text:
    ELYSSA T. HALL a/k/a Elyssa T. Williams v. DAVID F. HALL, JR.
    [No. 511,
    September Term, 1975.]

      Decided February 2, 1976.

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

      Jerome Blum for appellant.

      Thomas E. Klug, with whom were Klug & Grier on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

By a decree of the Circuit Court of Baltimore City issued 17 February 1971, Elyssa T. Hall (Mother), after seven years of marriage to David F. Hall, Jr. (Father), was granted a divorce a vinculo matrimonii upon proof that the parties voluntarily lived separate and apart without cohabitation, for more than eighteen months, and that such separation was beyond expectation of reconciliation. An Agreement between the parties, dated 15 April 1969 was approved and made a part of the decree, and, in accordance therewith, guardianship and custody of Jennifer Anne Hall (Child), the minor child of the parties, born 10 July 1964, was given to Mother, with the right of visitation in Father as set out in the Agreement. Father was ordered to pay $50 bimonthly directly to Mother for Child’s support and maintenance.

On 3 December 1974 Father filed a “Petition for Injunctive Relief’ in the divorce case. The petition alleged that Mother, in whose custody Child remained, had married one Thomas Williams and had requested Child’s “school teachers and other members of the community to address the minor child by using the surname of Williams, that being the step-father’s name”, although Child’s name had never been legally changed by court order, “nor has the natural mother and step-father adopted [her].” The petition asserted that Father “visits [Child] at least once a week, takes great interest in her physical and mental well-being, faithfully pays the stipulated support for his child, and has a fatherly devotion to this minor child.” Father prayed the issuance of an order “directing [Mother] to show cause, after due notice, why she should not be enjoined from allowing and encouraging the minor child to be known as Jennifer Anne Williams”, and “for such other and further relief as the nature of his cause may require.” The show cause order issued. Mother’s Answer admitted all the allegations in Father’s Petition, but said that it was “the wish of [Child] to be called Jennifer Williams as that name would be less confusing to her schoolmates and friends in the community.” Mother averred that “there is nothing improper or illegal about having the child of the parties referred to as Jennifer Williams.” She prayed that the Petition be dismissed with costs and expenses.

A hearing on the Petition and Answer was had on 11 March 1975. Child was excluded from the courtroom. Although the substance of the allegations set out in the Petition and admitted in the Answer were entered in the record by stipulation, Father’s counsel said he “would like to put [Father] on just briefly to take testimony in that regard.” Father repeated the facts alleged in the petition, admitted in the Answer and stipulated to at the hearing and elaborated on his assertion of devotion and great interest in Child’s physical and mental well-being. The chancellor asked what information Father had that Child was using the name “Williams”. Counsel for Mother said:

“Your Honor, I will concede the young girl is referred to in school as Williams. Her school records indicate her name is Hall, but her friends call her Williams, and that she has requested, and her mother has requested, are urgent [sic] that people address her as Williams, I will concede to that.”

Asked by his counsel how he felt about Child using the name “Williams” Father answered:

“Well, your Honor, I was very upset to learn she was using Williams. I am very devoted to my daughter. I provided support on a regular basis. I see her on a regular basis. I don’t think it is particularly fair to me, and in my opinion I don’t think it is fair to her either. I think [my daughter’s] expectations are she is going to be adopted, and I think she believes this is going to happen in the near future and that is why she is using Williams. It just doesn’t sit right with me. I don’t think it is particularly fair to me or my daughter, Jennifer.”

Father was not cross-examined. He was the only witness. Counsel argued, and the chancellor held the matter sub curia.

The case came before the chancellor again on 7 April 1975. Counsel were heard. The chancellor said:

“Let me say this for the record. I felt very strongly about this case when it came up; in fact, I will say for the record that I just think that it is just horrendous that a parent who has been divorced from her husband would even attempt to change that child’s name and, in a sense, cut off the parental rights of the father. I was very upset about it. Without having law to back me up, I was so sure the law would not tolerate this. I was very surprised when I first read Mr. Blum’s brief which referred to the common law right. I was not persuaded at all by him that a person can use any name they choose. If the children go to school, they can tell the teacher, ‘I want to be called by this or that name’. I think that only applies to adults. Even an adult, the Court can enjoin them in spite of common law.”

He deemed West v. Wright, 263 Md. 297 (1971) as supporting his position. Apparently he found it not to be in the best interest of Child for her to use the name “Williams”. He ordered that Mother “be enjoined and restrained from allowing and encouraging [Child] to be known as JENNIFER ANNE WILLIAMS.” Mother noted an appeal from the order.

The issue for decision is whether, without resort to judicial proceedings, a child in the custody of the mother pursuant to a decree of divorce may be called by a different surname in the face of opposition by the father.

The common law recognized that an individual could change the given name, surname, or both, by which the community knew him merely by assuming a new one, with the restriction that the change could not be effected for fraudulent purposes or to interfere with the rights of others. 44 Cornell L. Rev. 144, 145 (1958) and cases therein cited.* **** The common law sprang and was gradually developed out of the groundwork of custom. It was the ancient custom for the son to adopt a surname at will, regardless of that borne by his father, and the practice extended to the given name also. Smith v. United States Casualty Co., 197 N. Y. 420, 90 N. E. 947 (1910).

Maryland recognizes the common law rule. The Court of Appeals said in Romans v. State, 178 Md. 588, 597 (1940): “If there is no statute to the contrary, a person may adopt any name by which he may become known, and by which he may transact business and execute contracts and sue or be sued. William Gilligan Co. v. Casey, 205 Mass. 26, 91 N. E. 124; Smith v. U.S. Casualty Co., 197 N. Y. 420, 90 N. E. 947; Davies v. Lowndes, 1 Bing. N. Cas. 597, 131 Eng. Reprint 147. And this without regard to his true name.” Romans was cited and its statement iterated in the majority opinion of the Court of Appeals in Stuart v. Board of Elections, 266 Md. 440, 446 (1972): “We have heretofore unequivocally recognized the common law right of any person, absent a statute to the contrary, to ‘adopt any name by which he may become known, and by which he may transact business and execute contracts and sue or be sued’.” In Hardy v. Hardy, 296 Md. 412, 415 (1973) the Court said flatly: “In the absence of a statute to the contrary, a person may adopt any name by which he wishes to become known, as long as he does so consistently and nonfraudulently.”

In the 19th and 20th centuries express statutory provisions for changing names were enacted in many jurisdictions. They had a general pattern calling for a petition to the court stating the desired name and reasons for the requested change and, usually, notice by publication. Whether to allow the change was discretionary with the court, but in the absence of extenuating circumstances, the common law was followed in allowing great freedom of change. In the absence of an express provision that the statutory form is to be exclusive, the various statutes have been uniformly construed merely to provide a formal record of change and not to have abolished the common law rule. 44 Cornell L. Rev., at 145. For example, in Davies v. Lowndes, supra, Tindal, C. J., observed, in making clear that a man may take any name he pleases if not for fraudulent purpose, at 618: “And there is no necessity for any application for a royal sign manual to change the name. It is a mode which persons often have recourse to, because it gives a greater sanction to it, and makes it more notorious . . . .” Smith v. United States Casualty Co., supra, declared that the common law right was not affected by the various statutes whereby a change of name was authorized by judicial proceedings. Such a statute “. . . does not repeal the common law by implication or otherwise, but gives an additional method of effecting a change of name.” 90 N. E., at 950. Mark v. Kahn, 131 N.E.2d 758, 761 (Mass. 1956) held that the Massachusetts statute regulating the changing of name “does not restrict a person’s choice of name but aids him in securing an official record which definitely and specifically establishes his change of name.”

More than a century ago Maryland enacted legislation which authorized the changing of the name of any person by a judicial proceeding. Acts 1868, ch. 311. Although amended and implemented by Rules of Procedure, its substance remained the same. It followed the general pattern of legislation on the subject in other jurisdictions. The statute does not provide that the statutory form is to be exclusive, and it is clear that the statute does not preempt the common law. In Maryland, a person may change his name under the common law rule or through a judicial proceeding as he desires.

We have indicated that even under statutes authorizing a change of name by a judicial proceeding, a court, in exercising its discretion, usually follows the common law allowing great freedom of change. Furthermore, generally the right to change one’s name is not encumbered by the ordinary disabilities attendant upon minority. Thus, the right has been available to minors as well as adults by common law and statute. When, however, a minor’s name is to be changed, and a court is involved, either under a change of name statute prescribing a court proceeding or under the common law rule upon objection by a proper person, “it is the duty of the court, as in all matters before it involving minors, to examine what is in the infant’s best interests before determining if the requested change is warranted.” Hardy v. Hardy, supra, at 415. It is this principle which is dispositive of Mother’s contention that because this case is “one of first impression in Maryland,” there being no Maryland cases which “concern the effort of a parent to enjoin his child from adopting a name under the common law right to do so,” we should look to Bruguier v. Bruguier, supra. Bruguier arose from a divorce action brought by the wife. A decree nisi was granted wife with provision for support by husband of two minor children in her custody with right of visitation. Each of the natural parents acquired a new spouse. The former wife moved to New York with the children. Thereafter husband filed a motion, praying among other matters, to require one of his infant daughters to desist from using and assuming the surname of her mother’s new husband. The mother explained that the infant had suggested the change of name to avoid complications and explanations at the New York school. The court denied the father’s motion. Although it considered the welfare of the children in determining that custody should remain in the mother notwithstanding the move to New York and its effect on the right of father’s visitation, it based the denial of the motion regarding the change of name on the common law freedom of any person to change his name. It stated flatly, as we set out in note 12, supra, that the ordinary rules of minority do not limit the right. It recognized that there were statutes calculated to protect the public against fraud but found they did not apply in the circumstances. 79 A. 2d, at 499-500. The age of the daughter was not given in the opinion. We shall not follow the flat holding of Bruguier in the light of the dictate of Hardy that an infant’s best interest is a necessary criterion in determining whether a change of name is warranted.

We have found that when a change of a minor’s name is before a court, be it by a statutory proceeding or through a proper challenge to the common law right, the court must exercise its discretion whether to permit the change so as to serve the best interest of the minor. The guidelines for the exercise of such discretion were set out in West v. Wright, 263 Md. 297 (1971). Although West was decided in the frame of reference of a statutory proceeding brought by a mother to have the surname of her two minor sons changed to that of their stepfather, which the children’s father and petitioner’s former husband opposed, it is apparent from what we have said herein that we believe that the guidelines apply equally to a court’s consideration of the common law right. Manifestly, therefore, we are not in accord with Mother’s claim that West, being a statutory action brought under the BH Rules, is of no “precedential value” and is distinguishable on facts. We note that best interests of the minor child are to be served whether that child be a son or a daughter. We reject Mother’s contention and look to the teachings of West.

The Court in West thought that the case was one of first impression in Maryland, but found that “the rule in other courts has been to look at what is in the best interests of a child before determining if a name change is warranted.” 263 Md., at 299. It cited “Degerberg v. McCormick, 41 Del. Ch. 46, 187 A. 2d 436 (1963); Mark v. Kahn, 333 Mass. 517, 131 N.E.2d 758, 53 A.L.R.2d 908 (1956); Kay v. Kay, 51 Ohio Op. 434, 65 Ohio L. Abs. 472, 112 N.E.2d 562 (1953); Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952).” It continued: “However, courts are also most reluctant to allow such a change except under extreme circumstances.” 263 Md., at 299. It determined that courts of our sister states have usually made inquiries along these lines in deciding cases involving a change of name of minor children:

“1. Is there any proof of misconduct by the natural father which might make the continued use of the name by his children shameful or disgraceful?

2. Has the father wilfully abandoned or surrendered the natural ties between himself and his children?” Id., at 300.

“In addition,” the Court pointed out, “some courts have also taken into account other factors such as the age of the children involved and in one case even went into an elaborate discussion of whether a name per se was embarrassing”, citing Worms v. Worms, 252 C.A.2d 130, 60 Cal. Rptr. 88 (1967). With respect to misconduct of the father, the Court of Appeals explained, 263 Md., at 301: “The most prevalent basis for allowing a change of name is where there is proof of serious misconduct by the father which adversely affects the best interests of the children .... There are no hard and fast definitions as to the type of misconduct required; however, the offense must be of such great magnitude that the continued use of the name by the children would result in significant harm or disgrace to them.” The Court of Appeals expressly agreed “with the utilization of these general considerations”, 263 Md., at 300-301, and applied them in deciding the case. In doing so, it observed that the courts must apply “a subjective test, not unlike that used in adoption proceedings.” Id., at 302. The Court noted that the mother argued that since the last name of the children was different than hers, it was a source of constant embarrassment to them all. But the record reflected only “minimal instances of embarrassment” — some minor skirmishes with playmates, “not uncommon to children of that age”, and some slight clerical mixups with doctors records. The Court concluded that, in the circumstances, “any embarrassment is clearly outweighed by the desirability of maintaining some bond between a father and his offspring; a bond which incidentally may be quite tenuous in a situation where the parents are divorced and the mother has custody of the children.” Id., at 302-303. See also Marshall v. Marshall, 93 So. 2d 822 (Miss. 1957); Sobel v. Sobel, 134 A. 2d 598 (N. J. 1957); In Re Thomas, 416 S.W.2d 52 (Mo. App. 1967); Lazow v. Lazow, 147 So. 2d 12 (Fla. App. 1962).

We have a further inquiry. It concerns the part which the wishes of the minor child play in the determination of whether a change of name should be effected. In Re Thomas, supra, concerned a child nine and a half years old. The court said, 416 S.W.2d at 56: “The desires of the child, especially if very young, as in this case, are not controlling.” In Lazow v. Lazow, supra, the child was twelve years of age. The court declared, 147 So. 2d, at 14: “At this tender age a child is not capable of making an intelligent choice in the matter of his name.” In Mark v. Kahn, supra, one child was thirteen years old and the other ten years old. The court remarked, 131 N.E.2d, at 761-762: “[I]n view of their ages their consent would not necessarily be decisive. Until they reach an age when they are capable of making an intelligent choice in the matter of their name they ought not to have another name foisted upon them which they may later reject.” Often, in denying an application by the mother, or in granting injunctive relief to the father, the courts have stated that they would consider the proposed change at a subsequent time, when the child himself would be capable of making a competent, intelligent choice. 44 Cornell L. Rev. 144, 149, n. 60 cites these cases on the point: “Pottish v. Pottish, 88 N.Y.S.2d 394 (Sup. Ct. N.Y. County 1948); Matter of Cohn, 181 Misc. 1021, 50 N.Y.S.2d 278 (Sup. Ct. N.Y. County 1943); Kay v. Kay, 112 N.E.2d 562 (C.P. of Ohio, Cuyahoga County 1953); Rounick’s Petition, 47 Pa. D. & C. 71 (1942). See also Matter of Wing, 4 Misc. 2d 840, 841, 157 N.Y.S.2d 333, 335 (N.Y. City Ct. N.Y. County 1956) where the court observed:

It may well be that the child wishes to change her name at this time but it will be time enough when she arrives at an age of more mature judgment; when she is able to decide for herself without conflicting pressures.”

We suggest that the wish of a minor child with respect to a change of name should be considered by a court as is the wish of a child in a custody proceeding. In both matters the expression of the child’s wishes concerns the interests of the child and the parents. We said in Sullivan v. Auslaender, 12 Md. App. 1, 5-6 (1971), citing Radford v. Matczuk, 223 Md. 483, 491 (1960): “[T]he desire of an intelligent child who has reached the age of discretion should be given some consideration in determining custody, although the wish is not controlling.” We quoted Fanning v. Warfield, 252 Md. 18, 24-25 (1969): “The weight to be given the wish of a child in a custody case depends on the contribution the reasons for that wish make to the solution of the ultimate test, the best interests and welfare of the child. Ross v. Pick, 199 Md. 341.” See Code, art. 16, § 66 (g).

Mother contends:

“I. Absent a Statute to the contrary, Maryland Law allows an individual to adopt any name he chooses for any and all non-fraudulent purposes.”

“II. No Maryland Statute repeals the common law right of an individual (infant or adult) to adopt a name of his choosing. No fraudulent purpose has been attributed to the child’s actions. Therefore, the child may use the name JENNIFER ANNE WILLIAMS.”

It is correct, as we have indicated, that Maryland generally follows the common law rule, so that usually an adult or a minor may adopt any name for a nonfraudulent purpose. Also, it is correct that this may be done without a judicial proceeding, because the statutory provisions concerning change of name do not pre-empt the common law but provide another more formal way to effect a name change. And, further, it is true that no fraudulent purpose has been shown or attributed to the attempt here to change Child’s name. We do not agree, however, that the common law right is absolute as to a minor in the face of proper opposition. When a father, as was here the case, opposes the child’s change of name by appropriate court action, the common law right is tempered, and, as we have seen, the name change becomes a matter of judicial discretion in which the court must look to the substantial welfare of the child. The actual issue for decision is whether the chancellor below properly exercised his discretion in enjoining Mother from allowing and encouraging Child to be known by the surname of the stepfather.

There was no suggestion here of any misconduct on the part of Father or of surrender of the natural ties between him and Child. On the contrary, it was admitted that Father visited Child at least once a week, took great interest in her physical and mental well-being, had a fatherly devotion to her and made the payments for her support faithfully. So, the “most prevalent basis for allowing a change of name”, that of a father’s misconduct, was utterly lacking. Nor were there present any factors to the effect that Father had abandoned Child. There were no extreme circumstances of any kind shown to justify the name change. Mother said in her Answer that Child wished to be known by the surname of the stepfather “as that name would be less confusing to her schoolmates and friends in the community.” No evidence was offered on that point. Reasons for the change of name boils down to a bald assertion in Mother’s answer to Father’s petition, that Child wished to use the stepfather’s surname and that such name “would be less confusing to [Child’s] schoolmates and friends in the community.” West clearly teaches that, over the father’s opposition, this is patently insufficient cause to sever the remaining tenuous bond between a faithful and loving father who has done nothing to besmirch his family name. And even if the indicated wish of Child were really an expression of Child’s true volition, and not that of Mother’s, it would not be controlling or decisive in the circumstances. We agree with the chancellor that, on the facts before him, it was in the best interests of Child to retain the surname of Father. We hold that the court below properly exercised its discretion in issuing the injunction.

Mother argues that in any event the order issued was “so vague and uncertain as to be incapable of enforcement and therefore void.” The order “enjoined and restrained [Mother] from allowing and encouraging [Child] to be known as Jennifer Anne Williams.” A similar injunction issued in Degerberg v. McCormick, 187 A.2d at 441. In Mark v. Kahn, supra, the court observed, at 762: “We perceive no insuperable difficulties in enforcing decrees granting injunctive relief in cases of this sort.” The order here makes clear what Mother is not to do — she is not to allow or encourage Child to use the name of the stepfather. We do not find the order to be “so vague and uncertain as to be incapable of enforcement”.

We do not consider Mother’s three remaining contentions. They attempt to invoke the first and fourteenth amendments to the federal constitution with respect to “freedom of speech”, “freedom of association”, and “right to liberty and privacy”. Even if such constitutional rights were involved in this case, issues as to them do not appear to have been presented, and tried and decided below. They are not properly before us. Rule 1085. Smith v. State, 16 Md. App. 317, 324 (1972), cert. den., 267 Md. 744 (1973).

Order of 7 April 1975 affirmed: costs to be paid by appellant.

      . Paragraph 5 of the Agreement provided, inter alia: “The husband shall have the right and privilege of visiting his minor daughter on Tuesday and Thursday evenings from 6:00 P.M. until 9:00 P.M., and on Sunday from 12:00 noon until 9:00 P.M.”

      . The Circuit Court of Baltimore City, Docket HOB, folio 754, file B97581.

      . When the hearing commenced, Father’s counsel began to recite a stipulation. The chancellor asked counsel if he wanted Child in the courtroom. The transcript roads:

        “MR. BLUM [Jerome Blum, Esq., counsel for Mother]: It doesn’t make that much difference if it’s something she shouldn’t hear.
      MR. KLUG [Thomas E. Klug, Esq., counsel for Father]: The natural father says he would prefer that the child not be in the courtroom.
      MR. BLUM: Then she can leave.
      THE COURT: So often the children shouldn’t be here in the courtroom.
      MR. BLUM: There is nothing gory.
      THE COURT: There has got to be a dispute, otherwise you wouldn’t be here. I think the parties ought to be free to say whatever they want to say about each other and the children shouldn’t hear it.”

      . See Maryland Rule 372, § a 2 and § b.

      . The chancellor said:
      “For a man to have regular visitation with a child everybody else calls by the new husband’s name is just so fraught with unfairness that I am happy that I can at least grant this injunction to restrain the mother in this case from in any way permitting a name change either by referring to it, telling the teachers that he can call her by any other name or in any other way denying the father the right to have his child bear his last name. Further, the language in the West case, the Court pointed out, ‘If any embarrassment’, in talking about the best interests of the child. The only reason I can see is that a mother would say, ‘Well, I have one name and when I register this child I want her to have my name so nobody will suspect it is an illegitimate child or I have been divorced’. The Court says any embarrassment is clearly outweighed by the desirability of maintaining some form between the father and his offspring as a bond which, incidentally, may be quite tenuous in a situation where the parents are divorced and the mother has custody of the children. If we are dealing with the best interests of the child, certainly then the son needs to know who his natural father is. To change the name would cause confusion in the child. It certainly is not in the child’s best interest.”

      . It was said in Davies v. Lowndes, 1 Bing. N. Cas. 597, 618 (1835): “[A] man may, if he pleases, and it is not for any fraudulent purpose, take a name and work his way in the world with his new name as well as he can.”

      . Smith discusses in detail how surnames came to be used and gives examples of men who abandoned the name of their youth and chose another made illustr'ous by their writings, paintings or deeds — Rembrandt, Balzac, Voltaire, Dante, Maurice Barrymore, Henry Irving, Mark Twain, Artemus Ward, Napoleon, the Duke of Wellington, U. S. Grant. 90 N. E., at 948, 949. See 16 Encyclopedia Britannica (name) 63-64 (1947); Greene, Law of Names and How to Change Your Name 71 (1954), referred to in The Cornell Law Review note, and the various authorities cited and quoted in Smith.

      Although in 1910 when Smith was decided, there were apparently few decisions directly in point, Smith observed, at 949, that “there are many dicta by eminent judges recognizing as an established rule that a man may change his name, Christian, surname, or both, without resort to legal proceedings”, and pointed out, at 950, that “The elementary writers are uniform in laying down the rule that at common law a man may change his name at will.”

      . Romans concerned the name under which a person could be prosecuted for criminal conduct. “Hence”, the Court continued, “if a person adopt or assume a name whereby he becomes known, so that the adopted or assumed name is sufficient for his identification, he may be prosecuted in his adopted or assumed name. On principle there can be no question of this doctrine. The crime is individual, and its prosecution is personal. The name is only material for its evidentiary value, to make certain the particular person charged with the offence.” 178 Md. at 597.

      . Murphy, C.J., delivered the opinion of the Court in which Barnes, McWilliams, Singley and Digges, 33. joined. Smith, J., dissented and filed a dissenting opinion at 451.

      . The question in Stuart was whether a wife could register to vote in her maiden name rather than her husband’s surname. The majority held, at 447. “Consistent with the common law principle referred to in the Maryland cases, we hold that a married woman’s surname does not become that of her husband where, as here, she evidences a clear intent to consistently and nonfraudulently use her birth given name subsequent to her marriage.” The Court pointed out that in Erie Exchange v. Lane, 246 Md. 55 (1967) it held that a married woman may lawfully adopt an assumed name, which need not be her birth given name nor the name of her lawful husband, without legal proceedings. It believed that the rule was founded upon the English common law incorporated into the laws of Maryland by article 5 of the Maryland Declaration of Rights. 266 Md., at 447. As we view Judge Smith’s dissent, he had no quarrel with the recognition of the common law as applicable in Maryland. He thought, however, that the question was what the General Assembly meant in the registration laws when “name” was mentioned. 266 Md. at 455.

      . Code, art. 16, § 123 now provides: “When the name of a person is changed by a court proceeding, the true and legal name of the person shall be that determined by the order of the court. A copy of said order, under the seal of the court, shall be sufficient and legal evidence of the facts therein stated.”
      Maryland Rules, ch. 1100. subtitle BH. spell out how an action for change of name shall be commenced — BH 70, the venue — BH 71, and the procedure — BH 72-74, culminating in a decree — BH 75. For change of name in an adoption proceeding, see Rule D74, § d.

      . The court said in Bruguier v. Bruguier, 79 A. 2d 497, 499 (N.J. 1951):
      “The ordinary rules of minority do not limit the right.”

      . The 1868 Maryland statute provided that a petition for change of name could be filed on behalf of any infant residing in Maryland by the father, or in case of his death, by the mother or guardian. Rule BH 70, § b, states: “A petition on behalf of an infant may be filed by a parent, legal guardian or next friend.”

      . Appellant’s brief, Question VIII, pp. 14-15.

      . In Mother’s brief she states that the same result which was reached in Bruguier was reached in Bilenkin v. Bilenkin, 64 N.E.2d 84 (Ohio 1945) on similar facts. It is patent from the Bilenkin opinion that the court determined that it was in the best interests of the infant daughter to allow her to use the requested surname. The action of the court there was a sound exercise of judicial discretion.

      . Appellant’s brief, Question VII, pp. 11-13.

      . The discussion which immediately followed was primarily in terms of depriving a son of his father’s surname. The two children in West were male.

      . One child was twelve years old and the other eleven years old.

      . Mother does not question the propriety of the action seeking an injunction in equity. Other jurisdictions have given relief by way of injunction. This has been done in divorce proceedings, jurisdiction having been retained for the purpose of making appropriate changes in the custody award, and in separate actions for injunctive relief. See cases discussed in Annot., 53 A.L.R.2d 914, § 4 at 920 and § 5 at 923 (1957). The question was squarely presented in Mark v. Kahn, 333 Mass. 517, 131 N.E.2d 758 (1956). The court held that the relief sought was one that a court of equity ought to grant in appropriate circumstances. It quoted from Kenyon v. Chicopee, 320 Mass. 528, 534, 70 N.E.2d 241, 244 (1946):
      “We believe the true rule to be that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights by injunction. In general, these conditions are, that unless relief is granted a substantial right of the plaintiff will be impaired to a material degree; that the remedy at law is inadequate; and that injunctive relief can be applied with practical success and without imposing an impossible burden on the court or bringing its processes into disrepute.”
      See Degerberg v. McCormick, 184 A. 2d 468 (Del. Ch. 1962).

      . We observe that Mother, through her counsel, indicated that Child’s surname would remain that of her natural father on official records. During the proceedings of 7 April 1975, Mother’s counsel said to the court: “The child is not registered in another name. I have no objection to you using a restraining order on that.” Thus, if relief were denied, Child would be known by one name to her schoolmates and friends and by another name on official records.

      . Father asks that fees for his counsel also be assessed against Mother. He cites no authority for his request, and we do not grant it.


source: Caselaw Access Project

author: Moylan, J.,

license: Public Domain

text:
    EDWARD LEROY HASLUP v. STATE OF MARYLAND
    [No. 72,
    September Term, 1975.]

      Decided February 3, 1976.

      The cause was argued before Moylan, Davidson and Mason, JJ.

      Michael J. Ragland, Assigned Public Defender, for appellant.

      David B. Allen, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Warren B. Duckett, State’s Attorney for Anne Arundel County, and Ronald M. Naditch, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Edward Leroy Haslup, was convicted in the Circuit Court for Anne Arundel County by a jury, presided over by Judge E. Mackall Childs, of murder in the first degree. Upon this appeal, he raises three contentions:

(1) That the trial judge abused his discretion in not raising, sua sponte, the issue of the appellant’s competence to stand trial;

(2) That the court erred in admitting the appellant’s confession; and

(3) That the evidence was not legally sufficient to permit the charge to go to the jury.

I. “For the Want of a Nail, a Shoe was Lost...”

The first issue turns out to be a non-issue and illustrates the advisability, perhaps, of a Best Evidence Rule for appellate practice as well as for trial practice. Counsel for the appellant and for the appellee alike have led the Court on a wild goose chase. The scene needs to be set.

The crime in this case occurred on the night of July 18-19, 1973. The case came on for trial approximately one year later on July 9, 1974. In the meantime, the appellant had entered a plea of not guilty by reason of insanity and had been examined by the staff of the Clifton T. Perkins State Hospital. After the juiy had been selected and sworn on the first day of the trial, the Assistant State’s Attorney undertook, out of the presence of the jury, to make certain that the record was complete with respect to the resolution of several preliminary matters. As he addressed himself to the second of these matters, the transcript records him as saying:

“The second issue, Your Honor, is the competency of the defendant to stand trial. Now I have before me a letter dated October 2, 1973 addressed to the Honorable Thomas J. Curley, Judge of the District Court of Anne Arundel County, Re: Edward Haslup from Clifton T. Perkins, signed by Dr. Robert H. Sauer, who has been the acting superintendent for a great length of time now. I am not sure when he is going to become the actual superintendent. But it was the unanimous opinion of the medical staff at that time, when he was presented, that is, Mr. Haslup was presented to the medical staff conference on September 20, 1973, that he was unable to understand the nature and object of the proceedings against him and to assist in his defense. Now we have discussed this in chambers prior to coming into court today, that is, the Court, defense counsel and the State and it is my understanding that we are proceeding under the assumption that there is no objection being made to his ability to understand the nature and the object of the proceedings with the proviso that should it become evidence (sic) to the Court either through psychiatric testimony or through the Court’s observations, obviously this Court would reserve the right to at anytime during the proceedings have a contrary ruling.” (Emphasis supplied)

The ensuing colloquy between the court, the prosecutor and the defense attorney made it evident that the defense was not raising any issue as to competence and included the defense attorney’s representation that “it is this attorney’s belief that he is competent to aid us in his defense or we would not be here today. And I would state that for the record, Mr. Naditch. I believe that was the way I had put it.” Seizing, however, upon the transcript of the statement of the Assistant State’s Attorney, appellant’s counsel vigorously urged upon this Court that the trial judge should have raised the issue of competence, sw sponte, based upon the representation made to him that it was the unanimous opinion of the staff at Clifton T. Perkins that the appellant “was unable to understand the nature and object of the proceedings against him and to assist in his defense.” The State, for its part, responded in kind. The briefs for both the appellant and the appellee argued at length over the responsibility of the trial judge to raise the issue of competence on his own when such a danger sign was before him. Both parties hammered away on the same issue at oral argument before this Court. The Court, In conferencing the case, gave lengthy and weighty consideration to the novel issue presented it. A full reading of the transcript did nothing to dissipate the issue.

When, however, the Court looked beyond the transcript of proceedings to the full record itself, a different picture emerged. The original of the letter of October 2, 1973, from Dr, Robert H. Sauer, the Acting Superintendent of the Clifton T. Perkins State Hospital, to Judge Thomas J. Curley reveals that “it was the unanimous opinion of the medical staff that he-was able to understand the nature and object of the proceedings against him and to assist in the defense against him.” (Emphasis supplied) Another letter of the same date from Dr. Sauer to Judge Ridgely P. Melvin, Jr., then of the Circuit Court for Anne Arundel County, confirms the stenographic accuracy of that to Judge Curley. It becomes clear that the Assistant State’s Attorney either inadvertently said the wrong word before Judge Childs or that the transcript itself was simply in error in adding the single syllable “un.” Everything that follows on the part of the prosecutor, the defense attorney and the court is at least as consistent with the word “able” having been used as it is with the word “unable” having been used. The thrust of the State’s position was simply to have the issue of competency resolved for the record and not left hanging, possibly to haunt the State halfway through the trial or upon appeal. The position of the defense attorney, indeed, makes far more sense, when the word “able” is read into the colloquy. The failure of the court even to question the situation by way of mild surprise or a moment’s hesitation also makes more sense, when the word “able” is substituted for “unable.” The Assistant State’s Attorney was holding a copy of the letter in his hand as he was referring to it. The court, making precise reference to the date that it was sent and the date that it was filed in the record, was obviously looking simultaneously at the original of the letter. Had appellate counsel for either the appellant or appellee communicated meaningfully with trial counsel in the case or examined the entire record, this diametrically opposite version of what clearly took place at the trial could not have arisen to obfuscate the appellate proceeding, notwithstanding a minor quantitative error in the cold record which grew to gargantuan proportions qualitatively.

In any event, the major point urged upon this Court by the appellant, both by way of brief and oral argument, and assiduously counter-argued by the appellee, turns out to be illusory. A great deal of time and effort on the part of all concerned could have been saved by a check of the record or by a conference with trial counsel.

These comments are not intended to be a personal criticism of the two appellate counsel in this case. The mistake was freakish and could not have been avoided by the most diligent scrutiny of the transcript. This mistake may serve, however, to illustrate the desirability of appellate counsel’s conferring with trial counsel in those cases where appellate counsel were not present at trial. There will sometimes be events and situations well known to those who were in the courtroom which are simply not reflected in a transcribed record. The entire direction of an appellate position could turn upon such knowledge, if that knowledge were made known to counsel by those who were at the trial scene.

II. “The Insubstantial Pageant” Moves On

The second issue urged by the appellant, looming large at first appearance as it loomed large both in brief and oral argument, also evaporates under closer scrutiny.

The appellant filed a pre-trial motion to suppress the confession on January 31, 1974. A full hearing was had on that motion before Judge Matthew S. Evans on March 5, 1974. Judge Evans denied the motion to suppress the confession. The transcript of that hearing was not made a part of this reeord. The appellant makes no reference to it and does not argue, even obliquely, that any error was made by Judge Evans in deciding as he did. That is dispositive as far as any review of the pre-trial ruling by Judge Evans is concerned.

The literal question of the admissibility of the confession was never again an issue in the case. When the case came on for trial on July 9,1974, four months later, the appellant did not move to have the issue of the admissibility of the confession reconsidered by the trial judge. Indeed, after the jury was sworn and had retired from the room, it was the Assistant State’s Attorney who reminded the court that the issue of admissibility had already been resolved. Appellant’s counsel was completely acquiescent and the trial judge’s only response was his expressed hope that “Judge Evans was correct in his ruling.”

Following a luncheon recess, the Assistant State’s Attorney, without objection, referred fully to the substance of the confession in the course of his opening statement to the jury. When, during the testimony of Sgt. Michael Wagner, the subject of the interrogation of the appellant arose, no effort was made to have the jury removed from the room. It was clear to all that the issue of admissibility had already been determined pre-trial. No request was ever made for a redetermination in that regard. Walker v. State, 12 Md. App. 684, 687-690, 280 A. 2d 260; Layman v. State, 14 Md. App. 215, 229-230, 286 A. 2d 559.

The only purpose of the testimony then being offered was for the jury to assess the weight to be given to the confession. During the direct examination of Sgt. Wagner, the Assistant State’s Attorney, proceeding with extreme caution, raised the question, out of the presence of the jury, of how to offer the physical confession itself because of the notation upon it that Judge Evans had already found it to be voluntary. The only question then discussed by the prosecutor, defense counsel and court was whether that notation should be covered up:

“Now I would ask counsel how he wants me to handle that because that might possibly be prejudicial to the defendant if they know that there has been a previous motion and a ruling by the Court. I am talking about the Jury, of course.

COURT: Well, I have already explained to the Jury that there are some things that the Court has to consider before they are admitted.

MR. NADITCH: Well, I might add that I would have no objection, if the Defendant would have no objection, to removing that part or covering that part, which is really a Court stamp indicating a previous proceeding, which has no evidentiary value, but only might tend to confuse them. I don’t care if it is left on either but I think it is something that I am just bringing up now so that we can discuss it outside of the presence of the jury.

MR. HENNESSEY: I have no particular objection toward it going in in either form.

MR. NADITCH: All right.

MR. HENNESSEY: Whether it be previously considered or not. I would prefer that it goes in in this way because actually if there is any further proceeding emanating out of this proceeding and this was used as an exhibit on the motion and we destroy it.

MR. NADITCH: I wasn’t intending to destroy it. I was thinking about covering it, perhaps.

MR. HENNESSEY: I think that the Judge’s opening — the Judge’s statement to the jury, I think cleared this emphatically. I think that they understand.”

The direct examination and cross-examination of Sgt. Wagner went on. His full testimony was before the jury. He was testifying broadly upon the merits of the case and not simply upon the taking of the confession. He related, without objection, a brief oral admission made to him at approximately 5:30 p.m. in which the appellant acknowledged his presence at the murder scene when it was being committed. After direct and cross-examination on the subject of the written statement, the following objection was made:

“MR. NADITCH: At this point, Your Honor, I would offer the statement as State’s Exhibit #16.

MR. HENNESSEY: Object, Your Honor.

COURT: All right, admit the statement.”

The purpose and function of that formal objection is preeminently clear. It was necessary to preserve for appellate review the pre-trial ruling made at the suppression hearing. Without that necessary objection, the question of admissibility could not have been considered by us even had a transcript of the pre-trial hearing before Judge Evans been prepared and made a part of the record and even had appellate counsel raised a contention directed at that ruling. Barnhart v. State, 5 Md. App. 222, 246 A. 2d 280. Although the objection preserved Judge Evans’ pre-trial ruling for review, no appellate issue has been made in that regard. As we discussed earlier, the issue is simply not before us.

It is abundantly clear that the mere making of the objection for that necessary purpose did not serve to reopen at the trial level the question of admissibility. The trial judge was never asked to reconsider that issue. No effort was made to take any testimony out of the presence of the jury. No effort was made to preclude the prosecutor from referring to the substance of the confession in his opening statement. No effort was made to shield from the knowledge of the jury the fact that a confession had been made. The appellant himself was not offered as a witness on his own state of mind, notwithstanding the fact that he could have testified outside the presence of the jury if admissibility itself were the issue before the court (or, in limine, before the jury). The appellant’s attorney, with whom the appellant talked by phone shortly before giving a statement, was not called upon the issue. The appellant’s family, who were with him at the State Police barracks for a considerable length of time shortly before the statement was taken, were not called upon the issue. It is clear that no one at the trial, including the appellant and the appellant’s counsel, even remotely considered the question of admissibility as being again before the court for determination.

Notwithstanding our clearly dispositive holding that nothing is before us on the question of admissibility, a comment is once again in order on the preparation for and conduct of appellate argument. Inexplicably, neither the appellant nor the appellee, by brief or by argument, has referred to the fundamental threshold question of whether the issue of admissibility is even before us. Our holding that it is not has been sua sponte.

Also inexplicably, both the appellant and the appellee, in brief and argument, have vigorously and extensively argued both the facts and the law on what is palpably a non-issue. It may be helpful to try to pinpoint how argument can go so far astray of the issue to which it should be addressed. Upon what evidence in this case does the appellant base his argument that the confession was involuntary and should not have been admitted into evidence? Upon what evidence in this case does the appellee base its counter-argument in this regard? It is clear that the entire argument of appellant and appellee alike is predicated exclusively upon testimony which was offered for another purpose after the issue of admissibility had already been resolved against the appellant.

All of the evidence referred to by the appellant was offered to the jury upon the issue of what weight they would give to the confession. The weight to be given evidence is within the exclusive prerogative of the fact finder and is beyond our power to review. The evidence upon which the appellant makes his present argument was not that offered on the question of admissibility, that question of admissibility already having been resolved against him. The function of the evidence offered to the jury and the nature of the issue then before it was made very clear in Linkins v. State, 202 Md. 212, 221-222, 96 A. 2d 246:

“Admissibility does not signify that the evidence admitted has demonstrated or proved the fact to be proved, but merely that it is received by the tribunal for the purpose of being weighed with other evidence. Admissibility falls short of proof. The rule of law uttered by the judge, merely declares what is sufficient to go to the jury. The jury ultimately decides upon the total effect we call proof.”

Quoted with approval in Barnhart v. State, supra, at 5 Md. App. 224.

In keeping the analysis clean, it is indispensable that one recognize the distinction between evidence on the question of voluntariness when presented to a judge on the issue of admissibility and similar evidence on the same question of voluntariness when offered to the fact finder on the separate issue of the weight to be given a confession. The admission of a confession into evidence is not dispositive on the ultimate question of guilt or innocence in the minds of a jury. To the extent to which a jury feels that a confession was involuntary, it will give that confession little or no weight because an involuntary confession is not trustworthy as evidence. This weighing of evidence in terms of its trustworthiness and its significance is exclusively within the prerogative of the jury and is not a subject for appellate review. To the extent to which a state’s witness is examined directly or is cross-examined on voluntariness for the purpose of assisting the jury in weighing the confession, such examination comes in the course of that witness’s broad testimony on the merits generally. To the extent to which the defense has witnesses to offer to assist the jury in weighing a confession, such witnesses are presented when the defense puts on its case. This procedure differs from that followed when admissibility is still the issue. Then the defense testimony must interrupt the state’s case because all evidence on the literal question of admissibility must be received so that the decision of whether to admit or to reject state’s evidence can be made before the state rests its case.

In the case at bar, it is clear that the examination and cross-examination of Sgt. Wagner on the subject of voluntariness during the course of his broader testimony on the merits on July 9 was made only to assist the fact finder in weighing the confession. That testimony at that time had no bearing on the issue of admissibility. A fortiori, later testimony given by the psychologists and psychiatrists for both the appellant and the appellee on the issue of the appellant’s criminal responsibility at the time of the crime did not relate back nor have any bearing upon the issue of the admissibility of the confession in this case.

In this regard, we strenuously urge appellate counsel, when arguing a question of admissibility, to restrict themselves scrupulously to the testimony bearing on that issue and not to range abroad throughout the length and breadth of a transcript for every tidbit of testimony that might have been relevant had it been offered at the appropriate time on the appropriate issue.

We do not mean to intimate that our decision would not have been for affirmance had the merits of the admissibility question been before us. We simply decline to demean our holding by that sort of factual “boot strapping.”

III. Legal Sufficiency of the Evidence

The appellant’s final contention is properly before us but is without merit. Even without his confession, his presence at the time and place where the murder was committed was established by legally sufficient evidence. He was seen with the victim an hour or two before the crime occurred. His fingerprints were in the murder room. Blood of the victim’s type was on the appellant’s clothing. Fibers from the appellant’s shirt were found in the victim’s apartment and on the victim’s naked back, which received some 90 stab wounds. He was apprehended in the victim’s automobile a short time after the murder.

The jury found the appellant to be sane. This finding was supported by the testimony of several psychiatrists who appeared for the State.

The jury found the murder to have been in the first degree. The evidence supported that finding upon either of two theories. The 90 some stab wounds, the fact that the victim had been bound beforehand and the fact that the appellant muffled the victim’s cries all permitted the finding of premeditation and deliberation. Independently, the fact that the victim’s car was taken by the appellant and his codefendant supported a finding of murder in the first degree under the combination of the common law felony-murder rule and Article 27, § 410. Evans v. State, 28 Md. App. 640, 349 A. 2d 300; Warren v. State, 29 Md. App. 560, 350 A. 2d 173.

Judgment affirmed.

      . This illustrates one of the dangers of relying apon a printed record extract as a substitute for a full examination of tine record. If even the transcript itself is no adequate substitute for the original exhibits and papers in the case, an extract from that transcript would only increase further the possibility of error in transcription.

      . We are not unmindful of an oblique reference to the report of a defense psychiatrist, Dr. Frank J. Ayd, which report, according to appellant’s counsel, “indicated.. . the question of possible competency.” Such an oblique reference, in the course of abandoning the issue of competency, was, in our judgment, absolutely nugatory in its effect. Dr. Ayd was a key defense witness on the issue of the appellant’s criminal responsibility. He was not present to testify at the outset of the trial when competency would normally have been adjudicated, had it been raised as an issue. Notwithstanding this somewhat cryptic reference to the report of Dr. Ayd in this regard, appellant’s counsel elected to concede on the issue of competence, mentioning in passing that “The only evidence that we have any scintilla is the statement in Dr. Ayd’s report and that is why I mention it.” There is no indication that anything other than these two passing references was before the trial judge. When Dr. Ayd did appear on the following day to testify on the question of insanity, appellant’s counsel agreed with the State that no question would be put to Dr. Ayd on the subject of competence. No question on that subject was put and no answer on that subject was forthcoming. Nothing from Dr. Ayd raised any additional problem.


author: Lowe, J.,

text:
    RAYFIELD ZEKE WILSON v. STATE OF MARYLAND
    [No. 513,
    September Term, 1975.]

      Decided February 3, 1976.

      The cause was submitted on briefs to Moylan, Davidson and Lowe, JJ.
    Submitted by Donna Aldridge, Assigned Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Bernard A. Baum, Assistant Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Arthur Kravetz, Assistant State’s Attorney for Prince George’s County, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Stemming from the intial abhorrence of the “general warrant” felt by the colonists, there has been so much written on the subject of the Fourth Amendment “right of the people to be secure in their . . . homes . . . against unreasonable searches and seizures . . . ,” that it is hard to believe there yet exists a circumstance untreated somewhere in our appellate reports. We look forward to the time when we may affirm or reverse by mere recitation of authority to one or more cases of identical factual context, much in the manner of comedians who amuse one another by numerical reference to a joke index, avoiding the tedium of repetitive verbiage. While we are aware of the enormous force of few words, it is as yet beyond our ken to articulate briefly the reasons for our holdings while clearly limiting them lest they be misapplied in another case, yet we will try once again.

Rayfield Zeke Wilson was convicted by a jury of the Circuit Court for Prince George’s County of receiving stolen goods. Crucial to his conviction was the introduction of a cassette recorder recovered by police from his residence. The room occupied by Wilson as his residence was searched by federal agents who were accompanied by a Prince George’s County officer (who was there as a “back-up to the Feds”). The subject of the search was restricted by a valid warrant to narcotics and narcotics paraphernalia. No narcotics or paraphernalia were found. During the course of the search, the attention of the county officer was caught by a quantity of stereophonic equipment. His decision to make a list of the serial numbers of those items is at the heart of this appeal.

“Q. Officer, did there come a time when you were there that you had occasion to observe some electronic equipment, stereo equipment?

A. Yes, sir.

Q. And what, if anything, did you do upon observing those items? Could you describe the items that you observed and what, if anything, you did upon observing them?

A. Well, I can’t describe them exactly. There were various t.v. sets, stereo equipment, speakers, one or two clock radios, camera and various items in the house that I looked over and jotted down the serial numbers of all of them.

Q. And approximately how many items were there?

A. Somewhere around twenty, twenty-five.

Q. And where in the house did you observe those items?

A. In the upstairs bedroom.

Q. And what did you do with the serial numbers that you jotted down?

A. When I got the serial numbers jotted down I attempted to contact or teletype to S.I.I. to get an N.C.I.C. telecheck.

Q. What do you mean by that?

A. National Computer, where any type of anything stolen, the serial numbers are entered into it and all these serial numbers are on file in this computer.”

Appellant objected to succeeding questions which sought to elicit what the submission of the serial numbers to the computer disclosed. While pointing out that the objection may have been somewhat premature, the court sequestered the jury and permitted appellant to proceed as if the objection were a motion to suppress. It became clear during the hearing that appellant was attempting to preclude the State from introducing into evidence a cassette recorder which was seized by a Prince George’s County detective the day following the narcotics search. Continuing its examination of the county officer, the State sought to justify the seizure by eliciting the fact that appellant consented thereto:

“Q. How did the policeman get it or how did the county get it?

A. The Detective Shapiro went back later.

Q. With a Search Warrant?

A. No. without a Search Warrant.

Q. Was it consented to?

A. Yes.

Q. In other words he took physical possession of this Sony cassette recorder by consent of the accused?

A. That is correct.”

The appellant, on the other hand, argued that the

“ . . . information originally taken from his house was taken illegally. The cases are dear that if you are in a home looking for television sets, you can’t look for narcotics and [i]n this case they were looking for narcotics and didn’t find any narcotics and. my contention is that at that point the warrant is dead. Surely they can see the items, but not the serial numbers and information. They had to move them around to get that, so it doesn’t fall within that.”

Presumably what appellant contended was that the circumstances surrounding the consent were tainted by an illegal search and, as a consequence, the consent was not voluntary. In Schneckloth v. Bustamonte, 412 U. S. 218, 227, the Supreme Court made it clear that, while consent to search supplanted the need to obtain a warrant, such consent must be voluntary and

“ . . . whether a consent to search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.”

Perhaps because the evidentiary question was somewhat premature, as the judge below pointed out, the “circumstances” giving rise to the consent were not before him when he ruled upon the admissibility of the cassette. However, by not responding to appellant’s contention that the wrongful search tainted the subsequent seizure, he seemed to rule implicitly either that the subsequent consent absolved the wrongful search, or that the initial search was a valid offshoot of the federal warrant. He said:

“My ruling is, that you told me that this item was seized by the consent of your client, therefore it is admissible. Bring the jury back. I don’t have to pass on the other question.”

The unanswered “other question” was obviously whether it was proper for the county police officer to make a list of the serial numbers of the electronic equipment in order to determine if any of the articles had been stolen. As a result of the officer’s action, one of the items was determined to have been stolen — a cassette tape recorder, and was subsequently seized. It was not until after his ruling on the legality of the seizure, however, that the judge heard the details of the computer report.

“A. I got a reply — well, the teletype operator got a reply from the N.C.I.C. operator.

BY MR. NOBLITT: Objection for the record.

BY THE COURT: Overruled.

BY THE WITNESS: That one of the items was stolen.

Q. And which item was that?

A. It was a Sony cassette tape recorder.”

Acting upon this information, a county detective went to appellant’s residence the next day, without a warrant, and the following ensued:

“A. I approached the Defendant, advised him of his Constitutional rights and explained that the stolen property was observed and verified in his home the night before by the uniformed officer.

Q. Now, what rights specifically did you advise the Defendant of?

A. From my Waiver of Rights card I advised Mr. Wilson that ‘You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and to have him with you during questioning. If you cannot afford a lawyer, one will be appointed for you before a statement is taken if you wish. If you decide to give a statement, you still have the right to stop at any time so that you may talk to a lawyer.’ Then I asked him if he understood the rights I have explained to him and he acknowledged that he did.

Q. And what happened next?

A. I asked him if he would relinquish the property that was in his home, the cassette, Sony cassette tape player and I provided the serial number.

Q. And what did Mr. Wilson tell you in regard to that?

A. It was in his room and he led me up there.

BY THE COURT: He did what?

BY THE WITNESS: He led me up there.

Q. And did there come a time when you examined the cassette that looks similar to the one that had previously been described to you?

A. I did.

Q. And what, if anything, did you observe about that cassette?

A. Well, the serial number of 30185 was affixed to the cassette player and matched to the one reported by the claimant in the break-in of his home in February.

Q. Now, who was the person that returned that cassette to you?

A. The Defendant.

Q. What, if anything, did you do after that?

A. The recovered stolen property and the Defendant were transported to Crimes Against Property, Oxen Hill.”

Guided by the directive of Schneckloth v. Bustamante, supra, we have looked at the circumstances of the consent to seize and, as in Whitman v. State, 25 Md. App. 428, 456, we find the atmosphere of the search and seizure critically suggestive of coerced consent.

It was made abundantly clear by Judge O’Donnell in Everhart v. State, 274 Md. 459, that, when information serving as a basis for probable cause was obtained or derived as a result of an illegal search, the doctrine of the “fruit of the poisonous tree” (set forth in Wong Sun v. United States, 371 U. S. 471 and held applicable to the states by Brown v. Illinois, 422 U. S. 590, 45 L.Ed.2d 416) applies to preclude the use of such information as the basis of a search warrant. Judge O’Donnell wrote:

“The doctrine of the ‘fruit of the poisonous tree’ extends the scope of the exclusionary rule to bar not only evidence directly seized, but also evidence indirectly obtained as a result of information learned or leads obtained in the unlawful search; in its broadest sense it prohibits the prosecution from using in any manner, prejudicial to the accused, information derived from facts learned as a result of the unlawful acts of law enforcement agents. Once a defendant, with requisite standing, has timely and factually asserted that the challenged evidence was derived from information obtained in an unlawful search and seizure, the court must afford him an opportunity to explore in detail the circumstances under which the evidence was acquired; if the defendant establishes that the evidence resulted from an unlawful search and seizure such evidence cannot be used at all unless the prosecution can convince the trial court that it had an independent origin or that the information gained in the unlawful search did not lead directly or indirectly to the discovery of the challenged evidence.” Everhart v. State, 274 Md. at 481-482.

The State first contends that, since there was no arrest until after appellant voluntarily relinquished the cassette recorder, the probable cause for appellant’s arrest was not the “fruit” of the initial search. We view this argument as specious. Without the information obtained by the county police officer during the federal agents’ search for narcotics, the encounter between the detective and appellant and appellant’s subsequent consent to the seizure would never have occurred. Nor can the State justify a seizure and arrest on the basis of articles seized pursuant thereto as pointed out in Johnson v. United States, 333 U. S. 10, 17,

“This will not do. An officer gaining access to private living quarters under color of his office and of the law which he personifies must then have some valid basis in law for the intrusion.”

We must, therefore, examine the validity of the initial search. The State attempts to justify the original search upon the doctrine of “plain view” set forth in Coolidge v. New Hampshire, 403 U. S. 443. This doctrine was discussed in depth in Brown v. State, 15 Md. App. 584, 603. Judge Moylan explained the doctrine in the words of the Supreme Court:

“In giving voice to the Frankfurter rationale, Coolidge stated, ‘The ‘plain view’ doctrine would normally justify as well the seizure of other evidence that came to light during such an appropriately limited search. . . . Where, however, the arresting officer inadvertently comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the arrestee, the officer may seize it, so long as the plain view was obtained in the course of an appropriately limited search of the arrestee.’"

Although Brown did not turn upon the “plain view” doctrine, but rather on what Judge Moylan termed “open view,” we did acknowledge through Brown that we accepted the plurality opinion in Coolidge. Coolidge unequivocally condemns what was done here:

“Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” Coolidge, 403 U. S. at 466.

Just as the plain view doctrine will not justify the seizure of suspicious articles which are not obviously “evidence” of a crime, it also will not justify the copying of serial numbers from articles found on the premises, but unrelated to the object of the search, in order to determine later whether they are stolen goods. There would have been little difference in the result had the officer seized the items whose numbers he listed and later returned all but the one which his investigation revealed to have been stolen. It is not the subsequent seizure we find abhorrent, but rather the rummaging about as if under a general warrant, in hopes of finding something illicit. It was not “immediately apparent” to the officer that the goods he listed were stolen, even if their quantity did arouse suspicion. It was only when he received the computer report that his suspicions were confirmed. In short, he had no probable cause to justify an indiscriminate seizure of all items that happen to be visually in plain view. Cf. Dixon v. State, 23 Md. App. 19, 31. Nor did the process of cataloguing serial numbers in any way coalesce with the search for narcotics permitted by the warrant, although the State argues otherwise:

“Q. Now, did you observe whether or not the Federal Officers searched the particular bedroom to which you referred before?

A. Not the whole time they were there. Right about the end, the last ten minutes I was in the bedroom, yes.

Q. Was the bedroom searched by the officers?

A. Yes.

Q. And when they searched the bedroom, did they go into drawers or closets or whatever?

A. Yes, they did.

Q. And that was also done under the Search Warrant?

A. Yes.

Q. And where were these items you looked at?

A. There were some sitting on top of the drawer, the dressers, on the floors.

Q. The items that you took the serial numbers off of, could you have walked in that room without moving some of those items?

A. Yes, I could have walked in it, yes.

Q. Could you have searched during the course of the search for the narcotics — would the officers have moved some of these items anyway, as part of their search?

A. Yes, sir.

Q. So then you didn’t do anything that the officer — that the Federal Officers were not doing anyway as a result of their search for the narcotics?

A. That is correct.”

Although the federal officers may also have moved the articles in the process of searching for narcotics, the copying of the serial numbers in no way related to their search.

It is apparent that the information obtained by the county officer, which ultimately led to appellant’s arrest, was the product of an illegal search, for it was outside the scope of the warrant. This information was subsequently used to obtain consent to seize the stolen item. The appearance of the valid warranted search was used prefatorily by the detective in eliciting the consent by explaining “that the stolen property was observed and verified in his home the night before by the uniformed officer.” The consent to seize was premised upon an obvious belief that the search disclosing the stolen property was a valid one. Although the voluntariness test of Schnecklotk does not in most instances compel a “knowing and intelligent waiver” formulation of Johnson v. Zerbst, 304 U. S. 458, the State may no more violate the Fourth Amendment by guile than by forcible entry. Cf. Gouled v. United States, 255 U. S. 298, 305-306. That primary taint, though not dispositive in and of itself, is indicative of a “more subtle form of coercion that might flaw his judgment”, United States v. Watson, 423 U.S. 411, 18 C.L.R. 3051, 3055, and is nonetheless a significant factor entering into “the totality of circumstances” which we must consider in determining the voluntariness of the subsequent consent. Exercising, as we must, our independent, reflective constitutional judgment, Walker v. State, 12 Md. App. 684, and bearing in mind the heavy burden upon the State to justify an exemption from the warrant requirement, we do not find under all of the circumstances of this case that the consent “was in fact voluntarily given, and not the result of duress or coercion, express or implied.” Schneckloth v. Bustamonte, 412 U. S. at 248. We think the State has failed to meet its burden of showing that the consent was, in fact, freely and voluntarily given. Bumper v. North Carolina, 391 U. S. 543, 548; Everhart v. State, 20 Md. App. 71, 98.

Judgment reversed.

Costs to be paid by Prince George's County.


author: Gilbert, J.,

text:
    JOHN EDWARD DOWNS v. STATE OF MARYLAND
    [No. 524,
    September Term, 1975.]

      Decided February 3, 1976.

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

      Alan J. Goldstein, Assigned Public Defender, with whom was John E. Pleisse, Assigned Public Defender, on the brief, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, David B. Allen, Assistant Attorney General, and George R. Sparling, State’s Attorney for St. Mary’s County, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

The appellant, John Edward Downs, was convicted by a jury in the Circuit Court for St. Mary’s County of disorderly conduct, resisting arrest, and assault and battery. Appellant was sentenced to terms of sixty days in the county jail and to two concurrent three-year sentences under the jurisdiction .of the Division of Correction. A sentence review panel, convened pursuant to Md. Rule 762 c 2, altered the original sentences. The panel resentenced appellant to sixty days, three years and three years, respectively under the jurisdiction of the Division of Correction. All sentences were made concurrent and they were suspended. The appellant was placed on probation “. . . for an indeterminate period. . . .”*

On appeal to this Court, appellant challenges the sufficiency of the evidence as to the disorderly conduct charge. He further complains of the trial judge’s advisory jury instructions as they related to appellant’s failure to obey a command of a police officer. We shall discuss the latter contention first.

Appellant recognizes that he failed to except to the trial judge’s instructions, and, therefore, under Md. Rule 756 g he may not now raise any question of error unless there was “plain error” in the instructions. Judge Powers, writing for this Court in Brown v. State, 14 Md. App. 415, 422, 287 A. 2d 62, 65 (1972), cert. denied, 265 Md. 736 (1972), explained “plain error.”

“. . . [A]s a general guide, we may say that under Rule 756 g we will take cognizance of and correct an irremediable error of commission, but not an error of omission. Of course, the error must be plain, and material to the rights of the accused, and, even then, the exercise of our discretion to correct it should be limited to those cases in which correction is necessary to serve the ends of fundamental fairness and substantial justice.”

The trial judge had instructed the jury that:

“. . . If you find that the Government [sic] has proven beyond a reasonable doubt that the Defendant failed to obey a policeman’s command to move on when not to do so may have endangered the public peace, you may find the Defendant guilty of the misdemeanor of disorderly conduct.”

While the quoted instruction may be correct as a general principle of law, it was erroneous under the circumstances of this case because there was no evidence whatsoever of the appellant’s being told to “move on”. According to the arresting officer, Trooper Taylor of the Maryland State Police, the charge of disorderly conduct arose out of the appellant’s indecorous remarks that “ ‘. . .all the goddamn policemen in this County are no fucking good, they’re just after me/ ” supplemented by a further comment that “[‘] . . . the fucking niggers in this County are no better than goddamn policemen.[’]” The trial judge’s seemingly gratuitous charge about failing to obey a police officer’s command to “move on” was made without benefit of any evidence to support it. It was an error of commission, but even so we do not believe that “fundamental fairness and substantial justice” require us to reverse the judgment. We so believe because we fail to see how appellant was prejudiced by the instruction. There was, as we have said, no evidence upon which the charge could be bottomed. The jury, having heard the testimony, was aware that the police officer never testified to ordering appellant to “move on”. Appellant’s movements were not ever in question. The matter was limited to appellant’s verbalizing of tasteless remarks. Furthermore, we think that had appellant requested that the erroneous instruction be corrected, the trial judge would have readily done so. The belated recognition by the appellant of the superfluous instruction “. . . does not call for us to correct it now.” Brown v. State, 14 Md. App. at 422. The standard dealing with “plain error” is set by Rule 756 g. The recent decision of Dorsey v. State, 276 Md. 638, 350 A. 2d 665 (1976) is not applicable thereto.

Appellant’s argument concerning the sufficiency of the evidence is founded upon the First Amendment to the Constitution as well as Art. 40 of the Maryland Declaration of Rights. Appellant strenuously argues that his freedom of speech has been abridged.

The evidence in this case shows that the appellant was a patron in the Galley Restaurant in Lexington Park, Maryland. Trooper George W. Taylor of the Maryland State Police entered the restaurant for the purpose of meeting a complainant as well as having breakfast. The restaurant was crowded. The trooper took a seat at a table approximately eight feet from where the appellant and three other persons were seated in a booth. The restaurant was fairly noisy. Taylor heard appellant exclaim “. . . in a moderate to above normal tone . . .” that, “ ‘. . . all the goddamn policemen in this County are no fucking good, they’re just after me.’ ” Taylor said that he felt that the remark was directed toward him, but he let the matter pass. “After two, three, four minutes of this above-normal tone he [appellant] began talking louder and it was at the point of yelling, and he not only was at this time talking about the GD policemen and picking on him and beatin’ up on him, so forth, he started talking about [‘]the fucking niggers in this County are no better than goddamn policemenf]”. Appellant acknowledged that he made a comment about police officers which included the profanity described by Taylor, but he denied making the racial slur.

Taylor told the jury that approximately ten (10) percent of the patrons were black. He stated that two young black women were seated “. . . at the counter which was across from his [appellant’s] booth approximately four feet away.” When the racial slur allegedly was uttered by appellant, Taylor went over to the booth in which appellant was seated and “. . . advised Mr. Downs [appellant] that he would have to refrain from the profanity and tone down his tone of speaking, that it was disruptive. . . .” Appellant purportedly replied, “ ‘Well, who in the fuck said anything to you, anyway? You’re not in this goddamn conversation.’ ” Taylor warned that if appellant did not “ ‘. . . refrain from . . . yelling and . . . [using] profane language . . he would be placed under arrest. Appellant informed the trooper that, “ ‘You ain’t bad enough to place me under arrest.’ ” Appellant was wrong. He was placed under arrest by the trooper. When the trooper grabbed appellant by the arm the appellant, according to the trooper, “. . . broke loose . . . and struck . . . [the trooper] across the arm and left part of . . . [his] chest.” A struggle ensued with the trooper eventually prevailing.

We note that at the time of arrest and at the time of trial appellant was carrying what he apparently believed to be a “license for police baiting.” Appellant, at the trial, produced a page from an unidentified publication in which the following was reported:

“LAW AND ORDER
You can call your local cop a MOTHER (fornication expletive deleted) PIG or any other name and there is NOT A THING he can do to you LEGALLY, not even tell you to shut up. . . . The U.S. Supreme Court has said so INDIRECTLY by refusing to back Arkansas in a recent COP BADMOUTH case. . . .”

Perhaps appellant would have exercised more discretion had he been mindful of an old folk saying that, “It ain’t the things you don’t know what gets you into trouble; it’s the things you know for sure what ain’t so.” Best Quotations for All Occasions 126 (L. Henry 1948).

Appellant was tried in the circuit court on a Statement of Charges, after praying, at the District Court, a jury trial.

Md. Ann. Code, art. 27, § 123 (c) provides:

“No person shall act in a disorderly manner to the disturbance of the public peace, upon any public street, highway, . . . place of public worship, . . . or amusement in any city, town or county of this State, or in any store during business hours. ...”

Appellant asserts that in order to be punishable, the words that he used in his conversation with the two women and a man that were seated in the booth with him, must be either “obscene” or “fighting words.” Reese v. State, 17 Md. App. 73, 299 A. 2d 848 (1973). There was within this record no evidence that the objectionable language was erotic or produced “psychic stimulation.” Reese, 17 Md. App. at 80-81, citing Cohen v. California, 403 U. S. 15, 91 S. Ct. 1780, 29 L.Ed.2d 284 (1971). To be obscene in the Constitutional sense, the words employed must conjure up in the mind of those confronted with the words of the expression some erotic psychic stimulation. Reese v. State, supra; Matter of Nawrocki, 15 Md. App. 252, 260, 289 A. 2d 846, 851 (1972). See also Cohen v. California, supra. Consequently, we must determine whether the epithets hurled by appellant fall within the definition of “fighting words.” If they do not, then appellant has not violated the provisions of the Maryland “Disorderly Conduct” statute. Reese v. State, supra.

Mr. Justice Murphy, writing for a unanimous Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942) defined “fighting words” as “. . . those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” 315 U. S. at 572. We infer that by the use of the phrase “inflict injury” the Court was speaking of injury to the psyche, the ego, the id, the emotions. The Court, in Chaplinsky, implicitly branded as incorrect the old English cliche, “That sticks and stones will break my bones but words can never harm me.”

The First Amendment proviso relative to “freedom of speech” was never intended by our founding fathers to license any and all use of profane language under any and all circumstances. “Speech is not an absolute, above and beyond control by the legislature when its judgment, subject to review here, is that certain kinds of speech are so undesirable as to warrant criminal sanction.” Dennis v. United States, 341 U. S. 494, 508, 71 S. Ct. 857, 866, 95 L. Ed. 1137, 1152 (1951) (C. J. Vinson). Stated another way, free speech is not an absolute, unencumbered by any responsibility on the part of the speaker. Mr. Justice Holmes in Schenck v. United States, 249 U. S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470, 473 (1919) made clear that free speech carries with it some concomitant duty, when he wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that . . . [the legislature] has a right to prevent. It is a question of proximity and degree.”

While the appellant admitted using “. . . a word from that [the above quoted article]”, he denied that he was referring to Trooper Taylor. We think, however, that a rational inference may be drawn from the appellant’s possession of the article and his acknowledgment that he used a word therefrom in his disparaging “anti-police” comment made in a loud voice, that appellant was, in fact, goading the trooper.

The courts have differed as to whether pejorative remarks similar to those voiced by appellant constitute “fighting words”, but we need not and do not decide in this case that question because the trooper’s testimony that the disdainful comment “ ‘. . . the goddamn policemen in this County are no fucking good . . .’” merely “caused” the officer “. . . to turn and look towards him [appellant].” Patently, Trooper Taylor was not aroused by the derisive epithet and, apparently, having been trained to resist provocation, he elected not to respond to the appellant’s self-proclaimed ignorance.

We turn now to a discussion of the second comment passed by appellant, the remark which led to his being initially admonished by the trooper and within seconds thereafter arrested for disorderly conduct.

It has often been said that, “A little knowledge is a dangerous thing.” Appellant has unwittingly proven, in this case, the wisdom of that maxim. The Supreme Court case to which the above quoted article alludes is not named or cited in the article nor has either the appellant or the State referred to it in their respective briefs. Our research, however, leads us to believe that the case which is unidentified in the article is Lucas v. State, 254 Ark. 584, 494 S.W.2d 705 (1973) which the Supreme Court, by order, without an accompanying opinion, Lucas v. Arkansas, 416 U. S. 919 (1974), vacated and remanded “ . . . for further consideration in the light of Lewis v. City of New Orleans, 415 U. S. 130 (1974).” We do not know what happened as a result of the remand, but the Supreme Court in Lucas merely vacated the judgment; it did not reverse it. Reliance upon such a slender reed for a course of conduct that appears to be calculated to bring about a confrontation with a police officer is, at the very least, foolhardy.

In any event, neither Lucas nor Lewis laid down a new set of guidelines nor did either differ from Chaplinsky. Lewis held a New Orleans City ordinance proscribing the use of “opprobrious language” as being overly broad and outside the scope of Chaplinsky’s definition of “fighting words.” Lucas was remanded in order for the Arkansas court to determine whether that State’s statutory language was without the ambit of Lewis. Both Lucas and Lewis were concerned with language used toward police officers. Neither addressed itself to a situation akin to that now before us.

The question that we must answer is: Are the words “[‘]. . . the fucking niggers in this County are no better than goddamn policemen[’]” considered “fighting words” within the meaning of Chaplinsky? We have previously indicated in Reese v. State, supra, that “. . . derisive and annoying words would be ‘fighting words’ only when they have the characteristic of plainly tending to excite the addressee to a breach of [the] peace.” 17 Md. App. at 82. The coarse, vulgar remarks passed by appellant in a loud, “yelling” type of voice, under the circumstances of this case, we think, entitled the trier of fact to infer that the strong racial slur “inflicted injury” and “tend[ed] to incite an immediate breach of the peace.” We do not believe that the State must demonstrate that a riot or fight was on the verge of occurring, and, but for the officer’s intervention, would have happened. In our view, it is enough for the State to show the words used were such that men of common intelligence would understand that such words would so arouse emotion that the average person or persons to whom they were addressed, directly or indirectly at the time spoken, would be stirred to the point of violent eruption or fighting.

We hold that the expression “[‘]the fucking niggers in this County are no better than goddamn policemen[’]” spoken in a loud voice or “yelled” in a restaurant filled with a racially mixed crowd were “fighting words” falling within the definition of that term, as it is used in Ckaplinsky. We observe no error on the part of Judge Mattingly in refusing to grant a judgment of acquittal at the close of the evidence inasmuch as there was sufficient evidence of a violation of the Disorderly Conduct statute to take the matter to the jury.

Appellant does not assert any contention that the evidence was legally insufficient to sustain the assault and resisting arrest convictions. He is seemingly content to ground his attack on the circuit court’s judgment along the Constitutional lines previously discussed. Appellant obviously feels that if his conviction for disorderly conduct fell, the arrest would of necessity be invalid and his subsequent conduct would be lawful. Midgett v. State, 216 Md. 26, 139 A. 2d 209 (1958). Appellant, however, has not prevailed. The arrest and conviction for disorderly conduct are proper, and, hence, the assault and resisting arrest convictions, it follows, will be affirmed.

Convictions affirmed.

Sentences vacated and case remanded for the imposition of proper sentences.

      . We made it clear that probation may not be for an indefinite period of time. See Laurie v. State, No. 359 Sept. Term 1975, C.S.A., filed January 2, 1976. See also Md. Ann. Code art. 27, § 641 A, wherein it is provided that probation may be “. . . for a period longer than the sentence but not in excess of five years.”

      . Md. Rule 725.

      . The statute provides penalties of a fine of not more than $50, or confinement in jail for not more than sixty (60) days or both.

      . Cohen was another five to four decision. The late Mr. Justice Harlan authored the majority opinion and was joined therein by Justices Douglas, Brennan, Stewart, and ¡Marshall. Mr. Justice Blackmun dissented; the Chief Justice and the late Mr. Justice Black joined the dissent. Mr. Justice White joined the dissent in part. Two of the majority and one of the minority are no longer on the Court.

      . See Annot., 34 A.L.R. 566 (1925) (Opprobrious words addressed to policeman as breach of peace). Remarks were deemed to constitute “fighting words” or disorderly conduct in Landry v. Daley, 288 F. Supp. 183 (N.D.Ill. 1968); Whited v. State, 256 Ind. 386, 269 N.E.2d 149 (1971); City v. Morris, 258 Minn. 467, 104 N.W.2d 902 (1960). Contra Oratowski v. Civil Service Comm’n, 3 Ill. App. 2d 551, 123 N.E.2d 146 (1954); City v. Guidotti, 81 Ohio L. Abs. 33, 160 N.E.2d 355 (1958); Lane v. Collins, 29 Wis. 2d 66, 138 N.W.2d 264 (1965).

      . Mr. Justice Blackmun filed a vigorous dissent. He was joined therein by the Chief Justice and Mr. Justice Rehnquist. The text of the dissent is reported in 416 U. S. 919-922.