text:
    BOYD RAYMOND BROOKS, JR. v. STATE OF MARYLAND
    [No. 331,
    September Term, 1974.]

      Decided January 16, 1975.

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

      Stephen A. Tarrant, Assigned Public Defender, for appellant.

      Bernard A. Rawm, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Edwin H. W. Harlan, Jr., State’s Attorney for Harford County, Peter C. Cobb and John A. Goodman, Assistant State’s Attorneys for Harford County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The prosecuting witness, a girl of twenty-one years, was ravished by an apparent sadist who entered her automobile at the point of a gun. In the face of a knife brandished by him as she drove, she submitted to his instructions. After raping her thrice, he forced her out of the car, bent her over its trunk and committed three acts of sodomy. She was then forced to her knees by his hands on her shoulders and around her throat. She was forced to commit fellatio, whereupon she lapsed into unconsciousness — thankfully, notwithstanding she was choked into that oblivious state.

When she awoke she was face down on the ground, in great pain and hardly able to swallow. What clothes there were remaining on her had been cut, ripped and violently disheveled. Her pierced earrings were missing and a pendent she had been wearing was subsequently found tangled in her hair. Her neck, head and body were a mass of bruises, cuts and abrasions. “. . . I lay there on the ground because I couldn’t stand up. I felt like somebody had jumped up and down on my back. My whole body ached. I laid there and I was like whining.” She subsequently found that a large “X” had been carved into her forehead.

A jury presided over by Judge Albert P. Close of the Circuit Court for Harford County, convicted Boyd Raymond Brooks, Jr. of rape, kidnapping, assault with intent to maim, and assault and battery. The consecutive sentences imposed by Judge Close totalled 80 years imprisonment. Appellant appealed. We affirm.

Equal Protection

Appellant first claims that the rape statute, Md. Code, Art. 27, § 461, denies him equal protection of the law in violation of the Fourteenth Amendment of the Constitution of the United States and abridges his equality of rights because of sex, Article 46 of the Declaration of Rights of the Maryland Constitution.

Although appellant questions the constitutionality of the rape “statute,” the statute itself simply establishes the penalty for the common law crime of rape. We will nonetheless accept appellant’s general proposition that judicial interpretation has treated rape as a masculine crime. Other than as a principal in the second degree, Clark and Marshall, Crimes, (7th ed.), § 8.10; cf., Mumford v. State, 19 Md. App. 640, a female can only be the victim of rape, not the perpetrator. This is true notwithstanding the penalty statute’s use of the term “person” without distinction as to sex. Hazel v. State, 221 Md. 464.

As the Supreme Court pointed out in Reed v. Reed, 404 U. S. 71, 75-76, a case dealing with sex discrimination:

“. . . this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways . . . [It] does, however, deny . . . the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. . . .’ ” [Citations omitted].

That only females may be raped is nothing short of a physiological reality, and it is equally clear that the object of the statute is to protect them from that eventuality. Like the Wisconsin courts, we

“. .. do not feel called upon to engage in a dissertation of the physiological, medical, sociological and moral problems as they relate to a ' woman subjected to such a possible pregnancy and those same problems as they relate to a potentially unwanted child.” State v. Ewald, 63 Wis. 2d 165.

In our view, protection of females from rape is both a legitimate and essential legislative objective. Since only males can perpetrate that crime as principals in the first degree, the limitation of culpability to males constitutes a rational classification directly related to the objective of the criminal penalty. “Normally, a legislative classification will not be set aside if any state of facts rationally justifying it is demonstrated to or perceived by the courts.” United States v. Maryland S. S. Ins. Corp., 400 U. S. 4, 6. Surely, the state of facts in a rape situation, most sordidly demonstrated by the case at bar, rationally justify the sex classification at issue. Both the Wisconsin and Arizona courts are in accord, Ewald, supra; State v. Kelly, 16 Crim. L. Rptr. 2115; though we hardly need precedent to resolve so strained an argument.

The equality of the sexes expresses a societal goal, not a physical metamorphosis. It would be anomalous indeed if our aspirations toward the ideal of equality under the law caused us to overlook our disparate human vulnerabilities.

Deceased Witness’s Testimony

In a preliminary hearing on a pre-trial motion to suppress evidence, appellant received an advisory opinion that if he proffered a transcript and sound record of testimony given at a bond hearing by an alibi witness who was killed before trial, such proffer would be denied.

“THE COURT: Then there is a motion to dismiss the indictment, which is denied.
There is a motion to suppress identification, which is denied.
There is a motion to suppress certain statements. These are statements not only of the defendant, I believe, but also statements that were made by a deceased person by the name of Elizabeth Zellman, sometimes called Betty Zellman.
MR. TARRANT: I didn’t have a written motion. My plan was —
THE COURT: You had an oral motion. At least we heard testimony with regard to that and arguments.
MR. TARRANT: Well, if it please the Court, my plan would be, as part of my case, to proffer the testimony to the Court, outside the jury’s presence, and then the Court can rule on it.
THE COURT: Well, we will preliminarily have advised you that I would not permit this testimony to come in. That involves a statement made by her to Trooper Dahl, and also a transcript of the — of a bail hearing in the District Court.
MR. TARRANT: And the statement she made to Cpl. Hoopes.
THE COURT: That is right, with regard to the polygraph examination.” [Emphasis added].

The evidence was not offered during the trial of the case. We think that the appellant waived this proffer by failing to offer it during trial, under the same reasoning we applied in Townsend v. State, 11 Md. App. 487, cert, denied, 262 Md. 750; and Jones v. State, 9 Md. App. 455, cert, denied, 258 Md. 728. In those cases motions were made before trial to exclude evidence and denied after an evidentiary hearing. In those cases when the evidence was offered at trial it was received without objection. There we held that the question of admissibility of the evidence was not before us. We reach the same conclusion here under Md. Rule 1085. The judge’s phraseology indicated that he was treating the ruling on the proffered motion as advisory only. In no way did it preclude appellant from preserving his proffer by properly submitting it during trial. It should not pass without notice that counsel himself spoke in terms of indefinite future intentions, “. .. my plan would be, as part of my case, to proffer the testimony to the Court, outside the jury’s presence, and then the Court can rule on it.” [Emphasis added]. There is nothing to indicate that appellant was restricted from making the proffer, nor does the record show that understanding by appellant.

Theological Uplift

During cross-examination the court permitted a minister to sit near the prosecuting witness who had, shortly before luncheon recess “virtually fainted after being removed from the courtroom.” Following an afternoon recurrence, the court permitted the family minister who had been “counseling her since the date of this incident” to sit near her. Appellant moved for a mistrial which was denied by the court:

“MR. TARRANT: Well, I move for a mistrial, if your Honor please, on two grounds. First of all, because of the fact that the prosecuting witness almost fainted in the presence of the jury. I think it has been prejudicial to the defendant and I think that he is thereby unable to receive a fair trial from the jurors. The second ground for the motion is that the court has permitted or is permitting the Reverend Jennings to lend assistance to the witness while she is on the witness stand. And I know of no rule which allows the Court to permit such assistance from a third person.
THE COURT: Well, let me just say this in connection with that, with that objection. I am —
MR. TARRANT: Motion for mistrial.
THE COURT: Motion for mistrial. With regard to the second ground, this person is not by any stretch of the imagination authorized to give any assistance in testimony of this witness. He is there in the event she again becomes physically impaired, perhaps in the sense that she begins to faint, and is really there to hopefully encourage her by his presence only, to keep her strength. With regard to the mistrial, because this person virtually fainted in front of the jury, there is no guarantee that she will, in the presence of some other jury, not have this certain same condition occur, and it is unfortunate, but the Court will deny the request for a mistrial.”

At the conclusion of the victim’s testimony the court, sua sponte delivered a cautionary instruction immediately. before the incident lapsed from the jury’s conscious memory.

“THE COURT: Now, ladies and gentlemen of the jury, before we take another witness, I want to say a little something to you. You are entitled, in the course of your consideration of the whole case, to observe, of course, the demeanor of the witnesses on the witness stand and so forth. However, you should not let the fact that the prosecuting witness in this case virtually fainted in your presence, in the course of cross examination, unduly influence your consideration of her demeanor to the extent that you unfairly consider all of the evidence in the case to the prejudice of the defendant. That is all I am saying. You consider her demeanor other than perhaps the fainting fact. None of us know how we may be physically. All right.”

Although the practice of having clergy in apparent attendance for witnesses is certainly not one to be recommended in criminal trials, the error here, if any, was harmless. The necessary ordeal of testifying publicly and repeatedly in detail of the indignities to which a rape victim is subjected, especially the perversions and ravishment endured by this one, cannot be regarded callously. The court did nothing more than allow some amenities to sustain her. The comatose state nature provides to block from our minds such episodes as well as the sanctifying presence of clergy could indeed elicit sympathy for the victim, but we find it difficult to see how it could have significantly influenced the jury. Appellant’s defense was not consent but rather that he was elsewhere when the crime was committed. We see no prejudice nor indeed any abuse of discretion in denying the motion for mistrial. Lusby v. State, 217 Md. 191; Kelly v. State, 16 Md. App. 533, aff'd. 270 Md. 139.

Circumstances of a Previous Conviction

After electing to testify, appellant chose to anticipate the State’s attack on his credibility by having counsel question him regarding prior convictions. He volunteered that he had pled guilty to the crime of assault with intent to rape in Florida. The trial court sustained an objection to an attempt to explain why he so pled. In Donnelly v. Donnelly, 156 Md. 81, 86 the Court of Appeals said:

“In order to restore the credibility of a witness so attacked, the party may not give evidence that he was not guilty of the crime, since the conviction is conclusive evidence of his guilt, but, although good ground may be assigned and authority found for a different conclusion, the sounder and fairer rule seems to be that the witness may be allowed to explain the circumstances of the offence, if in extenuation of the act and in mitigation of its effect.” [Emphasis added].

Appellant proffered precisely that which the Court of Appeals prohibited:

“. . . But, if it please the Court, I would proffer that he would say that he was not guilty of the crime charged but that his counsel advised him that the death penalty was still in effect and that rather than risk the uncertainty of the death penalty he chose to plead guilty after he was promised probation, but the fact is that he would state that he wasn’t guilty of the crime. I don’t want to open up the facts.” [Emphasis added].

That this evidence was proffered on direct rather than after impeachment is a distinction without a difference. The ruling was correct.

Similar Evidence Rule

A “steak” knife was introduced in evidence which was one of several found in appellant’s mother’s home where he resided. The knife fit the description given by the victim of the one used by the assailant. It seems the court anticipated a general objection to its introduction which objection does not appear in the transcript, having apparently come forth just as the court said “Overruled” upon the State’s offer of the knife. Appellant did object to the police writing on the envelope containing the knife, however, which objection was sustained.

Even assuming appellant had preserved the issue by objection, we see no error. His complaint apparently is that the knife was not proffered as the weapon used by appellant but only as one like it.

“The rule is well established that physical evidence need not be positively connected with the accused or the crime to be admissible; it is admissible where there is a reasonable probability of its connection with the accused or the crime, the lack of positive identification affects only the weight of the evidence.” Doye v. State, 16 Md. App. 511, 519, cert, denied, 268 Md. 747.

The Doye court had earlier noted at 518:

“ ‘It is also relevant to show that the defendant owned or had access to any article with which the crime was or could have been committed. [Emphasis added].’ ” Citing 1 Wharton, Criminal Evidence, (12th ed.) § 203 at 408.

We see no error.

Effective Assistance of Counsel at the Line Up

Appellant raises three questions regarding the line up identification: effective assistance of counsel, dissimilarity of participants, and a suggestive pre-line up identification. Our review of the record included the photographic identification testimony as well as a picture of the line up placed in evidence, neither of which bears out the assertion of appellant. Even were that not so, these questions are intrinsically part of the effective assistance of counsel issue which was not raised below and hence, is not now reviewable, Md. Rule 1085. Resolution of this issue must be had, if at all, by way of post-conviction relief. White v. State, 17 Md. App. 58, cert, denied, 268 Md. 754.

Publicity During Trial

Failure to show prejudice inclines us to affirm the lower court’s denial of a mistrial motion based on a newspaper report of the progress of the trial. “Prejudice must be shown as a ‘demonstrable reality’ and not as a ‘matter of speculation’ ” for this Court to find that a trial judge abused his discretion in denying a motion for mistrial. Baldwin v. State, 5 Md. App. 22, 28, cert, denied, 252 Md. 729.

Inflammatory Photographs

We have reviewed the photographs of the victim’s wounds, cuts and abrasions and see no abuse of discretion in their admission into evidence. Carroll v. State, 11 Md. App. 412, cert, denied, 262 Md. 745.

Chain of Custody

Appellant questions the admission into evidence of hair samples taken from him based upon a questionable chain of custody. We do not require an absolute chain of custody; rather a showing of reasonable probability that no tampering with any evidence has occurred. Bailey v. State, 16 Md. App. 83; State v. Tumminello, 16 Md. App. 421. Our review of the record satisfies us that such reasonable probability exists.

The “Harley Hog”

The victim’s testimony indicated that when she first saw appellant he was standing in the road in front of her headlights. Behind him there was a large motorcycle traversing the road. She recalled being “tailgated” just before this by a motorcycle.

Appellant came to the car, pointed a gun at her with threatening words and gestures, and held her at bay while he pushed the motorcycle to the side of the road. Professing that a demonstration would show that it was impossible for a cycle as large as appellant’s to be so handled, he proposed:

“. . . to have someone my own size, or bigger, or anyone, someone of the jury, one of the men or anyone to take the cycle, hold it up, kick the stand down and push it forward, let it go back and lower it and pick it back up.”

The trial judge denied the request but did permit the jury to view the motorcycle parked outside the courtroom window.

Trial judges are vested with wide discretion in the area of permitting or denying demonstrations. The exercise of that discretion will not be disturbed on appeal unless abuse is apparent. O’Doherty v. Catonsville Plumbing and Heating Co., Inc., 269 Md. 371. We see no abuse.

Judgments affirmed.

      . It was impressed upon and understood by appellant that no proffer or discussion of the proffer should be made before the jury; however, the judge said:
      “Yes, and, Steve, you can. make this proffer again at the Bench, you know, with regard to this and/or if we are at a recess period or something.”

        . By appearance from the photographs and from references in the testimony, the motorcycle was a Harley Davidson 1200, the largest made, vulgarly referred to as a “Harley Hog.”


source: Caselaw Access Project

author: Gilbert, J.,

license: Public Domain

text:
    THE COMMISSIONERS OF POOLESVILLE v. COUNTY COUNCIL OF MONTGOMERY COUNTY, MARYLAND et al.
    [No. 370,
    September Term, 1974.]

      Decided January 16, 1975.

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

      Thomas J. Walker, Jr., with whom were Goldbum & Walker on the brief, for appellant.

      John B. Walsh, Jr., Assistant County Attorney, Donald H. Noren and Paul M. Vettori, with whom were Richard S.

      McKernon, County Attorney for Montgomery County, and Alfred H. Carter, Deputy County Attorney for Montgomery County, on the brief, for appellees.
   Gilbert, J.,

delivered the opinion of the Court.

The Commissioners of Poolesville, a body corporate and politic, filed in the Circuit Court for Montgomery County (County), a bill of complaint for a declaratory decree in which Poolesville alleged that it was harmed by the County’s failure to include Poolesville’s plan for sewage and water within the County’s ten year comprehensive sewage and water plan. The ten year plan adopted by the County is required to be so adopted' and submitted to the State Department of Health and Mental Hygiene (Department) for the Department’s approval, disapproval or revision. Md. Ann. Code art. 43, § 387C. Apparently cognizant of the general rule that an action for declaratory relief may not be brought in the courts until administrative remedies, where applicable, are exhausted, see Gingell v. County Commissioners, 249 Md. 374, 239 A. 2d 903 (1968), Poolesville interlaced within its bill allegations of the unconstitutionality of Md. Ann. Code art. 43, § 387C. The County, pursuant to Md. Rule 323, promptly raised preliminary objection by motion. In its motion, the County suggested that the Department was a necessary party to the suit. Following a hearing on the motion, Judge Walter H. Moorman upheld the County’s position and dismissed Poolesville’s complaint, with leave to amend. Thereafter, Poolesville amended its bill of complaint and named the Department as an additional party defendant. The relief sought in the amended bill was substantially the same as that prayed in the original bill.

The County, in its answer to the amended bill, denied Poolesville’s allegations, but the Department, in a motion raising preliminary objection, contended that the Circuit Court was without jurisdiction for the reason that Poolesville had not exhausted its administrative remedies. Judge Joseph M. Mathias agreed with the position of the Department and granted its motion. The judge then dismissed the bill. Poolesville appealed.

In 1969 the County adopted a ten year plan for water and sewage disposal. As of January 1973 the County amended its 1969 plan, and, by that amendment, allotted to Poolesville a maximum daily sewage discharge of 250,000 gpd. Under the provisions of then Md. Ann. Code art. 43, § 387C (b) 1. (I) the County could make such revisions from time to time in the plan as it deemed necessary to accomplish the plan’s objectives and policies. County plans “shall incorporate all or part of subsidiary plans of the towns, municipal corporations and sanitary districts within the county to the extent that such inclusion shall promote the public health, safety and welfare. ...” Md. Ann. Code art. 43, § 387 (b) 2.

I

It is axiomatic that courts will not address themselves to the constitutionality, vel non, of a statute if there is any reasonable basis upon which the case may be otherwise decided. Middleman v. Md.-Nat. Comm., 232 Md. 285, 192 A. 2d 782 (1963); Jeffers v. State, 203 Md. 227. 230, 100 A. 2d 10 (1953); Tyler v. The State, 93 Md. 309, 314, 48 A. 840 (1901).

In the instant case we view Poolesville’s constitutional attack as no more than a vehicle by which they seek to escape the administrative review provided by Md. Ann. Code art. 41, § 206B et seq. In order to bolster its position that it was properly in the Circuit Court, Poolesville relies upon Tanner v. McKeldin, 202 Md. 569, 97 A. 2d 449 (1953) wherein the Court of Appeals opined at 577:

“ . .. [W]here a statute provides a special form of remedy, the plaintiff should use that form rather than some other, although a constitutional issue may be decided in a suit for ... a declaratory judgment or decree before the time arrives for using the statutory remedy, provided that there is no danger of by-passing the administrative agency.” (Emphasis supplied).

The Tanner Court forbade the very thing Poolesville seeks to do, i.e., circumvent, through a declaratory action, the administrative agency.

Poolesville directs us to State Health Dep’t v. Walker, 238 Md. 512, 209 A. 2d 555 (1965). We find that case to be inapposite. There the Court of Appeals noted a procedural defect, and the defect led the Court to affirm the issuance of a writ of mandamus which required the State Health Department to issue certain permits. The defect was that no statutory provision existed for a hearing or review of the Department’s action, inaction or abuse of discretion. Such is not the case now before us. The Legislature, obviously aware of the Court’s decision in Walker, provided in Laws 1969, ch. 77, § 1 for the review procedure codified as Md. Ann. Code art. 41, § 206B.

Montgomery Co. v. Citizens B. & L. Assn., 20 Md. App. 484, 316 A. 2d 322 (1974), also relied upon by Poolesville, is both factually and legally inapposite. There we declined to invoke the doctrine of exhaustion of administrative remedies because we perceived it would have required a person to apply to the County Sign Review Board which Board was without “discretion to permit a variance for hardship cases”, and was thus devoid of authority to grant the relief sought. In the instant case the Department is empowered to grant the relief Poolesville seeks.

II

Md. Ann. Code art. 43, § 387C (b) 1. (I) provides:

“(b) Adoption of county plans; subsidiary plans; contents of plans. — 1. (I) The governing body of each county shall, adopt and submit to the Department, a county plan dealing with water supply systems and sewerage systems no later than January 1, 1970, and a complete county plan dealing also with solid waste disposal systems and solid waste acceptance facilities no later than January 1, 1974; and shall from time to time submit amendments or revisions of such plan, as it deems necessary or as may be required by the Department provided said governing body shall give notice to the principal elected official of any municipal corporation concerned, who shall be granted an opportunity to be heard with respect to such plans, amendments or revisions, and after said governing body has given reasonable opportunity for a public hearing to be held thereon.”

A County plan is defined by § 387C (a) to mean:

“1. ... a comprehensive plan and all amendments and revisions thereof for the provision of adequate water supply systems and sewerage and solid waste disposal systems and solid waste acceptance facilities throughout the county to include all towns, municipal corporations, and sanitary districts therein.”

Under the provision of § 388 of art. 43, the Department has conferred upon it “general supervision and control over the waters of the State insofar as their sanitary and physical condition affect the public health or comfort.” The Department is also charged with the responsibility of investigating “all sources of water and ice supply, and all points of sewage discharge.” Id. Section 388 provides in part:

“It shall examine all existing public water supplies, sewerage systems and refuse disposal plants, and shall have power to compel their operation in a manner which shall protect the public health and comfort, . . .”

If the Department finds that a county or municipality is not in compliance with § 388, it may, under §§ 391 and 392 of art. 43, order alterations or extensions to the existing system or plan.

It could be argued, of course, that Md. Ann. Code art. 43, § 387C (b) 1. (I) might be utilized by the County to impugn the zoning ordinances of Poolesville. If the County can, as here, adopt a plan controlling the water use and sewage discharge of a municipality, it may thwart Poolesville’s growth, thus directly affecting zoning. Be that as it may, the statute, ie., Md. Ann. Code art. 43, § 387C (f) provides:

“Conflict with other laws.'— The provisions of any zoning ordinance, subdivision regulation, building code, or other law of the State or any regulation adopted thereunder or any law, ordinance or regulation of any municipality or county of the State, establishing standards to which afford greater protection to the public health, safety and welfare of the community, shall not be limited or superseded to the extent of its or their greater protection by regulations adopted pursuant to this section.”

It is clear from a reading of § 387C (f) that the General Assembly of Maryland intended that all laws, ordinances and regulations of municipalities, counties or the State itself that impose “greater protection” than § 387C are not limited or superseded. It logically follows that those ordinances, regulations and laws that provide less protection than § 387C are limited or superseded. The State, acting through the Department, has elected to control growth, at least to the extent that such growth adversely affects water and sewage disposal. The Legislature, however, did not leave municipalities devoid of a remedy. Municipalities may seek redress before the Department and, finally, if necessary, before the courts.

We think Poolesville must comply with Md. Ann. Code art. 41, § 206B et seq. and exhaust its administrative remedies before it can seek a judicial review. As we see it, Poolesville is an aggrieved party within the meaning of Md. Ann. Code art. 41 by virtue of the Department’s action of March 6, 1973 approving the Montgomery County Council’s Resolution No. 7-1020, the amendment to the ten year water and sewage plan.

The Court of Appeals in Gingell v. County Commissioners, supra, set forth the reasons why there must be an exhaustion of administrative remedies before redress is sought in the courts. The Court, speaking through Judge Marbury, said at 376-377:

“. . . [I] t is within the expertise of the administrative agency involved to hear and consider the evidence brought before it and make findings as to the propriety of the action requested; courts would be performing the function that the legislature specified be done by the administrative agency; courts might be called on to decide issues that would never arise if the prescribed administrative remedies were followed; . . . [The agency’s] findings are ordinarily subject to review by the courts.”

The ultimate relief sought by Poolesville, videlicit, the inclusion within the County plan of the 600,000 gpd, in lieu of the 250,000 gpd, may upon review by the Department’s Board of Review be effected, and if such an occurrence took place, this case would be rendered moot. On the other hand, should the Department’s Board of Review accept the County’s plan or revise it so as to include less than the daily gallon discharge for which Poolesville opts, the town is at liberty to pursue the administrative remedies, as provided in the statute, Md. Ann. Code art. 41, § 206B et seq., before seeking judicial review.

In summary, our holding today is that ordinarily whenever an administrative agency has the authority to dispose of the issue by determining it in favor of the party seeking review, there must be an exhaustion of administrative remedies before recourse to the courts. 3 K. Davis, Administrative Law Treatise § 20.09 (1958). Gingell v. County Commissioners, supra; Gager v. Kasdon, 234 Md. 7, 197 A. 2d 837 (1964); Shpak v. Mytych, 231 Md. 414, 190 A. 2d 777 (1963); Berwyn Heights v. Rogers, 228 Md. 271, 179 A. 2d 712 (1962); Schneider v. Pullen, 198 Md. 64, 81 A. 2d 226 (1951); Kahl v. Cons. Gas, El. Lt. Pwr. Co. of Baltimore, 191 Md. 249, 60 A. 2d 754 (1948); Universal, Etc., Corp., Inc. v. Felser, 179 Md. 635, 22 A. 2d 448 (1941).

Order dismissing bill of complaint affirmed; costs to be paid by appellant.

      . The unit “gpd” is the measurement of gallons per day of sewage discharge.

      . This section was amended as of July 1, 1974. The changes, however, would not affect this opinion. The legislative action called additionally for a plan dealing with “a systematic program for the collection and disposal of litter, refuse or other solid wastes.”

      . Laws 1974, ch. 619, effective July 1, 1974 added “privately owned facilities and local, state and federal agencies having existing, planned or programmed development” after the words “sanitary districts” and before the words “with the county”.

      . This section was amended in Laws 1974 so as to delete the preposition ■“to” after the word “standards” and before the word “which”.

      . Under the existing law, not applicable at the time of the decision in this case by the Circuit Court, the Department may “make a revision” in the County plan. The authority to make such a revision is contained in Laws 1974, ch. 619, effective July 1,1974.


author: Lowe, J.,

text:
    ANTHONY MONTAGNA et ux. v. EVERETTE DALE MARSTON et al.
    [No. 374,
    September Term, 1974.]

      Decided January 16, 1975.

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

      Stanley H. Miller for appellants.

      Robert P. Slaby for appellees.
   Lowe, J.,

delivered the opinion of the Court.

This appeal was taken from the judgment of the Circuit Court for Howard County in equity, which denied the specific performance of a contract for the sale of land. The appellants, Anthony and Christine Montagna, residents of Connecticut, became interested in several lots situate in a proposed subdivision in Howard County which had been platted but not yet recorded nor approved by the Health Department. Through Mr. Montagna’s brother, Albert Montagna, a resident of Maryland, appellants negotiated an agreement to purchase two lots from the appellees. The agreement of sale described the lots “tentatively identified as Lots Twenty-Eight and Twenty-Nine (28 and 29), Block A, Section One, as shown on the attached plat.” The agreement acknowledged a deposit of $200.00 on the agreed purchase price of $10,700.00 and provided that the balance of $10,500.00 was to be paid at the time of settlement “which will be within thirty to ninety days from the date of acceptance.” The contract was dated October 14, 1970. The agreement’s further provisions are at the heart of this controversy:

“This Agreement of Sale is subject to lot being approved for recordation by the Howard County authorities. Furthermore, this is subject to satisfactory percolation as required by the Howard County Board of Health. If lot described does not percolate as required by the Howard County Board of Health, Buyers have the option of selecting another lot of comparable value, which does percolate as required by the Howard County Board of Health, which has not been purchased by another party. Sale is subject to the lot being released from the mortgage by the mortgage holder. Should the grade from the road frontage be excessive, the purchaser has the option of selecting another lot with the above restrictions.”

Time was declared to be of the essence in the contract. Appellants were then aware of the fact that the subdivision roads had not been constructed nor the plat recorded at the time they signed the agreement.

No demands for settlement were made by either party for nearly two years. However, an attorney for the appellees wrote appellants on August 24, 1972. The letter in pertinent part advised them:

“that the sellers consider the contract null and void because settlement has not taken place within the prescribed period of time (30-90 days from contract date). The sellers have not been successful in having the lots approved for recordation due to the stringent requirements and inspections imposed by the Howard County authorities.
A check in the amount of $200.00, your full deposit, is being returned herewith.”

When appellants received this letter they wrote the attorney that they had a valid contract and returned to him the deposit which he had attempted to refund. Again they did not tender the balance of the purchase price, submit a deed for execution nor otherwise demand settlement.

Albert Montagna testified that after the agreement was executed, he saw appellee Douglas- from time to time and Mr. Douglas told him that he was having problems with the County authorities. Mr. Douglas amplified this statement in his testimony indicating that some of the lots failed percolation tests and had to be realigned. The lots here considered were not, however, affected. He also testified to having had trouble securing approval from the County for the recordation of the subdivision plat.

In December of 1972 a plat of that portion of the proposed subdivision including the lots in question was approved, which fact came to appellants’ attention through Albert Montagna sometime early in February, 1973. He wrote appellee Douglas in the latter part of that month which was precipitously followed by his suit for specific performance, filed on February 28,1973.

The appellees raised a number of defenses: that the plaintiffs had not tendered the balance of the purchase price within the time specified in the agreement; that the agreement was too indefinite to be specifically enforced; that the plaintiffs had delayed for an unreasonable length of time in bringing their suit; and that specific enforcement of the contract would be inequitable since the lots had greatly increased in value between the time settlement was provided for in the agreement and the time the suit was brought.

In addition to these defenses, they protested that the agreement was in violation of a provision of the Howard County Code which imposes a penalty for selling or agreeing to sell land within a subdivision before the plat has been approved by the Planning Commission of the County.

“Whoever, being the owner or agent of the owner of any land located within a subdivision, transfers or sells or leases or agrees to sell or negotiates to sell any land by reference to, or exhibition of, a plat or by any other means and every bargainee or transferee and the agent of such bargainee or transferee who shall accept or knowingly be a party to any such transfer, lease or sale before a plat has been approved by the Office of Planning and Zoning and recorded, or filed, in the office of the Clerk of the Circuit Court for Howard County, or the minimum requirements of the Subdivision Regulations have been relaxed by the Office of Planning and Zoning, shall each forfeit and pay a penalty of Five Hundred Dollars ($500.00) for each lot or parcel so transferred, leased, or sold, or agreed, or negotiated to be sold; and the description of a lot or parcel by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring shall not exempt the transaction from such penalties or from the remedies herein provided. The County Executive may enjoin such transfer or lease or sale or agreement by action for injunction brought in any court of equity jurisdiction or may recover the said penalty by civil action in any court of competent jurisdiction, or both. In addition to the foregoing the County Executive may institute and maintain a civil action to set aside and invalidate any conveyance made in violation of this section.” Howard County Code, 1972 Ed., § 16.105 [Emphasis added].

The chancellor denied the specific performance because the agreement violated this statute and was thus, in his opinion, illegal and against public policy. He quoted Maryland Hospital v. Foreman, 29 Md. 524, 531 as authority for the unenforceability of such contracts.

“If a contract be illegal in itself, or is in violation of some statute, or against public morals, Courts of justice will not aid to enforce it, for the Court will not contribute the means of infringing the law. . . . Such a contract, while it remains executory, may, in some cases, be disaffirmed by either party, and the money paid upon it recovered back ...

Recognizing Foreman espoused that concept over a century ago, the chancellor reinforced its application by quoting from the more recent Patton v. Graves, 244 Md. 528, 532:

“It is settled that where the contract which the plaintiff seeks to enforce is expressly or by implication forbidden by the statute, no Court will lend its assistance to give it effect. Goldsmith v. Mfgr’s. Liability I. Co., 132 Md. 283, 286, 103 Atl. 627 (1918); 17 C.J.S. Contracts, § 201.” See also, Thorpe v. Carte, 252 Md. 523.

There have, however, been exceptions appended to the maxim which the chancellor did not consider. The flexibility of the doctrine was explained two years after the Foreman opinion espoused it. In Lester v. Howard Bank, 33 Md. 558, 562, the court wrote:

“The rule of law is well settled that no action will lie to enforce a contract malum in se, nor if executed, to recover money paid under it. In all such cases, the maxims ‘ex turpi causa non oritur actio’ and ‘m pari delicto potior est conditio defendentis et possidentis ’ apply.
In regard to contracts not immoral, or criminal in themselves, but prohibited by statutory law, the same general rule may be said to apply, not however universal in its application, but subject to certain exceptions as binding in authority as the rule itself. Public policy, it must be borne in mind, lies at the basis of the law in regard to illegal contracts, and the rule is adopted not for the benefit of parties but of the public. It is evident, therefore, that cases may arise even under contracts of this character, in which the public interests will be better promoted by granting than by denying relief, and in such the general rule must yield to this policy. Hence Judge Story admits that even between parties ‘in pari delicto’ relief will sometimes be granted if public policy demands it. 1 Story’s Equity Jur., secs. 298-300.”

The Court of Appeals then quoted the Supreme Court prescribing as a precondition to the general rule nullifying a contract, that the statute itself be analyzed and interpreted to determine whether or not the Legislature intended that contracts in contravention of the statute were to be nullified.

“And accordingly in Harris vs. Runnels, 12 Howard, 80, the Supreme Court, whilst acknowledging as a general rule, that contracts made in contravention of statutory law are void, admit that the rule is subject to many exceptions, made upon distinctions very difficult to be understood consistently with the rule, ‘so much so,’ say the Court, ‘that we have concluded before the rule can be applied in any case of a statute prohibiting or enjoining things to be done, with a prohibition and a penalty only for doing a thing which it forbids, that the statute must be examined as a whole to find out whether or not the makers of it meant that a contract in contravention of it should be void, or that it was not so to be. In other words whatever may be the structure of the statute in respect to prohibition and penalty, or penalty alone, that it is not to be taken as granted that the Legislature meant that contracts in contravention of it were to be void, in the sense that they were not to be enforced in a Court of justice. In this way the principle of the rule is admitted without at all lessening its force, though its absolute and unconditional application to every case is denied.’ The Court further add, ‘That when the statute is silent and contains nothing from which the contrary can be properly inferred, a contract in contravention of it is void.’ ” Lester v. Howard Bank, 33 Md. at 564-565.

From such an analysis we think the words of the statute clearly indicate that the Legislature did not intend to invalidate such contracts by the enactment of the statute, otherwise the discretionary authority of the County Executive to “enjoin” such sales or to “set aside and invalidate any conveyance” by maintaining a civil suit would be without meaning. In interpreting legislation we should so read the act as to give purpose to every part thereof. Dept. Motor Vehicles v. Greyhound, 247 Md. 662, 668-669.

Beyond that, we note that the Legislature has distinguished between sellers and buyers in the ordinance’s delineation of culpable acts. As to the seller, there is no “knowingly” provision and he is liable at every stage of the transaction, even if he merely “negotiates to sell.” The buyer, however, does not violate the act unless he either 1) “acceptfs] . . . such transfer, lease or sale . . .” [prior to recordation, etc.] or 2) he “knowingly [is] a party to any such transfer, lease or sale.”

In light of the discretion afforded for enjoining or invalidating violative contracts, coupled with the distinction made between - a seller and a buyer, we conclude that the Legislature did not consider such contracts in their executory stage malum in se but rather malum prohibitum. We further conclude that because of the seller-buyer distinction legislatively recognized, the parties to the contract were not in pari delicto. We are constrained to note that the chancellor seemed in accord when he returned to appellants their $200 deposit. Had he found the parties in pari delicto, that money being a partial execution of the contract (which he presumed illegal) could not have been recovered. Lester, supra; Gotwalt v. Neal, 25 Md. 434; Tuck v. Bowie, 1 Md. 87.

The contract was not void per se as against public policy. As the Court of Appeals has cautioned:

“. . . the right of parties to contract as they please is restricted only by a few well defined and well settled rules, and it must be a very plain case to justify a Court in holding a contract to be against public policy.” Trust Estate of Woods, Weeks & Co., 52 Md. 520, 538.

In conclusion we are inclined to tighten the lid with a final nail. One basic exception to the illegality rule is treated by the Court of Appeals in McNally v. Moser, 210 Md. 127 and is succinctly stated on page 138:

“One may not rely on illegality or invalidity where the doing of that said to be forbidden may reasonably be made legal and possible through administrative or judicial action.”

Here, not only could the impediment have been made legal through administrative action, it actually was accomplished before suit was filed. The record clearly shows that the plat had been approved, and recorded or filed as required.

We note that the lower court expressly declined to decide the questions interposed by appellees which included laches, tender and specificity of contract. As a consequence of the chancellor’s failure to decide them, we are proscribed by Md. Rule 1085 from considering them on appeal. We see nothing to be gained, however, from a retrial. Consequently we remand the case pursuant to Md. Rule 1071 for the chancellor’s determination of those questions he did not reach. In making that determination, the chancellor may compel such assistance from the parties by brief, argument or otherwise as he may require for a proper consideration of the pending questions, and if he deems it necessary or advisable, he may call for additional evidence.

Case remanded pursuant to Md. Rule 1071.

Costs to abide the result.

      . The general concept that a contract which is violative of law is invalid had its antecedents even before Foreman applied it in 1868. E.g., Hall v. Mullin, 5 H. & J. 190 (1821); Merrick v. Trustees, 8 Gill 72 (1849); Bayne v. Suit, 1 Md. 80, (1851).


text:
    ORLANDO FLOYD v. STATE OF MARYLAND
    [No. 376,
    September Term, 1974.]

      Decided January 20, 1975.

    The cause was submitted on briefs to Gilbert, Menchine and Moore, JJ.
    Submitted by Ronald L. Spahn, Assigned Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, David B. Allen, Assistant Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and William Monfried, Assistant State’s Attorney for Baltimore City, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

The appellant, Orlando Floyd, is a victim of circumstances. The fortuitous events leading to his conviction in the Criminal Court of Baltimore for violation of the Controlled Dangerous Substances laws of this state prove the accuracy of the old cliche that “truth is stranger than fiction.”

On August 21, 1973, at approximately 7:45 P.M., Officer William West of the Baltimore City Police Department, received a radio message to investigate a shooting at 2036 Edmondson Avenue. West proceeded to the scene and upon arrival at the Shabazz restaurant he observed a man, later identified as the appellant, in a prone position on the floor. The man was bleeding profusely from a wound in the right arm, two in the right leg and three in the left leg. Officer Lawrence Mize also went to the scene. An ambulance was called and, while awaiting its arrival, Officer West asked the appellant’s name, but the appellant “didn’t say anything.” West stated that he then turned to the other people who were in the restaurant and asked if any of them knew the-identity of the wounded man, but the response was in the negative. The ambulance transported Floyd to Bon Secours Hospital, and Officer Mize, in a patrol car, followed the ambulance. At the hospital Floyd’s bloody clothing was cut from his body in order that he could receive treatment for the multiple gunshot wounds. According to Officer Mize he was told that Floyd’s condition was “stable”, so he then asked Floyd if he, Floyd, wanted to talk. Floyd responded, “Man, I’m shot. I ain’t got time to talk.” The officer, believing that he had possible homicide on his hands as a result of the multiple gunshot wounds, proceeded to check Floyd’s clothing for identification, as well as for evidence that might be useful in a homicide investigation. In addition to four bullets found in one of Floyd’s pants pockets, the officer discovered twenty-four glassine bags of what proved to be heroin. The glassine bags were in a watch pocket of the pants and in a shirt pocket.

When the case was called to trial before Judge Paul A. Dorf, sitting without the intervention of a jury, Floyd moved to suppress the evidence on the ground that it had been seized in violation of his Fourth Amendment rights. Although Floyd testified in the case in-chief that he had upon request identified himself to Officer Mize, he did not testify at the suppression hearing. Thus, insofar as the warrantless search was concerned, Judge Dorf had before him only the uncontradicted testimony of the officer. Judge Dorf found no violation of Floyd’s Fourth Amendment rights. We agree with that holding, and we affirm the judgment.

The Fourth Amendment provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

By its very language the Fourth Amendment does not proscribe all searches, but only “unreasonable searches”. Terry v. Ohio, 392 U. S. 1, 9, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968).

Patently the question presented is the reasonableness, vel non, of the search by Officer Mize of the clothing of a gunshot victim, at a hospital emergency room, where the search is conducted for the purpose of ascertaining the identity of the victim and inadvertently contraband is discovered.

There are two reasons why the evidence was properly admissible. First, the bloody clothing was evidence of the shooting. Inasmuch as it was evidence of a crime, the police had a right to seize it lest it be removed from the hospital emergency room and destroyed. “The clothing of a person is admissible in evidence to the extent that it is helpful in resolving a fact in issue. Thus, the clothing of a victim is admissible to show the nature of his wounds .. . the course of a bullet; [or] the use of force by the defendant.” 3 Wharton’s Criminal Evidence § 632 (13th ed. C. Torda 1973). Although we recognize that the gunman who shot Floyd was, insofar as the record before us discloses, never apprehended so that the bloody clothing has not been used as evidence in any prosecution for that offense, such a fact does not negate the right of the police to seize the evidence. Second, when the officer was unable to ascertain Floyd’s identity by questioning him, the officer, in our view, had not only the right, but the duty to look in Floyd’s clothing for the purpose of endeavoring to determine the shooting victim’s identity. An analogous case to that now before us was presented in Vauss v. United States, 370 F. 2d 250 (D.C. Cir. 1966). There the police happened upon an unconscious person lying on a public street. An officer searched the person in order to secure identification, and in the process discovered fifteen envelopes which contained heroin. When the person was removed to the hospital, a capsule containing heroin was found in his clothing. The court concluded that the search was “both legally permissible and highly necessary.” The court observed:

“. . . There is a positive need to see if the person is carrying some indication of a medical history, the rapid discovery of which may save his life; there is also a need to identify persons so found in order to notify relatives or friends.”

Once it is established, as here, that the police have a right to make a valid intrusion into Floyd’s clothing, there is no question but that any contraband inadvertently discovered therein is seizable and admissible in evidence. Warden v. Hayden, 387 U. S. 294, 87 S. Ct. 1642, 18 L.Ed.2d 782 (1967); Brown v. State, 15 Md. App. 584, 292 A.2d 762 (1972) at 600 n. 30.

In sum, Officer Mize exercised common sense in searching Floyd’s clothing, and “there is no war between the Constitution and common sense.” Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L.Ed.2d 1081 (1961).

Judgment affirmed.

      . A variance on the lines written by George Noel Gordon, Lord Byron, 1788 — 1824 in Don Juan, canto XIV, st. 101. Lord Bryon said:
      “ ‘Tis strange — but true; the truth is always strange; Stranger than fiction.”

      _ 2. Cf Md. Ann. Code art. 27, § 336A, which requires medical personnel to disclose to the police the name and address of any gunshot wound victim and any facts which might assist in the detection of the crime.

      . For example, a medical history may reveal that the victim has a rare blood type, is suffering from a chronic disease, is allergic to certain drugs or is a hemophiliac; all of which would ordinarily be unknown in the first instance to the hospital.


text:
    THE B & A COMPANY, t/a The Edgewood Book Store v. STATE OF MARYLAND
    [No. 386,
    September Term, 1974.]

      Decided January 20, 1975.

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

      Michael E. Kaminkow for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Edwin H.

      W. Harlan, Jr., State’s Attorney for Harford County, and John A. Goodman, Assistant State’s Attorney for Harford County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

In Ebert v. Md. St. Bd. of Censors, 19 Md. App. 300, 302-303, Chief Judge Orth viewed with relief the long awaited Supreme Court effort, Miller v. California, 413 U. S. 15, to thin the tangled thicket of obscenity regulation which had grown up around the “Roth-Memoirs test.” The most troublesome aspect of the Memoirs refinement of Roth was the requirement that the state prove the alleged obscene matter to be “utterly without redeeming social value.” Judge Orth called that test “unworkable” and “not the law of the land because it did not represent a majority of the court.” Ebert, 19 Md. App. at 303. The overwhelming burden placed on the prosecution when required “to prove a negative” is self-evident.

In Miller, using the term “guidelines” as opposed to “test,” five members of the Court reformulated the obscenity criteria, and thereby substantially lessened the prosecutorial burden. The jury must now consider:

“(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest. . .;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
413 U. S. at 24.

When the present case was tried before Judge Harry Dyer, presiding over a jury in the Circuit Court for Harford County, the State’s Attorney, confident of a conviction under either the “impossible” Roth-Memoirs test or the easier to prove Miller guidelines, chose to err if at all on the side of prudence, by asking the court to instruct the jury under the Roth-Memoirs test.

The offenses occurred October 17th and November 1st of 1972, prior to Miller which was decided June 28, 1973. The case was tried, however, after Miller, beginning November 13,1973. Appellant applies only one edge of the Miller sword. It argues that Hamling v. United States, 418 U. S. 87, 41 L.Ed.2d 590 entitles it to all of the benefits of Miller, but that retroactive enforcement of Miller would deny it due process, citing Bouie v. City of Columbia, 378 U. S. 347 for the lack of adequate notice principle.

Inasmuch as appellant’s conviction was not final in the sense that it had not exhausted its channels of direct review when the Supreme Court opinion came down, we agree that Miller’s benefits are due. Hamling, supra, 41 L.Ed.2d at 611. Regarding the adequate notice argument, appellant concedes there was no attempt to convict it retroactively under the Miller standard.

The Roth-Memoirs Instruction

We disagree, however, with appellant’s further contention that in Miller the Supreme Court declared a moratorium between June 21,1973 (the date Miller was decided) and such time as the Legislature shall by statute, or the appellate courts by judicial interpretation proscribe that which was the subject of appellant’s conviction. This argument hinges upon but two sentences oí Miller, 413 U. S. at 27:

“Under the holding announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard-core’ sexual conduct specifically defined by regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.”

Three observations strongly militate against any finding that the Supreme Court meant these words to provide a period of pornographic freedom. First, Miller’s express purpose in redefining obscenity was to ease the all but impossible prosecutorial burden under the Memoirs’ restriction on Roth, and a fortiori increase the probability of successful prosecution. Second, Chief Justice Burger added a footnote to the sentences excerpted by appellant, Miller, supra, at n. 10, in which he quotes Justice Brennan’s discussion in Roth of the due process-engendered specificity requirement of obscenity laws. That to us clearly indicates that the above-quoted sentences serve only to reiterate the now-familiar due process theme, rather than to invite the States to engage in prospective formulation of obscenity statutes. Third, and perhaps most telling, is the material in n. 6, Miller, supra, at 24. After alluding to Oregon and Hawaii as states with sufficiently specific obscenity statutes, the Chief Justice wrote:

“We do not hold . . . that all States other than Oregon must now enact new obscenity statutes. Other existing state statutes, as construed heretofore or hereafter, may well be adequate.”

We conclude that the Miller court did not invalidate preexisting obscenity standards; on the contrary, it superimposed a test which lessens the prosecutor’s evidentiary burden and thus will in all likelihood result in the expansion of obscenity restrictions. The latest pronouncement of the Court bears out this view:

“But our opinion in Miller plainly indicates that we rejected the Memoirs ‘social value’ formulation, not because it was so vague as to deprive criminal defendants of adequate notice, but instead because it represented a departure from the definition of obscenity in Roth, and because in calling on the prosecution to ‘prove a negative,’ it imposed a ‘[prosecutorial] burden virtually impossible to discharge’ and which was not constitutionally required. Miller v. California, 413 U.S. at 22. Since Miller permits the imposition of a lesser burden on the prosecution in this phase of the proof of obscenity than did Memoirs, and since the jury convicted these petitioners on the basis of an instruction concededly based on the Memoirs test, petitioners derive no benefit from the revision of that test in Miller. Hamling v. United States, 418 U.S. 87, 41 L.Ed.2d at 620.

Chief Justice Burger’s Miller opinion is far from the initiation of an epoch when pornographers may flaunt their figleaves. The trial court’s overall instruction, conforming as it did to the Roth-Memoirs standard, was not erroneous.

By analogous reasoning, we conclude that the Miller court did not hold pre-existing obscenity law violative of first amendment protections. If the broader Miller restriction on obscenity did not encroach on constitutionally guaranteed freedom of expression, obviously the lesser Memoirs restriction did not:

“If a state law that regulates obscene material is .. . limited [by the Memoirs’ standard] as written or construed, the First Amendment values . . . are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. . . .” Miller, 413 U. S. at 25.

Due Process

In enacting its obscenity law, Maryland chose not to define “obscene” but to permit courts to apply whatever definition the Supreme Court supplied from time to time, using the term, however, to describe that which is proscribed. Cf., Dunn v. Md. Bd. of Censors, 240 Md. 249. Similarly, the obscenity statute construed in Roth and Hamling, supra, 18 U.S.C. § 1461, left to the courts the delineation of proscribed depictions. We have held, Donnenberg v. State, 1 Md. App. 591, 605, as has the Supreme Court, Hamling, 418 U. S. 87, 41 L.Ed.2d at 617, that the use of that term gives adequate warning of the forbidden conduct and marks boundaries sufficiently distinct for judges and juries fairly to administer the law. While a more specific statutory definition may have been preferred by the Miller Court, it was not mandated. “We emphasize that it is not our function to prepare regulatory schemes for the states.” Miller at 413.

Appellant acknowledges that we have decided the constitutionality of Md. Code, Art. 27, Sec. 418 but contends that doing so constituted a “judicial rewriting of the Maryland statute, and this court should have declined to do so.” We now decline to review our decision for the reasons heretofore assigned. Village Books, Inc. et al. v. State of Maryland, 22 Md. App. 274 and Ebert v. Md. St. Bd. of Censors, 19 Md. App. 300.

Sufficiency of the Evidence

Appellant contends that the magazines and movie are not obscene in the constitutional sense as a matter of law. Either appellant reviewed different material than did we or it refers to a different constitution. There is no purpose served by any of the evidence but to depict explicit, closely photographed scenes of ultimate and climactic acts of fellatio, cunnilingus, sodomy and an occasional more conventional act of sexual intercourse.

Appellant urges that two of the magazines colloquially characterized as “bondage” or “sado-masochistic abuse” magazines do not fall under the Miller guidelines because they “do not portray sexual conduct, and secondly they do not portray (a) representations or descriptions of ultimate sex acts, normal or preverted, actual or simulated; (b) representations or depictions of masturbation, excretory functions, and lewd exhibition of genitals.”

These two magazines are primarily devoted to pictures of perverted sex acts under simulated forced conditions. Every picture contains “lewd exhibitions of genitals,” in various positions of exposition. In each case the genitals are accompanied by rope or chain binding the anatomy in their proximity, or by persons whipping or handling them. Some photographs show the internal insertion of objects, close-up images of genitals and persons of like sex titillating each other by coupling various parts of their bodies. The fact that these scenes happen to be accompanied by ropes and chains or leather-booted models does not redeem them any more than would any other stage prop.

Each of the exhibits is “hard-core pornography” which we have said:

“ . . .is material which focuses predominantly upon what is sexually morbid, grossly perverse and bizarre without any artistic or scientific purpose or justifications.” Levin v. State, 1 Md. App. 139, cert, denied, 247 Md. 740.

When pornography is so “hard-core” that it revulses the prurient interest in sex that it was intended to stimulate, little can be said to describe it without using terms so crude as, to be themselves, “obscene.”

Judgment affirmed.

Costs to be paid by appellant.

      . Roth v. United States, 354 U. S. 476; Memoirs v. Massachusetts, 383 U. S. 418. Required was the coalescence of three elements:
      “(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex;
      (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and
      (c) the matter is utterly without redeeming social value.” Memoirs, at 418.

      . The evidence introduced included a silent color film, two magazines depicting sexual relations and perversions and two colloquially referred to as bondage (or sado-masochistic) magazines. Appellant claims no statute or judicial interpretation proscribes depictions of the latter conduct.


text:
    LAWRENCE H. ROBERTS et ux. v. HOWARD L. GATES et ux. HOWARD L. GATES et ux. v. BALTIMORE COUNTY, MARYLAND et al.
    [No. 391,
    September Term, 1974.]

      Decided January 20, 1975.

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

      Charles W. Held, Jr., and Rolf A. Quisgard for appellants Lawrence H. Roberts et ux. Richard N. Kerr and Charles E. Norton, Jr., for appellants Howard L. Gates et ux.

      Thomas J. Aversa, Jr., Assistant County Solicitor, with whom were R. Bruce Alderman, County Solicitor and Harry S. Shapiro, Assistant County Solicitor, on the brief, for appellee Baltimore County. Richard N. Kerr and Charles E. Norton, Jr., for appellees Howard L. Gates et ux.
   Lowe, J.,

delivered the opinion of the Court.

As a condition precedent to requiring final approval of proposed subdivisions, Baltimore County may require the execution of a public works agreement for the improvement of any one or all of the numerous public services and ways including roads and sewers. Balto. Co. Code, Art. IV, § 22-34. In 1958 Lawrence H. Roberts (Roberts) proposed to develop Section I of Sherwood Hills. On December 9, 1958 he executed Public Works Agreement No. 85814. Pursuant to its practice Baltimore County (County) provided him with an estimate of the cost of construction in the sum of $7,450.00. Roberts’ development plans did not progress beyond that point.

On October 24, 1964 Roberts and his wife contracted to convey a portion of Section I to Howard L. Gates and his wife (Gates) which was done by deed November 25,1964. Six months later an additional portion was conveyed to Gates and Vickers (still collectively referred to as Gates), constituting a little more than half of Section I. Each of the contracts contained a provision insuring that the properties were free and clear of all encumbrances, “including all past and future public works costs, which shall be the responsibility of the sellers.” Mr. Gates then purchased another property in Sherwood Hills from Roberts, which had not yet been subdivided. This property is designated Section II.

In March of 1967 the County revised its cost estimate for the agreed sewer and road improvements in Section I, raising the amount to $10,675.00. Upon request by the County, Roberts promptly deposited that sum.

In order to proceed with the development of Section II Gates entered into a Public Works Agreement with the County applicable to that parcel. The County, however, saw this as an opportunity to procure the improvements not yet commenced under the Roberts’ Agreement (No. 85814) for Section I, the cost of which had apparently nearly tripled since the revised County estimate deposited by Roberts in March of 1967. Realizing that Gates owned six of the eleven lots constituting Section I, County included in his Section II agreement (No. 86702) a condition precedent that the contracts for the improvements under the Roberts’ agreement (No. 85814) actually be awarded. Paragraph No. 34 typed into the form agreement provided:

“Public improvements covered by this agreement cannot be put under contract, and Building Applications will not be released prior to award of contracts covered by Public Works Agreement #85814 (Sherwood Hills, Sec. 1).”

This was followed by a more detailed agreement between County and Gates dated September 23, 1968. It recited the ownership history and pointed out that Section II was only accessible from existing public ways by the proposed improvements through Section I contemplated by the Roberts’ agreement (No. ’85814). After describing the consideration as Gates’ desire to proceed with the development of Section II and County’s approval thereof, the agreement set forth the following conditions:

1. It required that Gates post bond in cash or by lien on Section II in the amount of $15,000 to guarantee part of the improvements. (Powers Avenue of Roberts’ agreement No. 85814). Partial releases were to be available at $1,000 per lot.
2. County was to sue Roberts to specifically enforce his agreement No. 85814.
3. Gates was to post an additional sum, later determined to be $3,279.54, to guarantee other improvements under Roberts’ No. 85814 agreement (Osage Road).
4. Paragraph 4 covered alternatives contingent upon the result of the suit against Roberts. If County lost to Roberts they agreed that unless County sued Gates within 6 months, all monies would be returned and liens released.
5. Gates was to post bond to cover his own public works agreement with County for Section II,
No. 86702.
6. County agreed “that the terms of this Agreement in no way are to be construed as acceptance by [Gates] of any responsibility whatsoever of the Public Works Agreement DPW 85814 in whole or in part.”
7. County then agreed to solicit bids for the Section II public improvements.

On November 21, 1968 County sued Roberts in the Circuit Court for Baltimore County, Equity No. 64194, Docket 86, Folio 416, in accordance with the second condition, swpra. Roberts prevailed over County in that suit. Although the decree dated April 30, 1973 directed Roberts to convey “the road bed of Osage Road to Baltimore County, Maryland, as required by Public Works Agreement 85814 submitted to this Court” it concluded by stating:

“but in all other respects, the relief prayed for in the Bill of Complaint is hereby denied.”

The following day, May 1, 1973, a Bill of Complaint was filed against Gates praying the identical relief denied against Roberts, No. 76052, Docket 98, Folio 420. Gates answered and filed a counterclaim against County asking return of all monies paid by Gates to County for public works improvements in Section I. Gates also filed a third party claim against Roberts based upon the provision in the purchase contract from Roberts insuring all “past and future public works costs,” in effect asserting that if he were liable to County, Roberts was liable to him.

The total cost of improvements to Section I pursuant to the Roberts’ agreement had risen to $35,415.00. As assurance of payment, Roberts had deposited $10,675.00 and Gates $11,279.54 by cash or liens. A balance of $13,460.46 was due. These figures are not disputed in this appeal.

The issue was considered by the chancellor on Motion for Summary Judgment which he granted May 22, 1974. Ironically this Specific Performance suit culminated in “monetary decree[s],” one in the amount of $13,460.46 against Gates to the benefit of County, and one in the sum of $24,740.00 against Roberts to the benefit of Gates, being the difference between the current total cost of $35,415.00 and the $10,675.00 previously deposited by Roberts with County.

While Roberts ardently presses his appeal, Gates is less enthusiastic since neither side of the coin resulted in injury to him. He has appealed nonetheless.

The chancellor’s opinion turned on Paragraph 33 as contained in both the Roberts and Gates Public Works Agreements. It reads:

“ ... this Public Works Agreement shall be considered to be legally executed and binding upon the parties hereto, their successors, personal representatives, heirs and assigns.”

The chancellor found Gates responsible under that clause in agreement No. 85814 as assignee of six of the eleven lots in Section I concluding that Gates “had notice of the binding effect of such agreement on an assignee, because his own Public Works Agreement [No. 86702] contained an identical provision.” The chancellor then went on to say that Gates could take no comfort from the result of the suit by the County against Roberts because Gates had not intervened in that suit. Therefore, he said,

“That case would not be res judicata as far as Gates was concerned because he was not a party to it. Nor would it constitute equitable estoppel. There is nothing in Judge Raine’s opinion which would in any way affect any developer of Section 1 other than Roberts. Judge Raine said Roberts elected not to go forward with the development. However, anyone else who proceeded with the development would have to pay for the cost of the public works improvements.”

In a “Supplemental Opinion” the chancellor responded to a collateral estoppel argument on Motion for Judgment N.O.V. by finding the issues determined in the earlier case against Roberts different from those determined by him in the suit against Gates:

“The issues presented, and decided by me, in the present case were: (1) What obligation ran from Gates to Baltimore County, Maryland, under his Public Works Agreement No. 86702; and (2) What obligation ran from Roberts to Gates by virtue of the contracts of sale (agreed Exhibit No. 2) dated October 24,1964, and May 17,1965, respectively?
The mere statement of the issues presented in the two cases demonstrates that they are not “identical”, and that, therefore, the doctrine of collateral estoppel does not apply to this case. Clearly, res judicata does not apply for the parties in the two cases were not the same.”

We find ourselves in disagreement with the chancellor both as to reasoning and result.

The doctrine of res judicata is that a prior judgment between the same parties and their privies is a final bar to any other suit by or against any of them upon the same cause of action. It is conclusive, not only as to all matters that have been decided on the original suit, but as to all matters which with propriety could have been litigated in the first suit.

From the web of detail woven around the instant case a single, determinative — and quite simple — fact emerges: that Gates was in privity with Roberts. Either of two decisions by the chancellor supports that conclusion. When he held Gates liable for Agreement No. 85814 by virtue of Roberts’ paragraph 33 undertaking to bind his successors, he impliedly found, that Gates was a privy of Roberts. When the chancellor, in turn, required that Roberts reimburse Gates for his payments to County, by virtue of Roberts’ contractual obligation to insure Gates against liability on Agreement No. 85814, he impliedly found Roberts in privity with Gates. In short, Gates was liable for Roberts’ obligation, and Roberts was liable for any obligation imposed on Gates under Agreement No. 85814.

As a third party defendant, Roberts was entitled to raise any defense assertable by Gates, which he did, viz: res judicata. Since the prior trial involved the same “parties or privies” and the same cause of action, we think it inescapable that the County was forever barred from subsequently relitigating its claim whether against Gates or Roberts. As the Court of Appeals has written:

“Estoppel by judgment, which is res judicata, may be direct or collateral. If the second suit is between the same parties and is upon the same cause of action, a judgment in the earlier case on the merits is an absolute bar, not only as to all matters which were litigated in the earlier case, but as to all matters which could have been litigated.” Sterling v. Local 438, Etc., 207 Md. 132,140.

The chancellor’s statement that Gates would have to have intervened in Roberts’ suit to enjoy the defense of res juddcata was erroneous.

We need not concern ourselves with the chancellor’s recitation of the court’s “opinion” in the original “Roberts” case since it is the decree and not the opinion of a court that governs, Hudson Bldg. Supply Co. v. Steelman, 258 Md. 304, and the decree specifically denied “in all other respects, the relief prayed in the Bill of Complaint” against Roberts. As we have pointed out, the relief prayed in the Gates’ case was identical to that previously asked against Roberts.

In contrast, Gates is directly obligated under Public Works Agreement No. 86702 which applies to the unsubdivided Section II. The inserted condition precedent in paragraph 34, however, in no way obligated him for public improvements to Section I, but rather merely put him on notice that development of Section II would be delayed pending performance of the Roberts’ Agreement No. 85814, on Section I. The same condition precedent would have been appropriate to any back land development accessible only by proposed road construction through a separate proposed development. It committed Gates to do nothing. His Section I ownership permitted him to proceed with the Section I improvements if he so chose but he was compelled to do nothing.

Nor did the separate “Agreement” of September 23, 1968 provide any compulsion to act beyond that which Gates may have had as Roberts’ successor. To the contrary, there was included in that Agreement an express denial of responsibility under the Roberts’ Agreement:

“6. Baltimore County, Maryland agrees- that the terms of this Agreement in no way are to be construed as acceptance of the Developers [Gates] of any responsibility whatsoever of the Public Works Agreement DPW 85814 in whole or in part.”

In conclusion, we hold as was held in Sterling, supra, “that the decree in the [first] equity case was conclusive of the [identical] claim asserted” in the second case. The County is estopped by the first decree from proceeding against Roberts or his privy Gates, to the extent of the Public Works Agreement No. DPW 85814.

The Order and Decree of May 22, 1974 is reversed without remand as to the “monetary decree” against Gates in favor of Baltimore County. It follows that the grant of the Third Party Claim against Roberts in favor of Gates is also reversed without remand.

The Order is reversed and remanded, however, as to the Counter-claim of Gates against the County which was not reached below. The retrial is for the limited purpose of determining what if any relief Gates is entitled to receive against the County.

Judgment reversed in part and remanded in part for further determination pursuant to this opinion.

Costs to be paid by Baltimore County.

       Perhaps because we were privy only to the opinion of the chancellor in the Balto. Co. v. Roberts case and did not review the entire record, we were unable to understand how Judge Raine concluded that Roberts did not fall under the appropriate definition of developer as set forth in the Baltimore County Code. That case was not appealed, however, and the issue is not before us.

      . Neither the availability nor adequacy of either remedy was raised below or on appeal.

      . The sum against Gates represents the balance County has not received from the total cost of $35,415.00. County received from Gates $11,279.54 and from Roberts $10,675.00 equalling $21,954.54. The chancellor awarded County $13,460.46 from Gates but returned to him that plus the amount paid out pursuant to his “special agreement.”

      . We note, however, that the questions posed by the chancellor in his original opinion differ from those set forth' in the “Supplemental Opinion.” As phrased in the original opinion the chancellor set out to answer his own question “Is the County entitled to specific performance of the Public Works Agreement of Gates?” If he was as later stated, referring to No. 86702 as it affected Section II, no where does he meet that issue nor does the Bill of Complaint pray such relief. Both original and supplemental opinions deal solely with the conditions and responsibilities of improvements of Section I under Agreement No. 85814.

      . We recognize that the provision purporting to bind successors is at best a tenuous basis for a finding of privity. There is nothing in the Baltimore County Code nor any other law to our knowledge, which could contractually encumber a successor in interest to perform an act which the successor had no where agreed to perform, unless the agreement were in the nature of a covenant running with the land. We find more difficulty spanning that legal chasm than did the chancellor; however, our decision obviates in-depth consideration of this issue.

      . County’s contract with Gates provided that it would first sue Roberts to enforce Agreement No. 85814, and only if that suit was unsuccessful sue Gates.
      “2. Baltimore County, Maryland, does hereby agree to file the aforesaid Specific Performance suit against Lawrence H. Roberts within sixty (60) days of the execution of this agreement. In the event that the said suit is not instituted within said sixty days, the aforesaid bond or the elected alternative, shall be released by Baltimore County, Maryland. Baltimore County agrees that Howard L. Gates and Doris Ann Gates will not be a party to said suit unless Lawrence H. Roberts makes Howard L. Gates and/or Doris Ann Gates a party thereto.”
      County urges that by virtue of this provision Gates impliedly consented to suit and waived any res judicata defénse. We fail to see how this language could be interpreted as a waiver by Gates of his defense of res judicata by removing him from the status of being in privity with Roberts. Obviously, in retrospect, had County exacted such a concession from Gates its troubles would be over. No such provision was included in the contract and we cannot now impose County’s unarticulated intention on Gates. Sachse v. Walger, 265 Md. 515, 520.

      . Although the County contends in their Bill of Complaint that under paragraph 34 of the Gates’ Agreement (No. 86702) Gates “agreed to assume the obligations set forth herein above with respect to Public Works Agreement No. 85814”, we fail to see such assumption. The relevant language of paragraph 34 of Agreement No. 86702 reads:
      “Public Improvements covered by this agreement can not be put under contract, and Building Applications will not be released prior to award of contracts covered by Public Works Agreement #85814 (Sherwood Hills, Sec I).”
      This is a far cry from assuming the obligations of “Agreement #85814.”

      . The relief prayed in the Counter-claim is:
      (a) the release of liens on Section II, and
      (b) refund of monies deposited to guarantee public works in Section I.