author: Orth, C. J.,

text:
    STATE OF MARYLAND v. NATHAN E. DIGGS
    [No. 772,
    September Term, 1974.]

      Decided February 20, 1975.

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

      Gilbert Rosenthal, Assistant Attorney General and Harvey Greenberg, Assistant State’s Attorney for Baltimore City, with whom were Francis B. Burch, Attorney General and Milton B. Allen, State’s Attorney for Baltimore City, on the brief, for appellant.

      Ronald B. Graham, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Michael S. Levin, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

Both the Court of Appeals and this Court have taken pains to persuade, expostulate, and warn bench and bar that the Maryland Rules of Practice and Procedure “are not guides to the practice of law but precise rubrics ‘established to promote the orderly and efficient administration of justice and [that they] are to be read and followed.’ ” Isen v. Phoenix Assurance Co., 259 Md. 564, 570, quoting Brown v. Fraley, 222 Md. 480, 483; Green v. State, 19 Md. App. 683, 687. It has been made abundantly clear that they are not apocrypha but “shall, when made, have the force of Law, until rescinded, changed, or modified by the said Judges [of the Court of Appeals], or the General Assembly.” Constitution of Maryland, Art. IV, § 18; Wilson v. State, 227 Md. 99. They have been enforced rigorously, ofttimes with unhappy consequences for those who did not observe them. Despite the repeated cautions and imploring admonishments, there still comes to hand, all too frequently, examples of failure to pay heed. The case before us provides another illustration. Here the bench was at fault, with the result that a full plenary trial in a criminal cause must be nullified, and the accused tried again almost two years after the crime was committed. But the rule disregarded is a fundamental one of real import. It concerns the constitutional right of a person accused of crime to have the assistance of counsel at his trial.

NATHAN E. DIGGS was arrested on 10 May 1973 and charged under warrant #47300972 with unlawfully possessing in Baltimore City controlled paraphernalia, namely glassine bags suitable for packaging a controlled dangerous substance in sufficient quantity and under circumstances to reasonably indicate an intent to manufacture and distribute, and under warrant #47300973 with possession of heroin. He was not recommended by the Pre-Trial Release Division of the Supreme Bench of Baltimore City for release on his own recognizance. The docket entries reflect that on 11 May he was released on $500 bail posted by a bonding company. The warrants came on for trial in the District Court of Maryland, District I, Baltimore City, Criminal Division, on 6 June 1973. According to the transcript of the proceedings, James Stancil appeared on behalf of Diggs. Stancil informed him of his right to be tried by a jury and of his right to waive a jury trial and be tried by the court. Diggs prayed a trial by jury and bail was continued. It seems from the transcript that there were companion cases against one Carl Alexander and a Miss Cook and that James L. Foster appeared on their behalf. The transcript ends with the notation: “Cases forwarded to Jury in Criminal Court on June 20, 1973.”

On 20 June 1973 in the Criminal Court of Baltimore, the State called the cases against Diggs. Howard Dwin, Esq. addressed the court, Judge James W. Murphy presiding:

“If it please the Court, Miss Cook, Mr. Alexander. If Your Honor please, I am informed by both of them that as of yesterday apparently an attorney from the Legal Aid agreed to represent them. They had been talking to him and preparing the case and yesterday sometime in the afternoon they were informed by this gentleman he was not going to represent them. These files were rushed over to the Public Defender yesterday afternoon by Legal Aid, and these two people would like to and they have the financial means to hire their own attorney. I would like to have the case postponed so they can hire an attorney of their choice with the understanding that should Your Honor grant this postponement that they better be ready for trial with or without an attorney, and if you have the means — as to Diggs — I really have no knowledge of him, but he is a co-defendant in this case — I can talk with him and see what the problem is.”

Miss Cook requested a postponement for a week to obtain an attorney. Dwin thought the State would want to try all the cases together “since it is a search and seizure warrant” and thought it “simply logical” that if the other two cases were postponed Diggs’s case would follow. After discussion about Legal Aid’s representation in the District Court, the State declared it had no objection and gave a new trial date of 27 July. The court granted a postponement: “All right. July 27th. Don’t forget that date. That’s as to Cook, Alexander and Diggs. Do you all understand the cases will be set for July 27th?” Each defendant answered, “Yes.” The judge took pains to explain that the trial on 27 July in all probability “will not be in this courtroom. Criminal Court Part X will probably be down the hall.” He warned: “But in any event, get your own counsel and be ready for trial that day whether or not.”

In the record before us there is a transcription of “the excerpt of docket proceedings in the Criminal Court, Part X, of Baltimore City in the matter of the postponement of the case of Nathan Diggs on July 27, 1973”, before Judge Aaron Baer. It notes the appearances of Charles Brown, Esq., Assistant State’s Attorney and David Jacobs, Esq., Public Defender Attorney. The transcript begins with Brown informing the judge that Diggs “came into your court about an hour ago.” He reminded the judge that co-defendants Patrice Cook and Carl Alexander had been tried “this morning.” He said: “At this time all the officers have left, Your Honor. The State is unable at this time to go ahead with that case [against Diggs].” The judge asked Diggs why he was late and Diggs’s explanation was that his wife had heart trouble. “I had to see about her and I was late getting here; when I got her it was about 11:00 or something and I didn’t know where the courtroom was, because when I was here they said they would move it from up, up in 10,438.” The judge made further inquiry about Mrs. Diggs. Diggs replied: “She had heart trouble and I had to rush her to the hospital, and I had to see about her. That’s why I was late.” The judge struck the bail forfeiture and directed that a trial date be set. The State asked if Diggs had an attorney and Diggs said he did not. He was asked if he could afford an attorney and he said: “I — no, not at this time.” The Public Defender said that he would be interviewed — “We’ll take care of it.” Trial was set for 11 September and Diggs was so informed by the Clerk.

The warrants came on for trial in the Criminal Court of Baltimore, Part 10, before Judge Baer, on 11 September 1973 as scheduled. The Assistant State’s Attorney called the case. The transcript shows what then transpired:

“THE CLERK: Mr. Diggs, step up. Mr. Diggs, do you have an attorney?
THE DEFENDANT: No.
THE CLERK: Have you made arrangements for an attorney?
THE DEFENDANT: No.
THE CLERK: You have not?
THE DEFENDANT: Well, I tried to get one at first when I was here before. But, I couldn’t get the money to get one.
THE CLERK: Have you talked to the Public Defender?
THE DEFENDANT: No.
THE COURT: Has this case been postponed before?
THE CLERK: If has been postponed twice, Your Honor, in this court and I don’t know about the District.
THE COURT: Why was your case postponed the last time?
THE DEFENDANT: The last time, Your Honor, when I got here it was a little late and the other two defendants had been tried and you postponed the case until today. The reason I was late —
THE COURT: Forget about the reason why you were late. What did I say about your coming into Court the next time without an attorney?
THE DEFENDANT: You said that the case would be postponed and another gentlemen —
THE COURT: I told you it would be postponed and what?
THE DEFENDANT: It would be postponed and another gentlemen came out to speak to me about going to a lawyer I had an accident case with or go to the Public Defender.
THE COURT: You say you have not talked to the Public Defender?
THE DEFENDANT: No.
THE COURT: Did I tell you if you came to court today you would be tried with or without an attorney.
THE DEFENDANT: I think you did, Your Honor.
THE COURT: Then, why are you here without an attorney?
THE DEFENDANT: I haven’t been able to get an attorney. I had been in the hospital.
THE COURT: However, I told you the last time you were here that if you did not come in with an attorney you would be tried without one.
THE DEFENDANT: Yes.
THE COURT: Alright. Have a seat. You will be tried without one.”

The judge explained: “You understand, Mr. Diggs, that the reason I am saying you will be tried today without an attorney is that I believe you have effectively waived your right to have an attorney because you were given notice at your last hearing that you would be tried today with or without a lawyer.” Diggs was arraigned, pleaded not guilty, and elected to be tried by the court. The trial proceeded. The State offered evidence and rested. The court fully informed Diggs of his right to testify or not testify. Diggs testified, and was afforded the opportunity for allocution before verdict was rendered. He was found guilty of both offenses. After examination of him by the court as to his background, employment and marital status, he was sentenced to 4 years on each conviction, the sentences to run concurrently. The judge advised Diggs about his rights to file a motion for a new trial, to petition for a review of sentence, and to file an appeal to this Court. Diggs did not avail himself of any of these rights. On 22 March 1974, however, he collaterally attacked the judgments by filing a petition in proper person for relief under post conviction procedures, giving as his sole reason why the judgments should be set aside that “The State failed to produce an attorney to represent the Petitioner at his trial.” Diggs added: “We hold these truths to be self evident; that it is not necessary to cite cases of Law at this time according to the Maryland Annotated Code; yet it is clear that the Constitutional rights of the Petitioner has been violated.” The judge presiding at the hearing which followed agreed. On 30 September 1974 he granted Diggs a new trial. The State applied for leave to appeal. We granted the application and the case was transferred to our direct appeal docket, briefed and argued. Code, Art. 27, § 645-1; Maryland Rule BK 47. The sole contention of the State is that the court below was wrong in granting Diggs a new trial.

Diggs testified at the hearing. He said that he did not have an attorney at his trial, that the trial judge did not ask if he had an attorney, did not advise him that he had the right to an attorney, and did not inquire, in any way, or in any manner, whether he had the ability to obtain counsel. He said that he did not have time to request counsel although he desired an attorney. He asserted he was late for the trial and that he explained that the reason he was late was the sickness of his wife. “So, the judge stated that with or without an attorney, he was going to try me anyway, and that’s what happened.” Diggs’s counsel opined that his client was confused, and, of course, he was. What actually occurred, as we have indicated, was shown by the transcripts of the proceedings of 6 June, 20 June, and 27 July 1973 which were offered in evidence by the State, and by the transcript of the trial on 11 September 1973, which was received in evidence as a joint exhibit. The substance of what was elicited from him on cross-examination was that the case was originally scheduled for trial on 23 May 1973, and was postponed to 6 June, at which time it was sent to the Criminal Court of Baltimore for trial on 20 June. On that date it was postponed to 27 July and then to 11 September. From the time of his arrest to the time he was tried he did not obtain a lawyer because he could not afford one, and he did not seek the aid of the Public Defender because he did not know about the Public Defender. On re-direct examination he said that the Public Defender had never approached him and that he had never talked to anyone from that Office. It was represented to the court that Stancil was not with Legal Aid or a Public Defender, that Foster was with Legal Aid, and that Dwin and Jacobs were Assistant Public Defenders. Diggs claimed that during the entire period he had no money to employ an attorney. On re-cross-examination it was adduced that he had been represented by a court appointed attorney when convicted of a crime about eleven years ago. He said that when the trial date of 11 September was set on 27 July, “I left the courtroom.” He did not “recall any lawyer speaking to [him] on that particular day.”

Willie Hart testified on behalf of the State. He said he was employed as an investigator for the Public Defender in May 1973, assigned to the Southern District. He “was required to interview all persons incarcerated at that particular District to find out if he would be eligible for the Public Defender’s Office.” It was on 11 May 1973 that he interviewed Diggs, who was charged with possession of heroin and possession of paraphernalia. He explained that he was an investigator for the Public Defender’s Office and asked if Diggs understood the function of the Public Defender. Diggs “acknowledged that he did.” “I took a standard application which Mr. Diggs signed. At the time, after completing Mr. Diggs’ record, he informed me that he would get his own lawyer. And he refused the services of the Public Defender.” The records of the Public Defender did not indicate an interview of Diggs after 11 May 1973.

We said in Wayne v. State, 4 Md. App. 424, 428: “The absolute constitutional right of an indigent accused in a serious State criminal prosecution to have counsel appointed for his defense is, of course, now settled beyond question. Gideon v. Wainwright, 372 U. S. 335; Manning v. State, 237 Md. 349; Montgomery v. Warden, 1 Md. App. 30.” But even a constitutional right may be waived. To be effective, however, the waiver must meet the classic definition contained in Johnson v. Zerbst, 304 U. S. 458, 464, that waiver means “an intentional relinquishment or abandonment of a known right or privilege.” Further, Carnley v. Cochran, 369 U. S. 506, 516, mandates: “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver.”

That part of Maryland Rule 719 which concerns appointment of counsel implements the constitutional right to counsel in criminal proceedings. As last amended 8 May 1972, effective 1 June 1972, it provides:

“b. Appointment of Counsel.
2. When Required — Conditions.
Unless the accused waives his right to be represented by counsel or is financially able to obtain counsel, the court shall request the Office of the Public Defender to designate or appoint counsel to represent the accused if the offense charged is a serious crime, as defined in Code, Article 27A (Public Defender)
3. Appointment by Court.
In a case in which the court has authority to appoint counsel under the provisions of Code, Article 27A (Public Defender) —
(i) The court shall determine the eligibility of the accused for appointed counsel under the provisions of Code, Article 27A (Public Defender), § 2 (f) and
§7.
(ii) The court shall include in the record a statement of the reasons why counsel was not appointed whenever it has been determined that an accused was ineligible for appointed counsel.
c. Waiver Inquiry.
If, at any stage of the proceeding, an accused indicates a desire or inclination to waive representation, the court shall not permit such a waiver unless it determines, after appropriate questioning in open court, that the accused fully comprehends: (i) the nature of the charges and any lesser — included offenses, the range of allowable punishments, and that counsel may be of assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof; (ii) that the right to counsel includes the right to the prompt assignment of an attorney, without charge to the accused, if he is financially unable to obtain private counsel; (iii) that even if the accused intends to plead guilty, counsel may be of substantial value in developing and presenting material which could affect the sentence; and (iv) that among the accused’s rights at trial are the right to call witnesses in his behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of the charges beyond a reasonable doubt.
f. Record to Show Compliance.
The docket entries or transcript shall affirmatively show compliance with this Rule.”

It has been consistently held that the requirements of Rule 719 are mandatory, and compliance with them is required irrespective of the type of plea entered, or the lack of an affirmative showing of prejudice to the accused. Manning v. State, supra; Taylor v. State, 230 Md. 1; Taylor v. State, 20 Md. App. 404; Wayne v. State, supra.

It is manifest that Diggs did not have the assistance of counsel at the trial resulting in his conviction. Under the Rule the trial judge was obliged to request the Office of the Public Defender to designate or appoint counsel to represent Diggs in connection with the offenses charged unless Diggs was financially able to obtain counsel, or, if not, effectively waived his right to assistance of counsel. We can only conclude that Judge Baer accepted Diggs’s declarations unequivocally made on both 27 July and 11 September that he was financially unable to obtain counsel. Our conclusion is predicated by the judge’s inquiry whether Diggs had talked to the Public Defender; if Diggs were not indigent there would be no purpose in talking to the Public Defender. The judge’s explanation of why the trial would proceed without defense counsel was: “I believe you have effectively waived your right to have an attorney because you were given notice at your last hearing that you would be tried today with or without a lawyer.” Whether the judge had in fact given such notice is not material in the circumstances. There was nothing to show that as of 27 July and 11 September Diggs’s representation that he was financially unable to obtain counsel was not true. Assuming, therefore, that he was indigent in the frame of reference of entitlement to appointment of counsel, neither the docket entries nor transcripts of the various proceedings affirmatively show compliance with Rule 719 as required by its § f. On the contrary, the transcripts affirmatively show that' the trial judge did not comply with the Rule. Although Diggs did not indicate a desire to waive representation (rather it was apparent that he desired to have the assistance of counsel), it is obvious from the course pursued by the judge that he believed that Diggs indicated an inclination, implicitly at least, to waive representation by showing up for trial without counsel in the face of the judge’s alleged admonition. Under § c of the Rule, the trial judge was then prohibited from proceeding on the basis that Diggs waived his right to counsel unless the judge determined after appropriate questioning in open court, that Diggs fully comprehended the four matters set out in the section. This the trial judge did not do. As the provisions of Rule 719 are obligatory, the sanction for noncompliance with them is the reversal of the judgments obtained at the trial and the grant of a new trial. We hold that the judge presiding at the post conviction hearing did not err in awarding Diggs a new trial.

The posture in which the case reaches us does not put into question whether Diggs could be found to have effectively waived his right to counsel by his conduct. If that issue, involving a constitutionally protected right, were before us, it would be our duty in determining whether the trial court made its decision within the required constitutional framework to apply the rule that “[w]hen constitutional rights turn on the resolution of a factual dispute we are duty bound to make an independent examination of the evidence in the record.” Wiebking, et al. v. State, 19 Md. App. 226, 233 quoting Brookhart v. Jams, 384 U. S. 1, 4, n. 4. What we are reviewing, however, is whether the post conviction hearing judge was correct in granting Diggs a new trial. He found that Diggs was entitled to a new trial because the trial judge did not comply with the provisions of Rule 719. As we have indicated, if the trial judge did not comply with Rule 719 as to appointment of counsel, Diggs was entitled to a new trial. Whether there was compliance was a factual determination within the frame of reference of the Rule, not in the context of the federal constitution. Therefore, our review is within the ambit of Rule 1086. As there was credible evidence to support the finding of the post conviction hearing judge that the trial judge did not comply with Rule 719, the judgment of the post conviction hearing judge was not clearly erroneous on the evidence, and we may not set it aside.

Order of 30 September 197k affirmed.

      . At the post conviction hearing Diggs testified that bail was in the amount of $5,000, that he obtained a professional bailbondsman and that bail was posted. There is indication in the record before us that the fee was $350.

      . It appeared that “Legal Aid” represented “them” in the District Court but, according to Miss Cook, “He can’t come downtown. Can’t represent us at the Supreme Bench.” The judge after observing, “Well, he shouldn’t have represented them in the District Court,” said, “Well apparently these people were representing this man — Legal Aid, and all of a sudden they dumped their case. I can’t really fault them for that.... But I might fault him, but I can’t fault them.”

      . For the early history of the Rule, see Hill v. State, 218 Md. 120.

      . Cross references to § b 2 of the Rule read:
      “Code, article 27A, § 2 if) defines ‘indigent’ as meaning any person taken into custody or charged with a serious crime, who under oath or affirmation subscribes and states in writing that he is financially unable, without undue hardship, to provide for the full payment of an attorney and all other necessary expenses of legal representation; § 2 (h) defines ‘serious crime’ as meaning:
      (1) A felony;
      (2) A misdemeanor or offense, the penalty for which involves the possibility of confinement for more than three months or a fine of more than $500, or any other offense where, in the opinion of the court, either the complexity of the matter, or the youth, inexperience, or mental capacity of the accused, may require representation of the accused by an attorney; and
      (3) An act which except for the age of the person involved, would otherwise be a serious crime;....”
      We noted in Laguay v. State, 16 Md. App. 709, 714, n. 3:
      “We observe that the classification of an offense as a ‘felony’ or a ‘serious crime’, as defined by Code, Art. 27A, § 2 (h) and incorporated by Rule 719 b 2, is not a constitutional criterion for the right to an indigent accused to have counsel appointed to represent him. In Argersinger v. Hamlin, 407 U. S. 25, decided 12 June 1972, the Supreme Court found that the sixth amendment right to assistance of counsel is not governed by the classification of the offense or by whether or not a jury trial is required. It said at 37: ‘We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.’ Argersinger thus extended the holding in Gideon v. Wainright, 372 U. S. 335, which involved a felony, for the reason that the rationale of Gideon has relevance to any criminal trial, where an accused is deprived of his liberty. 407 U. S. at 32. See Towers v. Director, 16 Md. App. 678.”

      . Code, Art. 27A, § 6 (f) provides that the Public Defender Act shall not be construed to deprive any court of its authority to appoint an attorney to represent an indigent person where there is a conflict in legal representation in a matter involving multiple defendants and one of the defendants is represented by or through the Office of the Public Defender, or where the Office of the Public Defender declines to provide representation to an indigent person entitled to representation under this article.

      . As indicated above, the transcript of the proceedings of 27 July does not reflect that Judge Baer so notified Diggs, despite the somewhat reluctant agreement of Diggs under questioning that the judge did so tell him. At the proceeding on 20 June, Judge James W. Murphy warned Diggs to “get your own counsel and be ready for trial that day [27 July] whether or not.”

      . In the memorandum opinion included in the order of 30 September granting a new trial, the hearing judge said:
      “Unfortunately the court is unable to find in the record the exact compliance with the provisions of Maryland Rule 719 which would justify forcing the petitioner to trial without counsel.
      Consequently the court must find that the waiver of the petitioner’s constitutional right to the assistance of counsel has not been demonstrated on the record to the extent which is made mandatory in Taylor vs. State, [20 Md. App. 404].”


source: Caselaw Access Project

license: Public Domain

text:
    MAURICE EARL DILL a/k/a Charles Day v. STATE OF MARYLAND
    [No. 495,
    September Term, 1974.]

      Decided February 21, 1975.

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

      Allan P. Feigelson, Assigned, Public Defender, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City and Ford Loker, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

STATEMENT OF CASE

The charging document in this case was an arrest warrant issued on 11 October 1973 by a District Court commissioner upon the sworn application of a police officer on information received. Maryland District Rules 702, §§ a and f, and 706c. It charged that MAURICE EARL DILL (also known as Charles Day) did on 4 October 1973 “at 3113 St. Paul Street (basement) expose his penis to Mary Crawford Clawsey by the act of taking his erect penis out of his pants and holding it between his thumb and forefinger in her view and in the open view of others in a public place.” Interlined after the word “expose” was the phrase “parts of his body required by law to be covered.” The warrant declared that Dill was “formally charged” with a violation of the common law. On 6 November when the warrant came on for trial in the District Court, Courts Art. § 4-301(1), Dill prayed a jury trial, Courts Art. § 4-302(d). He was convicted at a bench trial in the Criminal Court of Baltimore on 8 January 1974 and on 28 March was sentenced to two years. He appealed.

ISSUE FOR DECISION

When alembicated, the actual issue presented for decision is whether, in Maryland, the common law crime of indecent exposure has been repealed by legislative enactment. Dill asks: “Can the Appellant be charged, tried, convicted and sentenced under a common law crime if the acts constituting that crime are specified in a Maryland statute?” The issue is of obvious importance to Dill, if for no other reason, because of the punishment permitted. “In the case of common law crimes, the only restrictions on sentence are that it be within the reasonable discretion of the trial judge and not cruel and unusual punishment.” Kirkorian v. State, 233 Md. 324, 326. See Messina v. State, 212 Md. 602, 607. The argument set out in Dill’s brief does not speak to his question as framed. It, in effect, is limited to the question of punishment. Dill claims that he should have been sentenced under Code, Art. 27, § 122 “rather than under the common law” and his conclusion is “The sentence of the lower court is illegal and should be stricken.” The State meets Dill’s argument. It presents as the issue: “Was the two year sentence imposed in the instant case lawful.” It argues that it was.

The first hurdle which Dill must overcome, and which is not mentioned by him or the State, is that neither the matter of the repeal of the common law nor the legality of the punishment imposed was presented to the trial court. “This Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court; . . . .” Maryland Rule 1085. We may, however, pursuant to the Rule, decide a point or question of law which was presented to the lower court when a decision thereon is necessary or desirable for the guidance of the lower court or to avoid the expense and delay of another appeal to this Court even though such point or question of law was not decided by the lower court. And where jurisdiction cannot be conferred on this Court by waiver or consent of the parties, a question as to the jurisdiction of the lower court may be raised and decided in this Court whether or not raised and decided in the lower court. Moore v. State, 15 Md. App. 396.

We believe we may decide the question whether the common law crime of indecent exposure is repealed by statute. We so believe for two reasons. First, we think that the question was necessarily before the court below, even though presented by implication, and that it is desirable for the guidance of trial courts, both circuit courts and District Courts, that it be decided. Second, jurisdiction of the trial court is involved, both at the guilt stage and the penalty stage of the proceedings. We shall discuss the jurisdiction of the Criminal Court of Baltimore to try the case later in this opinion, but we now observe that, with respect to the sentence, whether the trial court exceeded its power by prescribing a penalty contrary to law concerns its jurisdiction. State ex rel. Sonner v. Shearin, 272 Md. 502, 526. Whether it did so exceed its power depends on whether the common law penalty for the offense is in effect in Maryland.

THE LAW

The Common Law Crime of Indecent Exposure

At the common law of England, to which the inhabitants of Maryland were declared to be entitled by Article 5, Declaration of Rights, Constitution of Maryland, indecent exposure of the person was a misdemeanor. L. Hochheimer, Criminal Law § 741, p. 453 (1st ed. 1897); Clark & Marshall, Law of Crimes, § 11.08, p. 779 (7th ed. 1967); R. Perkins, Criminal Law 395-396 (2d ed. 1969); 2 Wharton’s Criminal Law and Procedure § 784, pp. 625-627 (Anderson ed. 1957); Annot. 94 A.L.R. 2d 1353; Annot. 93 A.L.R. 996. The authorities above cited are in substantial accord that at the common law indecent exposure was the wilful and intentional exposure of the private parts of one’s body in a public place in the presence of an assembly. Thus, its main elements were the wilful exposure, the public place in which it was performed, and the presence of persons who saw it. The common law offense was held to exist in Maryland in Messina v. State, supra. The Court of Appeals described it, at 605-606:

“ ‘Indecent exposure in a public place in such a manner that the act is seen or is likely to be seen by casual observers is an offense at common law * * *. Ordinarily, * * * the place where the exposure is made must be public. What constitutes a public place within the meaning of this offense depends on the circumstances of the case. The place where the offense is committed is a public one if the exposure be such that it is likely to be seen by a number of casual observers * * *. Indecent exposure on a public highway so that one person sees, and others passing by can see, is an offense * * *.’ 67 C.J.S., Obscenity, Sec. 5. Hochheimer on Crime and Criminal Procedure, 2nd Ed., p. 430, defines the common law crime of indecent exposure as consisting of ‘exposure in public of the entire person, or of parts that should not be exhibited. An exposure is “public,” or in a “public place,” if it occurs under such circumstances that it could be seen by a number of persons, if they were present and happened to look.’ A number of cases have held that it is immaterial that the exposure is seen by only one person if it occurs at a place open or exposed to the view of the public and where anyone who happened to have been nearby could have seen if he had looked. The rule is stated in Reg. v. Webb, 3 Cox, C. C. 183. See also Morris v. State (Ga.), 34 S. E. 577, explaining Reg. v. Webb; and Reg. v. Farrell, 9 Cox, C.C. 446; and Commonwealth v. Hamilton (Ky.), 36 S.W.2d 342. Cases on the subject are collected in a note in 93 A.L.R. 996. * * *.
Indecent exposure, to amount to a crime, must have been done intentionally. Intent may be inferred from the conduct of the accused and the circumstances and environment of the occurrence. The essential intent is a general and not a specific intent. An exposure becomes indecent, and a crime, when defendant exposes himself at such a time and place that, as a reasonable man, he knows or should know his act will be open to the observation of others. State v. Martin (Iowa), 101 N. W. 637; Peyton v. District of Columbia, 100 A. 2d 36, 37.’ ”

The Statutory Crime of Indecent Exposure

Indecent exposure was dealt with in Maryland by legislative enactment in 1902. Chapter 281, § 67A of the Acts of the General Assembly of that year added a new section to Art. 27, “Crimes and Punishments”, under the sub-title “Disturbance of the Public Peace”. It provided, inter alia, that “[a]ny person * * * who shall wilfully act in a disorderly manner * * * by indecently exposing his person on or about any steamboat wharf, dock or public waiting room, or in or about the station grounds of any railroad in the State, or in or on any steamboat, streetcar, electric car, railroad car, passenger train or other public conveyance, * * * shall upon conviction thereof, be sentenced to a fine of not less than five dollars or more than fifty dollars and costs, and when such fine and costs are not paid, the party shall be committed for not less than seven days or more than sixty days to the city or county jail, such party to be released at any time before the term of his imprisonment expires upon the payment of his fine and costs.” The statute remained unchanged in substance for sixty-five years. Acts 1967, ch. 520, however, made an amendment brief in content but significant in effect. It added “on or about any public place” to the places in which indecent exposure was proscribed. As in effect today § 122 of Art. 27 reads:

“Any person * * * who shall wilfully act in a disorderly manner * * * by indecently exposing his person on or about any public place or any steamboat wharf, dock or public waiting room, or in or about the station grounds of any railroad in the State, or in or on any steamboat, streetcar, electric car, railroad car, passenger train or other public conveyance, * * * shall upon conviction thereof, be sentenced to a fine of not less than five dollars nor more than fifty dollars and costs. Any fine shall be paid pursuant to the provisions of Article 38, § 4.”

In Matter of Nawrocki, 15 Md. App. 252, we discussed fully whether § 122 required the actual presence of other persons who may be affected by the conduct or language proscribed. At 255-259. We held that it did. At 259.

The Repeal of the Common Law

The General Assembly of Maryland may by its legislative act change or entirely abrogate a rule of the common law. Day v. State, 7 Gill 321. See Latz v. Latz, 10 Md. App. 720, 730-731. “The mere grant of legislative power in a constitution implies the right to change the common law.” 15 Am.Jur.2d Common Law 813, § 16. “Where common-law principles, associated with the subject matter with which a statute deals, are not expressly affirmed or denied, the extent to which the common law is altered or changed is left to implication.” 2A Sutherland Statutory Construction 281, § 50.05 (4th ed., 1973). Hooper v. Baltimore, 12 Md. 464, 475, quoted with approval Dwarris on Statutes, 695: “As a rule of exposition, statutes are to be construed in reference to the principles of the common law. For it is not to be presumed that the Legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the Act did not intend to make any alteration other than what is specified, and besides what has been plainly pronounced. Lutz v. State, 167 Md. 12, 15, observed: “That statement of the law was approved in Keech v. Baltimore & Washington R. R. Co., 17 Md. [32] 45, and Greenwood v. Greenwood, 28 Md. [369] 386, and announces an established rule of statutory construction. Harrison v. State, 22 Md. 468; Heiskell v. Baltimore, 65 Md. 125, 4A. 116; 12 C.J. 186; 25 R. C. L. 1054; Sutherland on Stat. Construction, secs. 251, 294.’’Lutz continued:

“In 25 R. C. L. 1054, it is said that: ‘It has been said that statutes are not presumed to make any alterations in the common law further than is expressly declared, and that a statute, made in the affirmative without any negative expressed or implied, does not take away the common law. The rules of the common law are not to be changed by doubtful implication, nor overturned except by clear and unambiguous language. In order to hold that a statute has abrogated common law rights existing at the date of its enactment, it must clearly appear that they are repugnant to the act, or the part thereof invoked, that their survival would in effect deprive it of its efficacy and render its provisions nugatory.’
Where, however, a statute and the common law are in conflict, the common law yields to the statute to the extent of the inconsistency (Sutherland on Stat. Const. sec. 294; 12 C.J. 186), and a statute which deals with an entire subject-matter is generally construed as abrogating the common law as to that subject.”

We find persuasive the view expressed by the Superior Court of Connecticut in State v. Salafia, 29 Conn. Supp. 305, 284 A. 2d 576:

“When there is disparity in the punishments applicable to the offense as a common-law crime and as a statutory violation, it would be a palpable absurdity to hold that the common law had not been supplanted by the statute. State v. Collins, 28 N.M. 230, 210 P. 569; State v. One Ford Automobile, 151 Ark. 29, 235 S.W. 378. If the punishment for a common-law crime is prescribed by a statute pertaining specifically to that offense, the statute governs the punishment for the crime exclusively. Bentley v. Commonwealth, 269 S.W.2d 253 (Ky.).” 284 A. 2d at 580.

The rationale of this view was implicit in the holding of this Court in State v. Gibson, 4 Md. App. 236, 242 A.2d 575, aff'd. 254 Md. 399, 254 A. 2d 691. We quoted from 82 C.J.S. Statutes § 303, the well settled rule that “where a statute prohibits a particular act, and imposes a penalty for doing it, and a subsequent statute imposes a different penalty for the same, or practically the same offense, the later statute repeals the earlier one, and this is true whether the penalty is increased or diminished.” This rule was applied as one ground for our holding that the legislature did not intend to permit the prosecution of offenders either for the felony of common law manslaughter, with its 10 year penalty, or for the statutory misdemeanor of manslaughter by automobile, with its three year penalty, “even though, where the prosecution is based upon gross negligence, the proof necessary to justify a conviction in either case would be precisely the same (a wanton or reckless disregard of human life).” 4 Md. App. at 246. See Reddick v. State, 219 Md. 95, 98; Clark & Marshall, Law of Crimes, § 1.08, 55 (7th ed. 1967). Finally, in construing statutes, results that are unreasonable or inconsistent with common sense should be avoided, whenever possible. Height v. State, 225 Md. 251.

DECISION

We consider that part of § 122, Art. 27, dealing with indecent exposure, in the light of the general rules above discussed. It is clear that prior to 1 June 1967, the effective date of ch. 520, Acts 1967, the criminal law of this State included the common law offense of indecent exposure and the statutory offense of indecent exposure constituting disorderly conduct. In both Messina v. State, supra, decided 5 April 1957, and Kirkorian v. State, supra, decided 24 January 1964, the accused was indicted for and convicted of the common law offense of indecent exposure. Each case concerned a man seated in an automobile parked on a public highway who handled his exposed private parts in the sight of young girls. In each case the Court of Appeals affirmed the judgment, expressly holding that permissible punishment was not limited to that prescribed by the statute because the offense of indecent exposure with which the accused was charged was a common law misdemeanor. The Court held explicitly in Kirkorian and implicitly in Messina that the offense charged was not within the purview of the statute. The patent reason in each case was that the act was not performed in a place designated by the statute.

As we have indicated, in 1967 the legislature proscribed indecent exposure of the person “on or about any public place.” Although the crime of indecent exposure was not defined by statute, the addition of the phrase “on or about any public place” brought the statutory crime squarely in line with the common law offense. Each then had the identical essential elements of intentional exposure, any public place, and presence of other persons. In other words, since 1 June 1967 there is no distinction between the substantive offense of indecent exposure under the common law and under the statute. The manifest result is that the amendment of § 122 of Art. 27 in 1967 repealed the common law crime of indecent exposure. It would be palpably absurd, completely unreasonable, and inconsistent with common sense to hold that the common law had not been supplanted by the statute. To conclude otherwise would be to attribute an intention to the legislature to permit the prosecution of offenders either for the common law crime, with its penalty of imprisonment limited only by the reasonable discretion of the sentencing judge and the constitutional guarantee against cruel and unusual punishments, or for the statutory offense, with its maximum penalty of a fine of $50, even though the proof necessary to justify a conviction in either case would be precisely the same. It was such a result which we found incongruous in State v. Gibson, supra, at 246. We hold that ch. 520, Acts 1967, repealed the common law crime of indecent exposure.

The obvious effect of our holding is that the sentence imposed on Dill was illegal. The penalty authorized by § 122 is a fine of not more than $50 and costs. If the fine is not paid (the costs shall not constitute a part of the fine), the defendant may be imprisoned until the fine is paid but in no event shall the period of imprisonment exceed one day for each $10 of the fine and where the fine is imposed for an offense for which imprisonment is not an authorized penalty in the absence of default in payment of a fine, such period shall not exceed 15 days. Code, Art. 38, § 4 (b) (1) and (3).

The full consequence of our holding cuts broader than the illegality of the sentence imposed. It is that the criminal court was without jurisdiction to try the case. The District Court has exclusive original jurisdiction in a criminal case in which a person at least 18 years old is charged with the commission of a common law or statutory misdemeanor. Courts Art. § 4-301. The District Court is deprived of jurisdiction, however, if a defendant is entitled to and demands a jury trial at any time prior to trial. Courts Art. § 4-302 (d) (1). He may demand a jury trial in a criminal case if the penalty for the offense with which he is charged permits imprisonment for a period in excess of 3 months. Courts Art. § 4-302 (d) (2). See Smith v. State, 17 Md. App. 217. In the light of our holding, Dill was not entitled to a jury trial, and therefore he could not properly demand one. Because he could not demand a jury trial, the District Court retained its exclusive original jurisdiction, and the trial in the Criminal Court of Baltimore was void ab initio because it had no jurisdiction over the matter. The judgment is reversed and the case remanded with direction to the Criminal Court of Baltimore to transfer it to the District Court for trial.

As we have indicated, the arrest warrant serving as the charging document read that Dill was charged with a violation of the common law. But the warrant also contained a statement of the essential facts constituting the offense charged. This statement, set out verbatim in the first part of this opinion, included all the essential elements of the statutory offense as we have found them to be. The warrant, therefore, charged an offense, and Dill was fully apprised of the charge. Declaration of Rights, Constitution of Maryland, Art. 21; Putnam v. State, 234 Md. 537; Seidman v. State, 230 Md. 305; Dortch and Garnett v. State, 1 Md. App. 173. See Maryland Rules 715 and 725, § b. Also the warrant not only contained the constitutionally mandated words, “against the peace, government and dignity of the State”, Constitution of Maryland, Art. IV, § 13, State v. Dycer, 85 Md. 246, but it declared that the offense charged was “contrary to the form of the Act of Assembly in such case made and provided.” We think it was in substantial compliance with Maryland District Rule 706 § e (2), and that it was not fatally defective in any event. See Lutz v. State, supra, at 17, in which the Court of Appeals found that although the offense presented in the indictment was cognizable at the common law, the additional allegation that the offense charged was against the form of the statute may be disregarded as surplusage. See also Joyce on Indictments § 463 (2d ed. 1924).

Judgment reversed; case remanded for further proceedings in accordance with this opinion.

      . The sentence authorized upon conviction of an offense proscribed by § 122 of Art. 27 is “a fine of not less than five dollars nor more than fifty dollars and costs. Any fine shall be paid pursuant to the provisions of Art. 38, § 4,” which includes directions with regard to payment of a fine and provisions with respect to failure to pay a fine.

      . Perkins points out, at 395-396: “Blaekstone did not deal with [the offense of indecent exposure] separately. ‘The last offense which I shall mention,’ he said, ‘more immediately against religion and morality, and cognizable by the temporal courts, is that of open and notorious lewdness; either by frequenting houses of ill fame, which is an indictable offense; or by some grossly scandalous and public indecency, for which the punishment is by fine and imprisonment.’ ” The quote from Blaekstone appears in 4 Bl. Comm. *64, chapter 4. Chapter 4 is entitled “Of Offenses Against God and Religion.” Perkins opines: “In other words private indecency was exclusively under the jurisdiction of the ecclesiastical court but public indecency of an extreme nature was indictable. And, in the early view, indecent exposure of the person was merely one form of obscene exhibition.”
      We observe, however, that “Persons wilfully, openly, lewdly, and obscenely exposing their persons in any street or public highway, or in the view thereof, or in any place of public resort, with intent to insult any female” were said by Blackstone to be “Rogues and vagabonds.” 4 Bl. Comm. *169. There were twelve other categories of rogues and vagabonds, which were one of three classes of vagrants. The other two classes were “idle and disorderly persons” and “incorrigible rogues.” See Downes v. State, 11 Md. App. 443, 274 A. 2d 663. Blackstone said that rogues and vagabonds were “punishable by a single magistrate with three calendar months’ imprisonment and hard labour.” *169.

      . In Messina the Court rejected the contention of the defendant, who was in an automobile parked on the street, that because only one person saw him, it was not a public exposure. It said that indecent exposure on a public highway so that one person saw it and other persons passing could see it was an offense. This follows the great weight of authority in this country that to support a charge of indecent exposure under common law, it is not necessary to show that more than one person actually saw the act if it was performed in a public place where others might have seen it. Annot 94 A.L.R.2d 1353, 1357-1358. There were early English cases, however, holding that an indecent exposure seen by one person only, or capable of being seen by one person only, was not an offense at common law. Annot. 93 A.L.R. 996, 998-999.

      . The Act was codified as § 94, Code of 1904; § 102, Code of 1912; § 119, Code of 1924; § 130, Code of 1939; § 144, Code of 1951; § 122, Code of 1957.
      Acts 1961, ch. 616, § 7 made housekeeping changes by reason of the creation of the Municipal Court of Baltimore City.

      . The title to the Act declared that it was repealing § 122 of Art. 27, subtitled “disturbance of the Public Peace”, and re-enacting it with amendments, thereby making it unlawful to act in a disorderly manner “in a public place.”

      . Amendments by Acts 1968, ch. 146, § 2 and ch. 666, § 1, Acts 1972, ch. 181, § 28 and Acts 1973, ch. 332, made no change in the substantive offense. The 1972 amendment eliminated the provisions for nonpayment of fines and costs and added a sentence referring to Art. 38, § 4.

      . A statutory prohibition of the offense of indecent exposure may be expressed in general terms. 2 Wharton’s Criminal Law and Procedure § 784 (Anderson ed., 1957).

      . The crime of manslaughter is not defined by statute but is recognized by § 387 of Art. 27 and provision made for its punishment. 4 Md. App. at 247.

      . See Tate v. Short, 401 U. S. 395, which held that it was a denial of equal protection to limit punishment to payment of a fine for those who are able to pay it but to convert the fine to imprisonment for those who are unable to pay it, and Williams v. Illinois, 399 U. S. 235, which held that when the aggregate punishment exceeds the maximum period fixed by statute and results directly from an involuntary non-payment of fine or court costs, there is an impermissible discrimination and a violation of the Equal Protection Clause.
      We observe that the statutory punishment upon conviction of indecent exposure has remained unchanged for almost three-quarters of a century. It is, of course, the prerogative of the General Assembly to authorize a harsher penalty.

      . We note that according to the docket entries of 28 March 1974 “Appeal bond [was] set at $2,500” and that on 17 May 1974 “Recognizance [was] taken by Allegheny Mutual Cas. Co. in the amount of $2,500.00.” Dill was represented on appeal, however, by an assigned Public Defender.

      . “Indictment” includes “a charging document as defined in Maryland District Rule 702.” Maryland Rule 702, § a. Under Maryland District Rule 702, § a, “charging document” includes an arrest warrant. Maryland District Rule 706 § e (2) states that a warrant shall contain “a plain, concise and definite statement of essential facts constituting each offense charged, and each formal charge placed against the defendant;....”


author: Lowe, J.,

text:
    VIRGINIA LYNNETTE FABRITZ v. STATE OF MARYLAND
    [No. 500,
    September Term, 1974.]

      Decided February 21, 1975.

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

      Richard J. Clark, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Warren F. Sengstack, State’s Attorney for Calvert County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Virginia Lynnette Fabritz, a twenty year old mother, was tried by a jury in the Circuit Court for Calvert County for child abuse and assault and battery upon her now deceased daughter, Windy Lynn Fabritz. The State conceded, and the judge acknowledged in his instructions to the jury, that:

“The State has not attempted to prove in this case that the Defendant struck the blows or applied the blunt trauma as the doctor referred to it which caused the injuries, the initial injuries to this child and set in train the physical changes which ultimately resulted in its death.”

To the contrary, the evidence clearly showed that the child was in the custody of another at the time the injury was inflicted and a polygraph examination verified not only that she had not inflicted the injury, but that she did not know who did inflict it, nor suspect that it was going to happen. Indeed her pastor, the associate pastor of St. Paul’s United Church of Christ, indicated that “She [M’s. Fabritz] had a good relationship with Windy, Windy loved her and she loved Windy. It was obvious both vocally and by non-verbal communication”; and the Social Services Representative with the Department of Human Resources, who had known and worked with M’s. Fabritz and Windy for a year described the mother-daughter relationship as a very good one.

“She always seemed concerned about Windy. I never even saw her angry at Windy. They seemed to be in good relation, they seemed to love each other very much and she always seemed concerned about the child’s welfare. And always knew pretty much what the child was doing and exactly where the child was.”

The trial judge entered a judgment of acquittal as to the assault and battery, having found “no evidence in this case of any hitting or assaulting of the child by this Defendant.”

The child abuse question, however, was permitted to go to the jury. The judge said:

“With respect to the analysis of the evidence as it applies to the abuse statute, we think that the statute intends to make a criminal act any positive abuse or any actions by a custodian of a child which amount to cruel or inhumane treatment.... And the view the Court takes of the matter, a person who has the custody of an infant has a two-fold duty, that is to refrain from actively ^injuring the child himself which is an act which ought not to be done as well as an obligation which can not be avoided to take positive action to protect and care for the child. Those positive actions fall into several categories to provide it with necessary shelter and the necessary sustenance to sustain life as well as that medical attention which is available to protect it from the consequences of injuries no matter how received.”

The judge concluded that to permit a child who is obviously seriously injured to expire from want of readily available attention, may in a given circumstance constitute “cruel and inhumane treatment,” borrowing that phrase from the child abuse statute:

“It is unquestionably inhumane to permit someone who is unable to care for itself and provide for its own medical attention to expire for want of that medical attention and in this case, the testimony shows that, although it became progressively less and less, there was a chance for this child to survive at any point from the time the Defendant returned home until very close to the time it expired, had it been brought to the attention of the medical authorities. This was not done and we think the question of whether or not that, in the facts of this case, is a criminal offense turns essentially upon the finding of the fact by the jury.”

As previously noted there was no evidence that M’s. Fabritz inflicted Windy’s injury. Thus the actions upon which the verdict was based occurred during the eight hour period when Windy was in her mother’s presence. M’s. Fabritz bathed Windy twice (once with alcohol), put her night clothes on, tried to feed her, took her temperature and finally tried to call a doctor. During that period, she had to have observed the child’s badly bruised body, as did a neighbor who assisted her. In the eighth hour after arrival home Windy convulsed and was rushed to the hospital. She was pronounced dead on arrival, death having been caused by peritonitis resulting from a blow to the stomach. The State’s “cruel and inhumane treatment” theory rested on appellant’s failure to seek professional medical help until the child convulsed and death was imminent.

The jury found M’s. Fabritz guilty of child abuse and the judge sentenced her to five years imprisonment. We do not find the evidence sufficient to sustain that conviction under the language of the statute as repeated in the indictment. See n. 4, infra.

The judge’s opinion in denying the motion for judgment of acquittal and his instructions to the jury interpreted the child abuse statute, Md. Code, Art. 27, Sec. 35A, as applying to a person’s failure to act to prevent aggravation of an injury. We cannot read that interpretation into the language of the Act.

At the time of the offense the pertinent language was that enacted by Chapter 835 of the Laws of Maryland, 1973. Although it was again amended the following year the change is not here pertinent. The relevant language of Chapter 835 read:

“Penalty. Any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child under the age of eighteen years who causes abuse to such minor child shall be guilty of: a felony and upon conviction shall be sentenced to not more than fifteen years in the penitentiary . . . .”
‘Abuse’ shall mean any physical injury or injuries sustained by a child as a result of cruel or inhumane treatment or as a result of malicious act or acts by any parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for supervision of a minor child.” [Emphasis added]

Basic to proof of the corpus delicti is a showing that the accused is among the named persons to whom the Act applies (here appellant was the parent) and secondly that such person caused the injury sustained by the child. This meaning is readily apparent by substituting the definition of “abuse” for the word “abuse” as it appears in the penalty section so that it reads in relevant part as follows:

“Penalty. — Any parent, ... of a minor child . . . who causes . . . [any physical injury or injuries] to such minor child shall be guilty of: a felony . . . .”

We read nothing in this statute, nor its history, which might suggest the Legislature’s intent to encompass those parents, etc. who withhold from their children the necessities of life which the Court of Appeals has interpreted as including medical care, Craig v. State, 220 Md. 590, 596.

Prior to 1973 the statute did not use nor define the term “abuse.” It penalized any person within the enumerated categories:

“ . . . who maliciously beats, strikes or otherwise mistreats such minor child to such degree as to require medical treatment. . . .”

Although the phraseology was somewhat altered by the revised version contained in House Bill 1056, adopted in 1973, as Chapter 835, the express purpose of the revision was to encourage the reporting of instances of abuse and only incidentally to rearrange and revise the language thereof. This view is substantiated by the title which is constitutionally required to describe the content of the bill, Md. Constitution, Art. Ill, § 29, and the purposes expressed in the newly adopted preamble.

We conclude that to be guilty under the statute, the accused must be shown to have caused the injury, not simply aggravated it by failure to seek assistance. Our review of the record compels us to remark upon our concern that the State has been unable to apprehend and punish the execrable wretch who committed this unbelievably vicious act. The alternative of turning to the tangentially culpable mother, whose judgment was so unwise that her child’s death may well have been the result, seems somehow unfulfilling. The sentence for her hesitancy during that eight hour period will not end after five years as would the sentence formerly imposed.

Judgment reversed.

Costs to be paid by Calvert County.

Mandate to issue forthwith.

      . Although the names of appellant and her daughter are spelled various ways throughout the record, the spelling used here is that of the indictment.

      . Thomas Crockett — a co-defendant in whose custody Windy was during the two day period culminating in her injuries — was subsequently tried but acquitted for lack of evidence.

      . Defendant’s exhibit No. 1, admitted without objection, contained the results of a Polygraph Examination conducted by the Maryland State Police. Of the six possible results, viz, 1) truthfulness, 2) deception, 3) inconclusive reaction, 4) statement obtained, 5) referred to be examined or 6) re-examination requested, all answers to relevant questions “indicated truthfulness.” The report commences by stating the purpose of the examination:
      “Mrs. Fabritz is brought to polygraph to ascertain if she is any way involved in the death of her 3-year old daughter.”
      After responding that she intended to answer truthfully each question, she denied hitting or causing the child’s death by hitting. The examiner stated:

        “It is the opinion of the examiner that the above questions were answered truthfully.”
      As the examination progressed she was also asked the following additional relevant questions:
      “34. Regarding the death of Wendy at the very time that Wendy was struck in the stomach were you, yourself, present?
      Answer: No
      35. Regarding the death of Wendy did you, yourself, hit Wendy in the stomach? Answer: No
      32. Regarding the death of Wendy do you know for sure who struck Wendy in the stomach? Answer: No
      31. Regarding the death of Wendy do you suspect anyone in particular of striking her in the stomach? Answer: No
      41. Regarding the death of Wendy are you deliberately holding back any information about that? Answer: No
      42. Regarding the death of Wendy, before she was actually struck did you already know it was going to happen? Answer: No
      It is the opinion of the examiner that above tests were also answered truthfully.”
      The issue of admissibility of polygraph results is not before us and we venture no opinion thereon.

      . The descriptive portion of the title reads:
      “ ... to provide certain definitions in the child abuse law and to mandate the reporting of suspected child abuse to certain agencies, and providing for cooperative efforts by certain agencies in cases of child abuse, and extending immunity to persons who report child abuse cases in good faith, and generally clarifying and extending the law relating to child abuse.”

      . The preamble reads:
      “Purpose. — The General Assembly hereby declares as its Legislative intent and purpose the protection of children who have been the subject of abuse by mandating the reporting of suspected abuse. By extending immunity to those who report in good faith, by requiring prompt investigations of such reports and by causing immediate, cooperative efforts by the responsible agencies on behalf of such children.”
      The mandate to report, whether applicable here or not, was not the crime with which appellant was charged. The indictment charged that M’s. Fabritz:
      “ . . . did unlawfully abuse, Windy Lynn Fabritz, a minor child under the age of eighteen years, by inflicting physical injuries sustained as a result of cruel and inhumane treatment, or as a result of malicious act or acts, .. ..”


text:
    IN RE APPEAL NO. 504, September Term, 1974 from the Circuit Court of Baltimore City, sitting as a Juvenile Court
    [No. 504,
    September Term, 1974.]

      Decided February 21, 1975.

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

      Sobmon Reddick and Geraldine Kenney Sweeney, Assistant Public Defenders, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Albn, State’s Attorney for Baltimore City, and Clarence Long, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

On 8 February 1974 the State’s Attorney for Baltimore City filed petition No. 012274 in the Circuit Court of Baltimore City, Division for Juvenile Causes (Juvenile Court), averring that a male child, born 16 October 1959 (appellant) was delinquent. The reason given for the averment was that on 26 December 1973, about 2:35 p.m., appellant, in the company of two other persons, “unlawfully did steal, take and carry away the goods, chattels, money and/or property of Veronica Feuka, to wit: one purse and contents, valued at $23.50.” At a hearing before a Master on 11 April 1974 appellant was found to be delinquent. Maryland Rule 908 e 1; Matter of Brown, 13 Md. App. 625. Exceptions to the Master’s findings were timely filed. Rule 908 e 2. See Matter of Anderson, 20 Md. App. 31, affirmed 272 Md. 85. On 2 May the matter was heard de novo by the Juvenile Court. Rule 908 e 3. Appellant was found to be a delinquent child. On 4 June, by order of the court, he was placed on probation under supervision of a Probation Officer. On the same date the court issued an order that appellant’s mother make restitution to the victim in the amount of $22.50. Courts Art. § 3-839. An appeal was timely noted “from the judgment and order.” Courts Art. § 12-301 and § 12-308 (a) (1).

The issue presented for decision on appeal is whether the evidence was sufficient to sustain the finding that appellant was a delinquent child.

Appellant was a child in the contemplation of the juvenile laws of this State because he was a person under the age of 18 years and subject to the jurisdiction of a juvenile court. Courts Art. § 3-801 (e). He would be a “delinquent child” if he committed a “delinquent act”, and required supervision, treatment, or rehabilitation. Courts Art. § 3-801 (k). A “delinquent act” includes an act which would be a crime if done by a person who is not a child. Courts Art. § 3-801 (j)As the reason given in the petition for the allegation that appellant was delinquent was that he committed the crime of petit larceny, he would properly be found to be a delinquent child if the evidence adduced at the adjudicatory hearing was legally sufficient to establish the corpus delicti of that offense and his criminal agency and that he required supervision, treatment, or rehabilitation. To be legally sufficient, that evidence must prove the allegation in the petition beyond a reasonable doubt. Courts Art.. § 3-830 (a); Woods v. Department of Social Services, 11 Md. App. 10.

The victim of the crime, Veronica Feuka, testified that she left her home at 339 E. 31st Street in Baltimore City on 26 December 1973 about 2:15 in the afternoon to go to the grocery store. She saw a “bunch of boys.” Three were in front of her house, and two were across the street. She made a judicial identification of appellant as one of the boys, but she could not say whether he was one of the three in front of her house or one of the two across the street. She was walking down Barclay Street towards Old York Road when her purse was stolen — “they just took it.... I was carrying it on my left arm ... it had a zipper with a chain. ... I had it around my small finger. ... I was holding it on the . . . shopping cart . . . and all of a sudden they took it.” She did not know how many persons were involved in the incident. She did not get a look at the one who actually took it. There was $15 and $2.50 worth of food stamps in the purse, and the purse itself was worth about $5. When she turned around “they were all running south up Barclay.” She saw only three of them running. She attempted to describe how they were dressed. “Well, what I can remember was, one had a red shirt, blue pants and the other one had blue pants with a knitted brown hat and green hat. That’s all I could remember.” Upon inquiry, it was elicited that one had on a brown hat and another had on a green hat. She did not know how the third boy was dressed. She was cross-examined about her identification of appellant. The transcript of the trial reads:

[by Solomon Reddick, defense attorney]

“Q. You don’t know whether this boy was one of the boys who you saw or not, do you?
A. I really couldn’t tell you that, because I didn’t have that much good look at the boys.
Q. But, I say, you don’t know whether he was one or not, do you?
A. He’s about the size. That’s about all I can tell you.
Q. But, you don’t know if you can identify him today? Can you?
A, No.”

It was clear, and the court so observed, that she did not know whether the five boys she saw when she first left her house were involved in the incident. She could not say whether any of the three boys who ran after snatching her purse was among those she had seen standing by her house or across the street.

Roberta Feuka, the mother of the victim, was looking out the window when her daughter left the house. She saw the three boys standing under the window, and two smaller ones across the street. She opened the window to throw her daughter a rain hat. She saw the two smaller boys standing across the street start after her daughter and one of them went “right after her and grabbed the purse, and the two of them ran [west on 31st Street] and the other three from that corner, ran the other way.” She identified appellant as one of the three boys standing under her window. He was not one of the two smaller hoys standing across the street.

Detective John Buettner, Criminal Investigation Division, Baltimore City Police Department, was dressed in plain clothes and cruising in an unmarked police vehicle on 26 December 1973. About 2:30 p.m. he was in the area of Barclay and 31st Streets and received a radio broadcast that there had been a “purse-snatch” in the 3100 block of Barclay Street. He responded to the call and when he arrived he met another police officer and the victim. He asked Ms. Feuka for a description of the participants. She told him there were “four or five colored males . . . 14-15 years of age.” “She said they all had knit hats on, said one was brown, one was green. She said one boy had a real red — I think she said tangerine red shirt on, and blue pants. The other one had blue pants but she couldn’t give anything else.” Buettner drove toward Greenmount Avenue. When he reached the 400 block of East Lorraine Avenue he saw appellant running across Lorraine Avenue. Buettner stopped him. “At this time he was pretty windy, and sweaty, and I had asked him what — where he was coming from. ... He said he had just left the house up the street. So, I asked him, where was this house, and he said, ‘Up in the next block,’ which would be the 300 block of East Lorraine, and based on the fact of his being winded and sweaty, and the fact that he was wearing a pair of blue trousers and a brown — and I believe his was a green knit cap.” The officer “placed [appellant] in the police vehicle,” explained there had been a purse-snatch in the 3100 block of Barclay Street, and told him he was going to take him to the scene and “see if anyone would identify him.” Buettner took appellant to the scene of the crime. The officer asked the victim if she recognized the youth and “[s]he said the same hat and same pants, but I can’t be sure.” Roberta Feuka ran up, and “Just as she got to the car, she pointed her hand out — into the car, and stated, ‘That’s one of them that grabbed my daughter’s purse’ . . . .” On cross-examination Buettner said appellant was under arrest when he was placed in the car. “However, if he had not been identified, I would have taken him home. He would have been released.”

The State rested and the defense moved for judgment of acquittal. The motion was denied after argument. Appellant was fully advised by his counsel of his right to remain silent. Appellant elected not to testify. The defense offered no evidence. The motion for judgment of acquittal was renewed and again denied. On the merits, the defense submitted on the argument presented on the motion. The State argued. The court found appellant to be a delinquent child “. . . for the reasons stated in this petition, which means in effect that I am finding you guilty of this charge against you.” The court made a statement of the grounds on which it based its determination, Rule 912 d 1:

“It, in a sense, was a close question. I believe beyond reasonable doubt that you are guilty, but in getting to the point of being beyond a reasonable doubt, it wasn’t by a overwhelming margin, but it was in my mind enough a margin to make me morally certain that you were the one.
It is very true that the law says that merely because a person may be present at the scene of a crime, that is not enough to prove that that person participated in that crime. I am satisfied from the testimony in the record, which is only the State’s witnesses, that you were there. That you were one of the three boys standing outside the house of Ms. Feuka. Ms. Feuka — Mrs. Veronica Feuka was not able to identify you with sufficient certainty, at all. If I had to rely on her testimony, I could not place you there, but her mother’s testimony was completely positive in that area, as well as the testimony of Detective Buettner, which cited the identification of you in a spontaneous way at the scene by the elder Ms. Feuka.
So, I’m perfectly satisfied that you were there at that point, but that alone, as I have indicated, is not enough to say: Well, you’re guilty then of this purse-snatch. But, we have, I think, the two other circumstances. We have the fact that you ran at the same time as the other boys ran, including the two smaller boys. You were very close together with the two small boys. Now, running away from the scene of a crime — the law says, again, — is not by itself enough to find you guilty. If that’s all we have to go on, the fact that you are running away from the scene of a crime, that’s not enough by itself. But we have your presence, we have the close proximity to the other boys; we have you running away, and we have you running, five blocks away, still running, according to the testimony of Detective Buettner.
Now, what I think, quite frankly, tipped the scales in my mind and, though I think their conduct was highly suspicious to say the least, highly indicative of guilt, I wasn’t completely positive but I could be convinced beyond a reasonable doubt that you are involved, but what tipped the scales was the uncontradicted testimony of Detective Buettner as to what you told him, as to your whereabouts, where you had come from, and I must agree with the State.
This was a lie, because I am satisfied from the testimony that you were definitely there at the corner, and you couldn’t have been at both places, the corner and at a friend’s house. So, the fact that you made misrepresentations to the officer, the fact you lied to Detective Buettner, gives, I think, enough support to the other factors to tip the balance to the area of being beyond a reasonable doubt in my mind.
I am well aware, and I think I can take judicial notice of the fact, that purse-snatches today are commonly done by two or more individuals acting in concert, that they are done quite commonly, by those who station themselves in different vantage points to work harmoniously together. This is a very familiar pattern, unfortunately, and it is for these reasons that I make the finding that I do.”

The test of the sufficiency of the evidence to be applied here is whether the evidence adduced either showed directly or supported a rational inference of the facts to be proved, from which the trier of fact could reasonably be convinced, beyond a reasonable doubt, that appellant was a delinquent child. Williams v. State, 5 Md. App. 450, 459. The facts to be proved were that the offense alleged in the petition was committed, that appellant committed it, and that he required supervision, treatment, or rehabilitation. In ascertaining whether this test was met we must do so within the strictures of Rule 1086 because the action was tried below without a jury. We may not set aside the judgment of the juvenile judge on the evidence unless he was clearly wrong, and in considering whether he was, the Rule requires that we give due regard to his opportunity to judge the credibility of the witnesses. In Edwards v. State, Memorandum on Motion for Reargument, 198 Md. 132, 152, the Court of Appeals was asked how it could ever say that the trial court was clearly wrong. It said, at 159, “This question can only be answered as and when it is presented, case by case. . .. [I]t is to be expected that such cases will be rare.. . .” See Wilson v. State, 7 Md. App. 41, 53. This is one of those rare cases. We hold that the court below was clearly wrong in its judgment on the evidence. The judgment is vacated.

The evidence before the court was legally sufficient to establish the corpus delicti of the crime of petit larceny — the wrongful and fraudulent taking and removal of personal property worth less than $100 from the possession of another against his will, with intent to deprive the person entitled thereto of his ownership therein. Connor v. State, 6 Md. App. 261, 262. See Code, Art. 27, § 341. But it was not legally sufficient to show the criminal agency of appellant. The judge below could properly find from the evidence that appellant was at the scene of the crime and that he fled. It is elementary that the mere presence of a person at the scene of the crime is not, of itself, sufficient to establish that the person was either a principal or an accessory to the crime. Nor is flight, alone, controlling. Tasco v. State, 223 Md. 503, 509, citing Judy v. State, 218 Md. 168, Watson v. State, 208 Md. 210, and Clay v. State, 211 Md. 577. See Derricks and Hilgeman v. State, 9 Md. App. 261; Anderson v. State, 3 Md. App. 362; Williams v. State, 3 Md. App. 58. “But presence at the immediate and exact spot where a crime is in the process of being committed is a very important factor to be considered in determining guilt;...”, Tasco v. State, supra, at 509, and flight is a factor that may also be considered, Farmer v. State, 5 Md. App. 546, 553. There must, however, in addition to presence or flight, exist other apparent circumstances upon which to base guilt beyond a reasonable doubt. In other words, the circumstances must be such as to permit the trial court to find properly that the person at the scene or fleeing was a participant.

The judge below, recognizing that the question was close, properly relied on the testimony of the victim’s mother, Roberta Feuka, to place appellant at the scene of the crime. But the testimony of that witness made clear that appellant was not one of the two smaller boys standing together on the other side of the street, and whom she saw start after her daughter, one of them going “right after her” and grabbing her purse. Appellant, according to Roberta, was one of the three boys standing by the victim’s house. He and his companion did not molest her, do anything or say anything until after the purse was taken. Then they simply ran in one direction while the two other boys ran in another direction. There was no evidence legally sufficient to show directly that the three boys on one side of the street and the two boys on the other side were together, before or after the crime, or that the “purse-snatch” was a joint enterprise. The judge below, however, inferred that all the boys acted in concert, so that appellant was an aider or abetter and, thus, a principal in the commission of the misdemeanor. Coleman v. State, 4 Md. App. 386. See Agresti v. State, 2 Md. App. 278. He reached the conclusion that appellant acted in concert with the two boys who were affirmatively proved to have committed the offense, by fleshing out appellant’s presence at the scene and his flight therefrom in two ways, each of which had the effect of supplying evidence. What “tipped the scales” against appellant in the trial judge’s mind, he said, was that appellant lied to the police officer when apprehended and asked where he had been. Objection was made when the officer testified that he asked appellant “where he was coming from”, and the objection was overruled. It may be that evidence as to what appellant replied would be excluded by the rule of Miranda v. Arizona, 384 U. S. 436. The holding in Miranda was concisely set out at page 444:

“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

The Court said at 477, “If a statement were in fact truly exculpatory it would, of course, never be used by the prosecution.” See Pratt v. State, 9 Md. App. 220, 223. But see Mulligan v. State, 10 Md. App. 429, 433 and Simmons v. State, 8 Md. App. 355, 367 as to custodial interrogation. It is clear that appellant’s statement was considered by the judge below as an important factor in determining that appellant committed the crime although the procedural safeguards were not demonstrated. The point of the exclusion of appellant’s reply to the officer’s question was neither briefed nor argued on appeal, Rule 1046 f, but, in any event, we need not decide whether it came under the Miranda proscription. We do not think it a rational inference, in the circumstances shown, and in the light of the evidence adduced, that because appellant lied about being present at the scene, he was, beyond a reasonable doubt, a participant in the crime. The Court of Appeals said in Hayette v. State, 199 Md. 140, 145; “Ordinarily disbelieving evidence is not the same thing as finding evidence to the contrary.” We think the rationale underlying that observation applies to prohibit the finding reached here by the judge below.

The second way the trial judge overcame the fact, recognized by him, that appellant’s mere presence and flight, in the circumstances, were not sufficient to establish criminal agency beyond a reasonable doubt, was to take judicial notice, in the complete absence of any evidence on the matter, that “purse-snatches today are commonly done by two or more individuals acting in concert, that they are done quite commonly, by those who station themselves in different vantage points to work harmoniously together. This is a very familiar pattern, unfortunately . . . .”

There are some facts which need not be proved by the introduction of appropriate evidence because knowledge of them is so notorious that everyone is assumed to possess it. This process is called “judicial notice” and is appropriate in cases where facts are self-evident and notorious. A & H Transp. Inc. v. Baltimore, 249 Md. 518, 530, citing Macht v. Hecht Co., 191 Md. 98,102. See Hettleman v. Frank, 136 Md. 351, 362-363; Barsallo v. Barsallo, 18 Md. App. 560, 565-566; Johnson v. State, 8 Md. App. 28, n. 3 at 34. “Generally speaking, in order that a fact may be judicially noticed, it must be a matter of common and general knowledge, it must be well and authoritatively settled, and not doubtful or uncertain, and it must be known to be within the limits of the jurisdiction of the court.” 29 Am.Jur.2d, Evidence § 22. The rule of judicial notice permits the court to dispense with proof of such a self-evident and notorious fact. Macht v. Hecht Co., supra, at 102. Generally, appellate courts will take judicial notice of any matter which the court below could have judicially noticed. 5 Am. Jur.2d, Appeal and Error § 739; 1 Wharton’s Criminal Evidence 62, § 34 (13th ed. 1972). Wharton has a caveat: “The power of taking judicial notice should be exercised with caution, and any doubt should be resolved in the direction of a refusal to exercise such power.” At 64, § 37.

Wharton lists and discusses numerous categories of facts of which judicial notice may be taken, pp. 68-139, §§ 42-88. Among them are crime patterns. “Criminal behavior tends to manifest itself in certain patterns. The courts may take judicial notice of such patterns when they are so common as to be known to virtually everyone.” At 130, § 81. We do not believe that the facts judicially noticed by the judge below are self-evident and notorious, or are so common as to be known to virtually everyone or have such universality as to become a matter of common human experience, to the extent as to make judicial notice of them appropriate. But even if it were appropriate for the judge to notice judicially that purse-snatches are commonly done by two or more individuals acting in concert who station themselves in different vantage points to work harmoniously together, we think that it was not a rational inference therefrom that appellant was one of the criminal agents. “Judicial notice is merely the recognition of a fact or condition. Under the guise of that doctrine the court should not draw an inference of fact. Thus, when it seems that a particular fact may or may not have existed, the court should not infer the existence of such fact as a step toward defendant’s conviction.” Wharton, at 65, § 37. This must be read, however, in the frame of reference of the court as separate and distinct from the trier of fact. Wharton explains: “Such a process of deduction would, at least to the extent of that finding, substitute the judge for the jury and deprive the defendant of the rules relating to the burden of proof.” Id. We take it that what this means is that by judicially noticing that purse-snatches are commonly done by two or more individuals acting in concert who station themselves in different vantage points to work harmoniously together, the court, as a court, obviated the need of proof of those facts. Those facts then served as evidence to be considered by the trier of fact, be it jury or court, along with other evidence adduced, in determining appellant’s criminal agency. We find, however, assuming the judicial notice to have been appropriate, that the court, as the trier of fact, was wrong in inferring appellant’s criminal agency from the evidence supplied by judicial notice because that evidence of itself and considered with the other evidence was not sufficient in law to show his guilt beyond a reasonable doubt. We point out again, that there was no evidence legally sufficient to prove that appellant acted in concert with the two boys who, without question, committed the offense or that he or his two companions did work harmoniously with the two boys across the street or that they were standing by the victim’s house in order to so work. In fact, there was not even any indication that the boys on the one side of the street knew the boys on the other side of the street, except that they were all at the scene. And we observe again, that the three boys who had been together fled together in one direction, and the two boys who had been together fled together in the opposite direction.

Appellant suggests that his arrest was illegal. The legality of an arrest does not affect the jurisdiction of the court, is not a ground for dismissing a charging document and does not preclude trial and conviction for an offense. Jones v. State, 5 Md. App. 489, 493; Nadolski v. State, 1 Md. App. 304, 307. It is material when “fruits” of the arrest are received in evidence. Wilkins v. State, 237 Md. 617, 618; Hammond and Couser v. State, 7 Md. App. 588, 594-595; Hutchinson v. State, 1 Md. App. 362, 369. Appellant claims that Beuttner’s testimony that the victim said that the clothing worn by appellant was the same as that of one of the boys on the scene and the identification of Roberta Feuka of appellant were “fruits” of the arrest. It is established in this jurisdiction that “fruits” of an arrest refer to tangible evidence seized. Walker v. State, 237 Md. 516, 518-519; Butina v. State, 4 Md. App. 312, 326. We have held that an illegal arrest does not render a subsequent lineup illegal. Metallo v. State, 10 Md. App. 76, 80; Tender v. State, 2 Md. App. 692, 696-697; Hartley v. State, 4 Md. App. 450, 459. Even if the arrest were illegal, which we have no need to decide, the testimony of the officer and the identification by the witness were not thereby inadmissible.

Appellant suggests that the judicial identification of him as one of the boys standing under the window was tainted by the confrontation between him and Roberta Feuka. The judicial identification came into evidence without challenge, so the question of its admissibility is not before us. Rule 1085; Rules 522 d 2 and Rule 725 f; Richardson and Thomas v. State, 7 Md. App. 334, 339. Thompson v. State, 6 Md. App. 50, 54, and cases therein cited. The practical effect of the failure to challenge the in-court identification was to render it admissible at the trial. Bailey v. State, 6 Md. App. 496, 501. See Jackson v. State, 12 Md. App. 586; Townsend v. State, 11 Md. App. 487.

In any event, we have no difficulty in determining that the extra-judiciál identification was not illegal, and, therefore, could not taint the judicial identification. We have held that prompt on the scene confrontations, absent special elements of unfairness, do not entail due process violations. Davis v. State, 13 Md. App. 394, Spencer v. State, 10 Md. App. 1; Billinger v. State, 9 Md. App. 628. The confrontation between appellant and Roberta Feuka at the scene was within the rule of those decisions.

As indicated, we vacate the judgment, that is the finding that appellant was a delinquent child and the placing of him on probation. Our action is predicated upon the insufficiency of the evidence. As we cannot determine from the record whether additional probative evidence can be produced at a retrial, we remand the case with directions to the juvenile court to hold a new trial if the State within a specified time can satisfy the court that it can produce additional probative evidence or to enter a judgment that appellant is not a delinquent child if the State cannot preliminarily so satisfy the court. Gray v. State, 254 Md. 385, 397.

It necessarily follows that the order of 4 June 1974 that the mother of appellant make restitution in the amount of $22.50 to Veronica Feuka be also vacated. The judge in a juvenile cause may order the parent to make restitution to the person whose property has been stolen, Courts Art. § 3-839 (b), to a limit of $1,000, § 3-839 (c). It is obvious that unless the child has been properly found to have participated in the theft in such manner that he could be convicted of a crime if he were an adult, his parent may not be obliged to make restitution.

Judgment that appellant is delinquent and placing him on probation vacated; order for restitution of k June 197U vacated; case remanded for further proceedings in accordance with this opinion.

      . See Maryland Rule 1097.

      . The conditions of probation were set out in the order:
      “While on probation the probationer shall refrain from further delinquent behavior; shall avoid persons and places of disreputable or harmful character; shall report as directed and obey the instructions of the Probation Officer; shall not leave the jurisdiction without permission and shall comply with other conditions as specified below or may at any time be imposed by this Court.”

      . Acts 1974, ch. 691, § 8, effective 1 July 1974, added the words “and includes a minor.” Courts Art. § 3-804 (a) (1) gives a juvenile court exclusive original jurisdiction over a child alleged to be delinquent. See exemptions, not here applicable, in Courts Art. § 3-808.

      . “ ‘Adjudicatory hearing means a hearing to determine the truth of the allegations in the petition.” Courts Art. § 3-801 (b).

      . The statute further provides: “An uncorroborated confession made by a child out of court is not sufficient proof of delinquency.”

      . A juvenile proceeding is not a criminal proceeding. Courts Art. § 3-833; Pennsylvania ex rel. Warren v. Warren, 204 Md. 467. In a delinquency case, however, the State’s Attorney shall prepare and present the testimony in behalf of the petitioner unless excused by the court, Rule 912 b, and the rules of evidence applicable to criminal cases shall apply, Rule 912 c. The child may remain silent as of right and shall be so advised. Rule 917. But he is not entitled to a trial by jury. Rule 908 a. He is entitled to representation by legal counsel. Courts Art. § 3-830 d; Rule 918 b. See Matter of Brown, supra.

      . We do not decide whether the evidence was sufficient to support a finding that the crime was robbery rather than larceny. We said in Williams v. State, 7 Md. App. 683, 686:
      “There is some authority for the proposition that one ‘who snatches money or a purse or other property from another’s hand, if no resistance is encountered, is guilty of larceny rather than robbery.’ See Perkins, Criminal Law, p. 236; Clark and Marshall [Crimes (6th ed.) § 12.09] p. 782. Such factual situation could, conceivably, occur where the victim was unaware of the assailant’s intentions or purposes and, thus, offered no resistance and experienced no emotion of fear. On the other hand, ‘[i]f there is any injury to the person of the owner, or if he resists the attempt to rob him, and his resistance is overcome, there is sufficient violence to make the taking robbery, however slight the resistance.’ Clark and Marshall, supra, p. 788.”
      See Cooper v. State, 9 Md. App. 478.

      . On the other hand, we said in Barnette and Crawford v. State, 5 Md. App. 5, 8: “While flight is some indicia of crime, the lack of it does not completely negative the possibility of conviction; otherwise criminals could avoid conviction in many cases simply by not fleeing.” See Brown v. State, 5 Md. App. 367.

      . 1 Wharton’s Criminal Evidence 62, § 35 (13th ed. 1972) finds a division of authority on the question whether a party is permitted to offer contrary evidence of a judicially noticed fact. The Court of Appeals of this State, however, in Macht v. Hecht Co., supra, at 102, quoted 9 Wigmore on Evidence 535, § 2567 (3rd ed.) with approval: “But the opponent is not prevented from disputing the matter by evidence, if he believes it disputable.”

      . Veronica Feuka did not see all five boys together. The State on redirect examination of her asked if she had left the house earlier on 26 December 1973. She replied: “I don’t think so. I’m not sure. I don’t think I did because — I don’t — I really can’t tell you.” The State persisted: “Was there ever a time just prior to going to the store when you went out?” She answered: “Gee, I really couldn’t tell you.” The State did not give up: “Did you ever have occasion . . . just prior to going to the store, to observe Barclay Street.” “I don’t think I did.. .. Because I just got ready to go to the store, and I got what I had to get, and I left.”
      The testimony of Roberta Feuka was not more helpful to the State in this regard. Although her testimony seemed ambiguous at first, she made it clear. The State asked: “When did you see all five of these young men together?” She replied: “I didn’t see them altogether. I saw two on the corner and three across the street by my daughter.” The court asked: “At any point in time did you see all five together?” The answer was: “No, not at the same corner.” Her identification of appellant on the scene as “one of them that grabbed my daughter’s purse” must be considered in the light of her entire testimony.

      . Wong Sun v. United States, 371 U. S. 471, stating^ the federal exclusionary rule that any evidence obtained as a result of an illegal^ arrest is tainted as the fruit of a poisonous tree, does not control prosecutions in State courts. Dailey v. State, 239 Md. 596; Prescoe v. State, 231 Md. 486; State v. Hill, 2 Md. App. 594.

      . The propriety of this order is not before us. Appellant’s brief states that she “acquiesced in the order to pay $22.50 in restitution.” See, however, Matter of Sorrell, 20 Md. App. 179.

      . We observe that the court may order the child “who wilfully or maliciously destroys or steals property” to make restitution if feasible considering age and circumstances of the child, and that if this is ordered “the liability of the child precedes the liability of the parent.” Courts Art. § 3-839 (d).