count, what is your finding?
The Foreman: We didn’t render a decision on that.
We never even considered it.
The Court: I had indicated you would consider the first and fourth counts of the indictment, so I will ask you to go back and talk about that count. That is the count of the indictment which charges the Defendant with having used a handgun in the commission of a crime. Let me have the indictment. If you remember, members of the jury, I called your attention to the fact that you were to consider the first and fourth counts. The fourth count charges the Defendant with unlawfully using the handgun in the commission of a crime of violence. I’ll ask you please to retire to consider that particular count.”

Appellant objected to the jury being sent back to deliberate and moved for mistrial. The motion was denied. At the appellant’s request, the jury was polled as to the first count. The jury was then harkened to the verdict and sent back to deliberate as to the fourth count. They subsequently returned a verdict of guilty as to that count.

Appellant contends that the action of the trial judge in sending the jury back to deliberate on the fourth count was error.

A verdict, finding an accused guilty under one count of a multi-count indictment and being silent as to the remaining count or counts is a valid verdict and is equivalent to a verdict of not guilty as to the remaining counts. Glickman v. State, 190 Md. 516, 523, 60 A. 2d 216 (1948); Hechter v. State, 94 Md. 429, 50 A. 1041, 56 L.R.A. 457 (1902); Gaskins v. State, 10 Md. App. 666, 671, 272 A. 2d 413 (1971), cert, denied, 404 U. S. 1040; Gibson v. State, 8 Md. App. 1, 4, 256 A. 2d 890 (1969); Agresti v. State, 2 Md. App. 278, 280 n. 1, 234 A. 2d 284 (1967). This rule, however, does not apply to the instant case because the trial judge immediately upon learning that the jury had failed to consider the fourth count of the indictment in their original deliberations directed them to return to the jury room and deliberate upon that count. This action was proper under the rule laid down in Heinze v. State, 184 Md. 613, 42 A. 2d 128 (1945):

“Where a verdict is ambiguous, inconsistent, unresponsive, or otherwise defective, it is the duty of the trial judge to call the jury’s attention to the defect and to direct them to put the verdict in proper form either in the presence of the court or by returning to their consultation room for the purpose of further deliberation.” Id. at 617.

The rule was approved and enlarged in Glickman v. State, supra, where the Court of Appeals stated:

“Certainly then, when the jury have arrived at no verdict and so state, it is equally the duty of the trial judge to require them to retire, deliberate upon the case, and arrive at a verdict if possible.” Supra at 525.

IV Allocution

The appellant finally contends that he was denied his right to allocution prior to sentencing.

A defendant’s right to allocution is given by Md. Rule 761 a:

“Sentence shall be imposed without unreasonable delay. Before imposing sentence the court shall afford an accused or his counsel an opportunity to make a statement and to present information in mitigation of punishment.”

The dictates of Rule 761 a have been held to be mandatory. Brown v. State, 11 Md. App. 27, 31-32, 272 A. 2d 659 (1971). If allocution has been denied a defendant, the remedy in the appellate court is to vacate the sentence and remand the case for resentencing with the proper formalities, i.e. with allocution. Brown v. State, supra at 34.

In the instant case the right of allocution was denied. The State argues, however, that the error was harmless because the sentence imposed for the murder conviction (life imprisonment) was mandatory and because the sentence imposed for the handgun violation (5 years consecutive) was the statutory minimum.

In Bartholomey v. State, 267 Md. 175, 297 A. 2d 696 (1972), the Court of Appeals, as a result of the Supreme Court’s decision in Furman v. Georgia, 408 U. S. 238, 92 S. Ct. 2726, 33 L.Ed.2d 346 (1972) declaring the death penalty unconstitutional in certain situations, remanded Bartholomey’s murder conviction for resentencing. The Court directed the lower court to impose a life sentence and specifically declared that:

“At the resentencing hearing, Bartholomey has the right to be present and represented by counsel, additionally, he should he afforded his right of allocution under Rule 761 a.” (Emphasis added). Bartholomey v. State, supra at 186.

Thus in spite of the apparent mandatory nature of the sentence to be imposed on Bartholomey, the appellant was entitled to allocution. The same rationale applies to the instant case.

Relative to the handgun sentence, the State argues that the statute defining the crime, Md. Code, Art. 27, § 36B (d), makes a 5 year consecutive term the minimum that can be imposed. Art. 27, § 36B (d) provides:

“Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.”

It has recently been held that a sentencing judge has no power to impose less than a 5 year sentence or to suspend a sentence for a conviction under Art. 27, § 36B (d). State ex rel. Sonner v. Shearin, 272 Md. 502, 325 A. 2d 573 (1974). That case does not provide guidance, however, as to the question of whether the mandatory 5 year sentence must be consecutive to any other sentence which is imposed. For that we must look to the words of the statute. The statute, after generally defining the crime, designates it as a “separate misdemeanor.” It then provides that the sentence, which may range from 5 to 15 years, shall be “in addition to any other sentences” which may be imposed. The dominant purpose of this language and of all of Section 36B is to stop the alarming rise in the use of handguns in the commission of crimes of violence. Md. Code, Art. 27, § 36 (a). There is, however, a world of difference between creating a new substantive offense and providing that the penalty for such an offense in all cases be consecutive. The legislature, if it had wanted to accomplish the latter, would have used express language to do so. In the absence of such express language, we think the sentence imposed for violations of Art. 27, § 36B (d) may be either concurrent or consecutive as the sentencing judge in his discretion sees fit. This conclusion does not defeat the legislature’s purpose. A concurrent sentence for the handgun violation is certainly “in addition to” any other sentence which may also be imposed and presents serious consequences to the person sentenced.

Our conclusion is also supported by the two well established rules of statutory interpretation. The first of these is that a statute will be strictly construed where it is in derogation of the common law. MacBride v. Gulbro, 247 Md. 727, 729, 234 A. 2d 586 (1967); Roberts v. Warden, 242 Md. 459, 460, 219 A. 2d 254 (1966), cert, denied, 385 U. S. 876; City of Baltimore v. Baltimore Gas & Electric Co., 232 Md. 123, 135, 192 A. 2d 87 (1963); State v. Gibson, 4 Md. App. 236, 247, 242 A. 2d 575 (1968), aff’d. 254 Md. 399; 3 Sutherland Statutory Construction § 61.01 (4th ed. 1973). The Court of Appeals in Gleaton v. State, 235 Md. 271, 277, 201 A. 2d 353 (1964) stated the rule thusly:

“Statutes in derogation of the common law are strictly construed, and it is not to be presumed that the legislature . . . intended to make any alteration in the common law other than what has been specified and plainly pronounced.”

While the legislature has the inherent power to specify the penalties to be imposed by a court for the commission of a given crime, State ex rel. Sonner v. Shearin, supra at 513, the court has the common law power to impose the sentence it sees fit so long as it comports with the statutory and constitutional mandates. Gleaton v. State, supra at 277; Reynolds v. Warden, 229 Md. 623, 625, 182 A. 2d 875 (1962); Reid v. State, 200 Md. 89, 92, 88 A. 2d 478 (1952); Washington & Walker v. State, 2 Md. App. 633, 634, 236 A. 2d 32 (1967). This judicial power also extends with the same limitations to the determination of whether a sentence will be consecutive or concurrent. Martin v. State, 227 Md. 407, 410, 177 A. 2d 247 (1962); Long v. State, 7 Md. App. 256, 263, 254 A. 2d 707 (1969).

In the case at bar, the argument advanced by the State is in essence that by Article 27, § 36B (d) the legislature stripped the judiciary of its discretion to impose a concurrent sentence and thus changed the common law in that regard. While the legislature clearly has the power to do so, a legislative change in the common law should never be presumed except where the change is specifically and plainly pronounced by the legislature. Gleaton v. State, supra. In this case such a specific and plain pronouncement is not contained in Art. 27, § 36B (d).

The second rule of statutory construction which supports our conclusion that Section 36B (d) does not mandate consecutive sentences is stated in 3 Sutherland Statutory Construction § 59.03 at 6-7.

“It is an ancient rule of statutory construction and an oft-repeated one that penal statutes should be strictly construed against the government or parties seeking to exact statutory penalties and in favor of persons on whom such penalties are sought to be imposed. When the law imposes a punishment which acts upon the offender alone, and it is not a reparation to the party injured, and the punishment is entirely within the discretion of the law giver, it will not be presumed that the legislature intended the punishment to extend farther than is expressly stated.
“And as a corollary of the rule, in case of doubt concerning the severity of the penalty prescribed by a statute construction will favor a milder penalty over a harsher one.”

This rule has been followed in Maryland. Gatewood v. State, 244 Md. 609, 617, 224 A. 2d 677 (1966); Grimm v. State, 212 Md. 243, 246, 129 A. 2d 128 (1957); Fowel v. State, 206 Md. 101, 107, 110 A. 2d 524 (1955); Wanzer v. State, 202 Md. 601, 611, 97 A. 2d 914 (1953); Allen v. State, 18 Md. App. 459, 468, 307 A. 2d 493 (1973).

While the rule is most often applied to situations in which the question is what is or is not criminal conduct under a statute, we think the purpose and rationale for the rule apply with equal force to the question presented here. Where, as here, the statute does not make clear on its face the type of sentence which can be imposed, it should be construed so as to allow either consecutive or concurrent sentences.

We therefore vacate the appellant’s sentences and remand the case to the lower court for resentencing with directions that at the resentencing hearing he be present, have the assistance of counsel and be given his right to allocution.

Sentences vacated; case remanded for resentencing; judgments otherwise affirmed.

      . Cases are now pending which involve the question of probation, where a life sentence is the required punishment. We express no opinion on the question.

      . We note that there have been numerous cases in which the sentence imposed for a violation of § 36B (d) was in fact concurrent. See e.g. State ex rel. Sonner v. Shearin, supra; Bremer v. State, 18 Md. App. 291, 307 A. 2d 503 (1973), cert, denied, 415 U. S. 930.


text:
    JAMES HENRY McROY v. STATE OF MARYLAND
    [No. 294,
    September Term, 1974.]

      Decided January 16, 1975.

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

      Alan D. Massengill, Assigned Public Defender, with whom were Massengill & Michael on the brief, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Irma S. Raker, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

In the arena provided contestants in an adversary system, it is not surprising that the atmosphere of conflict may occasionally affect the referee. It is inevitable that at some time, some adversary will lose perspective and view as an enemy the judge sitting opposite him rather than the opponent sitting next to him. If these forays develop personal feelings the one toward the other, the defendant, who should demand the total attention of all participants, may become the loser. There remains contemporary purpose in the hoary aphorism “veritas nimium altercando amittitur” — by too much altercation, truth is lost.

Appellant, James Henry McRoy, was found to have violated his probation after four and one-half years of a five year probationary sentence on an original charge of indecent exposure. Since it was proven that during the period of probation, appellant had been convicted of criminal activity, absconded from custody, did not have steady work, did not report job changes as required, did not avail himself of psychiatric help and regularly used drugs, it would seem that the decision to revoke probation was not an unjust one. The road leading to that result was, however, a rocky one indeed.

Appellant appeared before the Circuit Court for Montgomery County on October 17, 1973 following his arrest on bench warrant issued May 17, 1973. He was released on bond. Appellant had not obtained counsel for his October 17, 1973 hearing on violation of probation, nor was counsel appointed. The attorney who had been appointed to represent McRoy when the original sentence was imposed appeared pursuant to notice.

Upon questioning by the court the attorney stated that he had represented McRoy in the conviction for which probation was now subject to revocation; however, he had not represented him at, nor known of, two criminal trials since the original representation. He argued that the State should have filed a formal petition alleging violation of probation and for that reason, as well as to provide him time to prepare, the hearing should be postponed. Paradoxically, he then stated he had not entered his appearance in this case. Being so advised the court asked what standing the attorney had to represent McRoy, to which he replied:

“Because you ordered me to appear here by your letter directly to me to which I feel there is a return receipt somewhere. I had to sign a return receipt.”

The court responded:

“I don’t remember. If I wrote you, I may have written you saying we are putting you on notice that your former client had been charged with violating probation and leaving it up to you to decide whether you wanted to enter your appearance so you have no standing.”

The hearing was then held without benefit of counsel for McRoy, and the court struck the suspension and reimposed the five year sentence.

On November 14, 1973 correspondence by appellant to the court was treated as a petition for review of sentence. Counsel then entered his appearance on appellant’s behalf on January 16, 1974 and pursuant to his motion of March 5, 1974 the appellant’s letter was “docketed as a motion for modification of sentence under [Md. Rule] 764,” nunc pro tunc. The order conceded that the October 17, 1973 proceeding “did not substantially comply with the requirements of Gagnon [v. Scarpelli, 411 U. S. 778]” and thus ordered the:

“State’s attorney to prepare papers giving notice to the defendant of the violations of probation charged against him and giving him notice of a hearing so that he may be afforded an opportunity to show cause why his probation should not be revoked. Said hearing should be on the merits since defendant, through counsel, had indicated his waiver of any right to a Gagnon-type preliminary hearing.”

Apparently still dissatisfied, counsel for appellant filed a “Motion to Vacate Order of October 17, 1973 and Parts of Order of March 5, 1974,” arguing that notwithstanding the admission of noncompliance with Scarpelli, the order of March 5, 1974 was “void as a matter of law and must be vacated.” Counsel then argued in his petition and here, that the court does not have the authority to order the State’s Attorney to prepare and file a petition for revocation of probation. This motion was denied on April 24, 1974 immediately preceding the hearing on the merits.

At the hearing the State provided evidence that while on probation appellant was convicted on two counts of indecent exposure, one count of robbery and three counts of larceny. Further evidence indicated appellant’s addiction to heroin, poor employment record and avoidance of supervision. Probation was revoked and the five year sentence reimposed.

However, once again appellant’s hearing proceeded with little or no assistance of counsel. Piqued as the result of an altercation with the trial judge, counsel declined to participate, save for an occasional sporadic intrusion. The crux of the misunderstanding on this occasion related to whether or not counsel agreed to waive a preliminary hearing on behalf of his client. We are without benefit of the terms of the agreement since it was made in chambers between hearings without record. The court’s interpretation was simply stated:

“Mr. Massengill, you and I had a talk in chambers and it was agreed, you agreed as I understood it, that you would waive a preliminary hearing because it would be a waste of time to cover the same ground twice.”

As the trial judge pointed out, however, counsel’s “recollection of what transpired at [the] meeting in chambers differed] substantially from the Court’s.” Counsel’s recollection was of a somewhat complicated and “iffy” agreement which he details in his March 18, 1974 Motion to Vacate.

“That counsel for Defendant told the Court that if the correct procedure was followed and the Order of October 17, 1973 was vacated and the State’s Attorney decided that, under the circumstances it was in the best interests of the citizens of the State of Maryland that a Petition for Revocation of Probation be filed against the Defendant after the Order of October 17, 1973 was vacated and such a Petition was filed and counsel was appointed by the Public Defender to represent the Defendant on such a Petition, that counsel would waive a preliminary hearing since the Court recognized the seriousness and complexity of the attempt to revoke probation after the Defendant has ‘served’ four and one-half years of the probation period and would need counsel to assist him in his defense.”

Whatever the agreement on preliminary hearing, counsel began the second hearing by again asserting his unpreparedness and consequent inability to defend appellant. He stated overtly “I do not intend to participate in this hearing this morning,” because “I am not prepared to proceed . . . This hearing is entirely and completely improper and I am not prepared and cannot represent this man without a chance to prepare the case.” His request for postponement as well as his prayer for leave to withdraw was denied. When asked by the court at the conclusion of the State’s case “Do you wish to put your client on the witness stand, or not,” counsel again responded “I am not prepared to proceed in this matter. I have advised the Court of that; and I do not.” That state of unpreparedness is attested by the record which reflects nearly negligible participation.

Appellant first contends that he was denied due process because the charges amounting to a violation of probation were not under oath and that he was not provided a written statement of charges.

Probable Cause for Revocation

Appellant analogizes the issuance of a bench warrant for a probation violation to the procedure for obtention of a search and seizure or initial arrest warrant. While some similarity may exist, the affidavit required of the latter is not essential to the former. The controlling distinction is that a probationer has been conditionally released, but remains the responsibility of the sentencing judge. The function of the Department of Parole and Probation is limited to supervising, on the court’s behalf, conformity with the probation conditions. Md. Code, Art. 41, § 124. It has no direct authority over probation in the form of revocation power such as it has over parolees. As the court’s agent, it reports on misconduct which violates the terms of probation. Md. Code, Art. 41, § 124 (a). If the violations are technical such reports may be informally conveyed; however, if the violations are substantial as in this case where probationer was convicted of other crimes, a detailed and lengthy “Special Report” is filed with the court. Such a report outlining the appellant’s defalcations appears in the record preceding the issuance of the bench warrant. The record reflects the factual basis from which the judge may conclude the conditions of probation have been violated and probable cause to issue the bench warrant exists.

Although due process rights in general encompass probation revocations, Gagnon v. Scarpelli, supra, “the full panoply of rights due a defendant in such proceedings does not apply to parole [probation] revocations.” Morrissey v. Brewer, 480. To hold otherwise and require the supervising agent who is acting as an arm of the court to provide his report under oath, or, in the present case, invalidate the result of not one but two hearings would strain technical due process beyond the safeguards contemplated by the Supreme Court.

“Parole [probation] arises after the end of the criminal prosecution, including imposition of sentence. Supervision is not directly by the court but by an administrative agency, which is sometimes an arm of the court and sometimes of the executive. Revocation deprives an individual, not of the absolute liberty to which every individual is entitled, but only the conditional liberty properly dependant on observance of special. . . restriction.” Morrissey, 480.

We have said in Knight v. State, 7 Md. App. 313, 321 that the process is informal in character and not subject to the limitations imposed by law upon a trial leading to conviction: “the facts do not have to come to the knowledge of the court in the manner required by rules of evidence.” This record reveals that the judge had ample basis in terms of probable cause to justify issuance of a warrant. Cf, Scarlett v. State, 201 Md. 310.

Written Notice

Appellant next complains that the charges were unwritten citing the Scarpelli recitations of the minimum standards of due process which Scarpelli quotes from Morrissey v. Brewer.

“They include ‘(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.’ ” Scarpelli at 786, citing Morrissey at 489.

Appellant emphasizes that the first of these “minimum standards” requires “written” notice. Again we think appellant’s stress of technical procedure is in error. The recitation of “minimum requirements of due process” defined the extent of the court’s review and was not intended to prescribe particular procedural rules. To the contrary the recitation is preceded by a denial of that intention:

“We cannot write a code of procedure; that is the responsibility of each State. Most States have done so by legislation, others by judicial decision usually on due process grounds.”

In Maryland the procedural steps are outlined in Knight v. State, supra, at 321. The requirement of notice is simply stated to be that “the probationer must be seasonably informed of the substance of the charge against him.” This comports with the use of the term “notice” generically and the Scarpelli phrase to which our attention was directed by appellant “ . . . a probationer or parolee is entitled to notice of the alleged violation . ...” at 786 [Emphasis added].

While in jail for the offenses subsequently creating the basis of revocation, appellant was first served with a bench warrant. On October 17, 1973 a hearing was held during which all of the evidence against him was recited. That the revocation order thereunder was later vacated does not erase the actual notice the hearing provided appellant of the details of every charge and all the evidence against him.

Chief Justice Burger, in writing the Morrissey opinion on parole revocation which was Scarpelli’s foundation, observed that:

“It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands .... Its flexibility is in its scope once it has been determined that some due process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.” Id. at 486.

Most apropos to appellant’s claim that absence of an oath and of a writing of the initial charge denied his constitutional rights, we recall the words of Mr. Justice Cardozo:

“Due process is a growth too sturdy to succumb to the infection of the least ingredient of error.” Roberts v. New York, 295 U. S. 264.

Direction to State’s Attorney

Appellant complains that the Order of March 5, 1974 compelling a new hearing to supersede the October 17, 1973 hearing, which he erroneously felt violated Scarpelli’s requirement for a preliminary hearing, set forth the following:

“In order that the requirements of Gagnon [v. ScarpelU, 411 U. S. 778] be. fully complied with at this new hearing, the Court directs the State’s Attorney to prepare papers giving notice to the defendant of the violations of probation charged against him and giving him notice of a hearing so that he may be afforded an opportunity to show cause why his probation should not be revoked.”

We see no issue before the court to be decided. Appellant concedes that the court may advise the State of the proper procedure to be followed to afford probationer due process, citing Fontana v. Walker, 249 Md. 459, but argues that the court cannot compel the State to initiate prosecution. Here prosecution had been initiated properly by the court when it issued the bench warrant in the first instance. The statement in the order defined the procedure the court wished followed. Whether the court could have compelled conformity with that direction is not before us since the State did comply. Appellant has no standing to complain about the State’s compliance.

Right to Counsel and Adequacy of Counsel

All of the questions remaining hinge upon the adequacy of counsel, whether he was prepared for trial, if not why not, denial of leave to withdraw due to unpreparedness and that counsel’s unpreparedness denied effective assistance of counsel entitling appellant to a new trial. As we have indicated we do not hesitate to say that at both hearings appellant’s representation amounted to no representation. The sparsity of the record, however, prevents our determining whether the absence of effective representation necessarily prejudiced appellant. On the issue of the State’s duty to provide counsel at a probation revocation proceeding, the Supreme Court noted that although participation of counsel would ordinarily be undesirable and unnecessary, certain cases would require it. The decision “must be made on a case-by-case basis in the exercise of sound discretion by the state authority charged with responsibility for administering the probation and parole system.” The Court provided some additional guidance:

“ . . . Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate and that the reasons are complex or otherwise difficult to develop or present.” Scarpelli, at 790.

Although the defense to be afforded against the records of conviction while on probation of indecent exposure, larceny (Criminal Nos. 12590, 12951 and 12962) and robbery (Criminal No. 12754) would in retrospect seem to indicate (1) that he did commit the alleged violation and (2) there is no evidence of justification, mitigation or complicity involved in the convictions on public record, representation once provided must be competent representation. However, the tangential questions raised being founded on unpreparedness and inaction by counsel cannot be answered, nor resulting prejudice assessed, without adequate factual determination below. Md. Rule 1085. The competency issue is one for post conviction relief where all of the facts may be determined at an evidentiary hearing and counsel may defend his inaction.

In conclusion, we feel constrained to comment upon appellant’s counsel’s contention that he was unprepared for the revocation hearing, because he was not properly appointed. He argues that the form letter of appointment used the phrase “to protect Mr. McRoy’s rights in this matter, [Emphasis supplied] and contends “That is what I was appointed to represent him on: a three-judge panel.” It seems that upon successfully petitioning the court to convert the sentence review petition to a Modification of Sentence Motion or better yet indeed “a new hearing for the defendant to determine whether or not his probation shall be revoked” (whichever way the order is interpreted), counsel feels that he has concluded his assignment. Without belaboring the question, suffice to say we find the argument specious at best. Counsel is appointed to represent the defendant in protecting his rights in every proceeding related to the “matter” of his appointment, especially subsequent proceedings brought about by his own efforts, unless and until relieved by the court. The catastrophic results to an indigent defendant whose attorney takes so narrow a view of his representation are all too apparent in the record before us.

Finally we note that appellant indicated throughout his brief that his appeal was from the Orders of October 17, 1973, March 5, 1974 and April 24,1974. No timely appeal was entered for either the October 17, 1973 or the March 5, 1974 Orders. We have considered them only as record documents but without opinion as to their validity. They are presumed so by appellant’s failure to appeal within the 30 days prescribed. Md. Rule 1012.

Having declined to review the effectiveness of counsel on so sparse a record and finding no error pursuant to the Order of April 24, 1974 from which appellant appeals, we affirm the judgment of the Circuit Court for Montgomery County.

Judgment affirmed.

      . The Order of March 5, 1974 contained a mistaken assumption which ignited the entire subsequent melange of pleadings and misunderstandings. The Order rested upon the court’s erroneous application of Scarpelli to Maryland procedures:
      “One of the requirements of Gagnon [v. Scarpelli] affords the probationer the opportunity to have a preliminary hearing.”
      While that statement is correct when applied to revocation proceedings conducted by lay persons on an administrative level, the court below should be disabused of'the assumption that there are no acceptable alternatives to a preliminary hearing where revocation proceedings are conducted by the judiciary. The Scarpelli requirement of a preliminary hearing was intended for those jurisdictions where probation responsibility, and its revocation as well, is directly controlled by an administrative agency as an arm of the executive. The probation of Gerald Scarpelli was revoked under a Wisconsin procedure by its Department of Public Welfare without a hearing. “At no time was he afforded a hearing.” Looking to like jurisdictions with lay supervision and administrative revocation, the court prescribed a preliminary hearing basing its rationale on the parole violation administrative procedures outlined in Morrissey v. Brewer, 408 U. S. 471, where revocation was effected by an Iowa Parole Board on the recommendation of a parole officer also sans hearing.
      In jurisdictions such as Maryland where the continuing responsibility for a probationer remains with the sentencing judge, and the supervising agency merely reports violations to the court but is without revocation authority, the Supreme Court did not preclude adequate alternatives to a preliminary hearing. When the Supreme Court has decided sub silentio that due process is not offended by the absence of a preliminary hearing in a murder case, Coleman v. Alabama, 899 U. S. 1, 8, (see also Md. Dist. Rule 741 (a)), it strains credulity to interpret Scarpelli as unalterably requiring it for probation revocation proceedings judicially conducted.
      The procedural due process safeguard "provided by the preliminary hearing for those jurisdictions utilizing administrative revocation, is primarily to determine whether probable cause, or reasonable grounds, exists for revocation of probation. In Maryland that determination is made by a judge trained by education and experience to make such decisions. At the District Court level, only judges may issue warrants in probation revocation proceedings, not commissioners whom we otherwise authorize to issue arrest warrants for “probable cause.” The significance of that responsibility is attested by its reservation to members of the judiciary. Art. 27, § 643A; Courts Art. § 2-607. We think it clear that a judicial determination of probable cause is an adequate substitute for the same determination by laymen in an administrative preliminary hearing. Cf, Sciortino v. Zampana, 385 F. 2d 132 (2nd Cir. 1967). That understanding is implicit in the words of the Chief Justice discussing procedural safeguards in revocation proceedings for parole violations in Morrissey v. Brewer at 486 when he acknowledged that “. . . not all situations calling for procedural safeguards call for the same kind of procedure.”
      As concerns the overall rights and plenary hearing to determine whether to revoke probation, the court must provide the minimum standards of due process synopsized from Scarpelli and Morrissey and outlined with greater explanation in Knight v. State, 7 Md. App. 313, 321. The guidelines set forth by Chief Judge Orth in Knight remain viable in the light of Scarpelli.
      Required are:
      1) reasonable notice containing the substance of the charges against probationer;
      2) if counsel is requested, appointment thereof provided the Scarpelli criteria, 411 U. S. at 790, are met. If counsel is denied, insertion of a succinct statement of grounds of refusal in the record;
      3) a hearing, providing an opportunity to be heard and present witnesses and evidence;
      4) the right to confront and examine adverse witnesses, unless the court indicates good cause for disallowance of that right;
      5) the court’s reasons for revoking probation clearly reflected in the record.
      Appellant also argues that we must establish “procedural standards for probation revocations.” We decline to prescribe procedures beyond those minimum guidelines heretofore set forth from Knight and Scarpelli. To interpret beyond the “Plimsoll line of due process” would dangerously encroach on enactment of procedural policy.
      “The judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation.” West Coast Hotel Co. v. Parrish, 300 U. S. 379.

      . In most instances the warrant itself is served on the violator, e.g., MDR 706 (d), which seems adequate fulfillment of the “written notice” alluded to by appellant.

      . We do not recognize that letter as properly before us in our conclusions on the merits of this case. Md. Rule 826 (c). Considering the inclusion of an appendix consisting of matter outside the record, we call to appellant’s attention that neither the contents nor the appendix is permissible content of a brief. Md. Rule 1031 (c).