author: Liss, J.,

text:
    PATRICIA GREEN v. STATE OF MARYLAND
    [No. 173,
    September Term, 1977.]

      Decided November 14, 1977.

    The cause was argued before Gilbert, C. J., and Mason and Liss, JJ.

      Gerald A. Kroop for appellant.

      W, Timothy Finan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Bruce C. Spizler, Assistant Attorney General, William A. Swisher,

      State’s Attorney for Baltimore City, and William Townsend, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Patricia Green, appellant, was convicted in a non-jury trial before Judge Shirley B. Jones in the Criminal Court of Baltimore, of possession of heroin in a sufficient quantity to indicate an intention to distribute. Sentence was imposed and it was from that judgment that this appeal was noted.

The sole question raised by appellant is whether the trial court erred in overruling appellant’s motion to suppress and exclude the evidence seized in the course of the execution of a search and seizure warrant obtained by the police from a Maryland District Court judge, which authorized the search of a premises described in the warrant as “1519 Presser Court second floor apartment located in a brick project-type building.”

The affidavit in support of the application for the search and seizure warrant and the warrant itself were offered into evidence during the suppression hearing as Defense Motion Exhibit 1.

The affidavit stated that in mid-March 1976, the investigating officer, one Officer Parker, spoke with a confidential and reliable informant, who advised him that a female known to him as “Treecy,” whom he described as being 25 to 27 years of age, five feet one inch to five feet five inches in height, weighing 120 to 125 pounds, with brown skin and short hair, was selling heroin on a large-scale basis from “her second floor apartment at 1519 Presser Court.” The informant further stated that persons who wished to purchase heroin would go to 1519 Presser Court, knock on the door “leading to the second floor apartment” and enter. The affidavit further recited that shortly after midnight on March 23, 1976 the officer and his informant drove to the Presser Court neighborhood where the informant pointed to the door marked 1519 Presser Court and said that “that door leads to ‘Treecy’s’ apartment.” Officer Parker then drove the informant from the neighborhood and returned to 1519 Presser Court for further surveillance of the apartment. The affidavit states that in the course of the ensuing hour and one-half the officer observed four young black males enter the door pointed out as the entrance to “Treecy’s” apartment. Each of the four males remained for approximately three minutes and then exited and left the area. The affidavit also reveals that on the following day the officer ascertained that the telephone number assigned to 1519 Presser Court was in the name of Patricia Green. A check of the Central Records Division of the Baltimore Police Department revealed that Patricia Green resided at 1519 Presser Court and that she had been involved in three prior narcotics charges. The officer also stated that the nickname “Treecy” is associated with the name of Patricia. Pursuant to the application the District Court judge issued a warrant describing the premises to be searched as “1519 Presser Court, second floor apartment located in a brick project-type building.” Armed with the warrant, the officer went to the address given, opened the front door marked 1519 Presser Court and looked for stairs leading to the second floor apartment. He found no stairs. After verifying that the address was in fact 1519 Presser Court, he entered the first floor apartment located at that address, where he found Patricia Green. At trial it was determined that the building here involved has three apartments, with entrance gained through three different numbered entrances. The entrance designated 1519 Presser Court led to the first floor apartment; the entrance designated 1517 Presser Court (ten feet from 1519) led to the second floor apartment; and the entrance designated 1515 Presser Court led to the third floor apartment. A search of the apartment revealed quantities of heroin of varying strengths, ranging from 22.5% to 5.4%; the higher strength compound indicating a strong possibility that the heroin could be adulterated to yield a greater quantity, the lower strength representing the average mixture available in ordinary street sales.

The Fourth Amendment to the United States Constitution proscribes the issuance of general warrants and requires that “no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched.” A similar prohibition is contained in Article 26 of the Maryland Declaration of Rights. Maryland Code (1957, 1976 Cum. Supp.) Art. 27, § 551 contains the procedure for the issuance of a search and seizure warrant.

It is to be noted that appellant raises no issue as to the warrant signed by the magistrate being a general warrant, nor does she contend that there was an insufficient showing of probable cause, nor that the warrant lacked particularity in describing the place to be searched. To the contrary, she urges that the premises to be searched were particularly described as “1519 Presser Court second floor apartment located in a brick project-type building” and that the search by the officer of her first floor apartment at 1519 Presser Court was an unreasonable violation of her right to be secure from unlawful searches and seizures.

The historical background of the law governing the issuance of search and seizure warrants was discussed by this Court in two recent cases, Hignut v. State, 17 Md. App. 399, 303 A. 2d 173 (1973) and Harris and Schmitt v. State, 17 Md. App. 484, 302 A. 2d 655 (1973). We noted in Hignut, supra, “that the notion of a ‘general warrant’ did not contemplate every minor imprecision in draftsmanship giving rise to some arguable ambiguity or fleeting confusion.” Id. at 417, 303 A. 2d at 182. Andresen v. State, 24 Md. App. 128, 331 A. 2d 78 (1975), aff'd, 427 U. S. 463, 96 S. Ct. 2737, 49 L.Ed.2d 627 (1976).

Steele v. United States, No. 1, 267 U. S. 498, 45 S. Ct. 414, 69 L. Ed. 757 (1925), decided by the Supreme Court in the unlamented days of Prohibition, stated the standards to be applied in determining whether a warrant sufficiently described the place to be searched. In that case, prohibition agents obtained a warrant to search a building used as a garage where they had probable cause to believe that illicit whiskey was stored. The description of the premises to be searched given in the warrant was that of a garage located in a building at 611 W. 46th St. In executing the warrant the agents discovered that the building had three street entrances and two house numbers and further that there was an elevator which gave access to three additional floors in the building. The agents searched the entire building and discovered illicit whiskey on the premises. Chief Justice Taft, speaking for a unanimous Court, reasoned that the search warrant fully complied with the statutory and constitutional requirements. He stated the test to be that “It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.” Id. at 503, 45 S. Ct. at 416, 69 L. Ed. at 760.

United States v. Prout, 526 F. 2d 380 (5th Cir. 1976) is a case factually similar to the case sub judice. There the defendant was convicted of conspiracy to possess and distribute cocaine. The physical evidence had been seized pursuant to a search and seizure warrant. In a hearing on the motion to suppress, it was disclosed that the warrant named the premises to be searched only as Quick Sales Real Estate Office, 1001 Nunez St., New Orleans, La. The evidence showed that the real estate office was in a one story building attached to a slightly taller two story building in which an apartment was located. The address of the apartment was 441 Newton Street. Neither the affidavit nor the warrant mentioned the existence of the apartment or the 441 Newton Street address. In affirming the trial court’s refusal to grant the motion to suppress the contraband seized from the second floor apartment, the court restated the standard enunciated in Steele, supra, and further declared that “An error in description is not automatically fatal to the validity of a search warrant.” Id. at 387. United States v. Melancon, 462 F. 2d 82 (5th Cir. 1972), cert. denied, 409 U. S. 1038 (1972).

In United States v. Darensbourg, 520 F. 2d 985 (5th Cir. 1975), it was held that a warrant’s description of a premises as “Apartment #70, located at 3101 Highland Rd. in the City of Baton Rouge” was sufficient to authorize the search of an apartment #70 located on July Street, not Highland Road, which was the address of the business office of the large apartment complex in which the apartment was located. The apartment was in a different building about 300 yards from the business office but separated from it by a canal so that moving from one location to the other required traveling several blocks. Officers had obtained the address on the warrant from the telephone directory.

The Court, in Darensbourg, at 387-88, adopted the following language, found in United States v. Sklaroff, 323 F. Supp. 296, 321 (S.D. Fla. 1971), in which the Court, after discussing a number of cases recognizing that a minor error in the description of premises to be searched does not necessarily invalidate the search, said:

“The . . . decisions illustrate the principle that the determining factor as to whether a search warrant describes the premises to be searched with sufficient particularity is not whether the description given is technically accurate in every detail but rather whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premises might be mistakenly searched which is not the one intended to be searched under the search warrant.” (Emphasis supplied).

The Court of Appeals, in Saunders v. State, 199 Md. 568, 572, 87 A. 2d 618, 620 (1952), said:

“The constitutional and statutory provisions demand that a search warrant shall contain a description of the premises to be searched definite enough to prevent any unauthorized and unnecessary invasion of the rights of privacy. It is an accepted rule that a description in a search warrant of the place to be searched is sufficient if it enables the officer to locate the place with certainty. . . . Ordinarily the description in a warrant of a house to be searched is sufficiently definite if it correctly states the street number of the house.”

In Ferguson and Crenshaw v. State, 236 Md. 148, 202 A. 2d 758 (1964), the Court of Appeals upheld a search of a business premises designated as 1301 E. Baltimore St., which in fact encompassed other property used in the business located at 5 and 7 S. Central Ave. The Court there stated, quoting from Allen v. State, 178 Md. 269, 278, 13 A. 2d 352 (1940):

“The fact that no formula may be stated with reference to the test of what premises may be searched, and how the premises must be described, is shown by the cases collected in 3 A. L. R. 1518, 1519; 13 A. L. R. 1318, 1319; 27 A. L. R. 751-753; 39 A. L. R. 841; Cruz v. State, 114 Tex. Cr. R. 450, 25 S. W. 2d 875; 68 A. L. R. 1186-1191. Every case will depend upon its particular facts and circumstances.” 236 Md. at 156, 202 A. 2d at 762.

In Frey v. State, 3 Md. App. 38, 47, 237 A. 2d 774, 780 (1968), this Court said:

“In determining whether the description of the place to be searched meets these standards, it is permissible to look to the affidavit as well as the warrant since the affidavit is a part of the warrant and incorporated by reference therein.” (Citations omitted).

It becomes our responsibility at this juncture to examine the factual situation in this case and to determine whether in the light of the legal principles we have here set out the trial court erred in refusing to grant the appellant’s motion to suppress. We find no such error and shall affirm.

It is undeniable that the warrant specified the premises to be searched as a second floor apartment at 1519 Presser Court and that the officer actually searched a first floor apartment at that address. The officer had no means of determining the error prior to his initial entry into 1519 Presser Court, when he discovered for the first time that there were no stairs leading to the second floor of that address.

Once the error was discovered, however, he was in possession of certain information which he had a right to use in order to determine whether he could with a reasonable effort, ascertain and identify the place intended. He had information from a concededly reliable informant giving a description of a black female who resided at 1519 Presser Court. He gave the nickname “Treecy” which he knew to be a nickname for Patricia. The officer's informant had physically pointed out to him the outer door which the informant had entered to make purchases of narcotics from “Treecy,” and that door was marked 1519 Presser Court. His own surveillance had disclosed the entry and almost immediate exit of four black males under circumstances which indicated to him a traffic in narcotics. The officer’s investigation had disclosed that a telephone listed to 1519 Presser Court was installed for Patricia Green. A check of Central Records of the Police Department indicated that Patricia Green, who resided at 1519 Presser Court, had been arrested for alleged narcotics violations on three prior occasions. We think it is noteworthy that no claim is asserted that the search was made at the wrong apartment but only that the search was not made at the second floor apartment as directed in the warrant.

We conclude in the light of these facts that the officer was able with reasonable effort to ascertain the premises to be searched and that there was no reasonable probability that another premises might be mistakenly searched. We find that the officer acted in full compliance with the statutory and constitutional requirements surrounding a search and seizure authorized by a valid warrant issued upon probable cause.

Judgment affirmed; costs to be paid by appellant.

      . Appellant raises no issue in this appeal or in the hearing below as to the “informant’s basis of knowledge” or the veracity of the informant’s knowledge. Our own review of the facts recited in the application for the warrant discloses that they are more than sufficient to satisfy both requirements.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    STATE OF MARYLAND v. JOSEPH RICHARD SUTER
    [No. 189,
    September Term, 1977.]

      Decided November 14, 1977.

    The cause was submitted on briefs to Gilbert, C. J., and Thompson and Moore, JJ.
    Submitted by Francis B. Burch, Attorney General, Kathleen M. Sweeney, Assistant Attorney General, Sandra

      A. O’Connor, State’s Attorney for Baltimore County, Charles A. Ruppersberger, III, Assistant State’s Attorney for Baltimore County, and David F. Mister, Assistant State’s Attorney for Baltimore County, for appellant.
    Submitted by Russell J. White for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Procedure is to law what the wheel is to a cart — a necessary factor. The importance of procedure to our society, functioning under a rule of law, was well illustrated by Curtis Bok in an address at the National Book Awards in New York City on January 26,1954. Bok said:

“In the whole history of law and order the longest step forward was taken by primitive man, when, as if by common consent, the tribe sat down in a circle and allowed one man to speak at a time. An accused who is shouted down has no rights whatever. Unless people have an instinct for procedure, their conception of basic human rights is a waste of effort, and wherever we see a negation of those rights it can be traced to a lack, an inadequacy, or a violation of procedure. Hence procedure effectively comes first: the mechanics of argument and discovery are often set up before the rights they serve take full form in practice.”

Failure by the trial judge, with the express acquiescence of the Assistant State’s Attorney, to follow proper procedure in the instant case necessitates our declination to consider the State’s appeal from the dismissal by the Circuit Court for Baltimore County of five indictments that had been brought against Joseph Richard Suter, a police officer of that County. Our reason for declining to consider the State’s appeal is that the issues all have been mooted as a result of the procedural misstep. We shall explain why this is so.

The Supreme Court of the United States, speaking through Mr. Justice Rehnquist in Illinois v. Somerville, 410 U. S. 458, 460, 93 S. Ct. 1066, 35 L.Ed.2d 425 (1973), pointed out that jeopardy attaches in a criminal trial when the jury is impaneled and sworn. See also United States v. Jorn, 400 U. S. 470, 479-80, 91 S. Ct. 547, 27 L.Ed.2d 543 (1971); Green v. United States, 355 U. S. 184, 188, 78 S. Ct. 221, 2 L.Ed.2d 199 (1957); Wade v. Hunter, 336 U. S. 684, 688, 69 S. Ct. 834, 93 L. Ed. 974 (1949). That rule, prior to Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969), was applied to federal but not State proceedings. Benton, however, held that the Fifth Amendment prohibition against former jeopardy was applicable to the States through the vehicle of the Fourteenth Amendment’s Due Process Clause. See also Blondes v. State, 273 Md. 435, 330 A. 2d 169 (1975); Neal v. State, 272 Md. 323, 322 A. 2d 887 (1974); Cornish v. State, 272 Md. 312, 322 A. 2d 880 (1974); State v. Rhodes, 36 Md. App. 214, 373 A. 2d 636 (1977); Baker v. State, 15 Md. App. 73, 289 A. 2d 348, cert. denied, 265 Md. 744 (1972).

In the matter now before us, the appellee was indicted on a series of charges alleging one count of obstruction of justice, four counts of receiving stolen goods, and one count of misconduct in office. Suter moved to dismiss the indictments. The reason he assigned for the dismissal of the obstruction count was that the statute of limitations barred the prosecution of that offense. A similar reason was given for the dismissal of the receiving charges, and Suter also contended that the receiving offenses were based on allegedly receiving stolen goods from a person who had obtained them by false pretense rather than larceny.

When the case was called to trial, the judge said:

“Motions have been filed dealing with various problems in these cases, and what I’d like to do is to select a jury and excuse the balance of the jury panel so that they can go about their business and go home, the jurors who won’t be used; and then the twelve jurors that will serve on the trial panel, I can excuse them, and we can deal with these motions.

“I hate to keep twenty-five people just sitting around outside the courtroom in limbo, kind of. Do you have any objection to that?

MR. WHITE: [Defense Counsel] No objection, Your Honor.

MR. RUPPERSBERGER: [Assistant State’s Attorney] No objection, Your Honor.

THE COURT: All right. Now, what I propose to do, gentlemen, is to take a plea and the — and prepare for a jury trial, then I will have the jury sworn for a voir dire examination, and I will ask them certain basic questions that would seem to be appropriate in this particular type of case.

After I have done that, I will call the roll, and each juror will stand so that you can observe the appearance and demeanor of the jurors. Then, after that is done, if either counsel for the prosecution or for the defense would like to ask any other questions to the jury, you can approach the Bench and suggest that voir dire question to the Court.

THE COURT: All right. All right. The Defendant prays a jury trial and pleaded not guilty to all of these charges. Be seated. Swear the jury for voir dire questioning.

(Whereupon, the jury panels were duly sworn for voir dire examination.)

(Whereupon, a jury panel was selected from the prospective jurors.)

THE COURT: Swear this jury.

(Whereupon, the jury panel was duly sworn.)”

The jury was then excused until the court ruled upon the motions to dismiss. All indictments save the misconduct charge were dismissed and the State entered an appeal as to each of the dismissed indictments. Suter has moved to dismiss the appeal.

It is apparent that jeopardy attached when the jury was impaneled and sworn. Illinois v. Somerville, supra; United States v. Jorn, supra; Blondes v. State, supra; Neal v. State, supra; State v. Rhodes, supra

Thus, even if we were to agree with the State that the judge erred in dismissing the indictments, it would be to no avail, because any retrial would be barred by the Constitutional proscription against double jeopardy.

The judge should have ruled on the motions prior to the impaneling and swearing of the jury. His consideration for the “twenty-five people” he did not want to be “sitting around outside the courtroom in limbo” led him to commit the procedural error that allowed jeopardy to attach before he ruled on the motions. By so doing, he effectively precluded the State’s right to have the appeal decided on the merits inasmuch as the matter has been mooted.

Motion to dismiss appeal granted.

Costs to be paid by Baltimore County.

      . We are not to be understood as agreeing or disagreeing with the State’s position on the merits. We express no opinion thereon.

      . The Somerville case turned on the question of whether there was a “manifest necessity” to declare, over a defendant’s objection, a mistrial in order for the State of Illinois to seek new and hopefully corrected indictments. The majority of a 5 to 4 decision were of the view that because Illinois law permitted only formal defects to be cured by amendment, and no evidence had been presented, the “ends of public justice” required the declaration of a mistrial. The minority were of the belief that jeopardy attached when the jury was impaneled and sworn and that it made no difference that no evidence was presented.
      In any event, Maryland does not have such a stringent requirement as Illinois.

      . In a non-jury trial, jeopardy fastens when the trial commences, i.e., when the judge begins to hear testimony or receive evidence. State v. Rhodes, 36 Md. App. 214, 215, 373 A. 2d 636, 637 (1977). See also Blondes v. State, 273 Md. 435, 444, 330 A. 2d 169, 174 (1975).

      . The case proceeded to trial on the misconduct charge. That matter is not before us in this appeal.

      . Md. Courts & Judicial Proceedings Code Ann. § 12-302 (c) (1) provides:
      “(c) In a criminal case, the State may appeal:
      (1) From a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition....”

      . Cases holding that jeopardy attaches to an indictment or count abandoned or dismissed during a trial by jury are, United States v. Kraut, 2 F. Supp. 16 (S.D.N.Y. 1932) (counts dismissed); Ex parte Scelles, 511 S.W.2d 300 (Tex. Crim. 1974) (count abandoned); Black v. State, 143 Tex. Crim. 318, 158 S.W.2d 795 (1942) (count dismissed); Gilliam v. State, 131 Tex. Crim. 8, 96 S.W.2d 86 (1936) (counts abandoned); State v. B---., 173 Wis. 608, 182 N. W. 474 (1921) (count withdrawn). See also Mead v. State, 110 So. 2d 504 (Fla. Dist. Ct. App. 1959); 22 C.J.S. Criminal Law § 257 (1961).

      . But see n. 1, supra.

      . Under new Md. Rule 736 e, effective July 1, 1977, the ruling on the motions must occur prior to trial. Inasmuch as trial commences with the swearing of the jury, or in a non-jury trial, with the receipt of evidence, the judge should rule on the motions prior to that point in time, else the question of double jeopardy might once again rear its head.


author: Wilner, J.,

text:
    WILLIAM E. WEAVER v. REALTY GROWTH INVESTORS
    [No. 214,
    September Term, 1977.]

      Decided November 14, 1977.

    The cause was argued before Thompson, Melvin and Wilner, JJ.

      Ira C. Wolpert, with whom were Ronald M. Hirschel, Sheldon B. Kamins and Deckelbaum, Wolpert & Ogens on the brief, for appellant.

      David F. Albright and Alan N. Gamse, with whom were Robert B. Haldeman and Semmes, Bo wen & Semmes on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

We are asked here to consider whether the Circuit Court for Worcester County abused its discretion in refusing to set aside what appellant claims was a “judgment by default” entered against him. He also asks whether that court further abused its discretion by refusing to allow him to “engage in discovery” before ruling on his motion to set aside the judgment. We do not believe that the court’s discretion was abused in either instance, and therefore affirm the judgment.

The case arises from the following circumstances. On July 20, 1976, Realty Growth Investors, appellee, sued appellant, Robert S. Bounds, James B. Caine, and Harbor Mile Limited Partnership Number One Bayside (Harbor Mile). It alleged that appellant, Bounds, and Caine were the sole general partners of Harbor Mile; that Harbor Mile had made a promissory note for $1,500,000 payable in ten annual installments of $150,000 each, with interest at 6% per annum; that appellee had purchased the note; and that $418,908 was then due and owing. Thus, it asked for judgment in that amount against each of the defendants — the partnership and its three general partners.

Filed with the Declaration was appellee’s motion for summary judgment. The motion was supported by a copy of the note, which was attached as an exhibit to the Declaration, and an affidavit of F. L. Wilson, Jr. The affidavit was in proper form, on personal knowledge, and attested both to the gross indebtedness under the note and to the claim that $418,908, plus per diem interest, was then due and owing on it. The note was signed by the three individual defendants as “General Partners” named in the Limited Partnership.

The docket entries reveal, and appellant does not dispute, that on July 28, 1976, he was duly served with a copy of the Declaration, Writ, note, motion, and affidavit.

The defendant Caine filed an answer to the Declaration and the motion in which he admitted the indebtedness but contested the amount alleged to be then due and owing. Appellant did not file a responsive pleading. On September 3, 1976, appellee filed, and served on appellant, a Notice stating:

“Take notice that unless you make your defense to the Motions for Summary Judgment served upon you, and filed in these proceedings, within the time allowed by law a rule of civil judgment will be answered against you. If you assert a defense, the motion may be heard by the Court any time after the 23rd day of September, 1976, in accordance with Maryland Rule 610.”

Appellant made no response; and, on October 26,1976, the court granted appellee’s motion for summary judgment, and entered judgment against appellant in the amount of $400,217.41.

On November 26, 1976, appellant filed a motion to set aside the judgment. In support of the motion, he filed an affidavit in which he alleged that (1) he was only a “nominal general partner”, (2) he took no active part in the operations of the partnership, (3) he became a general partner only because of his availability to sign partnership papers, and (4) after being served by the sheriff, he was advised by his partner, Bounds, “not to be concerned” because officers of the plaintiff (appellee) were also investors in the venture and “would see to it our interests were not jeopardized.” The affidavit states that the affiant was competent to testify, but does not state that he had personal knowledge of the substantive facts alleged in the affidavit.

On December 13, 1976, appellee filed a lengthy answer to this motion, supported by a number of counter-affidavits. Eight days later, December 21, the clerk notified all parties that a hearing would be held on appellant’s motion on February 24, 1977. Two days before the hearing, appellant filed an affidavit of Herbert A. Callihan, Jr., an attorney, raising questions about the dealings between Robert Bounds and others and the partnership. The next day, appellee responded with a motion ne recipiatur addressed to this new affidavit.

At the hearing on February 24, the court denied both appellee’s motion ne recipitaur and appellant’s motion to set aside the judgment. The judge stated that he had read the entire file, and was acting essentially on the following bases:

(1) Appellant was clearly a general partner, and therefore liable for the partnership debt. He is presumed to have known what that status entailed when he agreed to accept it, and is now bound by this act. Cromwell v. Sharon Bldg. Assoc., 220 Md. 317 (1959).
(2) There was nothing in appellant’s motion or affidavit to show a meritorious defense against appellee. “There is no statement that he has paid [the note]. There is no statement that it isn’t due and owing. There is no statement that the amount is wrong.”
(3) The claims made by appellant with respect to the activities of his partners and others may support an action against them, or a complaint to one or more regulatory agencies, but had nothing to do with his obligation on the note.

After the court had announced its decision and the reasons for it, appellant’s counsel asked the court to hold the ruling in abeyance in order to permit appellant to “take discovery”. He did not indicate what type of discovery he wanted. The court rejected the request, stating that from what the court had read and heard, “there is no way for you to discover anything that would create a meritorious defense against the holder of the note.”

With this background, we may now consider appellant’s allegations of abuse of discretion.

Maryland Rule 625 provides that “for a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment.” After 30 days, the judgment becomes enrolled, and the court’s revisory power is limited to cases of fraud, mistake, or irregularity.

The judgment in question here was entered on October 26, 1976. Appellant’s motion to set it aside was filed November 26, 1976, which was 31 days after entry of the judgment. However, as the thirtieth day, November 25, was Thanksgiving, a legal holiday, by virtue of Maryland Rule 8 b. the motion is considered to have been filed within the thirty day period and thus subject to the court’s broad revisory power.

The applicable standard in this situation was set forth in Clarke Baridon v. Union Co., 218 Md. 480, 483 (1958), as follows:

“After the judgment properly was entered, the question of whether it should or should not be vacated in whole or in part was within the sound discretion of the trial court for the ensuing thirty days. The decisive point no longer was whether there existed a genuine dispute as to a material fact, but rather whether the court was satisfied that there had been shown a reasonable indication of a meritorious defense or other equitable circumstances that would justify striking the judgment — that is, whether the court entertained a reasonable doubt that justice had not been done.”

The “reasonable indication of a meritorious defense” must come, if at all, from the two affidavits filed in support of appellant’s motion, since no other evidence of such a defense was produced; and we must therefore focus upon these affidavits — both their form and their content — in determining whether the court abused its discretion.

The revisory power granted by Rule 625 over unenrolled judgments is to be liberally exercised, “lest technicality triumph over justice.” Hamilton v. Hamilton, 242 Md. 240 (1966), cert. den. 385 U. S. 924 (1966). But the Rule is not designed to place a defaulting party in a better position after the entry of judgment than he was prior to it. We do not construe the Rule, or the standard enunciated in Clarke Baridon, to mean that evidence which, if presented prior to judgment, would have been insufficient to defeat the claim, will suffice to require that the judgment be vacated if presented within thirty days after the judgment is entered. If, then, under the applicable law and rules of court, the affidavits in question would have been inadequate to prevent the entry of the judgment, they are inadequate to justify setting it aside. We can best determine whether justice had been done in this case by placing appellant in the same position as he would have been in had the affidavits been filed before October 26, 1976.

The posture then was the pendency of appellee’s motion for summary judgment, and the requirements of Maryland Rule 610 become not only relevant, but determinative.

Maryland Rule 610 a. requires that where a motion for summary judgment is filed with the Declaration, as was appellee’s, it be supported by affidavit. That Rule further provides that, where a motion is required to be supported by affidavit and the opposing party desires to controvert a statement in it, he must file an affidavit or deposition in support of his answer. His failure to do so constitutes an admission, for purposes of the motion, of all statements of facts in the affidavit of the moving party. Rule 610 b. provides that both supporting and opposing affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

It is clear from its face that appellant’s affidavit does not satisfy the requirements of Rule 610 b. Not only does it fail to aver in a positive fashion that appellant had personal knowledge of the statements contained in it, but it actually states that, as to some of its material allegations, he was without knowledge, or was acting only upon “belief”. Thus, on that basis alone, the affidavit would have been legally defective, and therefore insufficient to defeat summary judgment. Phelps v. Herro, 215 Md. 223 (1957); Mercier v. O’Neill Associates, Inc., 249 Md. 286 (1968).

Appellant is not helped, in this regard, by the subsequent affidavit of Mr. Callihan. It does not controvert any of the facts alleged in the affidavits filed by appellee and raises no genuine dispute of material fact relevant to appellant’s liability, as a general partner, to appellee. Neither does it aver facts that would support a counterclaim or a defense of set-off. It deals entirely with collateral matters. Moreover, though it recites that it is made upon “personal knowledge of the facts herein stated,” it is clear, from their very wording, that many of the substantive allegations, upon which appellant’s claim appears to be based, are made upon supposition and hearsay, rather than personal knowledge.

It is clear, then, that had these two affidavits and the allegations contained in appellant’s motion to set aside the judgment been before the court prior to October 26, 1976, they would have been insufficient to defeat appellee’s motion for summary judgment. They stand in no better position at this point. We therefore conclude that the court did not abuse its discretion in denying the motion to set aside the judgment. Clarke Baridon v. Union Co., supra; Hill v. Lewis, 21 Md. App. 121 (1974), cert. denied 272 Md. 742 (1974); Brewer v. Mele, 267 Md. 437 (1972). Compare Ryan v. Johnson, 220 Md. 70 (1959); J. B. Corporation v. Fowler, 258 Md. 432 (1970).

Appellant’s second contention — that the court abused its discretion by failing to afford him the opportunity for discovery prior to ruling on the motion to set aside the judgment — is equally without merit. For one thing, it is based upon an entirely erroneous premise. As noted above, the record shows quite clearly that the request for discovery was not made until after the court had ruled on the primary motion. Moreover, appellant gave no indication of what type of discovery he had in mind or how, in any specific way, it might lead to a meritorious defense. Counsel said only, “if we were able to take discovery, and if we were able to prove an allegation, for instance, of fraud, that Your Honor’s ruling would be different.” We find no abuse of discretion in the court’s declining to suspend its ruling on appellant’s motion based upon that request made at that point in the proceeding.

Judgment affirmed; appellant to pay the costs.

      . The discrepancy between the amount claimed and the amount of the judgment apparently arises from the calculation of interest. The amount of the judgment is not in dispute.


author: Moore, J.,

text:
    MARY O. HOUCK et al. v. NICHOLAS DeBONIS et al.
    [No. 257,
    September Term, 1977.]

      Decided November 15, 1977.

      The cause was argued before Moore, Liss and Wilner, JJ.

      George W. White, Jr., with whom were Samuel D. Hill, Donald G. Smith and White, Mindel, Clarke & Hill on the brief, for appellants.

      William K. Connor, with whom were Connor & Carr on the brief, for appellee Nicholas DeBonis. Austin W. Brizendine, Jr., with whom were Austin W. Brizendine and Brizendine & Brizendine on the brief, for other appellees.
   Moore, J.,

delivered the opinion of the Court.

Appellant, Mary O. Houck, was the driver of a 1968 Ford station wagon and an attached 1970 trailer, both owned by her late husband, when she sustained serious personal injuries in a single-car accident on Interstate Route 81 near Harrisonburg, Virginia in 1972. She thereafter filed suit individually and as administratrix of her husband’s estate * in the Circuit Court for Harford County against the dealer from whom her husband had purchased the trailer and two corporations responsible for its manufacture. Breach of warranty and negligence were alleged. Upon motion of the appellees, pursuant to Maryland Rule 501 (a), appellant’s personal injury claim was separated for purposes of trial from her claim as administratrix for damages to her husband’s property. At the close of a six-day trial, the court (Higinbothom, J.) granted the dealer’s motion for a directed verdict, grounded upon a written disclaimer of warranty. In the case against the manufacturers, the jury thereafter returned a defendants’ verdict.

On this appeal, two separate issues are presented. With respect to the manufacturers, it is argued that the court committed reversible error in admitting, as a declaration against interest, a statement made by the husband to the dealer within two weeks after the accident, which imputed negligence to appellant in her driving and towing. With respect to the dealer, appellant contends that the disclaimer of any warranty in the purchase agreement should have been held ineffective on the ground that it was not “conspicuous.” We find no error and affirm both judgments.

I

In May 1971, Dwight Houck, appellant’s deceased husband, purchased for $3,500 a travel trailer from appellee, Nicholas DeBonis, the proprietor of King of the Road Auto Sales in Havre de Grace, Maryland. The vehicle was a “used” 1970 model, manufactured by the appellee, Prowler Industries of Maryland, Inc., a wholly-owned subsidiary of Fleetwood Enterprises, Inc. It had been purchased new in late August 1970 by a retired Army Colonel. Mr. and Mrs. Houck took several motor trips with the trailer attached. They shared the driving on such occasions, and experienced no mechanical difficulties. Their adult children also made use of the vehicle and, similarly, did not encounter mechanical problems.

Appellant and her husband, in July 1972, took the trailer in tow on a visit to appellant’s mother in western North Carolina, including excursions through the Smokey Mountains. News of an illness in the family caused the Houcks to curtail their vacation and proceed north. It was on their return trip, on July 26, 1972' near 4 P.M., that the accident giving rise to this litigation occurred.

Appellant testified that her husband was driving their station wagon, with the trailer attached, when they began their descent from Iron Mountain in Virginia. The road was steep and winding and, at the base of the mountain, appellant heard a “cracking noise,” suggesting to her that “maybe one of the stabilizer bars had come loose.” Mr. Houck stopped the car to investigate, but was unable to find anything wrong with the trailer.

The Houcks continued their trip on Interstate 81, a four-lane divided highway, and noticed soon thereafter that the trailer became extremely difficult to control when their speed exceeded forty miles per hour due to “swaying” or “fishtailing.” Three mechanics, at different service stations along the road, examined the trailer in attempts to discover the cause of fhe problem; none found anything in need of repair, but the unsteadiness persisted. Appellant, at some point, relieved her husband of the driving, and drove approximately fourteen miles on Interstate 81 prior to the accident. While traveling in the “slow lane” of the road (then having a speed limit of 70) at a rate “somewhere between forty and thirty-five or forty, maybe even a little more than that,” according to appellant’s own testimony, a tractor-trailer passed her at a high rate of speed, causing her to fishtail, and resulting in appellant’s losing control of her vehicle, which left the road, proceeded down an incline and came to rest against a pile of stones in an open field. Appellant sustained neck and other injuries; the trailer was severely damaged, its body and chassis having separated sometime during the accident. The station wagon was also damaged.

Appellant’s theory of negligence — with respect to which substantial expert testimony was adduced by both sides — was that the manufacturer of the trailer did not properly install the mounting bolts which fasten the trailer body to the chassis.

II

In the pretrial motion for separate trials of the appellant’s personal injury claim and claim as administratrix, counsel for the appellees indicated an intent to present testimony that, about two weeks after the accident, Mr. Houck made a statement to the appellee DeBonis concerning appellant’s driving and rate of speed at the time of the accident. Such remark, they alleged, met the requirements for admissibility of hearsay testimony, as a declaration against interest, at least insofar as the personal injury action was concerned. As previously stated, the motion was granted.

At the trial of Mrs. Houck’s individual claim, appellees Fleetwood and Prowler called as a witness appellee Nicholas DeBonis, the trailer dealer. When asked whether he had had occasion to speak to Mr. Houck after the accident, DeBonis testified as follows:

“. . . This was approximately within two weeks after the accident because the vehicles were still in Virginia at the time and Mr. Houck came into my place of business at that time and the question was, did I have insurance on his trailer and I asked him, for what reason, I said, Mr. Houck, this has been approximately fifteen months since I sold you the trailer. He says, well he had an accident and I asked him what occurred and he stated down in the State of Virginia in the vicinity of Harrisburg [sic], Virginia, on Interstate 81 that his wife wanted to drive and he let her drive and that that was her first time towing a trailer and he said that she was driving down Interstate 81 and a semi-tractor trailer passed her and I says, Mr. Houck, I know the rest of what happened, I can assume what happened and I says what speed was she going and he said she was going approximately sixty-five miles an hour and he said when the truck was passing her that the vehicle began to pull towards the left; that would be the trailer part would be pulling towards the left and the rear end of the car would be pulling to the left and that she swerved to the right, leaving the highway, going down through a ravine and through a fence.” (Emphasis added.)

Mrs. Houck presents the following question on this appeal, urging us to answer it in the affirmative:

“Was the testimony of the Appellee DeBonis concerning the alleged declaration of Mr. Houck against his interest improperly admitted and prejudicial to the Appellant’s case?”

This issue causes us to reexamine the law of declarations against interest as exceptions to the hearsay rule, a subject about which little has been said in Maryland in recent years in civil cases. Cf. Wilkins v. State, 11 Md. App. 113, 273 A. 2d 236 (1971).

Before determining whether the requirements for the exception are met, we look to the nature of hearsay itself. McCormick on Evidence § 246 (2d ed. 1972) provides the following definition:

“Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. ”

More simply stated, “[t]he rule against hearsay forbids the use of extra-judicial statements for the purpose of proving the truth of their content.” Strahorn, Extra-Legal Materials and the Law of Evidence, 15 Md.L.Rev. 330, 340 (1955). Hearsay testimony is admissible in certain well-defined areas where circumstantial guarantees of trustworthiness are present. As stated by Professor Strahorn:

“[A]ll of the hearsay exceptions present type situations both possessing unusually favorable conditions for perception, recollection, and narration, the normal defects of which make the conditioning devices necessary, and, as well, involving the absence of motivation calculated to lead to falsehood.” Id. at 343.

A hearsay exception for declarations against interest has traditionally been available. The requirements have been variously enumerated, but generally include that the declarant be unavailable at the time of trial, that the statement was made against his pecuniary or proprietary interests, that the declaration concerned a fact or event immediately cognizable by the declarant personally, and that no probable motive to falsify the facts existed when the statement was made. See, e.g., Jefferson, Declarations Against Interest: An Exception to the Hearsay Rule, 58 Harv.L.Rev. 1 (1944). Two types of declarations against pecuniary interest have been recognized — those stating a liability of the declarant to another and those defeating a claim which the declarant has against another. Id. at 29.

Wigmore does not isolate as a separate requirement the absence of motive to falsify the facts. In his view, the assertion of a fact which is directly contrary to one’s interest is not likely to be the result of fabrication. 5 Wigmore on Evidence § 1457 (3d ed. 1940). Often, the learned Dean points out, it may not be immediately apparent that the declarant has uttered words adverse to his pecuniary affairs; the test for admissibility may still, however, be satisfied:

“There are many facts which in their ultimate effect may be against proprietary or pecuniary interest, though in their immediate and narrow aspect there may be no such clear character. Those facts, however, may nevertheless be facts so decidedly against interest that no one would be inclined falsely to concede their existence. If so, on the general principle ... they should therefore be admitted. No more precise test can well be formulated, except in the suggestion that the interest injured or the burden imposed by the fact stated should be one so palpable and positive that it would naturally have been present in the declarant’s mind.” Id. § 1461.

“Independent evidence,” Wigmore further states, may be used to show that the matter stated was against the declarant’s interest. Id. § 1468.

Maryland law accords recognition to declarations against interest as exceptions to the hearsay rule, and differs in no substantial respect from the general principles discussed above. The reported cases in Maryland, however, are few. The leading case is Western Maryland Railroad Co. v. Manro, 32 Md. 280 (1870), and the fact that it has not been cited in any' subsequent decision is indicative of the infrequency with which this issue has arisen on appeal in Maryland. In Manro, an action was brought by a railroad company to recover on a subscription to its capital stock. The plaintiff sought to introduce, through a third party, the statement of a deceased company official that the defendant had paid him one dollar upon each share of stock at the time of his subscription. This evidence was essential to the plaintiff’s cause of action under then-existing law. The court, quite understandably, rejected the statement as hearsay, finding no merit in the plaintiff’s contention that it was made against the pecuniary interests of the official. Surprisingly, the only explication by a Maryland court of the requirements for admissibility of a declaration against interest is found in a case of such vintage:

“The general rule in regard to the declarations of a person, since deceased, tl ... is this [:] to render them admissible against third persons, ‘it must appear that the declarant is deceased; that he possessed competent knowledge of the facts, or that it was his duty to know them; and that the declarations were at variance with his interest.’ ” 32 Md. at 282-283 [quoting 1 Greenl. Ev. sec. 147],

Later cases, although seemingly applying the same rule as to declarations against interest, award only perfunctory analysis to the issue. See Buck v. Brady, 110 Md. 568, 73 A. 277 (1909); Rosenstock v. Rosenstock, 151 Md. 253, 134 A. 143 (1926). See also Rosman v. Travelers’ Insurance Co., 127 Md. 689, 96 A. 875 (1916) and Stiegler v. Eureka Life Insurance Co., 146 Md. 629, 127 A. 397 (1925), involving suits by beneficiaries to recover the proceeds under life insurance policies wherein false statements made by the insured were held admissible against the beneficiaries.

The clearest example of a declaration against interest is a statement by the declarant that he is indebted to another, and, according to McCormick, the hearsay exception appears to have evolved from this type of case. McCormick on Evidence, supra, § 277. The application of the rule has, however, been significantly broadened:

“[T]he American cases have properly extended the field of declarations against interest to include acknowledgement of facts which would give rise to a liability for unliquidated damages for tort or seemingly for breach of contract. A corresponding extension to embrace statements of facts which would constitute a defense to a claim for damages which the declarant would otherwise have, has been recognized in this country.” Id. (Emphasis added.)

In applying the law to the specific facts of this case, we note preliminarily that the evidence at trial was conflicting as to the speed at which Mrs. Houck was traveling when the accident occurred, leaving that question a matter for determination by the jury. Appellant herself testified, as previously noted, that she believed her speed to be between 35 and 40 miles per hour, but that she may have exceeded 40. A Virginia state trooper who investigated the accident, called by appellant, testified that Mrs. Houck told him she “was going about fifty or fifty-five” before swerving from the road. Either or both of the above may have led the jury to draw a reasonable inference that appellant was exceeding a safe speed for the trailer, especially in view of her prior testimony that she and her husband were aware that something was wrong and that the vehicle became difficult to control at a speed above 40 miles per hour.

We now consider whether the additional evidence concerning appellant’s driving, in the form of the statement made by her husband to Mr. DeBonis, was a declaration against interest, admissible against appellant. No doubt exists that the statement was hearsay, offered to prove the truth of the matter asserted, i.e., that Mrs. Houck was traveling at a speed of 65 miles per hour, made a turning movement to the right and lost control. In determining whether sufficient “circumstantial guarantees of trustworthiness” were present for hearsay to be admitted, we look again to the lone Maryland decision, Western Maryland Railroad Co. v. Manro, supra, setting forth the requirements for declarations against interest.

First, it must appear that the declarant was deceased at the time of trial. Mr. Houck’s death was acknowledged in this regard. Second, the declarant must have had competent knowledge of the facts, or a duty to know them. Mr. Houck was a passenger in the vehicle driven by his wife; his firsthand knowledge was surely competent. Third, the declaration must have been at variance with the interests of the declarant. This is a critical element of the hearsay exception and in this case gives some pause; but we are satisfied that Judge Higinbothom correctly ruled that Mr. Houck’s statements to Mr. DeBonis were contrary to his own interests. We observe that he made a ruling in chambers after stating on the record that he had researched the question and after hearing argument of counsel. In making an oral disposition of appellant’s objection, the court first quoted the general rule as stated in Western Maryland Railroad Co. v. Manro, supra, and then adverted to McCormick on Evidence, supra, § 277, stating:

“Now, McCormick on Evidence . . . states that ‘statements of facts which would constitute a defense to a claim for damages which declarant would otherwise have, has been recognized in this country as declaration against interest’. And what we have here is, if the statement was made to Mr. DeBonis by Mr. Houck, we have Mr. Houck who is now deceased who certainly had knowledge of the facts because he was there in the vehicle who is making a statement which would constitute a defense to a claim which he might [otherwise] have [had]____”

The factual context in which the statement was made supports the court’s ruling. Mr. Houck was plainly aware, as the record in this case discloses, of facts which would suggest the possible presence of a defect in the trailer. It is undisputed that his purpose in visiting DeBonis was to ascertain whether there was any insurance coverage through which he might obtain compensation for his property damage. At that time he was obviously conscious of his own loss and of his wife’s personal injuries. The recitation by him of the facts relating to his wife’s driving was then made in the face of knowledge that a nonculpable source of recovery, i.e., insurance, was unavailable but with knowledge also of a possible defect in the trailer which would afford a basis for recovery — both on his part and that of his wife — from a culpable source. His statements to DeBonis clearly imputed contributory negligence to his wife and were therefore against his pecuniary or proprietary interests. As the lower court held on the authority of McCormick, supra, he made a statement which would constitute a defense to a claim which he might have. Such a declaration is admissible whenever relevant, no matter what the relationship is between the declarant and the party against whom the statements are offered. Id. § 277. See also Filesi v. United States, 352 F. 2d 339, 343 (4th Cir. 1965).

Accordingly, we find no error in the trial court’s ruling.

Ill

It remains for us to consider appellant’s second claim concerning the trial court’s granting of a directed verdict in favor of the appellee DeBonis on the basis of his disclaimer of all warranties in the contract of sale for the used trailer.

The contract, dated “5/10/71,” was on a printed form, headed “King of the Road Trailer Sales,” and entitled, “Purchase Agreement.” Two separate statements on the face of the contract referred the purchaser to provisions on its reverse side. One such statement is in small, boldface type, beneath the name and address of the purchaser, at the top of the form. The other is contained in a paragraph found above the signature line in the lower right corner of the form. Mr. Houck’s signature appears in the designated place.

The reverse side of the form is entitled “ADDITIONAL TERMS AND CONDITIONS,” and contains twelve enumerated series of paragraphs in small, boldface type. Item No. 7 is entitled “DISCLAIMER OF IMPLIED WARRANTY,” the heading appearing in capital letters. Four separate paragraphs are.included in this section, and all are fully underscored. The Disclaimer section is the only portion of the reverse side of the form which is underscored. The fourth paragraph of Item No. 7 states as follows:

“A used unit is sold ‘as is’ without guaranty or warranty, either expressed or implied, as to its condition, or the condition of any part thereof, including its quality, suitability for purpose, the year of manufacture, its size or the particular model it may be, unless such exceptions are specifically mentioned, in writing, on the face of the order, or in a separate instrument, furnished to the buyer by the seller at the date of purchase.”

Appellant sought recovery against appellee DeBonis on a theory of breach of warranties under the Maryland Uniform Commercial Code, presumably under Md. Com. Law Code Ann. §§ 2-314, 2-315 (1975), relating to implied warranties of merchantability and fitness for particular use. At the time appellant’s husband entered into the purchase agreement in May 1971, the disclaimer provisions of § 2-316 were fully applicable to consumer goods, including trailers. Section 2-316 provides, in pertinent part:

“(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof’.
“(3) Notwithstanding subsection (2)
(a) Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is’, ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty;. .. .”

The issue for our review is whether the disclaimer of warranties by the appellee DeBonis was sufficiently “conspicuous” to be effective. It has previously been recognized by the Court of Appeals that “as is” disclaimers under § 2-316 (3), supra, must meet the same “conspicuousness” requirement of § 2-316 (2), applicable to warranties which mention “merchantability.” Fairchild Industries v. Maritime Air Service, Ltd., 274 Md. 181, 333 A. 2d 313 (1975). A definition of “conspicuous” is provided in § 1-201 (10) of the Commercial Code. It states as follows:

“A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: NONNEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color. But in a telegram any stated term is ‘conspicuous’. Whether a term or clause is ‘conspicuous’ or not is for decision by the court." (Emphasis added.)

In granting a directed verdict for DeBonis, the trial court, at least impliedly, made a determination that the disclaimer on the reverse side of the contract of sale was “conspicuous.” We agree with this conclusion.

We are concerned here with a “reverse-side” disclaimer. The following statement from 1 Anderson, Uniform Commercial Code § 1-201:30 (2d ed. 1970) is relevant:

“A provision on the reverse side of a document may or may not be conspicuous under the circumstances of the case.
Where there is nothing on the face of the writing to call attention to the provisions on the back of the instrument, it is likely that the provisions on the back will not be deemed ‘conspicuous’, regardless of whether they would be ‘conspicuous’ if on the face of the instrument.” [citing Hunt v. Perkins Machinery Co., 226 N.E.2d 228 (Mass. 1967); emphasis added]. See also White and Summers, Handbook of the Law Under the Uniform Commercial Code § 12-5 (1972).

A leading case on reverse-side disclaimers is Childers & Venters, Inc. v. Sowards, 460 S.W.2d 343 (Ky. 1970). The court there upheld such a disclaimer, because it was printed in larger and heavier type than the rest of the form. No intent was found on the part of the Code’s drafters to invalidate perse reverse-side disclaimers:

“In their process of arriving at an appropriate definition of the word ‘conspicuous’ we feel sure that the drafters of the Uniform Commercial Code were not unmindful that commercial institutions customarily use both sides of the paper in printing form contracts that cannot be conveniently compressed into one page. It would have been easy to say, if they had so intended, that in order for language in a contract to be ‘conspicuous’ it must appear on the front sheet or on the same sheet as the signatures. In the absence of such a provision we cannot reasonably construe it so.” 460 S.W.2d at 344-345.

Other courts have held that more than a “slight contrast” must exist between the disclaimer and the remainder of the contract for the disclaimer to be operative. Dorman v. International Harvester Co., 120 Cal. Rptr. 516, 522 (Cal. App. 1975); Woodruff v. Clark County Cooperative Assn., 286 N.E.2d 188, 198 (Ind. App. 1972); Greenspun v. American Adhesives, Inc., 320 F. Supp. 442, 444 (E.D. Pa. 1970). As stated in Official Comment 10 to § 1-201 (10) of the Commercial Code, “the test [of a disclaimer’s effectiveness] is whether attention can reasonably be expected to be called to it.”

We do not believe there is a shred of doubt that the trial court properly found the disclaimer here to be “conspicuous.” The face of the contract mentions in two separate places that additional terms and conditions are contained on its reverse side. Furthermore, the disclaimer language is separately underscored in Item No. 7, and a heading in capital letters demarcates the section. Appellant has alleged no other reason why the disclaimer should not be given effect.

Judgments affirmed; appellants to pay the costs.

      . The husband, Dwight Houck, died some nine months later of causes unrelated to the accident.

      . At the time appellant’s husband executed the purchase agreement In May 1971, the disclaimer provisions contained in Md. Com. Law Code Ann. § 2-316 were applicable to consumer goods, including trailers. As pointed out infra, warranties on consumer goods can no longer be disclaimed.

      . The court expressed its view that the dead man’s statute, Md. Cts. & Jud. Proc. Code Ann. § 9-116 (1974) would preclude such testimony in the appellant’s action as administratrix of her husband’s estate.

      . As McCormick emphasizes, supra, § 276, this exception is to be distinguished from the one for parties’ admissions which “come in without satisfying any of the requirements for declarations against interest.” See infra, n. 7.

      . The early English cases required that the declarant be deceased. Uniform Rule 63(10) has dispensed with the requirement of unavailability and, according to Professor McCormick, the only requirement in this country generally has been whether other grounds of unavailability will be accepted. “Any reason why the declarant cannot be brought in at the trial should suffice... ."Id. § 280; see also Fed. Rule 804(b)(3).

      . See n. 5, supra.

      . These decisions speak, almost interchangeably, of declarations against interest and admissions by party-opponent. The latter hearsay exception applies where the declarant is a party, carries no requirement of unavailability, and need not be known to be against interest at the time it is made. See McCormick on Evidence § 262 (2d. ed. 1972). See also Miles v. State ex rel. Wistling, 174 Md. 292, 198 A. 724 (1938) and Smith v. Branscome, 251 Md. 582, 248 A. 2d 455 (1968).

      . McCormick cites the following cases, inter alia, in support of this proposition: Walker v. Brantner, 52 P. 80 (Kan. 1898); Jewell v. El Paso Electric Co., 47 S.W.2d 328 (Tex. Civ. App. 1932); Kwiatkowski v. John Lowry, Inc., 11 N.E.2d 563 (N.Y. 1937); Home Insurance Co. v. Allied Telephone Co., 442 S.W.2d 211 (Ark. 1969).

      . We are confident that the Court of Appeals would no longer limit the scope of the exception to decedent’s declarations but would extend it, at least, to the declarant’s unavailability.

      . Under the present law, warranties on consumer goods cannot be disclaimed. See Md. Com. Law Code Ann. § 2-316.1 (1975). This provision was added to the Code by Laws of Md., ch. 505 (1971) as § 2-316A of art. 95B (1957, 1964 Repl. Vol.), effective July 1,1971.


author: Menchine, J.,

text:
    RONALD D. JOHNSON v. STATE OF MARYLAND GLEN E. GRAINGER v. STATE OF MARYLAND LIONEL LEVON COOK v. STATE OF MARYLAND GREGORY HUGHLEY v. STATE OF MARYLAND
    [No. 268,
    September Term, 1977.]
    [No. 324,
    September Term, 1977.]
    [No. 325,
    September Term, 1977.]
    [No. 474,
    September Term, 1977.]

      Decided November 15, 1977.

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

      George E. Bums, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, on all briefs; Mark Colvin, Assistant Public Defender on the brief for Ronald D. Johnson and Geraldine Kenny Sweeney, Assistant Public Defender, on the brief for Gregory Hughley, appellants.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, Mark Cohen and James F. Schneider, Assistant State’s Attorneys for Baltimore City, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

The unrelated appeals of Ronald D. Johnson, Glen E. Grainger, Lionel Levon Cook and Gregory Hughley were consolidated for argument in this Court because all involved common questions of law. They will be the subjects of a single opinion.

All had been convicted and sentenced for unrelated offenses after bench trials in the Criminal Court of Baltimore. In each trial: (a) the accused was found guilty of a criminal offense; (b) the finding of guilt was stricken prior to sentence in order that the accused might be released on his initial bail pending preparation of a presentence report; (c) the guilty verdict was thereafter reinstated by the trial judge; and (d) sentence was imposed.

The legal issues common to all cases are thus presented in the briefs of the appellants:

“I. The trial judge erred in sentencing the Appellants after the guilty verdicts had been stricken.
II. The Appellants’ second conviction constituted a violation of the prohibition against double jeopardy.”

I.

Appellants have cited no case supporting the contention that sentencing after guilty verdicts had been stricken but later reinstated constituted reversible error. The Court has found none.

This Court held in Williamson v. State, 25 Md. App. 338, 333 A. 2d 653 (1975), cert. denied, 275 Md. 758 (1975), that a trial judge possessed the discretionary power to reverse his decision granting a new trial when a lack of finality in the initial grant was apparent from the record. We find the decision persuasive here.

The subject records demonstrate with crystal clarity that the action of the trial judge in striking the guilty verdicts was in no sense motivated by doubt concerning the guilt of the accused. On the contrary, the record in each case plainly shows that such action had been taken so that the accuseds might remain free on initial bail bond without being subjected to additional costs for new bail.

We find it unnecessary to pass upon the correctness of the apparent conclusion of the trial judge that conviction without sentence would have discharged the bail obligation and compelled confinement pending sentence unless new bail was furnished. It would appear, however, that the clear weight of authority is to the contrary. Annot. 20 ALR 594, 624-27. Contra, Kinder v. Richeson, 264 S. W. 982, 983 (Mo. 1924).

It is manifest from each record that the trial judge: (a) did not intend the striking of the guilty verdict to be his final act; (b) did not retreat from his conclusion that the accused was guilty beyond a reasonable doubt; and (c) intended to reinstate the several guilty verdicts after consideration of pre-sentence reports. We are persuaded that the trial judge possessed discretionary power to strike the several verdicts of guilty and subsequently to reinstate the same. Williamson v. State, supra.

Although the appellants, explicitly in Cook and Johnson and implicitly in Grainger and Hughley, willingly accepted the indulgence of the trial judge and entered no caveat to the action of the trial court striking the verdict; in reinstating it; or in imposing sentence and thus, did not preserve the issue for appellate review, Maryland Rule 1085, we shall consider the double jeopardy contention for the reason given in Johnson v. State, 3 Md. App. 105, 108-09, 238 A. 2d 286, 288 (1967). An added reason for our decision to consider the issue stems from the circumstance that other cases making the same contention are presently pending in other appeals to this Court.

Appellants’ argument boils down to the following syllogism:

(Major premise) The striking of the guilty verdict was tantamount to a verdict of not guilty.
(Minor premise) The not guilty verdict triggered appellants’ Fifth Amendment right to freedom from being “twice put in jeopardy.”
(Conclusion) Reinstatement of the guilty verdict with consequent sentence violated this Fifth Amendment right.

The argument is the purest sophistry. Its basic flaw is the invalidity of its major premise. In each of the subject cases it is patent that the striking of the guilty verdict was interlocutory in character; temporary in effect; and intended to be followed by further proceedings within the same trial. In sum, the striking of the verdicts was not “tantamount to a not guilty verdict.” The syllogism’s conclusion collapses with rejection of its major premise.

We think that the language of Judge Levine, speaking for the Court of Appeals, in Bynum v. State, 277 Md. 703, 707-08, 357 A. 2d 339, 341-42 (1976), is strikingly applicable here:

“There is, nevertheless, a fundamental flaw in appellant’s claim that he was twice placed in jeopardy. Double jeopardy is not suffered unless a man is twice put to trial. See Bowie v. State, 234 Md. 585, 593, 200 A. 2d 557, cert. denied, 379 U. S. 864 (1964); Fisher, Double Jeopardy: Six Common Boners Summarized, 15 U.C.L.A. L. Rev. 81, 86 (1967). The purpose of the prohibition of double jeopardy, questions of double punishment aside, finds expression in the maxim nemo debet bis vexari pro una et eadem causa, no one shall be twice vexed for one and the same cause. In the context of a case such as this, where the defendant claims that his conviction was barred by a previous acquittal, two basic double jeopardy policies are involved. The first is the notion that guilt should be established only by proving the elements of the offense to a single jury, that the prosecution should be denied the right to increase the probability of obtaining a conviction by repeated prosecutions. And the second, more general policy, one involved in a trial subsequent to either an acquittal or a conviction, is the right not to be subject to harassment. More specifically, a defendant is not to be put to the expense of defending himself in successive unnecessary trials of the same issue, subjected to the stigma which attaches in further criminal prosecutions, or denied the psychological security, available in civil cases by reason of the doctrine of res judicata, of considering a matter once tried to be closed. See Comment, Twice in Jeopardy, 75 Yale L. J. 262, 266-67 (1965); Comment, 65 Yale L. J. 339, 340-41 (1956).
“It is evident that where, as here, the defendant is subjected to but a single prosecution, trial and jury verdict, there exists none of the evils which the double jeopardy prohibition is intended to prevent. Appellant has neither been harassed by multiple prosecutions, nor has he been subjected to the increased probability of conviction attendant upon repeated trials. In short, appellant was but once placed in jeopardy.” (Footnote omitted.)

In the earlier case of Pugh v. State, 271 Md. 701, 706, 319 A. 2d 542, 545 (1974), it had been said:

“It is therefore settled that once the trier of fact in a criminal case, whether it be the jury or the judge, intentionally renders a verdict of‘not guilty, ’ the verdict is final and the defendant cannot later be retried on or found guilty of the same charge.” (Emphasis added.)

In none of the subject cases was there an intentional rendition of a verdict of “not guilty.” The appellants were not “twice put in jeopardy.” Their Fifth Amendment constitutional guarantee in this area was in no way denied or abridged.

The appellant Johnson has raised one additional issue, the appellant Hughley two, requiring further discussion.

Johnson Additional Issue

“Did the trial judge improperly assume the role of prosecutor in qualifying Tabatha Johnson as a competent witness?”

Ronald D. Johnson, an adult, had been charged with a sexual offense in the third degree with another person under age 14. Maryland Code (1957, 1976 Repl. Vol.), Article 27, § 464B (a) (3). The alleged victim, Tabatha Johnson, was a female child of eight years.

After the State’s attorney had conducted a brief preliminary competency interrogation of the child, defense counsel objected to the competency of the witness. At that point the following colloquy between court and defense counsel took place:

“THE COURT: Tabatha, let me ask you this —

MR. RUBINSTEIN: Your Honor, I would object to your Honor questioning the witness in order to qualify her for the State, with all due respect, I think that’s the State’s job and not the Court’s job.

THE COURT: Okay. Your objection is noted.

MR. RUBINSTEIN: May I have a blanket objection to all your questions?

THE COURT: I would suggest, to protect the record, you object to my attempting to qualify her.

MR. RUBINSTEIN: Yes, sir.

THE COURT: Well, the objection relates to my doing just that so you don’t have to object on that subject. Tabatha, do you go to Sunday School, do you?

THE WITNESS: Some times.

THE COURT: Some times. I see. And do you know the difference between the truth and not telling the truth, do you?

THE WITNESS: Yes.

THE COURT: And suppose you don’t tell the truth, what would happen to you?

THE WITNESS: I would get punished.

THE COURT: And I will permit you, I am satisfied she knows the difference between the truth and an untruth and what happens to people who tell an untruth.”

A judge has a right to ask questions in the course of a trial. We see nothing unfair or prejudicial in his questioning. There was no error. Madison v. State, 200 Md. 1, 12, 87 A. 2d 593, 598 (1951).

Hughley Additional Issues

1. “Assuming arguendo that a valid conviction was entered, the trial court lacked jurisdiction to do so in that the charging document did not charge a crime.”

2. “Assuming arguendo that a valid conviction was entered on a proper charging document, there was insufficient evidence to support the conviction.”

These issues are interrelated and will be considered together.

The Statement of Charges “formally charged that Gregory Hughley ... on or about 17 July ’76 at 4259 Park Heights Ave. unlawfully did attempt to break into the dwelling house of Garris McFadden situated at 4259 Park Heights Avenue with intent to commit therein a certain felony, to wit: Burglary and in furtherance of attempt to force the front door. . . .”

It is clear to us that the agreed statement of facts upon which the case was submitted for decision below was legally insufficient to establish that the accused had an intent to commit a felony. That conclusion is not, however, dispositive of the Hughley appeal.

Maryland Code (1957, 1976 Repl. Vol.) Article 27, § 31A, in effect at the time of this alleged offense, reads as follows:

“Any person who breaks and enters the dwelling house of another is guilty of a misdemeanor and, upon conviction thereof, shall be sentenced to imprisonment for a term of not more than three (3) years or a fine of not more than five hundred dollars ($500.00) or both.”

An attempt to commit an offense constitutes a common law misdemeanor. Fisher v. State, 1 Md. App. 505, 510, 231 A. 2d 720, 723 (1967).

It will be observed that an attempt to commit the offense set forth in Article 27, § 31A, supra, is a lesser offense clearly falling within the greater charge alleged in the Charging Document.

The statement of facts upon which the cause was submitted below was legally sufficient to establish that the accused had made an attempt to violate the cited section. Thus,' all elements essential to proof of a lesser offense necessarily included within the allegations of the greater offense were shown.

The question narrows, accordingly, to a determination whether proof of a lesser offense necessarily included in a charging document asserting a greater offense permits conviction of the former in this State.

The clear weight of authority is that conviction of a necessarily included lesser offense is permissible under a document charging a greater offense. The rule is thus stated in 2 Wharton’s Criminal Procedure, § 292, at 127 (12th ed. Torcía 1975):

“§ 292. Lesser and included offenses.
At common law and under typical statutes, when an indictment or information charges an offense which includes within it a lesser offense, or an offense of a lower degree of the same general class, the accused may be convicted of such lesser offense. An offense qualifies as a lesser-included offense only if the elements of the included offense are fewer in number than the elements of the greater offense, and only if the greater offense cannot be committed without also committing the lesser offense.”

See also: 41 Am. Jur. 2d Indictments and Informations § 313 (1968); 42 C.J.S. Indictments and Informations § 271 (1944).

The early decision of Davis v. State, 39 Md. 355 (1874) is persuasive that the above rule should be applied in this State. In Davis it was said:

“When, therefore, a person is indicted for murder, in the technical language of the common law, he is charged with a crime, which in its proper sense, includes all circumstances of aggravation, and as all minor degrees are included in the major, he is liable to be convicted of the inferior, as well as of the higher grades of that offense, and vice versa.

Factually the Hughley case falls within the rule as stated in Wharton, supra. We hold that rule of law to be applicable in this State.

Finding no error as to any of the several appeals, we shall affirm the judgments in all cases.

Judgments affirmed.

Appellants to pay equal shares of the costs of the four appeals.

      . That question in Maryland is no longer open following the adoption of Maryland Rule 722, effective July 1,1977. That Rule reads in pertinent part as follows:
      “Rule 722 Bail Bonds
      j. Discharge of Bond ...
      The bail bond shall be discharged when:
      (a) all charges to which the bail bond applies have been disposed of by a nolle prosequi, stet, dismissal, acquittal, or probation before judgment or imposition of sentence;
      (b) the defendant has been sentenced:...”


text:
    MARVIN EDWARD HUNTER, JR. v. STATE OF MARYLAND
    [No. 275,
    September Term, 1977.]

      Decided November 15, 1977.

      The cause was submitted on briefs to Moylan, Menchine and Lowe, JJ.
    Submitted by William T. Wood and Hyman Shapiro for appellant.
    Submitted by Francis B. Burch, Attorney General, Kathleen M. Sweeney, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Thomas Heeney, Assistant State’s Attorney for Montgomery County, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Marvin Edward Hunter, Jr. came to trial before a jury in the Circuit Court for Montgomery County on November 9, 1976, under a twelve count indictment.

The indictment, in counts one through eight, had charged the following offenses:

1. Storehouse breaking in violation of Code Article 27, § 32 (Breaking with intent to steal 100.00 or more);
2. Storehouse breaking in violation of Article 27, § 33 (Breaking and stealing 5.00 or more);
3. Storehouse breaking in violation of Article 27, § 342 (Breaking with intent to steal less than 100.00 or stealing 5.00 or more);
4. Grand Larceny (Common Law with Article 27, § 340);
5. Petit Larceny (Common Law with Article 27, § 341);
6. Receiving 100.00 or more (Common Law with Article 27, § 466);
7. Receiving less than 100.00 (Common Law with Article 27, § 467);
8. Destruction of Property (Article 27, § 111).

In the course of trial on November 9, 1976, after the jury had been sworn, the State nol-prossed counts 2,3, 5, 6, and 7. Counts 1, 4, and 8 ultimately were submitted to the jury for decision. A mistrial was declared when the jury failed to agree. Manifest necessity for the mistrial is not contested.

Such was the posture of the case when on February 18, 1977, Hunter filed a motion to dismiss counts 1, 4 and 8 upon double jeopardy grounds. After hearing on March 4, 1977, the motion to dismiss was denied. This appeal immediately followed.

Appellant contends that submission of counts 1, 4 and 8 to a new jury at a retrial would contravene his right “[not to] be subject for the same offense to be twice put in jeopardy.” Fifth Amendment United States Constitution. We reject the contention.

We are mindful that it is now beyond cavil that entry of a nolle prosequi without the defendant’s consent after jeopardy has attached generally operates as an acquittal, precluding further prosecution for the same offense, Blondes v. State, 273 Md. 435, 443, 330 A. 2d 169, 173 (1975), and that it is equally well settled that in a jury trial, jeopardy attaches when a jury is empaneled and sworn. Serfass v. United States, 420 U. S. 377, 388, 95 S. Ct. 1055, 1062, 43 L.Ed.2d 265, 274 (1975); Jourdan v. State, 275 Md. 495, 507, 341 A. 2d 388, 395 (1975).

These well established rules of law do not aid the appellant in the circumstances of the subject case.

In Bynum v. State, 277 Md. 703, 357 A. 2d 339, cert. denied, 429 U. S. 899 (1976), the State, after the jury was sworn, had entered a nolle prosequi as to a lesser count (robbery). The appellant contended that such action barred, on double jeopardy grounds, submission to the jury of a count charging a greater offense (armed robbery). The contention was rejected. In the course of the opinion in Bynum, Judge Levine, speaking for the Court of Appeals, said at 709 [342]:

“... The removal from consideration by the jury of the lesser offense had the salutary effect of clarifying the issues to be decided, an effect which could only accrue to the fairness of the trial. The same result would have obtained had the court, rather than the prosecutor, dismissed the robbery charge by granting partial judgment of acquittal.
“We therefore hold that the double jeopardy prohibition, though barring subsequent prosecution for offenses charged in counts dismissed by a nolle prosequi entered without the consent of the accused after jeopardy has attached, has no application in the context of the same prosecution which continues on other counts.” (Emphasis added.)

Here, as in Bynum, the removal from consideration of the other charges clarified the issues involved.

As we see it, the single difference between Bynum and the subject case is this: in Bynum the jury resolved the submitted issue; in the subject case the jury was unable to agree and a mistrial followed.

Does this difference alter the impact of the decision in Bynum upon the subject case? We think not.

It is crystal clear that the Fifth Amendment right to freedom from exposure to double jeopardy is not offended by retrial in such circumstances. That principle was first stated in United States v. Perez, 9 Wheat. 579, 6 L. Ed. 165 (1824), wherein Mr. Justice Story for the Supreme Court, said at 579:

“The prisoner, Josef Perez, was put upon trial for a capital offense, and the jury, being unable to agree, were discharged by the court from giving any verdict upon the indictment, without the consent of the prisoner, or of the attorney for the United States. The prisoner’s counsel, thereupon, claimed his discharge as of right, under these circumstances; and this forms the point upon which the judges were divided. The question, therefore, arises, whether the discharge of the jury by the court from giving any verdict upon the indictment, with which they were charged, without the consent of the prisoner, is a bar to any future trial for the same offense. If it be, then he is entitled to be discharged from custody; if not, then he ought to be held in imprisonment until such trial can be had. We are of opinion that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defense. We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.”

The continuing validity of the rule is demonstrated by United States v. Sanford, 429 U. S. 14, 97 S. Ct. 20, 50 L.Ed.2d 17 (1976). In Sanford, a jury trial in the United States District Court for the District of Montana resulted in a hung jury, and the District Court declared a mistrial. Four months later, while the Government was preparing to retry them, respondents moved to dismiss the indictment. The District Court, agreeing that the Government had consented to the activities which formed the basis of the indictment, dismissed it. The United States Court of Appeals for the Ninth Circuit affirmed (536 F. 2d 871), saying:

“Here appellees have undergone trial. There is no question but that jeopardy has attached. That being so, and since the proceedings in the district court have ended in appellees’ favor and the consequences of a reversal in favor of the Government would be that appellees must be tried again, we conclude that they would, on retrial, be placed twice in jeopardy.” 536 F. 2d at 872.

The Supreme Court reversed, saying at 429 U. S. 15, 97 S. Ct. 21, 50 L.Ed.2d 19-20:

“We agree with the Court of Appeals that jeopardy attached at the time of the empanelling of the jury for the first trial of respondents. But we do not agree with that court’s conclusion that by reason of the sequence of events in the District Court the Government would be barred by the Double Jeopardy Clause from retrying respondents. The trial of respondents on the indictment terminated not in their favor, but in a mistrial declared, sua sponte, by the District Court. Where the trial is terminated in this manner, the classical test for determining whether the defendants may be retried without violating the Double Jeopardy Clause is stated in Mr. Justice Story’s opinion for this Court in United States v Perez, 9 Wheat 579, 580, 6 L Ed 165 (1824):
‘We are of the opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put on his defence. We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.’
“The Government’s right to retry the defendant, after a mistrial, in the face of his claim of double jeopardy is generally governed by the test laid down in Perez, supra. The situation of a hung jury presented here is precisely the situation that was presented in Perez, supra, and therefore the Double Jeopardy Clause does not bar retrial of these respondents on the indictment which had been returned against them.” (Footnote omitted.)

We note that from Perez through Sanford, both supra, that the trial court is invested with the authority to discharge a jury upon their failure to agree whenever there is a manifest necessity for the act. We have previously observed that manifest necessity for the mistrial is not contested.

We consider Neal v. State, 272 Md. 323, 322 A. 2d 887 (1974), to be persuasive on the point. In Neal it was said at 327-28 [889-90]:

“Although jeopardy attached when the jury was sworn, it was dissipated by the declaration of a mistrial, in the absence of any abuse of discretion, Whitfield v. Warden, 486 F. 2d 1118 (4th Cir. 1973), rev’g 355 F. Supp. 972 (D. Md. 1973); see also Baker v. State, 15 Md. App. 73, 289 A. 2d 348, cert. denied, 266 Md. 733 (1972), 411 U. S. 951 (1973), where a similar result was reached. It has long been settled that under such circumstances, a defendant is not relieved from further liability, Cochrane v. State, 6 Md. 400, 407 (1854); State v. Sutton, 4 Gill 494, 498 (Md. 1846), any more than he is when his motion for a new trial is granted, Ruckle v. State, 230 Md. 580, 187 A. 2d 836, cert. denied, 374 U. S. 816 (1963), or when his conviction is reversed on appeal, Gray v. State, 254 Md. 385, 398-99, 255 A. 2d 5, 12 (1969), cert. denied, 397 U. S. 944 (1970). See also United States v. Perez, 22 U. S. (9 Wheat.) 579 (1824) (where jury, unable to agree on a verdict, was discharged by the court, defendant was not exempted from being retried).”

Trial of the accused under the remaining counts of the same indictment following mistrial constitutes a continuing prosecution of the same indictment and offends against no constitutional right of the accused.

Order denying motion to dismiss affirmed.

Costs to be paid by appellant.

      ■1. The indictment included four additional counts relating to a separate offense. Those counts have no bearing the issue in this appeal.

      . Immediate appeal in such case is permissible. Abney v. United States, 431 U. S. 651, 97 S. Ct. 2034, 52 L.Ed.2d 651 (1976); Neal v. State, 272 Md. 323, 322 A. 2d 887 (1974).