text:
    BERNARD S. LUST et al. v. CELIA C. LUST KOLBE
    [No. 1016,
    September Term, 1975.]

      Decided May 10, 1976.

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

      A. Howard Metro for appellants.

      Alan S. Feld, with whom were Lawrence Z. Bulman and Bulman, Goldstein, Feld & Dunie on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Celia C. Lust Kolbe, the appellee and mother of Bernard S. Lust, entered into a limited partnership, on January 1, 1967. The business endeavor was known as Sidney Lust Theatres Limited Partnership. The appellant, Bernard S. Lust, served as the general partner and his mother as the limited partner.

Whatever the relationship was between the parties prior to April 12, 1973, it may now safely be characterized as far removed from being serene. On that date the appellee filed a bill of complaint in the Circuit Court for Montgomery County in which she alleged the existence of the limited partnership, charged mismanagement of the business by her son, the appellant, averred a breach of appellant’s “. .. confidential and fiduciary relationship . . .” with the appellee, and stated that appellant was “.. . conducting himself in matters relating to the partnership business in such a way that it . . . [was] not reasonably practicable to carry on the business of the partnership.” The bill prayed that the court decree a dissolution of the partnership, order an accounting by the appellant to the appellee, enjoin appellant from removing or secreting partnership assets, declare a constructive trust in favor of appellee, appoint a receiver for the business, enter judgment against appellant for any sum found due by him to appellee and direct a sale of the partnership assets. Appellant, in due time, answered the bill and specifically denied the material allegations of the complaint.

The case was called to trial before Judge Ralph G. Shure on July 9, 1973. During his opening remarks to the court, the appellant’s counsel said that the partnership business was operated in the same manner as it had been run prior to the creation, on January 1, 1967, of the limited partnership. In response to Judge Shure’s question of what counsel had to say with respect to unsecured loans made by appellant, as general partner, to himself or his other personal business ventures, counsel replied:

“ . . . I can only tell you that our testimony will show that Mr. Lust has conducted this business on the same basis that the Sydney Lust Theatres have been conducted since time immemorial.”

Counsel argued that the father-mother-son relationship created a unique situation which underlaid the borrowing of money by appellant. During opening argument, however, counsel conceded that the appellant had borrowed money without giving a note, establishing terms for repayment, or giving security, but asserted that this was a long-established manner of operating the business. We note that the partnership agreement did not authorize such loans.

While appellant’s counsel was arguing before Judge Shure the judge said, “Let’s dissolve the partnership.” The record reflects the following then occurred:

“Mr. Frosh [appellant’s attorney]: We have no objection to dissolving the partnership. We have no objection to that.
The Court: Isn’t that what they pray for?
Mr. Frosh: We do not object to dissolving the partnership. It depends on the terms; and if you are going to appoint a receiver, then your Honor is throwing the baby out with the bath water. The minute they have a receiver, they have lost two assets of the partnership.”

Perspicuously, appellant's counsel acquiesced in the dissolution of the partnership. What he did not agree to, however, was the appointment of a receiver. Counsel’s prior acknowledgment that his client had, in fact, made unsecured loans to himself, which were not authorized by the partnership agreement, was tantamount to a confession of mismanagement of the partnership by the appellant. The unsecured loans seemingly placed the partnership assets in jeopardy and, thus, clearly called for the appointment of a receiver. Following the arguments of both counsel and a short recess in order for the judge to “read over” the agreement, the court stated:

“Well now, gentlemen, this is a suit for dissolution of a partnership and for related relief including, or they ask the request for an imposition of a constructive trust and appointment of a receiver and an injunction, et cetera.
The Defendant in his opening statement, by which he is bound, says that he is willing to have this partnership dissolved, so we now have determined that those parties want the partnership dissolved.
The partnership agreement which is now in evidence as Plaintiff’s Exhibit No. 1 provides how assets should be distributed in the event of a dissolution; and it seems to me that there is no useful purpose that can be served by taking any testimony now.
It seems to me that we are under the jurisdiction of the court, and that the court should sign an order dissolving the partnership, referring the matter to a court auditor, and signing an injunctive order, so that the general partner is restricted from either making any additional sales of assets or transfers, or dissipating the assets or anything of that sort.
I do not see any purpose in taking any testimony, under these circumstances.
Now, if it is true that the appointing of a receiver would be a detriment to the partnership, there is no use in appointing a receiver, because we can accomplish the same thing by having the matter referred to an auditor and signing an injunctive order, so that he would not be able to proceed any further in the dissipation of assets, or making any unsecured loans, or anything of that sort, in addition to which, the testimony of mother against son would seem to me to be just opening up additional wounds, which is not now necessary.”

The next day, July 10, 1973, the judge signed an order (filed July 11, 1973) which (a) dissolved the Sidney Lust Theatres Limited Partnership and commanded distribution of assets in accordance with the “Articles of Partnership”; (b) referred the case to an auditor for statement of account upon dissolution; (c) enjoined the appellant to “ .. . remain as manager of . .. [the] partnership during the period of dissolution . . .” with compensation deferred until the final report of the auditor; and (d) enjoined appellant from removing or secreting partnership assets.

On July 18, 1973, appellant moved for reconsideration of the court’s order. Judge Shure, on January 30, 1974, determined that his original “ . . . [o]rder must stand as the ultimate dissolution of the ... partnership.” Bernard Lust then appealed to this Court on February 15, 1974. Five days later, appellant filed a “Motion for Leave to File An.Appeal.” Appellant also filed an appeal on February 28, 1974. We dismissed the appeal under the authority of Md. Rule 1035 b 1 in that there was no timely appeal taken from the order of July 10, 1973, and although the appeal from the order of January 30, 1974, was timely, the latter order was interlocutory in nature and, hence, not appealable under Md. Ann. Code, Courts and Judicial Proceedings Art. § 12-303.

The auditor-filed his first report on March 21,1974. In the report of the auditor, it was noted that appellant had not been fully cooperative and, as a result, the report would be incomplete. The following day, the court ordered that appellant appear before the auditor. Appellant filed “objections” to the first report. Before any ruling on these objections, the auditor filed, on November 8,1974, his second report. Appellant excepted thereto. The court overruled all exceptions on January 30, 1975, and at the same time designated the auditor as a “Trustee,” until his appointment as a “Trustee in Liquidation” of the partnership. The final appointment of the “Trustee in Liquidation” was deferred pending a consent to the appointment by Beta Corporation, the landlord of a property leased to the partnership. The obvious purpose in attempting to obtain Beta’s consent was to avoid bringing into effect a covenant of the lease that provided for the lease’s termination if the partnership was adjudicated to be bankrupt. Prior to Beta’s answer, Bernard Lust noted an appeal from the order of January 30,1975. We dismissed that appeal on the ground that it was interlocutory and, hence, not appealable under Courts Art. § 12-303. In the time period between the noting of an appeal to this Court, and our dismissal thereof, Beta Corporation, in their answer of March 7, 1975, and at a hearing on May 9, 1975, took the position that the appointment of a “Trustee in Liquidation” was equivalent to an adjudication of bankruptcy. Judge Shure made no ruling at that time, because he believed the appeal divested the trial court of jurisdiction.

After we dismissed the appeal from the January 30, 1975, order, the court, on August 22, 1975, based on the argument before it on May 9, 1975, signed an “Order for Appointment of Trustee in Liquidation and Injunction.” The order appointed the auditor-trustee as the “Trustee in Liquidation” and enjoined Beta Corporation from declaring a forfeiture under the lease. Bernard Lust once more appealed and once again the appellee moved to dismiss the appeal. We denied the motion to dismiss for the reasons hereinafter explained.

In that connection, we deem it advisable to comment upon the nature of a “Trustee in Liquidation” vis d vis a receiver.

As a general rule, the appointment of a receiver is a matter resting within the sound discretion of the equity court. The discretion, however, is neither arbitrary nor absolute. IV J. Pomeroy, A Treatise on Equity Jurisprudence § 1333 (5th ed. 1941). It must be “ . . . exercised with great circumspection. . . .” Howeth v. Coulbourne Bros., 115 Md. 107, 121, 80 A. 916, 921 (1911).

By statute, in this State, the order appointing a receiver can be appealed, if the statutory requirement is satisfied, even though the order is interlocutory. Courts Art. § 12-303 (c) (4). IV Pomeroy § 1333, at 927, states:

“In suits for a dissolution or winding up of a partnership, and even in some very special cases without a dissolution, the court may appoint a receiver of the firm assets, when there is any misconduct on the part of the defendants, and even, perhaps,'where the partners themselves are wholly unable to agree as to the management of the property and the settlement of the partnership affairs. The jurisdiction is, however, always exercised with great carefulness and caution.”

A receiver appointed by the court is an officer of the court charged with the duty of receiving, collecting, caring for, administering, and disposing of the property of another “ . . . under the orders of court. .. .” 1 R. Clark, A Treatise on the Law and Practice of Receivers § 11 (a) (3d ed. 1959). “A receiver is not a trustee.” 1 Clark § 43, at 43. A receiver assumes no express or definite trust and only obeys the orders of the court which he represents. The powers of a receiver are not usually fixed by law alone but rather by the order of appointment. 1 Clark § 43, at 44. “Receivers are not strictly speaking trustees . .. because ordinarily without special statute receivers do not take title to the property. They do not derive their power and authority from the deed of trust or other agreement, but they derive their authority from the court.” 1 Clark § 43 (a), at 45. Moreover, when a receiver is appointed, the property in his possession is in custodia legis. Mathias v. Segaloff 187 Md. 690, 697, 51 A. 2d 654, 657 (1947); Safe Dep. & Trust Co. v. Woodbridge, 184 Md. 560, 570, 42 A. 2d 231, 235 (1945); Williams v. Messick, 177 Md. 605, 610, 11 A. 2d 472, 474, 129 A.L.R. 1035, 1038 (1940); Glenn v. Gill, 2 Md. 1 (1852). See 75 C.J.S. Receivers § 104 (1952); 1 Clark § 43, at 44; H. Ginsberg, Equity Jurisprudence and Procedure in Maryland 211 (1928); E. Miller, Jr., Equity Procedure as Established in the Courts of Maryland § 613 (1897).

A trustee may be appointed without the necessity of a court order, as e.g., by a trust, will, mortgage, or deed. His powers usually stem from the instrument creating the position and not by a decree of court. The property in the hands of a trustee is not in custodia legis. 1 Clark § 43, at 44.

While an officer of the court may be styled a “trustee,” if the duties assigned to him by the court are those of a receiver, then the mere use of the title “trustee” does not alter the fact that he is a receiver. Paraphrasing William Shakespeare’s Romeo and Juliet Act II, scene ii, line 43, a receiver by any other name is still a receiver. The use by the court of the title “Trustee in Liquidation” is an obvious attempt to circumvent the happening of a contingent event and does not diminish the duties of the receiver nor does it preclude the happening of any dormant condition that is awakened by the appointment. One who, by appointment of the court, undertakes the duties of a receiver is a receiver irrespective of whether the appointing court chooses to call the receiver by some other name. We hold that the trustee in liquidation, in the matter now before us, is a receiver within the meaning of the law of this State.

We turn now to a discussion of whether the trial court properly appointed a receiver in this case. We have already observed that a court of equity may appoint a receiver for the purpose of dissolving a limited partnership, see note 2 supra, and that counsel for the appellant, during his opening remarks, agreed that the partnership should be dissolved. Apparently, it was the mechanics of the dissolution that troubled counsel. The concession that the partnership should be dissolved was binding upon appellant. Raitt v. Johns Hopkins Hosp., 22 Md. App. 196, 322 A. 2d 548 (1974), rev’d on other grounds, 274 Md. 489, 336 A. 2d 90 (1975); McLhinney v. Lansdell Corp., 254 Md. 7, 254 A. 2d 177 (1969). See also Goff v. Richards, 19 Md. App. 250, 310 A. 2d 203 (1973); McNatt v. Wabash Ry., 335 Mo. 999, 74 S.W.2d 625 (1934); 7 C.J.S. Attorney and Client § 100b (1937). Once appellant, through his attorney, expressed a desire that the partnership be dissolved, there was nothing further for the court to decide with respect to that particular issue. No question of a consent to jurisdiction is involved because the court clearly had jurisdiction under the statute. See note 2 supra. We conclude that Judge Shure properly ordered the dissolution of the partnership.

The next and last issue posed to us by the appellant is whether the chancellor erred in enjoining appellant to “ . . . remain as manager of . . . [the] partnership during the period of dissolution, with any compensation for his services to be delayed until the final report of the . .. auditor.”

There is no evidence, in this case, that the appellant is devoting his full time to the position of manager of the partnership or that the injunction is in any way oppressive or operating so as to work a hardship on appellant. There is no evidence that the delay in paying appellant for his services places appellant in a financially unsound position or causes him any fiscal embarrassment. Under the particular circumstances of this case, we observe no error. The issuance of such an injunction, however, could, in some cases, work in such a manner as to indicate a form of involuntary servitude, and, thus, be unconstitutional.

We believe, however, the injunction issued in this case to be sound in that it was apparent to the court that the appellant was the only person who knew the day-to-day operations of the business, was familiar with the intricacies thereof, and was in a position to advise the “auditor” relative to the business. Because of the appellant’s unique position, the court exercised sound discretion in issuing the injunction. Appellant is, of course, at liberty to seek dissolution of the injunction and reasonable compensation for his services.

We amend the order of August 22, 1975, by striking out the phrase “Trustee in Liquidation” wherever therein it appears and substituting therefor the word “Receiver.”

Order amended and as amended affirmed.

Costs to be paid by appellant.

      . Sidney Lust, now deceased, was the husband of the appellee and the father of the appellant.

      . A limited partner has the right to “Have dissolution and winding up [of the partnership] by decree pf court.” Md. Ann. Code, Corporations and Associations Art. § 10-109 (a) (3).

      . Appellant filed a Counterclaim, Md. Rule 314 a, which is not pertinent to our discussion of this case.

      . We glean from this remark and other statements by counsel that the partnership leased two theatres which were productive and that the leases contained clauses which would allow termination of the lease upon the appointment of a receiver for the partnership.

      . The record discloses- that the appellant’s counsel, the day after the hearing, wrote to Judge Shure and attempted to retract his in-court admissions. We see no error in the court’s declination to allow the retraction.

      . It is apparent from the transcript of Judge Shure’s May 9,1975, ruling that he was uncertain whether the January 30,1975, order, then the subject of the pending appeal, would be deemed a final or interlocutory order by the appellate court. If it had been deemed final, then the apDeal would have divested the trial court of jurisdiction. Since the order was deemed by us to be interlocutory in nature, Judge Shure did, in fact, have jurisdiction and could have entered a final order in the case. See Smiley v. Atkinson, 12 Md. App. 543 (1971), aff'd, 265 Md. 129 (1972). In any event, we note that Judge Shure was prudent in awaiting the action of the appellate court under the circumstances of this case.

      . Beta did not appeal.

      . We make clear that we are not, in this opinion, speaking of any powers, duties, or responsibilities of a trustee in a bankruptcy proceeding.


source: Caselaw Access Project

author: Gilbert, J.,

license: Public Domain

text:
    JOSEPH ANDREW HEBB, JR. v. STATE OF MARYLAND
    [No. 1023,
    September Term, 1975.]

      Decided May 10, 1976.

      The cause was argued before Gilbert, Menchine and Melvin, JJ.

      Robert H. Moreland, Assigned Public Defender, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General and George R. Sparling, State’s Attorney for St. Mary’s County on the brief, for appellees.
   Gilbert, J.,

delivered the opinion of the Court.

The Law

Whenever the voluntariness of an accused’s confession, or other self-incriminating statement made to police officers or prosecutorial officials, is attacked at trial, the judge should follow the guidelines laid down by the Court of Appeals in Day v. State, 196 Md. 384, 399, 76 A. 2d 729, 736 (1950), as explicated and embellished, by this Court, in Mulligan v. State, 18 Md. App. 588, 308 A. 2d 418 (1973); Mulligan v. State, 10 Md. App. 429, 271 A. 2d 385 (1970); Barnhart v. State, 5 Md. App. 222, 246 A. 2d 280 (1968).

Then Chief Judge Marbury penned for the Court of Appeals, in Day:

“The practice in this State, approved in many cases, is that the court first hears evidence without the jury to determine whether a confession is voluntary and should be admitted. If it decides to admit it, the same evidence is then given to the jury, as it has the final determination, irrespective of the court’s preliminary decision, whether or not the confession is voluntary, and whether it should be believed. In so doing, the jury is entitled to have before it all of the evidence which affects the voluntary character of the document, and which the court passed upon the admitting it.” 196 Md. at 399.

Subsequent to the Court’s decision in Day, the Supreme Court of the United States handed down its decision in Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). In Miranda, Chief Justice Warren articulated certain rights, the existence of which the police are required to inform each person prior to any custodial interrogation. Absent an effective waiver of the Miranda rights, an inculpatory statement will be suppressed. Miranda engrafted upon Day the constitutional safeguards that operate as a prerequisite to the admissibility, in the State’s case-in-chief, of an inculpatory statement irrespective of its otherwise trustworthiness.

If an accused asserts that his statement to the police was made in violation of Miranda’s tenets, the trial judge should determine, preliminarily, out of the presence of the jury, the mixed question of law and fact that is then presented. It is incumbent upon the trial judge to decide, by a preponderance of evidence, Mulligan v. State, 18 Md. App. at 597-602, that the accused’s custodial statement was a free and voluntary expression and that Miranda has been satisfied. Only then may the statement be considered by the jury as part of their “beyond a reasonable doubt” fact finding process. Gill v. State, 265 Md. 350, 357-58, 289 A. 2d 575, 579 (1972). See also Dempsey v. State, 277 Md. 134, A. 2d (1976), reversing Dempsey v. State, 24 Md. App. 8, 330 A. 2d 204 (1974).

We made clear, in the second Mulligan decision, 10 Md. App. at 432, that “The trial judge’s conclusion that the confession was voluntary must appear from the record with unmistakable clarity.” What we did not say in the second Mulligan, but did declare in the third Mulligan, is that Lego v. Twomey, 404 U. S. 477, 92 S. Ct. 619, 30 L.Ed.2d 618 (1972), mandates that the standard of proof the State must meet before the trial judge may admit an accused’s challenged statement into evidence is that of a preponderance. Mulligan v. State, 18 Md. App. at 597-602. The rule now is that the record must reflect with unmistakable clarity the trial judge’s finding that a statement or confession was, by a preponderance of the evidence, voluntary and made in accordance with Miranda.

If our independent review of the record does not disclose that the statement or confession was found by the trial judge, with unmistakable clarity, to be voluntary, or if it appears that he imposed a lesser burden of proof than preponderance upon the State in weighing the question of voluntariness, it is reversible error.

The Instant Case

John Andrew Hebb, Jr., was convicted by a jury, presided over by Judge Joseph Mattingly, in the Circuit Court for St. Mary’s County, of “grand larceny” and receiving stolen goods. Under Bell v. State, 220 Md. 75, 150 A. 2d 908 (1959), the verdict of the jury was defective in that a defendant cannot be both the thief and the receiver of the same goods or chattels. After some discussion, and on motion of the appellant, the trial judge struck out the verdict as to the grand larceny charge and imposed a sentence of eight years on the receiving count. Such a procedure, particularly in view of the fact that sentence was imposed upon the receiving count only, satisfies Bell v. State, 220 Md. at 81. See also McDuffie v. State, 12 Md. App. 264, 267-71, 278 A. 2d 307, 308-10 (1971).

During the trial of the appellant, he interposed an objection to the admission of the incriminating statement he allegedly made to a deputy sheriff. The objection was grounded on a supposed infraction of Miranda. For reasons that are not clear from the record, no out of the presence of the jury hearing was held. It appears that, except for arguments of counsel made at bench conferences, the jury was allowed to hear, initially, of the statement allegedly taken by the police from the accused in violation of Miranda. Should the statement ha^e been ultimately held by the trial judge to be inadmissible, the mere fact that the jury heard it or, even heard of its very existence, might have required reversal under the second Mulligan, 10 Md. App. at 432.

A deputy sheriff testified that he orally gave to the appellant, a sixteen year old, in the presence of the appellant’s parent, the complete Miranda warnings, and that appellant wanted to make a statement. We quote from the introduction to the statement:

“VOLUNTARY STATEMENT
DATE November S0-197U PLACE Sheriffs Office Leonardtown Time Statement Started 1740 p.m. I, the undersigned, Joseph Andrew Hebb, Jr., of Compton Md., being 16 years of age, born at Leonardtown Md., on June SO, 1958, do hereby make the following statement to Deputy Richard L. Voorhaar Joe Lee Sommerville, he having first identified himself as a Deputy sheriffs St. Marys Co., knowing that I may have an attorney in my behalf present and that I do not have to make any statement nor incriminate myself in any manner. I make this statement voluntarily, of my own free will, knowing that such statement could later be used against me in any court of law, and I declare that this statement is made without any threat, coercion, offer of benefit, favor or offer of favor, leniency or offer of leniency by any person or persons whomsoever.”

The format of the “Voluntary Statement” does not strictly comply with Miranda in that the full panoply of rights are not present. Missing therefrom is the constitutional right to have an attorney appointed for the accused if he cannot afford to engage one, or that the rights may be invoked at any time during interrogation. In any event, as we have said, the appellant was advised of his Miranda rights when the deputy read those rights to appellant in the presence of appellant’s parent. There was no evidence produced by the appellant which contradicted the State’s recitation of events.

Immediately after the Miranda rights were given to the appellant, and he indicated his desire to make a statement, he was led to another place where the illumination was better, and the “Voluntary Statement” was taken. In our view, the Miranda warnings were still viable, and it was unnecessary to repeat them in the light of the short lapse of time between the warnings and the actual making of the statement.

At the conclusion of the evidence pertaining to the voluntariness vel non, of the statement, the trial judge responded to an objection to its admission; “Overruled. It [the statement] will be admitted into evidence.”

We have seen that a statement may be free and voluntary and still violate Miranda. A statement may be held to be free and voluntary, in compliance with Miranda, and yet not meet the requirements of Lego v. Twomey, supra, and the third Mulligan, supra, because the wrong test was used in admitting the confession or statement. The record in the case now before us is silent as to the standard of proof used by the trial judge. Did he apply Lego-Mulligan, or did he follow the implicit suggestion of the State’s Attorney that the State need but demonstrate voluntariness by a “prima facie showing”? See note 8 supra. If the judge followed Lego-Mulligan, the confession was properly admitted. If he adhered to the constitutionally infirm prima facie test, there was error of such magnitude as to necessitate reversal. Felde v. State, supra.

While the judge did not so state, the message that comes through from a review of the record, with “unmistakable clarity,” is that he believed the statement to have been made freely and voluntarily.

Judges are presumed to know the law. Samson v. State, 27 Md. App. 326, 334, 341 A. 2d 817, 823 (1975). See Schowgurow v. State, 240 Md. 121, 126, 213 A. 2d 475, 479 (1965). Absent an indication to the contrary, we must assume that judges apply the law correctly to the case before them. Therefore, inasmuch as the trial judge in the instant case did not articulate his reasons for admitting the appellant’s statement into evidence, we deduce that he applied the preponderance of evidence test set out by Lego and the third Mulligan. Our independent review of the entire record leads us to conclude that there was ample evidence for the trial judge to find, by a preponderance thereof, that the appellant’s statement not only complied with the Miranda holding but was freely and voluntarily made.

Judgment affirmed.

      . See Sutton v. State, 25 Md. App. 309, 315, 334 A. 2d 126, 129 (1975). where we opined that “general conversation” with an accused conducted after the invocation of Miranda rights was but an exercise in semantics designed to circumvent Miranda.

      . “ ... [W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” (Footnote omitted). 384 U. S. at 478-79.

      . See Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971), however, where the Court permitted a statement taken in violation of Miranda, but otherwise trustworthy, to be used for the purpose of impeaching, on cross-examination, an accused who elected to testify in his own behalf.

      . See note .3 supra.

      . See Felde v. State, 26 Md. App. 15, 336 A. 2d 823 (1975), cert. denied, 275 Md. 748 (Ct. App. August 1, 1975); Ponds v. State, 25 Md. App. 162, 335 A. 2d 162 (1975).

      . The Mulligan case was decided by this Court on three separate occasions. Mulligan v. State, 18 Md. App. 588, 308 A. 2d 418 (1973); Mulligan v. State, 10 Md. App. 429, 271 A. 2d 385 (1970); Mulligan v. State, 6 Md. App. 600, 252 A. 2d 476 (1969).

      . The rule that “. .. one may not be convicted of stealing that which he has been determined to have received” has been endorsed numerous times since Bell. Stevens v. State, 27 Md. App. 460, 467, 340 A. 2d 717, 721 (1975). See McDuffie v. State, infra; Brown v. State, 8 Md. App. 224, 230, 259 A. 2d 85, 88 (1969).

      . We observe that during one bench discussion, inferentially out of earshot of the jury, the State’s Attorney asserted that, “The State has a prima facie burden of proof and the Court makes the determination, and the question of voluntariness is for the trier of fact.” Patently, the State’s Attorney was mistaken on the first and third of his utterances. The test is preponderance of evidence not prima facie evidence. Mulligan v. State, 18 Md. App. 597-602. The court must first determine under the preponderance test whether the statement is voluntary. Id.

      . The deputy related the text of the Miranda rights that he gave to appellant.

      . The italicized portions of the statement were in handwriting. The balance was a printed form.


author:
Melvin, J.,

      Menchine, J.,

text:
    FRED JAMES MADERO v. STATE OF MARYLAND
    [No. 214,
    September Term, 1975.]

      Decided May 11, 1976.

    The cause was argued before Menchine, Lowe and Melvin, JJ.

      Howard Cardin, Assigned Public Defender, for appellant.

      David B. Allen, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Michael B. Sauer, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court. Menchine, J., concurs and filed a concurring opinion at page 507 infra.

Fred James Madero was tried by a jury in the Circuit Court for Baltimore County (Proctor, J. presiding) for the crimes of embezzlement, larceny after trust, receiving stolen goods and grand larceny. At the close of the evidence the trial judge granted appellant’s motion for acquittals on the embezzlement, and larceny after trust charges. The grand larceny and receiving charges were submitted to the jury and it returned a verdict of guilty of grand larceny. On appeal, appellant contends that the State failed to prove that appellant had committed common law larceny.

At the time of the incident from which these charges stemmed, appellant was employed by Columbia Vending Service Co. Although appellant’s duties of employment were never fully developed at trial, it was established that he serviced vending machines on a designated route for the company. Apparently servicing machines entailed insuring that they had adequate supplies and change, and collecting the proceeds from sales. On January 17, 1974, while he was thus servicing the machines at Spring Grove Hospital, Steve Black, the alleged accomplice, entered appellant’s truck and took several bags of money from the truck. Appellant admitted that he failed to lock the truck, and also stated that the bags of money were on the floor of the truck and not in a safe that was in the truck. After a careful review of the record, we conclude that this evidence plus other evidence produced by the State of inculpatory statements made by the appellant was legally sufficient for a jury to be fairly convinced beyond a reasonable doubt that appellant was an accessory to the taking of the money from the van.

Whether appellant’s participation, however, amounted to the commission of a larceny by him is a far more difficult question.

As Judge Orth (now Chief Judge) said in Farlow v. State, 9 Md. App. 515 (1970), at 516:

“If a person unlawfully appropriates the personal property of another to his own use the path between proof of that fact and conviction of a crime should be straight and clear. But in the absence of a legislative enactment creating an all inclusive crime of theft it is not. We do not have such a statute in Maryland. The result is that the precise factual circumstances determine what offense is committed and one offense is distinguished from another by fine distinctions, always technical and frequently absurd. See Loker v. State, 250 Md. 677; Loker v. State, 2 Md. App. 1; Couture v. State, 7 Md. App. 269; Gordon v. State, 5 Md. App. 291; Lockard v. State, 3 Md. App. 580; Van v. State, 1 Md. App. 347.”

The opinion goes on to define and distinguish the various common law and statutory theft offenses, not all of which are pertinent here.

Common law larceny is “the wrongful and fraudulent taking and removal of personal property from the possession of another against his will, with intent to deprive the person entitled thereto of his ownership therein”. Robinson v. State, 4 Md. App. 515, 532. “The ‘taking’ refers to the taking of possession from possession of one entitled thereto. Thus it must be trespassory taking and trespass against possession is the matrix of the common law larceny concept.” Farlow, at 517.

The statutory crime of embezzlement is found in Art. 27, § 129 of the Maryland Code, and reads:

“Whoever being a . . . servant . . . shall fraudulently embezzle any money . . . which . . . shall be . . . taken into possession by him, for . . . his master or employer, shall be deemed to have feloniously stolen the same from his master or employer, although such money . . . was not received into the possession of such master ... otherwise than by the actual possession of his ... servant...

Appellant contends that the trial court erred when it let the jury consider the charge of larceny. It is appellant’s position that the evidence showed that appellant was entrusted with the money and that therefore if he committed a wrong it was embezzlement and not larceny.

The State argues that the accomplice, Steven Black, committed a larceny by taking the money from the possession of the vending service company, and that appellant was guilty of larceny since he was an accessory to Black’s taking. The State assumes without argument that appellant was a custodian and not a possessor of the funds. The distinction is important, for as Chief Judge Orth said in Farlow, at 517:

“There has been a constant judicial struggle to ascertain who has possession because an accused cannot, in legal contemplation, trespass against a person’s property, if that person does not have possession.”

Thus, if at the instant Steve Black carried off the money bags, the money was in the possession of appellant and not Columbia Service, then there would be a larceny committed only if appellant did not consent to the taking. Since implicit in any finding that appellant participated in the scheme to take the money is a finding that he consented to the taking, proof of larceny by either Black or appellant would fail if appellant had possession of the money. There would be no evidence of a trespass against the one with the right to possession. At best the crime would be embezzlement by appellant and his accomplice, Black. See People v. Kelly, 69 Calif. App. 558 (1924), for an example of a case where a California court upheld the embezzlement conviction of an accomplice of a bank teller embezzler.

The fact that appellant had control of the money is, however, not dispositive of whether appellant had possession. The English common law made fine distinctions between possession and custody by servants. Servants were considered to have mere custody of goods when they received the goods from their master to be returned to the master. If the servant appropriated to his own use goods that he was thus in custody of, the act was considered a trespass to the master’s right of possession such that the act would constitute larceny by the servant. If the servant, however, received his master’s property from a third party, he was deemed to have received possession and not mere custody. He, therefore, could not be guilty of larceny until he gave up possession to the master. Rex v. Bazely, 2 Leach 835, 168 Eng. Rep. 517 (1799). To transfer possession to the master, however, it was not necessary to transmit the property personally to the master. Where the servant received the property from a third party and placed the property in some receptacle provided by the master for receiving the property, possession was transferred to the master when the property was placed .in the receptacle. Regina v. Reed, 6 Cox’s Ann. Cases, 284 (1854).

“Goods which have reached their destination are constructively in the owner’s possession although he may not yet have touched them and, hence, after such termination of transit, the servant who converts them is guilty of larceny, not of embezzlement.” Nolan v. State, 213 Md. 298, 314 (1957).

In the present case, appellant obtained the money from the vending machines. If they were owned by Columbia Vending Service Co., then the money in the machines would be in the possession of Columbia. Appellant’s job of collecting the money would give him mere custody and not possession, since he would be receiving the money from his master to return to his master (Columbia). Thereafter, any unlawful appropriation of the money by appellant or his accomplice would constitute larceny. There, however, was no evidence introduced as to who owned the vending machines. Since the burden is on the State to prove every element of the offense, for the purpose of this decision, we shall assume the machines did not belong to Columbia and that when appellant obtained the money from the machines he did not receive custody from Columbia, but rather received lawful possession from a third person. If while he was thus in lawful possession of the money, either appellant or his accomplice misappropriated the money, that illegal act would not constitute larceny, since appellant could not be guilty of a trespass to his own right of possession.

The question then becomes: did appellant relinquish possession to Columbia prior to his accomplice’s taking the money? We hold there was evidence from which the jury could conclude that he did. The record reflects that as the money from each machine was collected it was placed in money bags. The money bags which contained coins either from each machine or from each location were then to be placed in the safe. The safe was supposed to be locked, as were the doors of the truck, which had an alarm attached to them.

In Regina v. Reed, supra, the English court upheld a larceny conviction where a servant who was supposed to pick up some bales of hay for his master delivered all but two of the bales to the master. The court concluded that although Reed received the hay from a third person, and therefore received possession of the goods, he had transferred possession to the master when he placed the hay in the wagon. His driving off with two bales of the hay was a trespass against his master’s right to possession, and therefore constituted larceny.

In Nolan v. State, supra, the Court of Appeals reversed a conviction for embezzlement because the evidence showed that the money had been stolen after it had been placed in the bank’s possession. The crime proved was therefore larceny and not embezzlement. The Court of Appeals dealt with the same legal question in Loker v. State, 250 Md. 677 (1968), but this time affirmed a larceny conviction. Loker was claiming that since he had exclusive possession of the safe where the money was stored prior to his taking it, possession was never transferred to his employer and therefore he could only be guilty of embezzlement and not larceny. The Court of Appeals did not agree and held there was sufficient evidence which indicated that possession had been transferred to the employer and it affirmed the larceny conviction.

Here the jury could have concluded that appellant transferred the money to Columbia when he placed the coins in the money bags or when he placed the money bags in Columbia’s truck. Appellant was thereafter a mere custodian of the money, and any act by appellant or his accomplice whereby either moved the money with the intent of permanently depriving Columbia of its right to possession would have constituted larceny.

We, therefore, hold that there was sufficient evidence from which the jury cculd be convinced beyond a reasonable doubt that appellant participated in a larceny.

In his reply brief appellant raises for the first time the question of whether there was sufficient evidence of his presence at the scene of the crime. He contends that he should have been tried as an accessory before the fact and not as a principal.

While it is true that appellant testified that he was in the basement of a building at Spring Grove during the time Steve was taking the money bags, appellant’s ex-girlfriend also testified that appellant had told her that “Steve was taking so long in the truck he [appellant] had to come out and hurry him up.”

It was within the province of the jury to believe the ex-girlfriend’s testimony and to disbelieve appellant. Since there was evidence from which a jury could find that appellant was present at the scene of the crime, and assisted in its commission, appellant was properly tried as a principal in the second degree. See Agresti v. State, 2 Md. App. 278 (1967).

Judgment affirmed.

Menchine, J.,

Concurring:

The evidence permitted a conclusion that one Steve Black seized and carried away several bags of money owned by Columbia Vending Service Company from a truck also owned by it. Other evidence permitted a conclusion that appellant, an employee of the owner, aided and abetted the taking. It is quite plain that appellant was without real or apparent authority thus to dispose of his master’s monies, and that there was no master-servant relationship between Columbia and Black.

In Brown v. State, 236 Md. 505, 513, 204 A. 2d 532, 536 (1964), larceny was thus defined:

“Larceny is the fraudulent taking and carrying away of a thing without claim of right with the intention of converting it to a use other than that of the owner without his consent. Fletcher v. State, 231 Md. 190, 189 A. 2d 641; Putinski v. State, 223 Md. 1, 161 A. 2d 117. The two elements necessary to constitute the crime of larceny in addition to the felonious intent are a physical taking and asportation of the thing taken from the actual or constructive possession of the owner.”

I think that the actual taking in this case by a third person was classical larceny, within that definition.

The appellant was an aider and abettor of that larceny and thus a principal in the second degree. Vincent v. State, 220 Md. 232, 239, 151 A. 2d 898, 903 (1959).

In such circumstances I believe it is neither necessary nor desirable to travel through the labyrinthine larceny v. embezzlement dichotomy.

I concur in the result.


author: Powers, J.,

text:
    SOLOMONS ISLAND YACHT CLUB, INCORPORATED v. PAUL X. ELLIOTT et al.
    [No. 512,
    September Term, 1975.]

      Decided June 4, 1976.

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

      Thomas A. Rymer for appellant.

      Allen S. Handen, with whom were Alan W. Bernstein and Handen & Singerman on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

Appellant here, Solomons Island Yacht Club, Incorporated, sued Paul X. Elliott and Mary L. Elliott, appellees here, in the Circuit Court for Calvert County, for trespass to real estate. The suit put in issue the title of the parties to a disputed strip of land along the common boundary of adjoining parcels in Solomons Island owned by the respective parties. The declaration contained a technical claim for damages, but no damages were sought. The suit was a typical use of the common law action of trespass q.c.f. to try the issue of a disputed title to real estate. 1 Poe, Pleading and Practice (Tiffany ed. 1925) § 244, Rosencrantz v. Shields, Inc., 28 Md. App. 379, 346 A. 2d 237 (1975).

After the parties thought they had reached a settlement, a judgment was entered by agreement. The settlement was aborted, however, and upon motion and hearing, the judgment was stricken and the case was restored to the trial calendar.

Trial was held before a jury and Judge Perry G. Bowen, Jr., in the Circuit Court for Calvert County. At the close of all of the evidence the trial judge denied a motion by the Elliotts for a directed verdict in their favor, and reserved ruling on a motion by the Yacht Club for a directed verdict in its favor. Instructions were given by the court and arguments were made by counsel. The jury returned a verdict for the defendants. After the court denied a motion by the Yacht Club for judgment n.o.v. a final judgment was entered on the verdict. The appeal is from that judgment.

The sole issue raised here by the Yaeht Club is whether the court erred in denying its motion for a directed verdict. We hold that it was error to deny the motion. We shall reverse the judgment appealed from, and enter a final judgment in favor of the appellant.

A review of the evidence shows that the Yacht Club and the Elliotts each own a parcel of land fronting on Route #2 in Solomons Island. The Elliott parcel lies immediately south of the Yacht Club parcel along the road frontage. The Yacht Club parcel extends several hundred feet to the rear, which borders on Mill Creek. The Elliott parcel extends back from the public road a distance, according to one measurement, of 76 feet, and, according to another measurement, of 78.51 feet. The width of the Elliott parcel is approximately 60 feet, or slightly more, depending on the resolution of the dispute.

Evidence of the titles and of the location of both parcels came in through a Title Abstractor and through two Registered Land Surveyors, all of whom were conceded to be experts. There wag no material dispute as to any of their evidence.

One of the exhibits is a plat prepared by a registered land surveyor which purports to show Lots 17, 18, 19, 20, and 21, as laid out in a plat prepared about 1870 by one Thomas R. Grover. The Grover plat is not now available in the Land Records and no known copy exists. All of those lots fronton a public road, now Maryland Route 2, and extend back to Mill Creek, a distance on the order of 250 to 300 feet. We are concerned in this case only with Lots 19 and 20. The frontage on the public road of the Yacht Club property is made up of most, but not all, of the original frontage of Lot 19. The frontage of the Elliott parcel, immediately south, is made up of all of the original frontage of Lot 20, plus part of the original frontage of Lot 19. How much of the Lot 19 frontage is the subject of the dispute in this case.

The last common titleholder was Fuller E. Stevens and wife, who by deed dated 25 August 1881 conveyed to Emma Sedwick Lots 20 and 21, .as shown on the Grover plat and as described by courses and distances in the deed, but excepting from that conveyance “that portion of Lot No. 20 which was conveyed by the aforesaid Fuller E. Stevens to Ada A. Crockett by deed dated the 27th day of October 1879”. The ■deed from Mr. and Mrs. Stevens recited that he obtained Lots 20 and 21 by deed from Philip W. Snowden, trustee, in 1875.

By another deed of the same date, Mr. and Mrs. Stevens and others conveyed to Emma Sedwick their right, title, interest, and estate in Lot No. 19, as shown on the Grover plat, also described in the deed by courses and distances.

The evidence also disclosed that many land records of Calvert County had been destroyed by a fire in the Courthouse in 1882, and the two deeds we have just referred to were re-recorded thereafter. The conveyance of a part of Lot 20 to Ada A. Crockett was not re-recorded, but a description is available from a later conveyance.

The evidence contains a deed made on 10 January 1888 by Ada A, Crockett and William H. Crockett to William E. Littrell, conveying “the same land which the said Ada A. Crockett obtained from Fuller E. Stevens by deed dated on the 27th day of October 1879”, and describing the property as:

“Beginning for the same at a stone planted on the North west corner of Lot No 20 and running as follows, North 68° East 4 perches to a stone, thence South 24° East 3V4 perches to a Stone, thence South 68° West 4 perches to a stone, thence North 24° West 3V4 perches to the beginning (being a part of Lot No 20) in fee simple.”

The Yacht Club Title

Pursuant to a decree in equity, Joseph S. Wilson, as trustee, conveyed to William Kopp, by deed dated 12 February 1889, the real estate owned by Emma Sedwick at the time of her death, described in the deed as Lots 21, 19, and part of 20, as shown on a plat made by Thomas R. Grover in 1870.

We follow the conveyance by Joseph S. Wilson to William Kopp down through the records as the source of the Yacht Club title to the property in dispute. After the death of William Kopp in May, 1908, intestate, his heirs, by deed dated 14 June 1916, conveyed to William H. Kopp Lots 19, 20, 21 and 22, as shown on the Grover plat, excepting from Lot 20 that portion of Lot 20 conveyed by Stevens to Crockett in 1879. This deed refers to the first three lots as having been conveyed to William Kopp by the 1889 deed. By two straw deeds dated 30 March 1937 William H. Kopp, joined by his wife, conveyed all of the property previously conveyed to William H. Kopp, along with other property, to William H. Condiff, who, joined by his wife, reconveyed to William H. Kopp and Maude Kopp as tenants by the entireties. By deed dated 28 October 1944, William H. Kopp and Maude Kopp conveyed to Solomons Island Yacht Club, Incorporated, a part of the land conveyed to them by the Condiff deed, by a description which, in part, follows the east boundary and the north boundary of what was then described as William E. Selby’s lot. There has been no conveyance out by the Yacht Club since its acquisition of the property by this deed.

The Elliott Title

We now follow the Crockett to Littrell conveyance, which first appeared as an exception of part of Lot 20 in the deed from Stevens to Sedwick, down to the present as the source of the Elliott title.

Title to that part of Lot 20 conveyed to Ada A. Crockett by Fuller E. Stevens, by deed of 27 October 1879, and which was conveyed by Ada A. Crockett and husband to William E. Littrell by deed dated 10 January 1888, was, by deed dated 31 March 1900,- conveyed by William E. Littrell and Annie V. Littrell, his wife, to Joseph C. Webster. The deed contained the following description and reference:

“Beginning for the same at a stone planted on the Northwest Corner of Lot No 20 and from thence running North 68° East 4 perches to a stone; thence South 24° East 33A perches to a stone; thence South 68° West 4 perches to a stone; thence North 24° West 33A perches to the place of beginning (being a part of Lot No. 20). The same being the lot or parcel of land which William E. Littrell obtained from William Crockett and wife by deed dated the tenth day of January in the year 1888 * * * »

Subsequent conveyances of the same property were made by Joseph C. Webster to Benjamin W. Denton by deed dated 3 August 1904; by Benjamin W. Denton and wife to William E. Selby by deed dated 15 June 1926; by William E. Selby and wife to William Preston Lore and wife by deed dated 6 December 1946; by William Preston Lore and wife by deed dated 30 October 1962 to Paul X. Elliott and Mary L. Elliott.

In each of these deeds the property is described as being a part of Lot No. 20 and each grantor states that it is all and the same lot or parcel which was granted to him.

The Record Title

It is perfectly apparent that the root of the dispute in this case was the description in the 1900 deed from Littrell to Webster which gave the length of the front and back lines of the parcel as 33A perches, rather than 3JA perches, as in the 1888 deed to Littrell from Crockett, and in the 1879 deed to Crockett from Stevens, the last common owner. We may assume that this discrepancy was an error made in copying the description from the old deed to the new, but even if the change had been intentional, the effect under the facts in this case would be the same.

After a survey made for them by Harvey L. Dorsey, registered land surveyor, in July 1972, Mr. and Mrs. Elliott executed and recorded a deed to themselves, describing the property by courses and distances as shown on the Dorsey survey, and reciting further that it was “all and the same land the within grantors obtained from William Preston Lore, et ux, by Deed dated October 30, 1962 * *

Mr. Dorsey was called by the Yacht Club as a witness. He identified the plat of his survey, and it was admitted in evidence. It contains Mr. Dorsey’s certification that he carefully made a transit-tape survey of the Elliott property, and the statement, “Surveyed by lines of possession & deed.” He testified that he went to the Land Records and got their deed, and went to the property to do the field work. He checked the line on the south side of the Elliott parcel with a fence line and a survey of the property adjoining on the south. He said:

“ * * * It agreed perfectly with this. Since this line was so established seventy-five feet from the alley from the survey that McCrone did, I took the Deed distance of three and three-quarter perches, extended it out for the Elliott property which there was a fence here, I over ran the fence. However, this fence line was simply a line of possession. This had no survey on it in 1944, it was simply done by no metes and bounds description. However, this property did have a survey for the metes and bounds description. I went out to Deed angle and intersected it with the State Road.”
“Q Did you look at just their Deed?
A I went back two or maybe three Deeds.
Q Did you find any Deed that said other than three and three-quarters?
A No I didn’t.
Q So you used three and three-quarters?
A I used three and three-quarters.
Q‘ Now how far — could you tell us what the line, of possession was at that time?”
“A It was a line of fence.”
“Q What' was. it at that time just to the north of the fence?
A Just to.the north of the-fence that was in — in there at the time was actually a grass strip.
Q And next to the grass strip was basically a drive way?
A Yes:
Q And who property was that?
Mr. Handen: Objection.
Judge Bowen: Overruled.
A That — well, the driveway was being used by the Solomons Island Yacht Club.
Q All right. Now when your survey then — you surveyed the property and how far did your point come north of the fence line?
A Of the fence line 6.85 feet.”

Neither the 1900 deed from Littrell to Webster, nor the 1972 deed from the Elliotts to themselves, could, merely by the use of a different description, convey a record title greater than the grantors had.

In Kelly v. Nagle, 150 Md. 125, 132 A. 587 (1926), the Court of Appeals considered the effect of a deed of easement to take water from a spring, as against a complaint of a lower riparian owner on the stream fed by the spring. The Court, through Judge W. Mitchell Diggs, said, at 136:

“It will be seen that the deed of the easement to Jennie Nagle is in proper form and conveys to her, her heirs and assigns, the right to take the water from the spring by means of a three-quarter inch pipe, but even though it is in proper form, it conveys nothing to the grantee except what the grantor owned and was entitled to convey. If A conveys to B, by deed, a fee simple title to Black Acre, when A does not own more than a life estate, nothing more than the life estate passes, even though the deed be sufficient in form to convey a fee simple, for the apparent and controlling reason that A could convey no more or greater interest than he possessed.”

With respect to record title to the disputed strip of land, that strip was not included in the Elliott parcel when the parcel was created by the Stevens conveyance to Crockett in 1879. There has been no subsequent conveyance of record from any owner of the disputed strip to an owner of the Elliott parcel. The conclusion is inescapable as a matter of law that the record title of the Elliotts does not now include, and never has included, the strip in dispute in this case.

Title By Prescription

Both parties devoted much time and effort in the trial court and here in pursuit of the will-o’-the-wisp of adverse possession. There simply was no evidence in the case sufficient to generate an issue of title by adverse possession. The Yacht Club alleged and proved trespass only upon that part of Lot 19 north of the location of the old fence line, thus limiting the width of the disputed strip to 6.85 feet. The fence had been at the same location for many years. The land surveyor employed by the Elliotts located the line on his plat as the line of possession.

The action of the Elliotts in removing the fence in 1973 changed nothing. Whatever the Elliotts may have done after they acquired their parcel in 1962 could not establish a title by prescription without tacking to adverse possession by their grantor. Mr. Lore, who bought the parcel in 1946 from Shelby and sold it to the Elliotts in 1962, testified that he had been familiar with the property since about 1905, and that the same fence had been there since 1920. Asked about the deed description of the lot, he said, “Well it had whatever was in the fence. I don’t know what the perches were.” He said that he had put in a septic system, and all of it was south of the fence line. He also said that the Yacht Club over the past years had used the property just north of the fence line, and had a sign erected at the corner of the lot, two or three inches from the fence.

There was no issue of fact to submit to the jury. The Yacht Club’s motion for a directed verdict should have been granted.

Judgment reversed.

Judgment entered in favor of Solomons Island Yacht Club, Incorporated, and against Paul X. Elliott and Mary L. Elliott. Appellees to pay costs.

      . The witness reconstructed the lots from descriptions available in the Land Records.
      We append as a part of this footnote a sketch of parts of Lots 19 and 20 as they appear on the exhibit plat. The area in dispute is the strip lying between the lines we have designated as A-A and B-B. On the exhibit the strip is colored red. The disputed strip is 6.85 feet wide, and runs the depth of the Elliott parcel. Line B-B is the location of a fence which had been there as long as anyone could remember, until the Elliotts removed it in 1973. The strip between line B-B and the line dividing Lots 19 and 20 is shown in green on the exhibit. That strip is a part of Lot 19, and although the deeds in the Elliott chain refer only to Lot 20, it is conceded to belong to the Elliotts. We note that Lot 20 was said to have a width of three perches, or 49.5 feet, and that the conveyance creating the Elliott parcel called for 3*A perches, or 53.625 feet. It may be that the undisputed Elliott portion of Lot 19 is 6.38 feet instead of ‘A perch, or 4.125 feet, and the strip in dispute is. 6.85 feet, instead of 'A perch, or 8.25 feet because of the location of the old fence line.

      . It is an irreconcilable inconsistency that the parcel is part of Lot 20, and begins at the northwest corner of Lot 20, but is wider by 1/i perch. The encroachment could be into either adjoining lot, but the line of possession shows it was into Lot 19.


author: Morton, J.,

text:
    BETTY ANN JACKSON v. STATE OF MARYLAND
    [No. 585,
    September Term, 1975.]

      Decided June 4, 1976.

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

      Jack E. Richards, Assigned Public Defender, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Sunsher, State’s Attorney for Baltimore City, and Steven Sacks, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Having been convicted by a jury sitting in the Criminal Court of Baltimore of manslaughter, the appellant, Betty Ann Jackson, was sentenced to a term of ten years in the custody of the Commissioner of Correction. In this appeal it is contended that the trial judge improperly instructed the jury with respect to the law of self-defense.

Ms. Jackson testified that in March, 1972, she and the victim, Charles Breedlove, were living together in Baltimore City, although he was married to another woman at the time. On March 11, 1972, they moved to Florida where they took up residence with Breedlove’s mother. In June, 1972, Ms. Jackson returned to Baltimore and lived with her mother. Breedlove remained in Florida until August, 1972,. at which time Ms. Jackson sent him plane fare and he returned to Baltimore. Fie arrived on August 3, 1972, and moved into the home occupied by Ms. Jackson and her parents. Ms. Jackson testified that since her mother objected to Breedlove living at their home, she told Breedlove on Monday, August 14, 1972, he could no longer stay in her house and gave him $200 with which to rent an apartment.

The following evening (Tuesday) she encountered Breedlove’s wife in Little Willie’s Tavern where the wife was employed. After she advised Mrs. Breedlove that she had given him $200 to find an apartment, Mrs. Breedlove told her that Breedlove had spent the night and most of the day with her. Ms. Jackson testified that she then left the tavern and shortly thereafter ran into Breedlove as she approached her home. A heated argument ensued, according to Ms. Jackson, during which Breedlove pulled out a pistol. As she “broke off and ran” into the street, she heard two shots and immediately thereafter she was hit by a passing automobile. She was taken to the hospital by ambulance and while being treated, Breedlove arrived. Following her treatment they returned to her home where they spent the night together. She agreed, at Breedlove’s request, not to tell the police that Breedlove had threatened her with a pistol.

The next morning (Wednesday) Ms. Jackson returned to the hospital to pick up a prescription, but before doing so, she gave Breedlove an additional $90 to assist him further in finding an apartment. It turned out later that he used the money to buy heroin.

She did not again encounter Breedlove until he arrived at her home about 2 a.m. Thursday morning. She awakened to find him “undressing and he put this gun on the dresser. I asked him what was that for. He said not to worry about it, don’t touch it, it’s loaded. He stayed there that night, that’s all.” About 8 a.m. that morning her employer telephoned her that she need not report for work since her hand had been broken in the automobile accident. She then went to a drug store “for pain pills and nerves.” Thereafter, she went to Little Willie’s Tavern and was surprised to find Mrs. Breedlove “because she works nights.” Mrs. Breedlove inquired about her broken hand and after Ms. Jackson had explained that it resulted from her difficulties with Breedlove, the wife offered to go back to the house with her to “kind of try to straighten myself [Ms. Jackson] out.” According to Ms. Jackson, “I told her I’d appreciate if she wouldcbecause my mother wanted Charles out of the house before she came back to work that day. * * * [S]he didn’t want him in the house. He refused to leave.”

Upon their arrival at the Jackson home, they found Breedlove in the second floor bedroom. Ms. Jackson told him she knew “where he had been at” and “what happened to the money. I could not go along with this any longer.” Ms. Jackson stated that “Mrs. Breedlove then said we all should just settle this, doesn’t make any sense, you know, just get it straightened out.” Mrs. Breedlove then proceeded to leave.

Ms. Jackson then described what happened: “She [Mrs. Breedlove] started out, I turned around, went back to the room. I got back to the room, Charles Breedlove, he said wait a minute. When I got back to the room he sprung at me, jumped off the bed and he said what did you bring her for, that’s my wife. He said ‘Bitch, I’ll kill you.’ He jumped up, was jumping where the gun was at. I grabbed the gun and I ran towards the hall. And I was trying to fire the shots out of the gun because I didn’t want him to shoot me with it and we tussled. Then the next thing I know he was on top of me on the floor and I was pushing him off, all this blood was on me. I remember I went downstairs, I went in the kitchen. I was trying to call an ambulance. I called operator. In the meantime the front door was opened I guess where Mrs. Breedlove left out of the house and left the door opened. The police came in the house and ran up the steps. I left out of the house the back way. I walked down the street, down through the alley. When I was in the course of walking I remember someone said she got a gun in her hand. I just let it go.” Ms. Jackson was immediately arrested and, according to the arresting officer, she announced: “I shot Charles but I didn’t mean to hurt him.”

Mrs. Breedlove testified that as she was leaving the house she heard two gun shots and her husband screaming “Baby, she got me, she got me.” Mrs. Breedlove fled because she was afraid. In the course of her testimony she said that Ms. Jackson told her that she had purchased a gun and planned to kill Breedlove.

The autopsy report showed that Breedlove sustained three gun shot wounds and that the one in his abdomen was the cause of death.

At the conclusion of the presentation of evidence, the trial judge instructed the jury. Appellant’s counsel took exception to the following portion of the instructions:

“Now if in order to avoid possible injury the accused could have escaped by flight, that is by fleeing from the scene of the affray or the scene of the combat, if this were a possibility, then the accused was bound to resort to that method of defense before resorting to force unless the attack upon himself was so urgent that there was no chance to flee, that to try to flee would have been futile and unavailing.”

Counsel’s exception took the following form:

“MR. GARRITY [Appellant’s counsel]: Flight wouldn’t be necessary in a person’s home when she lives in her home.
THE COURT: I think even in the home if a person can get away —
MR. GARRITY: A person can stand his ground.
“THE COURT: I think that’s a category where for example strangers break into the home, the occupant has a right to protect his home. I’m not sure that really fits into this category. What I’m saying a technical defense of the home instruction, I don’t think it fits in this category. This is more defense of the person situation.
MR. GARRITY: Sure is.
THE COURT: I don’t think I’ll give any further instruction.”

It is undoubtedly true, as appellant contends, that there is substantial authority for the proposition that the rule which compels a person being assaulted to retreat or seek safety by escape does not apply where an individual is assaulted in his own home. According to Clark and Marshall, Crimes, § 7.03, at 495 (7th ed. 1967): “In such a case he is not bound to retreat, even though by doing so he might manifestly secure his safety, but he may stand his ground and take his assailant’s life if it becomes necessary.”

The Court of Appeals in Crawford v. State, 231 Md. 354, 360 (1963), quoted with approval an extract from Pond v. People, 8 Mich. 150 (1860), which it termed “a leading case,”: “ * * * a man assaulted in his dwelling ‘may use such means as are absolutely necessary to repel the assailant from his house, or to prevent Ms forcible entry, even to the taking of life.’ ”

Here, the affray resulting in Breedlove’s death occurred in the home of the accused, Ms. Jackson; in fact, in her bedroom. According to her testimony, she had sought to persuade him to leave her home over a period of several days and had fortified her persuasion by giving him nearly $300 to use as rent money for an apartment. That her testimony generated the theory of self-defense is self-evident. She testified: “He said ‘Bitch, I’ll kill you.’ He jumped up, was jumping where the gun was at. I grabbed the gun and ran towards the hall. And I was trying to fire the shots out of the gun because I didn’t want him to shoot me with it and we tussled.” Whether the jury chose to believe or disbelieve this testimony was within their province. Her testimony, nevertheless, formed a substantial basis for her assertion that she was not guilty of unlawful homicide because she was acting in self-defense.

The trial judge apparently was of the opinion that the fact that Ms. Jackson and Breedlove were living together in her home made inapplicable the rule that an individual, when assailed in his own home, has no duty to retreat or seek escape but may stand and defend. It is true, as the state argues, some courts have held that the joint occupancy of the premises by the accused and victim takes the case out of the rule since they are, so to speak, on common ground, thus, bringing back into play the rule requiring an accused to retreat or seek escape. See Annot. 26 A.L.R.3d 1296 (1969). The holding in these cases is substantially predicated upon the legal right of both the accused and the victim to occupy the premises.

On the other hand, there is respectable authority that no exception to the rule of no retreat is brought about because of joint occupancy of the home. For example, Mr. Justice Cardozo, in People v. Tomlins, 107 N. E. 496 (1914), announced at 497-98:

“It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home. . . . The rule is the same whether the attack proceeds from some other occupant or from an intruder. It was so adjudged in Jones v. State [1884], 76 Ala. 8, 14. Why, it was there inquired, ‘should one retreat from his own house, when assailed by a partner or cotenant, any more than when assailed by a stranger who is lawfully upon the premises? Whither shall he flee, and how far, and when may he be permitted to return?’ ”

Our view of the evidence, however, makes it unnecessary at this time to determine whether Maryland should follow the rule that joint occupancy of a dwelling activates the rule of retreat or escape, since we think it perfectly clear that Breedlove was an intruder in the home without a legal right to assert his legitimate occupancy of Ms. Jackson’s dwelling. Her mother, who was a legitimate occupant, had ordered him to depart. Ms. Jackson had asked him to leave, almost to the point of imploring him to do so since she gave him nearly $300 to find another place to live. We think Breedlove was, by any concept, an unwanted intruder and trespasser.

Accordingly, it was error to instruct the jury that Ms. Jackson had a duty to flee or escape from the scene if that were possible. And it was error to refuse the request of counsel to instruct the jury affirmatively that since Ms. Jackson was in her own home, she had no duty to retreat or seek escape, but was entitled to stand her ground and take her assailant’s life if it became necessary.

Since we are reversing the appellant’s judgment of conviction and awarding her a new trial, we do not reach the contention that the evidence was legally insufficient to sustain the conviction of manslaughter.

Judgment reversed; case remanded for a new trial.