author: Gilbert, J.,

text:
    MART OF WALDORF, INC. v. JOY LOU ALBAN
    [No. 351,
    September Term, 1975.]

      Decided January 2, 1976.

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

      Hugh E. Donovan, with whom were Donahue & Ehrmantraut and Richard N. Appel on the brief, for appellant.

      Thomas B. Yewell, with whom were Haislip & Yewell on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Joy Lou Alban, appellee, was arrested on a warrant issued upon the sworn application of Robert S. Hayden, an assistant manager of Mart of Waldorf, Inc., appellant, trading as Mammouth Mart in Waldorf, Maryland. The warrant charged that Mrs. Alban:

“. . . [D]id on or about 4-10-74 at Waldorf, Md. unlawfully did [sic] remove mdse, one pant suit in the value of $16.99, one Infants dress in the value of $3.99 two wigs in the value of $12.99 ea from the immediate place of display within the establishment Monmouth Mart [sic] in the total value of $48.960 with intent to deprive the owner of its value of same.”

Mrs. Alban was acquitted of the charge and thereafter filed suit against appellant, apparently for malicious prosecution,1 in the Circuit Court for Charles County, claiming $150,000.00 in damages. The appellant pleaded the general issue plea, “They did not commit the wrongs alleged.” On the day of trial of the civil suit, the appellant was allowed to amend its plea so as to show, by special plea, that it was undergoing financial difficulty and had sought relief under “Chapter XI” of the Federal Bankruptcy Act.

The jury returned a verdict in appellee’s favor for $20,000.00 compensatory damages and $25,000.00 punitive damages. The trial judge ordered a remittitur of $5,000.00 in each of the two damage assessments so that the verdict as adjusted was for a total of $35,000.00.

The appellant, in this Court, presents four principal contentions as to why the judgment of the trial court should be reversed. Each principal contention has been subdivided by appellant so that we are confronted with eleven issues. We need, however, to consider but one.

The appellee and her sister-in-law went into the appellant’s store in order for the sister-in-law to purchase a number of items including draperies. Each of the women had a small child with her. Appellee had entrusted to her care a seven month old girl who was the daughter of an inlaw of appellee’s sister-in-law. She told the jury that she placed her purse in a shopping cart and then put the child in the cart. Inasmuch as the appellee was not desirous of purchasing anything, she and her sister-in-law separated. While the sister-in-law collected items to purchase, the appellee meandered throughout the store. Finally, she joined her sister-indaw in the drapery department. At about the same time, the two women were approached by Hayden who accused appellee of taking the pants suit from out of her purse and placing it upon the counter. Hayden had gotten his information from a saleswoman and the deduction he made from his personal observation of appellee near the counter where the pants suit had been placed. He acknowledged that he was not certain that he had seen appellee remove the pants suit from her purse and put it on a counter, alongside of the infant’s dress and two wigs. The women were allowed to leave the store, but the car in which appellee and her sister-in-law were riding was intercepted by a trooper of the State Police, and appellee was taken before a Commissioner of the District Court and served with the above quoted warrant. Appellee testified that a news article of her arrest appeared in two papers and on the radio. She said that the arrest and resulting notoriety caused her much embarrassment and humiliation, as well as causing her to be nervous and emotionally upset. Two witnesses, her husband and a friend, verified the appellee’s testimony.

At the close of the appellee’s evidence against the appellant, her attorney made a motion to preclude the appellant from injecting into the case any evidence of “probable cause” for the arrest. The motion was bottomed on the argument that because the appellant had not filed a special plea of justification, or excuse, see Md. Rule 342 c 2 (g), he was not allowed to establish “probable cause.” Appellant asserted to the trial judge that “probable cause” is allowable under the general issue plea. Over appellant’s strenuous objection, the appellee prevailed. Appellant was permitted to endeavor to show lack of malice solely for the purpose of mitigation of damages.

The primary question to be decided is whether the trial judge properly prohibited appellant from demonstrating, if it could, probable cause for the arrest of the appellee. If the defendant in a malicious prosecution action must, as appellee alleges, specially plead “justification” or “excuse”, the trial court’s ruling would be correct. On the other hand, if “probable cause” is provable by the defendant under the general issue plea, the trial judge’s ruling was not only unduly restrictive, but error of such extent as to require a reversal and a retrial. We note that in his argument to the trial judge the appellee relied upon two cases in which appellee’s counsel stated he had advanced a similar contention in false arrest actions in the trial court of another county, and that he had prevailed. Although the argument succeeded in those cases, it is not precedent in this case.

Maryland has always followed the rule that it is incumbent upon a plaintiff in a malicious prosecution case to prove that he was prosecuted by the defendant, or at his or its instigation, and that such prosecution was instituted maliciously and without probable cause. Johns v. Marsh, 52 Md. 323 (1879). See Montgomery Ward & Co. v. Keulemans, 275 Md. 441, 340 A. 2d 705 (1975); Brewer v. Mele, 267 Md. 437, 298 A. 2d 156 (1972); Gladding Chevrolet, Inc. v. Fowler, 264 Md. 499, 287 A. 2d 280 (1972); Jannenga v. Libernini, 222 Md. 469, 160 A. 2d 795 (1960); Safeway Stores, Inc. v. Barrack, 210 Md. 168, 122 A. 2d 457 (1956); Stansbury v. Luttrell, 152 Md. 553, 137 A. 339 (1927); Bishop v. Frantz, 125 Md. 183, 93 A. 412 (1915); Thelin v. Dorsey, 59 Md. 539 (1883).

It is the plaintiff who carries the burden of proof. Cecil v. Clarke, 17 Md. 508 (1861). See also Gladding Chevrolet, Inc. v. Fowler, supra; Jannenga v. Libernini, supra; Safeway Stores, Inc. v. Barrack, supra; Stansbury v. Luttrell, supra; Chapman v. Nash, 121 Md. 608, 89 A. 117 (1913); Thelin v. Dorsey, supra.

The maneuver so adeptly exercised by appellee’s counsel in the circuit court had the effect of shifting the onus to the appellant-defendant and then precluding the appellant-defendant from meeting the burden cast upon it. All this appellee did by convincing the trial judge that “probable cause” had to be pleaded specially by the appellant-defendant or it was lost as a defense. Appellee seeks to have us adopt a rule that if the defendant failed to plead specially “justification”, “excuse”, or “probable cause”, the plaintiff in a malicious prosecution case need show only that he was arrested and acquitted. The sole question then remaining for the trier of fact would be whether the defendant, through his evidence, showed an absence of malice in mitigation of damages.

Maryland Rule 342 c provides in pertinent part:

“2. Action ex Delicto.
The following matters of defense must be specially pleaded in an action ex delicto:
(g) Justification, Excuse, Discharge — Trespass.
All matters of justification, excuse or discharge where the action is for trespass to real or personal property or to the person.”

Patently, appellee preceives a malicious prosecution case as one of trespass “to the person.” Whatever the law may be in other jurisdictions, malicious prosecution, in Maryland, is not an action of trespass, but an action on the case.

1 Poe’s Pleading and Practice, PI. § 158 (6th ed. H. Sachs 1970) declares:

“. . . Trespass lies to recover damages for an injury committed with force, either actual or implied by law, where the injury is direct and immediate, and where it is committed either upon the person of the plaintiff or upon his tangible and corporeal property, whether real or personal. Case, on the other hand, lies to recover damages for any wrong or cause of complaint to which detinue, assumpsit, trespass or replevin will not apply. Or to adopt another definition, more sharply contrasting it with trespass, case lies generally to recover damages for torts not committed with force, actual or implied; or if committed with force, where the injury is not immediate but consequential; or where the matter affected is not tangible; or, where the interest in the property affected is only in reversion.” (Footnotes omitted).

The same source, 2 Poe’s Pleading and Practice at PI. § 634, notes:

“.. . [I]n an action on the case for malicious prosecution, the general issue plea denies each and all of the four material allegations of the narr.,; hence, anything tending to show that the defendant had not prosecuted the plaintiff, or been connected with his prosecution; ór that there was probable cause for the prosecution; or that the plaintiff was actually guilty; or that the prosecution was not at an end is admissible.” (Emphasis supplied).

Messrs. Hyman and Isadore Ginsberg in Pleading at Law in Maryland 29-30 (2d ed. 1951) state:

“[The Action of Case] ... was created by the English Statute of Westminster the Second passed in 1285, whose purpose was to fill the deficiencies created by the narrow construction placed on the action of trespass.
Trespass applies to direct injuries to present possessory rights. Case applies to all injuries of a consequential nature where the injury is not a direct application of force, but rather indirect as in the case of slander, and libel, alienation of affections 11, slander of title, malicious prosecution, conspiracy, and deceit. (Emphasis supplied).

Malicious prosecution is an action on the case, not trespass, and as such, Md. Rule 342 c 2 (g) has no application. The appellant was not required to enter a special plea of “justification”, “excuse”, or “probable cause.” It was entitled under its properly filed general issue plea5 to demonstrate, if it could, probable cause for the arrest of the appellee. The trial judge erroneously prohibited appellant from offering evidence of probable cause, and the case must be reversed. In view of our holding, we need not decide, as we have previously indicated, the other issues raised by appellant because it is possible that none of them will arise in a retrial.

Judgment reversed.

Case remanded for a new trial. Costs to be paid by appellees.

      . We calculate the value to have actually been $46.96.

      . The complaint set out facts that were treated as a cause of action for malicious prosecution.

      . We are not to be construed as sanctioning the rulings of the trial court in those two cases. The matter is not before us, and we do not decide it.

      . The four material allegations are:
      “.. . (1) That the plaintiff was, in fact, prosecuted by the defendant for an alleged criminal offense. (2) That the prosecution was falsely and maliciously made. (3) That it was without probable cause. (4) That it was finally and completely ended and determined, resulting in the formal abandonment of the prosecution, the dismissal of the charge, or the acquittal of the accused plaintiff.” 1 Poe’s Pleading and Practice PI. § 192 (6th ed. H. Sachs 1970).

      . Alienation of affection is outlawed as a cause of action by Md. Ann. Code, Courts and Judicial Proceedings Art. § 5-301 (a).

      . In Rutherford v. Jones, 14 Ga. 521, 525 (1854), Judge Lumpkin referred to a general prayer for relief as “that India-rubber prayer.” As we see it the general issue plea is similarly an India-rubber plea.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    JOHN ARCHIBALD LAURIE, SR. v. STATE OF MARYLAND
    [No. 359,
    September Term, 1975.]

      Decided January 2, 1976.

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

      Louis Peregoff, Assigned Public Defender, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and David Hugel, Assistant State’s'Attorney for Baltimore County, on thé brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

John Archibald Laurie, Sr. was convicted by a jury, presided over by Judge H. Kemp MacDaniel, of the assault of a detective and of hindering two detectives in the lawful performance of their duty. After exhaustively analyzing his reasons for leniency, notwithstanding a presentence report recommending incarceration, Judge MacDaniel imposed the sentence as follows:

“For the reasons stated, I am going to fine Mr. Laurie on count one $100 and costs, and I am going to fine him on count two, which is unlawfully hindering the detectives in the performance of their duty, $100 and costs, and place him generally on probation with the understanding that he doesn’t need supervision to the extent of appearing in front of a Probation Officer or anything of that nature.”

Counsel for appellant asked:

“What will be the period of probation?”,

to which the judge replied:

“General probation. I am not going to set a period. Normally I would sentence an individual to a year in jail, place them on probation for two years, something of that nature. I am not doing it. The main thing I want a general probation for is just in the event Mr. Laurie gets involved in any other problems he can be brought back in. It will be more or less an unsupervised probation. He is not going to have to appear. He has to be interviewed and give some information to the Probation Officer. By the way, this Probation Officer is not the one who made the recommendation of sending him to jail. But any information he needs today, it will be a general probationary type of thing that in short order will be lifted.
MR. STEWART: Thank you, Your Honor.
THE COURT: All right. He will be given time, it can be worked out through the Probation Department, to pay the fine.”

I

Appellant now argues that:

“PLACING APPELLANT UNDER ‘PROBATION GENERALLY’ AFTER SENTENCING HIM TO PAY A FINE OF TWO HUNDRED DOLLARS WAS IMPROPER AND A COMPLETE NULLITY.”

His argument relies upon Costello v. State, 240 Md. 164, which held that “Maryland law authorizes probation only before verdict and upon the suspension of sentence,” id. at 167, and Comm’r of Motor Vehicles v. Lee, 254 Md. 279 holding that the imposition of a fine upon plea or finding of guilt is inconsistent with the granting of probation before verdict.

Appellant loses sight of the fact that both Costello and Lee were decided before the Maryland General Assembly enacted a short but comprehensive delineation of a court’s authority to suspend sentences or to grant probation after a verdict.

By Chapter 480 of the Acts of 1970, Md. Code, Art. 27, § 641A was adopted. It reads:

“Upon entering a judgment of conviction, the court having jurisdiction, may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the courts deem proper. The court may impose a sentence for a specified period and provide that a lesser period be served in confinement, suspend the remainder of the sentence and grant probation for a period longer than the sentence but not in excess of five years.
Probation may be granted whether the offense is punishable by fine or imprisonment or both. If the offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to the imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment. The court may revoke or modify any condition of probation or may reduce the period of probation.” (Emphasis added).

Clearly the court is authorized to “impose a fine and place the defendant on probation as to the imprisonment.” From the first sentence of § 641A, it would appear that the court may impose and execute the fine but suspend imposition of the imprisonment, predicating the latter suspension upon terms of probation for a period “not in excess of five years.” Although the suspension of the imposition of a sentence was recognized prior to the statute, Skinker v. State, 239 Md. 234, 238; the Court of Appeals has said that it is a better practice to impose the penalty and then, if advisable, suspend its execution upon probationary conditions. Kelly v. State, 151 Md. 87, 100.

The “general probation” given here obviously was not predicated upon the suspension of the fine imposed, since the court provided that the appellant “will be given time . to pay the fine.” Nor did the court state that it was suspending the imposition of imprisonment, which it was expressly permitted to do by the statute, notwithstanding the imposition of a fine. To the contrary, the judge’s explanation of his reasons for the sentence imposed precludes that intention. When explaining that had he tried the case without a jury:

"... I would have still felt you were guilty but I would not have given you a record. I would have given you probation without verdict, given you a fine and forgotten about it. The fact that you chose a Jury trial and have been found guilty is not going to change my disposition of the case.”

Even before that, the court described appellant as:

"... not the kind of person who is going to repeat a crime and do something again. He is not a person who needs a jail sentence.” (Emphasis added).

In the absence of an expresé reservation or a clearly expressed intention to suspend imposition of imprisonment upon probationary terms when a sentencing judge imposes a pecuniary penalty to be paid, the bare addition of probation will not reserve the right to impose an imprisonment sentence if the terms of the probation are violated. When the fine is paid, revocation of probation is meaningless and the probationer can violate its terms with impunity. Thus, such probation is void in the absence of a reservation by the judge of his power to impose imprisonment if the terms of the probation are violated.

We further note that the trial judge failed to limit the probationary period to a term “not in excess of five years.” In fact, when appellant asked:

“What will be the period of probation? ”,

the court replied;

“General probation. I am not going to set a period.... it will be a general probationary type of thing that in short order will be lifted.”

Although the question of an indefinite term is not raised by appellant, we hold that a probationer is entitled to know the maximum period of probationary living to which he must conform. An indefinite and open-ended “general probationary type of thing” does not comport with the legislative purpose implicit in the expressed five year restriction on probation, any more than a “general incarceration type of thing” would comply with the sentencing requirements for crimes which provide sentence “not in excess of five years.” We think it is implicit in the language of § 641A that maximum terms to be served as a probationer must be as definitely described as are terms of imprisonment upon sentencing. Cf. Hyman v. State, 29 Md. App. 399, n. 2. Although probationary restrictions may be lessened or discontinued before the maximum is served, a defendant should not be left hanging as to the outside limits of his punishment, and a reviewing court should be assured that the five year limitation has not been violated.

That part of the sentence which we have found illegal is only the “general probation.” We will, therefore, vacate that portion of the sentence which placed appellant on probation. The payment of the fine will fulfill the entire lawful penalty imposed by the court.

II

Appellant next argues that the trial judge imposed a harsher sentence because appellant elected a jury trial than he would have, had appellant been tried without a jury. That argument just doesn’t wash. The court explained that although he could not strike the jury verdict, he would impose only that which he might have done had he tried the case alone. He was explaining why the jury’s verdict must stand, notwithstanding he might have granted probation before verdict. He also seemed to be explaining why he rejected the admonitions of the prosecutor and presentence investigators that appellant should be incarcerated.

Ill

None of appellant’s pro se arguments, included in his brief as an “exposition of his trial,” were preserved. The amendment to express the charge more specifically in statutory language was admitted only after the trial judge inquired and received appellant’s reply that there was no objection.

Judgment affirmed.

That portion of the sentence providing probation vacated.

Costs to be paid by Baltimore County.

      . The distinction between imposition and execution of a sentence recognized in Hite v. State, 198 Md. 602, 607 was not altered by the enactment of Ch. 480, Acts of 1970.


text:
    CHARLES MICHAEL LAU v. STATE OF MARYLAND
    [No. 363,
    September Term, 1975.]

      Decided January 5, 1976.

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

      John F. Fader, II, Assigned Public Defender, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Thomas O’Connell, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Charles Michael Lau, appellant, pleaded guilty in the Circuit Court for Baltimore County to storehouse breaking. He was sentenced to four years imprisonment. Thereafter the judge suspended appellant’s sentence and placed him upon probation for a period of three years. One of the conditions of probation was that appellant was to “ . . . spend at least 1 year at Teen Challenge,” a vicinal facility of Washington, D. C.

Appellant went to Teen Challenge, but aborted his stay by eloping therefrom. Subsequently he was charged with violation of probation. In the interim between his elopement from Teen Challenge and his appearance at the probation revocation hearing, he was convicted before Judge Land of breaking into a storehouse. As a result of the latter offense he was sentenced to eighteen months in the county jail.

When the violation of probation case was called before the hearing judge, the following took place:

“MR. O’CONNELL: Call the case of State versus Charles Lau, No. 48738, violation of probation.
THE COURT: . . . State of Maryland versus Charles Michael Lau. Mr. Lau, you are being charged with violation of probation. Are you guilty or not guilty?
MR. LAU: Yes, sir. Sir, I would like to know if I could possibly get a postponement because my attorney, Mr. Covahey, was not notified.
THE COURT: We have been in touch with your attorney, Mr. Covahey, is that correct?
MR. O’CONNELL: Yes, Your Honor. He says he has two settlements this afternoon. He was not informed. I said to him did he want me to request a postponement, and he said have The Court do whatever it wants to do.
THE COURT: He was not, really, your attorney he was appointed by the Public Defender, was he not,
Mr. Lau?
MR. LAU: Yes, sir.
THE COURT: What is your plea?
MR. LAU: Guilty, Your Honor.
THE COURT: Guilty?
MR. LAU: Yes, sir.
THE COURT: Enter a plea of not guilty in the record, and let me hear the evidence.”

There is no indication in the record that Lau had an opportunity to call witnesses in his own behalf, if any there be, or that he knew of his right to do so. We observe that immediately after the State had examined Lau’s probation officer and Lau told the court he had no questions to put to the officer, the judge commenced his questioning of Lau. Basically, the judge’s questions were of the “What did I tell you I was going to do to you if you violated probation” calibre. The transcript discloses that Lau was never sworn as a witness. During the course of the judge’s questioning, Lau articulated that the Teen Challenge was not for him because while there they endeavored to “brain-wash” him. He also told the judge “ . . .1 never even get in trouble until I start drinking, and I start drinking, and I just don’t stop. I know it’s not an excuse, but, you know — At that point the court abscised further explanation, revoked probation, and committed Lau to the jurisdiction of the Division of Correction.

Based upon the quoted events before the hearing judge, Lau argues that (1) he “was denied [the] assistance of counsel during the hearing on revocation of probation” and he “ ... was denied Due Process of Law by the procedures utilized to terminate his probation.”

This Court in Knight v. State, 7 Md. App. 813, 324-25, 255 A. 2d 441, 448 (1969), addressing the same subject as now posed to us, said:

“In the instant case there is no question that the sentence was not deferred; the sentence was imposed at the trial at the time of the conviction of the appellant of the substantive offense. It was its execution which was conditionally suspended. The revocation hearing did not involve the imposition of a sentence; the hearing judge, upon finding that the conditions of suspension of the execution of the sentence had been violated, merely struck the suspension and the sentence previously imposed was then to be executed. He had no power to change the sentence. Thus 'the hearing was not a critical stage of a criminal proceeding and Mempa [v. Rhay, 389 U. S. 128 (1967)] was not applicable. As Mempa was not applicable, the hearing judge was not obliged, under the Mempa holding, to advise the appellant as to his right to counsel or to appoint counsel for him If he was indigent. The answer to the specific question presented by the appellant on appeal is that it was not a denial of his Sixth Amendment constitutional right to have his violation of probation hearing without counsel present.”

Knight, however, made manifest that Knight had not advanced the argument that he was denied due process of law nor did the record indicate that he was so denied. We pointed out that “ ... at no time . . . [did Knight request] counsel nor did he complain about the absence of counsel.” 7 Md. App. at 326. We went on to explain:

“ ... In the circumstances, that the court did not advise the appellant of his right to obtain counsel or to assign counsel to represent him, did not deprive him of his constitutional right to due process.” (Footnote omitted). 7 Md. App. at 326.

Subsequent to our decision in Knight, the Supreme Court decided Gagnon v. Scarpelli, 411 U. S. 778, 93 S. Ct. 1756, 36 L.Ed.2d 656 (1973) and Morrissey v. Brewer, 408 U. S. 471, 92 S. Ct. 2593, 33 L.Ed.2d 484 (1972). Gagnon interpreted the then Wisconsin probation-parole revocation procedure in the light of the Due Process of Law Clause of the Fourteenth Amendment. The Court in Gagnon admittedly drew “ .. . heavily on the opinion in Morrissey ” wherein the Court “ . . . held that the loss of liberty entailed is a serious deprivation requiring that the parolee [probationer] be accorded due process.” 411 U. S. at 781.

In McRoy v. State, 24 Md. App. 321, 330 A. 2d 693 (1975), cert. denied May 23, 1975, we considered whether Gagnon v. Scarpelli, supra, required a preliminary hearing to determine if appointment of counsel was mandatory at probation revocation hearings and whether, implicitly, Knight was still viable. We held that Gagnon does not require a preliminary hearing because the Maryland probation procedure is entirely unlike that of Wisconsin. We further, in 24 Md. App. at 324-25 n. 1, indicated that Knight is alive and well in those cases invoking the Sixth Amendment. Where, as here, it is not the Sixth Amendment right to counsel, but rather the Due Process Clause of the Fourteenth Amendment that is invoked, Knight should not be read as sanctioning the refusal to grant the alleged violator’s request for counsel unless the criteria of Gagnon, as explicated in McRoy v. State, supra, is met.

Gagnon provides, 411 U. S. at 790-91, that:

“It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements. . . . Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. ... In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.” (Emphasis supplied).

Judge Lowe, for this Court, in McRoy, 24 Md. App. at 325, n. 1, stated:

“As concerns the overall rights and plenary hearing to determine whether to revoke probation, the court must provide the minimum standards of due process synopsized from Scarpelli and Morrissey and outlined with greater explanation in Knight v. State, 7 Md. App. 313, 321. The guidelines set forth by Chief Judge Orth in Knight remain viable in the light of Scarpelli.

Required are:

1) reasonable notice containing the substance of the charges against probationer;
2) if counsel is requested, appointment thereof provided the Scarpelli criteria, £11 U. S. at 790, are met. If counsel is denied, insertion of a succinct statement of grounds of refusal in the record;
3) a hearing, providing an opportunity to be heard and present witnesses and evidence;
4) the right to confront and examine adverse witnesses, unless the court indicates good cause for disallowance of that right;
5) the court’s reasons for revoking probation clearly reflected in the record.” (Emphasis supplied).

We think Lau’s request for the presence of counsel could have been “ ... based on a timely and colorable claim .. . that ... there are substantial reasons which justified or mitigated the violation and make revocation inappropriate . ...” We are not, however, to be misunderstood as holding that such reasons are, in fact, substantial, as that is properly for the determination, in the first instance, by the hearing judge.

The record in the instant case does not comply with Gagnon and McRoy. There is no statement in the record as to why counsel was not appointed for Lau. Lau’s request for counsel is readily apparent from any fair reading of the above quoted portion of the transcript. Thus, Lau, by his request for the presence of what he believed to be his attorney, in our view, invoked the strictures of Gagnon and the hearing judge was thereafter required to insert in the record “a succinct statement of the grounds of refusal” to appoint counsel. The failure of the record to show why counsel was not appointed necessitates a reversal of the probation revocation.

Order revoking probation reversed and case remanded for a new hearing.

      . No point is made here of the fact that Lau was not sworn, and we do not consider it.

      . 411 U. S. at 783.


author: Okth, C. J.,

text:
    BERNARD SULLIVAN v. STATE OF MARYLAND
    [No. 389,
    September Term, 1975.]

      Decided January 5, 1976.

      The cause was argued before Item, <u J and miojktok and Lowe, JJ.
    Harold P. Dwin, Assistant Public Defender, with whom was Alan H. Murell, Public Defender, on the brief, for appellant .

      Albert Gallatin Warfield, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Floyd Pond, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Okth, C. J.,

delivered the opinion of the Court.

THE SECOND OFFENDER

Prior to 1 January 1962 the procedures to be followed with respect to the subsequent offense aspect of a criminal charge as the basis for increased punishment were In a snarl. This was made manifest in Beard v. State, 216 Md. 302 (1958), in which a divided Court attempted to deal with the problem. The majority opinion held, in essence, that a form of indictment charging the current offense and alleging the historical fact or facts of one or more prior offenses was valid. In other words, an indictment for a subsequent offense must contain an averment as to a prior offense, and such an averment and proof thereof did not deprive the accused of a right to a fair and impartial trial. McCoy v. State, 216 Md. 332 (1958), cert. den. 858 U. S. 853, Garrigan v. Superintendent, 218 Md. 662 (1958), Toyer v. State, 220 Md. 205 (1959), and Torres v. Warden, 227 Md. 649 (1961) generally applied the Beard holding, but several serious questions, pointed up In Beard, were left unanswered. The opinion of the Court in Beard suggested that the Kules Committee consider the matter. 216 Md., at 320. See Torres, at 653, n. 2. The result was the proposal of Maryland Rule 713, which was adopted by the Court of Appeals on 15 September 1961, effective 1 January 1962.

Rule 713 answered the questions. It first deals with the indictment:

“In a case where a greater punishment is prescribed for a second or subsequent conviction of the same offense the indictment for each succeeding offense shall charge only the current offense and shall not refer to the fact that the State intends to prosecute the defendant as a second or subsequent offender.” Section a.

It next provides for notification to a defendant that he is to be prosecuted as a second or subsequent offender:

“There shall be attached to such an indictment an addendum which shall warn the defendant that the State has evidence that he has formerly been convicted of the same offense, including the date and court in which he was previously convicted, that it intends to prosecute the accused for the current offense as a second or subsequent offender, the maximum punishment which may be imposed upon the defendant if he is convicted of the current offense and found to be a second, or subsequent offender, and the right of the accused under this Rule to elect that the issue of whether or not he is a second or subsequent offender be tried concurrently with the trial for the current offense or be determined by the court or jury after the verdict on the current offense.” Section b.

Section c prescribes that the indictment and addendum shall be served as are indictments under Rule 706. Section d, “Trial-Election by Defendant”; § e, “Failure to Elect”; § f, “Separate Trial of Subsequent Offender Issue”; § g, “Recess or Dismissal of Jury”; and § h, “New Jury Challenges”, pertain to the trial. We summarized their provisions in Ware v. State, 13 Md. App. 302, 306 (1971):

“The accused may elect that the issue of whether or not he is a second or subsequent offender be tried concurrently with the trial for the current offense, or that the issue be determined separately after the verdict on the current offense. Also, he may waive a jury for determination of that separate issue, even though the current offense is tried before a jury. The second proceeding is not a trial of guilt, but the determination of an issue. That issue is simply the historical fact of a prior conviction and the identity of the defendant as the person so convicted.”

In a prosecution of an accused for a current offense as a subsequent offender, only one sentence is proper. It is error to impose separate sentences on the current offense and the addendum. Ware v. State, supra, at 306-307; Reid v. State, 10 Md. App. 6, 8-9 (1970), cert. den. 259 Md. 735; Simmons v. State, 8 Md. App. 355, 368-369 (1969).

THE CASE SUB JUDICE

Statement of the Case

On 3 April 1975 Bernard Sullivan was convicted at a bench trial in the Criminal Court of Baltimore of carrying a handgun on his person in violation of Code, art. 27, § 36B. On 28 April he was sentenced to 6 years. He appealed. On appeal, he does not contest the validity of his conviction. The questions he presents go only to the legality of the sentence.

At the guilt stage of the trial, the State proved its case by an agreed statement of facts given by the prosecutor. The defense did not offer evidence. A verdict of guilty was rendered. The State told the court that it had no recommendation as to sentence but that there was “information provided from the NCIC with respect to the defendant’s previous record....” The prosecutor said: “My record reveals that he is currently on probation for a handgun violation to March 12, 1977.” There were no other prior convictions. The judge indicated that he was going to impose a sentence of six years. Defense counsel pointed out that Sullivan was not charged as a second offender. The court asked: “Does he have to be under the statute?” The issue was cleanly drawn. The State argued that under art. 27, § 36B an accused could be sentenced as a second or subsequent offender without being prosecuted as such. The defense maintained that to be subject to an increased sentence, an accused must be charged as a subsequent offender and that such charge must be proved. The court held the imposition of sentence sub curia.

When the court convened for the penalty stage, memoranda and argument were received from counsel, and the court again deferred the imposition of sentence. The proceedings resumed' two weeks later. It was the position of the defense that Rule 713 was applicable, and that in the absence of compliance with that Rule, Sullivan could not be punished as a subsequent offender. The State claimed that art. 27, § 36B was without the ambit of the Rule.

The Statute

The crime of which Sullivan was convicted was created by the General Assembly by ch. 13, Acts 1972, effective the date of its passage on 27 March 1972. The dominant purpose of the Act was to stop the alarming rise in the use of handguns in the commission of crimes of violence. Wright v. State, 24 Md. App. 309, 317 (1975). See “Declaration of Policy”, art. 27, § 36B (a). The provisions of subsection (b) are relevant to the case before us.

Subsection (b) makes it a misdemeanor for any person to "wear, carry, or transport any handgun, whether concealed or open, upon or about his person”, and to “wear, carry or knowingly transport l* ***] any handgun, whether concealed or open, in any vehicle upon the public roads, highways, waterways, or airways or upon roads or parking lots generally used by the public in this State.” The subsection prescribes the punishment on conviction:

(i) if the misdemeanant had not been previously convicted of a violation of § 36B, or of carrying a concealed weapon in violation of § 36, or of carrying a deadly weapon on public school property in violation of § 36A, “he shall be fined not less than two hundred and fifty ($250.00) dollars, nor more than twenty-five hundred ($2,500.00) dollars, or be imprisoned in jail or sentenced to the Maryland Division of Correction for a term of not less than 30 days nor more than three years, or both; provided, however, that if it shall appear from the evidence that the handgun was worn, carried, or transported on any public school property in this State, the court shall impose a sentence of imprisonment of not less than 90 days”;
(ii) if the misdemeanant had previously been once convicted of such crimes, “he shall be sentenced to the Maryland Division of Correction for a term of not less than 1 year nor more than 10 years, and it is mandatory upon the court to impose no less than the minimum sentence of 1 year; provided, however, that if it shall appear from the evidence that the handgun was worn, carried, or transported on any public school property in this State, the court shall impose a sentence of imprisonment of not less than three years”;
(iii) if the misdemeanant had previously been convicted more than once of such crimes “or any combination thereof’, “he shall be sentenced to the Maryland Division of Correction for a term of not less than three years nor more than 10 years, and it is mandatory upon the court to impose no less than the minimum sentence of three years; provided, however, that if it shall appear from the evidence that the handgun was worn, carried, or transported on any public school property in this State, the court shall impose a sentence of imprisonment of not less than 5 years”;
(iv) if it shall appear from the evidence that a handgun “was carried, worn, or transported with the deliberate purpose of injuring or killing another person, the court shall impose a sentence of imprisonment of not less than five years”.

The Ruling of the Trial Court

In sentencing Sullivan to six years the trial judge held that Rule 713 did not control the procedure to be used in art. 27, § 36B. He adopted, in substance, the view of the prosecutor. He explained:

“On April 3rd, Bernard Sullivan was convicted by me in this court of a handgun violation under warrant 47500885.1 found at that time as a matter of fact that Bernard Sullivan did on or about December 23rd 1974 unlawfully wear or carry on or about his person a handgun in violation of Article 27 Section 36B and after the verdict of guilty was entered I was informed by the State that the defendant had previously been convicted of a handgun violation on March 13, 1974. I then proceeded to sentence the defendant to six years. The penalty as a second offender being a maximum of ten years rather than a maximum of three years as a first offender. Mr. Sullivan was tried under Section 36B. He was not tried as a second offender as such. The question before me is whether a separate allegation or charge of a prior conviction under Article 27 Section 36 or 36B must be made before a penalty under Article 27 Section 36B (b) (ii) can be imposed. The defendant was convicted under Subsection (b) of Section 36B which prohibits the unlawful wearing, carrying, or transporting of handguns and this subsection further prescribes the penalties in paragraphs one through four. The legislative intent expressed in Article 27 Section 36B shows an intent that the handgun law was passed to provide for more stringent penalties. This is evidenced by the provisions for mandatory minimum sentences in Section 36B. It is also apparent by combining the substance of the crime with the penalties for first, second, and subsequent offenders into one subsection that the legislature is mandating the court to impose sentence on the basis of the record of the defendant rather than allowing sentencing to depend on whether a separate second offender section has been charged. When the defendant, Bernard Sullivan, was charged with a violation of Section 36B he was put on notice that if he was a second offender then he would be subjected to the penalties of paragraph two and I hold that no separate addendum is necessary. As was stated in Ware versus State 13 Maryland Appeals 302 at 305, ‘an addendum is no more than a warning to a defendant that the State intends, upon conviction of the offense charged in the indictment, to seek the imposition of a more severe punishment because of his previous conviction of the same or a related offense’. And I hold that Rule 713 does not control the procedure to be used in Article 27 Section 36B.”

Issue for Decision

The issue for decision is whether the sentence imposed was legal. Sullivan attacks the sentence by advancing three contentions:

“I. Appellant was denied due process of law when he was sentenced as a second offender without first having been charged as a second offender.
II. There was not sufficient evidence to convict and sentence the Appellant as a second offender.
III. The Appellant received an illegal sentence.”

Decision

We do not agree with the trial judge. We think that an accused whom the State intends to prosecute as a subsequent offender must be given notice that comports with art. 21 of the Declaration of Rights of the Constitution of Maryland, and the State and federal constitutional guarantees of due process of law. We believe that Rule 713 adequately and appropriately takes this into account. We find no proper basis, in any event, for a conclusion that Rule 713 was not intended to apply to art. 27, § 36B. The mere fact that the statute authorizes more severe punishment for a subsequent offender is not sufficient notice in the constitutional sense that the State intends to prosecute an. accused as a subsequent offender. The Rule, by its dear and unequivocal language, governs a case “where a greater punishment is prescribed for a second or subsequent conviction of the same offense.” Art. 27, § 36B (b) so prescribes and the procedures of the Rule must be followed with regard to that statute.

We agree with Sullivan that there was no evidence sufficient to establish a prior conviction. The fact of a prior conviction of a crime within the contemplation of § 36B (b) had to be proved by the State beyond a reasonable doubt. It offered no evidence whatsoever on the matter. The “proof” consisted merely of a statement by the prosecutor: “My record reveals that he is currently on probation for a handgun violation to March 12,1977.”

We conclude that the six year sentence imposed was illegal. Sullivan was not prosecuted as a subsequent offender as required by Rule 713. Therefore, unless there was compliance with Rule 713, he could only be punished upon conviction of the current offense proscribed by art. 27, § 36B (b), as a person who had not been previously convicted of a crime which, under that statute, subjected him to increased punishment. Thus, the maximum sentence authorized upon his conviction was three years. Code, art. 27, § 36B (b) (i).

We add these observations. Sullivan was tried in the Criminal Court of Baltimore under a statement of charges prepared by a police officer and filed in the District Court. M.D.R. 706, § c 3. The crime alleged was a misdemeanor, Code, art. 27, § 36B (b), with an authorized penalty of a fine of not more than $2500 and imprisonment of not more than three years, § 36B (b) (i). Therefore, the District Court had concurrent jurisdiction with the Criminal Court of Baltimore. Courts Art. § 4-302 (c). “Indictment” as used in Rule 713, includes “a grand jury indictment, a criminal information and a charging document as defined in Maryland District Rule 702 (Definitions).” By M.D.R. 702, § a, “charging document” means “arrest warrant, summons to a defendant, statement of charges, citation, or criminal information.” The District Court has no rule comparable to Rule 713. In view of our conclusion that in a circuit court trial a person may not be subject to the increased punishment authorized by art. 27, § 36B unless he is prosecuted as a subsequent offender under procedures prescribed by Rule 713, the question is how these procedures are to be fulfilled under District Court charging documents. See Moaney v. State, 28 Md. App. 408 (1975). The further question, arises as ta how a person is to be so prosecuted in the District Court, in the light of the fact that Rule 713 does not apply to that Court and that the District Court has no comparable rule. These questions are not before us, but it may be that the Rules Committee will deem it advisable to consider them in the contemplated revision of the Criminal Rules.

Conviction affirmed; sentence vacated; case remanded for imposition of a legal sentence.

      . There were cases in this jurisdiction prior to Beard concerned with subsequent offenses. See, for example, Maguire v. State, 47 Md. 485 (1878); Goeller v. State, 119 Md. 61 (1912); Kenny v. State, 121 Md. 120 (1913); Hall v. State, 121 Md. 577 (1913); Mazer v. State, 212 Md. 60 (1956); Robertson v. Warden, 212 Md. 646 (1957).

      . The State entered a nolle prosequi to all other charges outstanding against Sullivan, namely “Warrant numbers 47500879, 880, 881, 882, 886, and 887 which charge the defendant with receiving stolen goods, burglary, larceny, malicious destruction, possession of narcotic paraphernalia, and obliteration of a serial number....”

      . The memoranda filed are not included in the record submitted to us.

      . Subsection (c) sets out exceptions to the proscriptions of subsection (b). Subsection (d) makes it a separate misdemeanor to use a handgun in the commission of any felony or any crime of violence as defined by art. 27, § 441 and prescribes the punishment upon conviction. Subsection (e), excepting a sentence prescribed in subsection (b), prohibits reduction or suspension of the mandatory or minimum sentence and the grant of probation.

        Section 6 of ch. 13 provides that “all restrictions imposed by the law, ordinances, or regulations of the political subdivisions on the wearing, carrying, or transporting of handguns are superseded by this Act, and the State of Maryland hereby preempts the right of the political subdivisions to regulate said matters.”

      . The subsection declares that “it shall be a rebuttable presumption that the person is knowingly transporting the handgun.”

      . The majority in Beard made several observations in suggesting the consideration of the Rules Committee:
      “We find no constitutional requirement that an indictment allege a prior conviction or convictions in any particular manner or in any particular place, so long as any such prior offenses are clearly stated as the basis for increased punishment if the accused is convicted of the current offense charged against him.” 216 Md. at 320.
      The Rule adopted, however, by its express language, forbids mention of the prior offense in the indictment and requires notification of intent to prosecute as a subsequent offender by an addendum.
      The Beard opinion also observed:
      “Neither do we find any constitutional requirement that the jury must pass on the accused’s alleged prior convictions at the same time that it passes upon the alleged current offense. The court’s instructions should cover the various possible verdicts, and in the absence of a binding admission by the accused of one or more prior convictions, they should call for special verdicts or findings as to the historical facts of any prior convictions which may be alleged.” Id.

      The Rule is in accord with this.

      . The statement of charges was referred to at the trial as a “warrant”.

      . In this opinion “M.D.R.” refers to the Maryland District Rules. “Rule” refers to the Maryland Rules of Procedure.


text:
    EDGAR M. LUCAS et al. v. MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY et al.
    [No. 397,
    September Term, 1975.]

      Decided January 5, 1976.

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

      William A. Snyder, Jr., and Donald C. Greenman, with whom were Ober, Grimes & Shriver on the brief, for appellants.

      Paul E. Burke, Jr., with whom were W. Gibbs McKenney and McKenney, Thomsen & Burke on the brief, for appellees Mabel M. Cromer, Eleanor Hale, Mildred A. Hagberg, Nathaniel Ward and Dorothy Klinefelter. George Barrett Johns, with whom were Martin J. Smith and Smith, Johns & Smith on the brief, for appellee Marjorie Yellott. Submitted on brief by William G. Christoforo and Kenneth Holniker for other appellees.
   Lowe, J.,

delivered the opinion of the Court.

The appeal before us raises the question of when a controversy exists that is sufficiently justiciable to compel declaratory relief. Patuxent Co. v. Commissioners, 212 Md. 543, 548-549; and see Pr. George’s Co. v. Bd. of Trustees, 269 Md. 9, 12. Appellant Edgar M. Lucas is the income beneficiary of two trusts valued well in excess of $2,000,000, created by his father and uncle in 1932. These trusts provide that upon Lucas’s death, the trust income will be payable to his “child, children and issue of deceased children” for twenty-one years. At the end of that period, or if there should be no living descendant of Lucas prior to the end of the twenty-one years, the trusts terminate and the principal is distributable to and among Lucas’s descendants living at that time. Should there be no living descendants of Lucas, either at his death or at the termination of the trusts, the trusts provide for the distribution of the principal among Lucas’s “heirs and next of kin.”

The original petition for declaratory relief was filed by Lucas in August of 1970 under the Maryland Uniform Declaratory Judgment Act then found in Md. Code, Art. 31A. After reciting the fact that he was unmarried and without child, Lucas asked the court to determine whether or not an adopted child would fall within the term “child” as used in the trust instruments entitling such adopted child to the income therefrom after Lucas’s death. Lucas had become attached to his golf caddy whom he desired succeed him as income beneficiary and ultimately inherit the corpus of the two trusts. He explained:

“If by its decree this Honorable Court determines that the terms ‘child’, ‘children’, etc., as used in the two trust indentures do include any lawfully adopted child or children of your petitioner, your petitioner intends promptly upon the entry of such a decree to file a petition for the adoption of Mr. Dale K. Stammer, a resident of Baltimore City, born May 26,1950.”

The following December, Dale K. Stammer petitioned to be made a party plaintiff, reciting the fact that Lucas had instituted adoption proceedings to which he had filed a consent. His petition was granted seven days before the chancellor heard testimony from Mr. Lucas and argument of counsel.

On October 21st of the following year, 1971, the chancellor rendered a lengthy opinion. After reciting the factual context of the case, he noted that Dale K. Stammer had been adopted by Lucas and, together with Lucas, was before the court asking for an interpretation of the trusts. Before deciding the initial question raised in answer to the petition by some of the potential heirs, ie., whether there was a justiciable issue or controversy suitable for declaratory relief, the chancellor pointed out that:

“No issue has been raised or threatened with respect to the right of Edgar M. Lucas to continue to receive the income of both trusts during his lifetime.”

However, he then went on to hold that:

“. . . this Court is persuaded to exercise its discretion by granting a declaration of the rights under the 1932 trusts.”

For reasons which he explained at length, the chancellor declared:

“. . . that the terms ‘child,’ ‘children,’ ‘issue’ or ‘descendants’ of Edgar M. Lucas as used in the two irrevocable trust instruments now before the Court, do not include any person or persons adopted by Edgar M. Lucas, or the child or descendant of such adopted person. In the event that there is no natural child or descendant of Edgar M. Lucas living at the time of his death, the heirs and next of kin of Edgar M. Lucas as determined under the intestate laws of Maryland in effect on March 23, 1932 shall take the remainders of the trust.”

On September 18, 1972, the petitioners (Edgar M. Lucas and his adopted son Dale) filed a “Petition for Leave to Re-Open Argument and for Additional Declaratory Relief.” Pointing out that no final decree had been signed, the petitioners set forth the alternate claim that even if Dale was not child, issue or descendant as opined by the court, he was within the class of alternate remainderman described as “heirs and next-of-kin.”

On April 19, 1973, the court granted the petition to reargue and on December 21, 1973 issued an order denying any declaratory relief stating:

“That the relief sought by the plaintiffs, Dale Kirk Lucas and Edgar M. Lucas be and the same is hereby denied, as this Court is of the opinion that a decree at this time will not serve a useful purpose or terminate controversy. The presentation of new arguments at the time of the re-argument of this case convinces this Court that this entire matter is merely an attempt to use the Court for purposes of giving legal advice. It occurs to this Court that each time a novel legal theory occurs to counsel that they will again ask the advice of the Court and will attempt to ask the Court to determine future rights prior to the time of the death of Edgar M. Lucas.
This Court has carefully considered the problem and has made a determination as set forth in its Memorandum Opinion; however, this Court does not consider it to be binding as the problem should be presented to a court of competent jurisdiction at the time of the happening of the contingencies if, in fact, they ever occur. Perhaps in the future a Court will agree with the conclusions expressed by this Court in its Memorandum Opinion, or it could well be that some Court will at that time reach a contrary conclusion. In any event this Court believes the action to be premature and for this reason it shall be dismissed.
All Court costs are to be paid by the plaintiffs.
This Court does hereby expressly reserve consideration of the questions pertaining to the entitlement to and payment of counsel fees and expenses of the respective attorneys out of the income and/or principal of said trusts.”

Appellants now ask that we reverse that order, permit them declaratory relief, and decide the substantive question in their favor. Appellees would have us affirm the court’s refusal to declare or, in the alternative, reinstitute the declaration made but not signed by the chancellor below. These appellees consist of prospective alternative remaindermen who did not choose to permit a decree pro confesso to be entered against them (as have some), and a representative for unborn children within that class. Such of the known alternative remaindermen who elected to fight, did so at every turn and with every legal weapon at their disposal. It should be noted, however, that in the face of allegations that possible unknown and unnotified heirs existed, no assurance could be made to the contrary.

The Statute

At the time this suit was instituted, Md. Code, Art. 31A, § 2 permitted any party of interest to obtain a declaration of his rights, status or other legal relations “under a deed, will, written contract or other writings constituting a contract. ...” Having provided in § 1 of that Article the jurisdiction of the court to entertain such cases, the statute then provided that the exercise of that jurisdiction was within the court’s discretion and placed limitations on the type of case appropriate for such relief. § 6.

Because the Court of Appeals had held that declaratory relief was not appropriate under the Act when an immediate cause of. action existed between the parties for which a legal or equitable remedy was available, in 1945 the legislature clarified the language of the Act to assure that relief would not be denied solely because another remedy might be available. In short, the, 1945 Act of the General Assembly legislatively reversed decisions holding declaratory relief unavailable in such situations, Baltimore v. Seabolt, 210 Md. 199, 205; however, some discretion to refuse such relief was left to the courts even after the 1945 Act (Chap. 724). Seabolt, 210 Md. at 210.

By process of accession, beginning with an apparent concession of counsel in Staley v. Safe Deposit & Trust Co., 189 Md. 447, 456-457, the proposition “that courts have some judicial discretion to refuse a declaratory judgment when it does not serve a useful purpose or terminate controversy,” grew to acceptance as a rule of law. Cambridge v. Eastern, Etc., Co., 192 Md. 333, 341; and see Grimm v. Co. Comm’rs of Wash. Co., 252 Md. 626, 632. In light of the statutory caption of § 6 of former Art. 31A, (as well as the recodified version in Cts. Art., § 3-409) of “Discretionary Relief” and the permissive language in that section, the slow process of judicial accretion was hardly necessary. While recognizing the relief to be of a discretionary nature, the current version of the Act limits that exercise of discretion by providing in Cts. Art., § 3-409, certain qualifying prerequisites to a court’s grant of declaratory relief:

“§ 3-409. Discretionary relief.
(a) In general. — Except as provided in subsection (d), a court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if:
(1) An actual controversy exists between contending parties;
(2) Antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or
(3) A party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it.”

The Case Law

Appellants rely on Ryan v. Herbert, 186 Md. 453 which was the precursor of a number of controversies arising over the trust created by Arthur Nattans, the founder of Read Drug and Chemical Company.

That case, which is

“. . . concerned entirely with income and has nothing to do with the final disposition of the corpus of the trust estate. . . .” Id. at 456,

does not appear to be apposite to the issue at bar. The Court in Ryan framed the issue as “whether the petitioners have a right now to a declaratory decree.” (Emphasis added) Id. at 458. In that case, as in this one,

“[t]he trustees are not now confronted with any of these questions and it is possible, although not probable, that they may never be.” (Emphasis added) Id. at 458.

We note the significant difference in the preliminary question met there and that which is presented here. The question on appeal was whether the petitioners had provided the minimum requirements giving them a “right” to declaratory relief. The “right” to which the Court alluded was the right of the petitioners to have the chancellor hear their case under the Act. Appellants would have us believe that the meeting of those minimum requirements gave them a right to relief as opposed to giving the chancellor the discretion to grant or withhold relief.

In this case, the right of the chancellor to render a declaratory judgment was not the issue. The reason that the petition for declaratory relief was denied by him was not that he felt he lacked the power to grant it. Rather, as he stated, it was an exercise of his discretion that denied them relief. Therefore, it becomes appellants’ burden to show us that such denial was unjustified and an abuse of discretion. This they have failed to do and Ryan v. Herbert provides them no succor.

In Ryan v. Herbert, the Court recognized that while the “trustees” are not confronted with an immediate concern, the income beneficiaries (who also were petitioners) were.

“The immediate desire- of the petitioners for a determination of these questions is to have settled the power vel non of the grandchildren now receiving income to dispose of their right to receive it by assignment or will. In other words, is that right vested, or is it for life only. The further question is whether, in case any of the remaining living children of the testator die leaving both children and the issue of deceased children, or no children and the issue of deceased children, do such issue of deceased children take? The trustees are not now confronted with any of these questions and it is possible, although not probable, that they may never be. On the other hand, they may arise at any time. Under these circumstances the first question for our consideration is whether the petitioners have a right now to a declaratory decree.” Ryan v. Herbert, 186 Md. at 457-458.

In the case at bar the necessity for relief expressed in Mr. Lucas’s original petition was to enable him to decide whether he should adopt Dale Stammers. Even if we assume that reason to have been adequate (which we decline to do for want of necessity), he did in fact adopt him without awaiting the result of his petition. Thus, such weight as that reason might have carried has been nullified. Moreover, Edgar Lucas repeatedly testified that the grant or denial of the relief prayed would in no way affect his own estate plans (which estate exceeded the value of both trusts). Nor is anything related to his will or other property dispositions contingent upon the result of the declaratory action. Furthermore, counsel agree and the chancellor expressly stated in his first opinion that no issue was “raised or threatened” with respect to the right of Edgar Lucas to continue to receive the trust income.

The sole reason espoused by Mr. Lucas for his desire to receive the declaratory determination was simply that he didn’t want to leave Dale in a state of uncertainty and “with a lawsuit later on, at such time as [Lucas is] out of the picture.” We agree with the chancellor that what was sought here was an advisory opinion rather than the relief contemplated by the Uniform Declaratory Judgment Act.

Staley v. Safe Deposit & Trust Co., 189 Md. 447, is not only apposite to the legal question before us, it is strikingly similar factually. Although seeking an interpretation of Illinois rather than Maryland law, the determination sought by petitioners was whether the term “children” included an adapted child of a life tenant and his wife. The Staley Court denied relief because it appeared that the proceeding was really designed to obtain for the life tenant (whose rights under the trust agreement were not in doubt) legal advice for the purpose of disposing of his own individual property. The Staley Court held that, even if the power to entertain the action existed in the court, a declaratory decree would be a misuse of judicial power and discretion. Id. at 460. In the course of its reasoning, the Court said:

“Assuming for the sake of argument that the Maryland courts can exercise jurisdiction in the instant case, should they do so? Counsel apparently -concede, at any rate it is generally held, that courts have some judicial discretion to refuse a declaratory judgment when it does not serve a useful purpose or terminate controversy. Borchard, supra, [Declaratory Judgments, 2d ed.] Chapter V, pp. 293, 312-314. Referring to criticism of the exercise of such discretion by federal courts, Borchard says the courts are right and the critics wrong. Supra, 312. ‘It seems to us that the existence in the court of discretion of this kind is essential to the successful use of declaratory procedure. Without it the court and the public would have no really effective protection against the presentation of moot cases or of cases involving only remote contingencies, attempts to use the courts for purposes of giving legal advice or for answering questions as to which no reasonable doubt could exist, and the fomenting of unnecessary litigation. In Gray v. Spyer, [1922] 2 Ch. 22, at page 27, Lord Sterndale, speaking of declaratory judgments in a court which has had long experience with them, says, ‘Properly used, they are very useful; improperly used, they almost amount to a nuisance.’ ’ National Shawmut Bank of Boston v. Morey, 320 Mass. 492, 497, 498, 70 N.E.2d 316.
Borchard says the tendency in the United States is to follow the English courts in giving to the declaratory judgment the widest scope. On the question of parties, though the English courts are not restricted by constitutional or practical limitations arising out of the existence of forty-eight semi-sovereign states, their practice is not to decide as to future rights under wills or similar instruments except within limits. ‘But where all the parties who in any event will be entitled to the property are of age and are ready to argue the case, the reason of the rule [not to decide as to future rights] departs, and it becomes a bare technicality. The reason of the rule is this, that the Court will not decide on future rights, because until the event happens it does not know who may be interested in arguing the question, and therefore may be shutting out parties who, when the event happens, may be entitled to succeed.’ Curtis v. Sheppard, 21 Ch.D. 1, 4; Jessel, M. R. ‘On the whole we may say that when the remainder is vested and not contingent, when the parties to be affected by the judgment are in esse of age, and represented before the court, the general rule is to make the declaration.’ ‘They [the courts] have refused to consider suits relating to rights which could vest only in the future, and for whose determination there is no immediate need.’ Borchard, supra, 413, 703, citing American and English cases.” Staley v. Safe Deposit & Trust Co., 189 Md. at 456-458.

Surely the chancellor’s denial of relief in the instant case was a proper exercise of discretion. There was no assurance that all interested parties were before the court, the adopted child may not survive Mr. Lucas, and it appeared that the income beneficiary was using the courts to create a power of appointment to which he had no right. Finally, the substantive determination of the issue in controversy depends primarily upon whether the trusts should be interpreted under the law as it was at time of the creation of the trusts or as that law has since been amended. If it were determined that current law is controlling, the controversy would still not be at an end, for there is no guarantee that the legislature would not change the pertinent statute again before Lucas’s death. Legislators are not bound by their predecessors’ acts, which fact caused a New York Surrogate Court to comment that:

“. . . no man’s life, liberty or property is safe when the legislature is in session.” L Tucker 247, 249 (New York Surr. 1866).

Beyond affirming the discretionary denial of relief by the chancellor, we conclude that the Lucases have not provided the court with a justiciable issue or controversy sufficient to have entitled them to a declaration had the chancellor followed his original course. In Patuxent Co. v. Commissioners, 212 Md. 543, 548, the Court of Appeals said that:

“[a] concise definition of what constitutes a justiciable issue or controversy is given by Anderson in his Actions for Declaratory Judgments, Vol. 1, par. 17: ‘A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.’ See also Tanner v. McKeldin, 202 Md. 569, 576, 577, 97 A. 2d 449; Kirkwood v. Provident Savings Bank, 205 Md. 48, 53, 54, 106 A. 2d 103.” (Emphasis added)

The factual foundation upon which appellants erect their claim for relief is speculative, and indeed such relief may never be necessary. The Patuxent Court summarized its conclusion in a manner befitting the conclusion of the case under consideration here:

“This Court has decided: That the Courts will not decide abstract propositions, either under the Declaratory Judgments Act or any other procedure, Davis v. State, 183 Md. 385, 390, 37 A. 2d 880; that the Declaratory Judgments Act should not be used in an attempt to use the Courts simply to give legal advice or for answering questions as to which no reasonable doubt could exist, Staley v. Safe Dep. & Tr. Co., 189 Md. 447, 457, 56 A. 2d 144; and, when this jurisdiction is invoked, there must be an actual and justiciable controversy and the facts showing the same must be alleged, Tanner v. McKeldin, 202 Md. 569, 578, 97 A. 2d 449. We are unable to discover a proper justiciable controversy in relation to this prayer. Cf. Gilbert v. Dayton (Ohio App.), 59 N.E.2d 954, 957, 958.” Patuxent Co. v. Commissioners, 212 Md. at 549. See also Staley, supra.

Judgment affirmed.

Costs to be paid by appellants.

      . In 1973, that Act was recodified and now appears as Cts. Art., §§ 3-401 through 3-415.

      . The recodification effective January 1, 1974, appearing in Cts. Art., § 3-406 added “trusts” to the list of documents about which a proper party might seek declaratory relief. However, since Md. Code, Art. 31A, § 4 (now Cts. Art., § 3-408) permitted declaratory judgment jurisdiction in trust matters, we are not called upon to decide the significance of the omission in the old § 2.
      Md. Code, Art. 31A, § 4 said in pertinent part:
      “Any person interested . . . through [a] . . . trustee ... in the administration of a trust . . . may have a declaration of rights
      (c) To determine any question arising in the administration of the . . . trust including questions of construction of wills and other writings.”