author: Menchine, J.,

text:
    SUBSEQUENT INJURY FUND v. BILLY EARL SLATER et al.
    [No. 854,
    September Term, 1974.]

      Decided June 27, 1975.

      The cause was argued before Morton, Powers and Menchine, JJ.

      J. Deems Barnard, Special Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and William H. Kable, Special Assistant Attorney General, on the brief, for appellant.

      Irving B. Klitzner, with whom was Millard Esterson on the brief, for appellee Billy Earl Slater.
   Menchine, J.,

delivered the opinion of the Court.

This is an appeal by the Subsequent Injury Fund from a judgment of the Circuit Court for Prince George’s County reversing a decision of the Workmen’s Compensation Commission.

The facts, necessary for understanding of the issue submitted for our decision, are these: Billy Earl Slater (claimant), a retired Navy veteran with twenty years of active service, who was receiving $245.00 monthly for 40% disability of his body, sustained an accidental injury arising out of and in the course of his employment. He filed claim against Charles L. Cooper, t/a Cheverly City Service, and his insurer, Erie Insurance Exchange (Employer and Insurer). Employer and Insurer impleaded the Subsequent Injury Fund. After hearing, the Workmen’s Compensation Commission (Commission) determined that claimant had sustained a permanent partial disability under “Other Cases” of 60% industrial loss of use of the body of which 20% was reasonably attributable to the accidental injury and 40% due to a pre-existing condition. The Commission determined further “that a prior award had been made to the claimant for 40% of the body by the U. S. Navy; therefore the Subsequent Injury Fund has no liability in this case.” Claimant appealed.

The trial court, concluding as a matter of law that the Commission erroneously had excused the Subsequent Injury Fund from liability to claimant for the 40% pre-existing disability, reversed the decision of the Commission. The Subsequent Injury Fund in its appeal to this Court thus states the narrow issue submitted to us for resolution:

“Was the Commission correct in allowing credit for a prior award made by a similar Commission; the United States Navy Physical Evaluation Board for a previous permanent impairment within the meaning of Article 101, § 66 (5)?”

It is undisputed that the present disability of the claimant is the product of the combined effect of pre-existing disability and the accidental injury for which workmen’s compensation benefits w^ere claimed and that the total present disability exceeds 50% of the body as a whole. In sum, it is condeded that but for the provisions of Article 101, § 66 (5), the claimant “would be entitled to receive * * * additional compensation * * * for the combined effects of the impairment and subsequent injury.”

Article 101, § 66 (5) reads as follows:

“(5) Representation of fund before Commission; findings required in awards; prior awards to be considered. — In any case which shall come before the Workmen’s Compensation Commission involving payments from the fund, it shall, request the Attorney General to furnish a member of his staff to represent the fund in hearings before it. In any award it shall make from the fund, the Commission shall specifically find the amount the injured employee shall be paid weekly, the number of weeks’ compensation to be paid, the date upon which payments from the fund shall begin, and, if possible, the length of time such payments shall continue. In making any award from the fund for a subsequent injury, the Commission shall consider any prior award made by the Commission, or by a similar commission in any other state or in the District of Columbia, in determining the amount to be awarded for such subsequent injury.” (Emphasis in body of section added.)

Thus, the true issue is whether disability payments made to former naval personnel sifter determination by a Naval Evaluation Board constitute a “prior award made * * * by a similar commission in any other state or in the District of Columbia” such as the Commission is required by law to off-set against the liability otherwise attaching to the Subsequent Injury Fund. The Commission concluded that they did. The trial court concluded that they did not. See: Subsequent Injury Fund v. Chapman, 11 Md. App. 369, 377, 274 A. 2d 870, 874, affirmed 262 Md. 367.

We have been referred to no similar case in this or any other jurisdiction, nor have we found one. Accordingly, in this case of first impression we are compelled to seek guidance from such appellate decisions dealing with statutory construction as seem to offer assistance in the determination of the meaning and effect of the language used in § 66 (5).

In Md.-National Capital Park and Planning Comm., et al. v. Mayor and Council of Rockville, 272 Md. 550, 325 A. 2d 748, it was said at 555-56 [752]:

“The cardinal rule of statutory construction is to ascertain and carry out the real legislative intent, Radio Com., Inc. v. Public Serv. Comm’n, 271 Md. 82, 93, 314 A. 2d 118 (1974); Scoville Serv., Inc. v. Comptroller, 269 Md. 390, 393, 306 A. 2d 534 (1973); Silberman v. Jacobs, 259 Md. 1, 267 A. 2d 209 (1970); Atlantic, Gulf v. Dep’t of Assess. & T., 252 Md. 173, 249 A. 2d 180 (1969); and in ascertaining that intent, the Court considers the language of an enactment in its natural and ordinary signification, City of Gaithersburg v. Mont. Co., 271 Md. 505, 511, 318 A. 2d 509; Grosvenor v. Supervisor of Assess., 271 Md. 232, 315 A. 2d 758 (1974); Radio Com., Inc. v. Public Serv. Comm’n, supra. If there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the legislature, Scoville Serv., Inc. v. Comptroller, supra; Atlantic, Gulf v. Dep’t of Assess. & T., supra. ”

In Amalgamated Cas. Ins. Co. v. Helms, 239 Md. 529, 212 A. 2d 311, it was said at 535-36 [315-16]:

“Of course, the cardinal rule of statutory construction is to seek and carry out the true intention of the Legislature. Casey Devel. Corp. v. Montgomery County, 212 Md. 138. And in so doing, it sometimes becomes necessary, under unusual circumstances, to look to the spirit and purpose of an enactment. Cearfoss v. State, 42 Md. 403; Bickel v. Nice, 173 Md. 1; Smith v. Higinbothom, 187 Md. 115. But Chief Judge Marbury very clearly pointed out in Clark v. Tawes, 187 Md. 195, that the rule that real intent must prevail over literal intent is adopted only when the literal words of a statute say something that the Legislature could not possibly have meant. He said that this Court has repeatedly stated that as a general rule a court may not surmise a legislative intention contrary to the plain language of a statute, nor insert or omit words to make the statute express an intention not evidenced in its original form. See also Pressman v. State Tax Comm., 204 Md. 78 and cases cited therein; and Fowel v. State, 206 Md. 101. And, if a statute be plain and free from ambiguity, its application may not be enlarged or extended by construction. Grimm v. State, 212 Md. 243.
“In other words, the courts, in the absence of ambiguity, should, as a general rule, confine themselves to a construction of a statute as written, and not attempt, under the guise of construction to supply omissions or remedy possible defects in the statute, or to insert exceptions not made by the Legislature.”

Equally well recognized is the concomitant rule applicable to interpretation of the Workmen’s Compensation Act, namely, that it is to be liberally construed in favor of injured employees as the provisions will permit in order to effectuate its benevolent purposes. Bethlehem Sparrows Point Shipyard v. Hempfield, 206 Md. 589, 112 A. 2d 488.

We are persuaded that allowances paid in connection with the provisions of Acts of Congress providing disability retirement benefits to members of the Armed Forces of the United States, were not intended by the Maryland Legislature to be equated with a “prior award made by * * * a similar commission in any other state or in the District of Columbia.”

It is true that the claimant will receive greater benefits than he would have received had his pre-existing disability been the subject of an award by a workmen’s compensation commission in this or any other state or the District of Columbia. This circumstance is without legal significance. What was said in Bata Shoe Co., et al. v. Chvojan, 188 Md. 153, 52 A. 2d 105, seems pertinent here:

P. 159 [108] “the fact that a claimant, who receives compensation for both a first and a second injury, may ultimately receive more than the maximum compensation allowable for a single injury, is not material. The Compensation Law fails to meet the test of logical consistency in many respects. It could hardly be otherwise, for the original Act was not constructed on any system of scientific classification, and subsequent amendments have been directed chiefly towards modification of particular details. It is our duty to construe the Act, not to revise it.”

As we said in Thomas v. Baltimore County Revenue Authority, 23 Md. App. 261, 326 A. 2d 750, at 267 [753]:

“If the Fund desires amendment of the statute, it should seek that amendment through the legislative process and not through the courts.”

Appellant’s reliance upon Leach v. John T. Clark & Son, 20 Md. App. 109, 314 A. 2d 689, is misplaced. In Leach, we said at 115 [693]:

«* * * wjjen the Florida Commission notified the City of Tampa, as employer, that the minimum it must pay Leach was the amount allowable under the Florida compensation law, and required the establishment of a reserve against this liability, it made an award. That the Florida authorities chose to accomplish this result by way of correspondence between the state agency and the city government, rather than by a formal order, in no way impairs the effect of the commission’s action to assure that Leach would receive the full benefit of the compensation law.”

In the subject case, the benefits payable to the claimant under the Act of Congress clearly do not fall within the limiting language of § 66 (5). Such payments may be brought within its meaning only if we revise the statute. We may not do so.

Judgment affirmed. Appellant to pay costs.

      . See U.S.C.A. Title 10, § 1201 and 1401.

      . Article 101, § 66 (1) reads in pertinent part as follows:
      “§ 66. SUBSEQUENT INJURY FUND.
      (1) Permanent disability or death due to combined effects of impairment and subsequent injury. — Whenever an employee who has a permanent impairment due to previous accident or disease or any congenital condition, which is or is likely to be a hindrance or obstacle to his employment, incurs subsequent disability by reason of a personal injury, for which compensation is required by this article resulting in permanent partial or permanent total disability that is substantially greater by reason of the combined effects of the impairment and subsequent injury than that which would have resulted from the subsequent injury alone, the employer or his insurance carrier shall be liable only for the compensation payable under this article for such injury. However, in addition to such compensation to which the employer or his insurance carrier is liable, and after the completion of payments therefor provided by this article, the employee shall be entitled to receive and shall be paid additional compensation from a special fund to be known as the ‘Subsequent Injury Fund,’ created for such purpose, in the manner described hereafter in this section, it being the intent of this section to make the total payments to which such employee shall become entitled equal to the compensation that would be due for the combined effects of the impairment and subsequent injury resulting in permanent total disability or a substantially greater permanent partial disability.
      “Benefits from the Subsequent Injury Fund hereunder shall not be payable unless the combined effects resulting from a previous impairment and a subsequent accidental injury result in a permanent disability exceeding 50 per centum (50%) of the body as a whole.”


source: Caselaw Access Project

author: Moylan, J.,

license: Public Domain

text:
    SHERMAN DUNCAN alias James Fitz and CORNELL SMITH v. STATE OF MARYLAND
    [No. 967,
    September Term, 1974.]

      Decided June 30, 1975.

      The cause was argued before Morton, Thompson and Moylan, JJ.

      Dennis M. Henderson, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Arnold M. Zenoitz, Assistant Public Defender, on the brief, for appellants.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Robert S. Rothenhoefer, State’s Attorney for Frederick County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

Courts occasionally leap headlong into the merits of a controversy with scant thought to the preliminary question of whether the controversy is even justiciable in the first instance. This appeal permits us to linger upon the threshold and to explore the fascinating, though frequently overlooked, contours, peculiar characteristics and procedural mysteries of the threshold itself. What is the rite of passage by which one crosses? Who bears the peril of the crossing? The prime issue in the case before us is:

Who has the burden of producing evidence on the question of standing to raise a Fourth Amendment protest?

It is, of course, black letter law that only a “person aggrieved by an unlawful search and seizure” may challenge the constitutional validity of that search and seizure. Jones v. United States, 362 U. S. 257, 261, 80 S. Ct. 725, 4 L.Ed.2d 697, 702 (1960). It is not enough that someone’s right to be free of unreasonable search and seizure has been abrogated; it is necessary that the right abridged be that of the defendant personally. Alderman v. United States, 394 U. S. 165, 173, 89 S. Ct. 961, 22 L.Ed.2d 176, 186 (1969). One must establish that it is his own direct or derivative enjoyment of property or expectation of privacy that has been invaded before he may challenge the invasion. Walters v. State, 8 Md. App. 583, 261 A. 2d 189; Palmer v. State, 14 Md. App. 159, 286 A. 2d 572; Lopata v. State, 18 Md. App. 451, 307 A. 2d 721; Brown v. United States, 411 U. S. 223, 93 S. Ct. 1565, 36 L.Ed.2d 208(1973).

We are not here concerned with the question of what is the appropriate burden of proof at a suppression hearing once a justiciable issue is properly before the hearing judge. It was settled by Lego v. Twomey, 404 U. S. 477, 92 S. Ct. 619, 30 L.Ed.2d 618 (1972), that that burden is a preponderance of the evidence. Nor are we concerned with the allocation of the burden of going forward with the evidence on the merits of a search and seizure question. It is clear that that burden shifts, depending on the presence or absence of a search warrant. When the police execute a search under authority of a facially adequate warrant, it is presumptively good and the burden is upon the defendant to establish its invalidity. Where the evidence is inconclusive in this regard, the State wins. United States v. Ventresca, 380 U. S. 102, 85 S. Ct. 741, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964); Alderman v. United States, supra; Hignut v. State, 17 Md. App. 399, 408-410, 303 A. 2d 173. Where, on the other hand, the defendant establishes initially that the police proceeded warrantlessly, the burden shifts to the State to establish that strong justification existed for proceeding under one of the “jealously and carefully drawn” exceptions to the warrant requirement. Jones v. United States, 357 U. S. 493, 499, 78 S. Ct. 1253, 2 L.Ed.2d 1514, 1519 (1958). Where the evidence is inconclusive in this regard, the defendant wins. Coolidge v. New Hampshire, 403 U. S. 443, 454-455, 91 S. Ct. 2022, 29 L.Ed.2d 564, 576 (1971); Katz v. United States, 389 U. S. 347, 357, 88 S. Ct. 507, 19 L.Ed.2d 576, 585 (1967); United States v. Jeffers, 342 U. S. 48, 51, 72 S. Ct. 93, 96 L. Ed. 59, 64 (1951); McDonald v. United States, 335 U. S. 451, 456, 69 S. Ct. 191, 93 L. Ed. 153 (1948). Nor are we concerned with the rules of admissibility at such a hearing. United States v. Matlock, 415 U. S. 164, 94 S. Ct. 988, 39 L.Ed.2d 242 (1974), established that the formal rules of evidence are suspended and that the decision as to the receipt of evidence is left to the broad discretion of the hearing judge.

All of the foregoing questions are involved with what transpires within the forum of the suppression hearing. We are here concerned, rather, with the very passkey to that forum. The fundamental issue before us, on the question of standing even to raise and adjudicate a Fourth Amendment question on its merits, is that of Who has the initial burden of producing evidence? Must the defendant establish standing to raise the issue or must the State establish non-standing to avoid the issue? If, on the motion to suppress, neither establishes anything, who wins the nothing-nothing tie?

The issue is squarely raised, for the present appeal confronts us with a pair of nothing-nothing ties.

The appellants, Sherman Duncan (alias James Fitz) and Cornell Smith, were jointly arrested in Frederick County on June 18, 1973. They were jointly charged in a two-count indictment with (1) grand larceny and (2) receiving stolen goods. Although both ultimately elected court trials, a difficulty in arranging for legal representation by Duncan resulted in a trial severance. Smith was tried in the Circuit Court for Frederick County by Judge Robert E. Clapp, Jr., on January 22, 1974, and was found guilty of the first count, charging grand larceny. Duncan was tried in the Circuit Court for Frederick County by Judge Ralph G. Shure on January 24, 1974, two days later, and was found guilty of the second count, charging the receipt of stolen goods. Notwithstanding the separate trials, the evidence produced was so virtually identical and the issues here presented are so overlapping in significant part, that it serves the purpose of judicial husbandry to consolidate the consideration of these appeals within a single opinion. Any minor differences in the relevant testimony will be noted.

The key contention raised by each defendant is that the stolen goods were turned up by the police in the course of an allegedly unconstitutional search of the automobile with which both appellants were linked by several witnesses. Duncan, in the course of his trial, moved to suppress the fruits of that search. His motion was denied. Smith, by a written motion filed just before his trial commenced, moved to suppress the physical evidence. His motion recited:

“1. That your Petitioner was arrested on a public street in the City of Frederick, Maryland without an arrest warrant. That the police after arresting the Petitioner proceeded to search a car in which Petitioner was a passenger and without the Petitioner’s permission or with a search warrant.
2. That evidence was illegally seized by the police and should not be introduced at trial.”

Evidence bearing on the motion was adduced during the course of the trial. Smith’s motion was also denied. Unlike the situation facing the Supreme Court in Combs v. United States, 408 U. S. 224, 92 S. Ct. 2284, 33 L.Ed.2d 308 (1972), the State’s Attorney, in arguing against the motions in both cases, clearly raised the issue of standing.

The victimized store in this case, Montgomery Ward’s, is located in the Fredericktown Mall on the north side of U.S. Route 40 just west of the city of Frederick. Until several bags of stolen merchandise still containing the price tags were recovered by the police from the trunk of a white Mercury at approximately 5 p.m. on June 18, 1973, the personnel at Montgomery Ward’s did not realize that a larceny had taken place. The security personnel at the nearby J. C. Penney store, also located in the Fredericktown Mall, were, however, very alert to an attempted larceny of their merchandise at approximately 4 p.m. Two Negro males had been observed putting clothing into big trash bags and then carrying them out of the store, where they were set in trash cans just outside of a Pappy’s Restaurant. A security officer took up a surveillance point to observe whoever might come by to retrieve the merchandise temporarily “stashed” in the trash cans. He observed two Negro males approach in a white Mercury, with a damaged front end, and bearing Maryland license tags KR 4679. When they, in turn, observed him, they drove off at a high rate of speed, “laying down rubber.” The police were immediately notified.

Mrs. Mary Joan Maher lived on Grove Hill Road, a residential cul-de-sac, located just south of U.S. 40 across from the entrance to the Fredericktown Mall. At approximately 4 p.m. on June 18, she observed a white Mercury drive off the road and park on her front lawn. Two Negro males, strangers to her, alighted from the car, turned away when they saw her looking out of the door, and walked back toward Route 40. She notified the police. The two appellants were ultimately arrested as they were walking along the road several hundred yards away. Mrs. Maher and another neighbor identified them as the occupants of the white Mercury. The Mercury was the car that had been observed a few minutes earlier by the security officer of J. C. Penney’s.

A warrantless search of the trunk of the automobile produced the goods stolen from Montgomery Ward’s. This was the corpus delicti. The two witnesses from Grove Hill Road (with a peripheral assist from the security man at J. C. Penney’s and the proximities of time and place) established the criminal agency of the appellants.

The evidence at both trials on the question of standing was singularly unilluminating. As to whether either appellant had any proprietary or rightful possessory interest in the searched automobile, or was legitimately in the automobile by virtue of being a guest, invitee, licensee or bailee of the rightful owner or possessor, the record is a virtual blank. Neither appellant took the stand; neither appellant offered any witnesses in this (or any other) regard. The only testimony came from the State’s witnesses. Mrs. Maher saw the appellants get out of the car, but this observation is neutral on the issue of standing. Thieves and unauthorized users of automobiles alight in the same fashion as rightful owners. Indeed, the somewhat bizarre leaving of the automobile on a front lawn in a strange residential neighborhood and then walking an appreciable distance away with no discernible destination is at least as compatible with abandoning a “hot” car as with the sensible parking of a car rightfully possessed.

At the trial of Duncan, Lt. Gary Heerd testified that the two appellants affirmatively disclaimed any interest in or knowledge of the car:

“I myself asked them if this was their vehicle or if they knew whose vehicle it was and they denied it. They said it was not their car. They did not know whose it was or how it got there.”

Similar testimony was produced at the trial of Smith. Pvt. Maybush testified:

“. . . Lt. Heerd came up and asked the subjects, was it their vehicle and if they had any knowledge how the vehicle got there and both of them stated that it was positively not their vehicle. They had never seen it before.
Q. What did they state?
A. They said positively it was not their vehicle and they had never seen it before. Didn’t know how it got there.
Q. They had no knowledge of that vehicle?
A. No, sir.”

Lt. Heerd again testified:

“When they were brought to the scene of the car I myself asked them whether, in fact, that was their car or if they knew whose car it was. They denied it. They did not know whose car it was or who had the car.”

Det. Corp. Himes also testified:

“[A]t the time they denied any knowledge of the car that was parked in the yard. They repeatedly stated that they had no connection with it, had not driven it there, had not parked it there and answers of that nature.”

Neither appellant at any time offered any evidence to controvert this evidence.

In both trials, it was brought out that the police made a radio check to learn if the car had been reported stolen. It had not been so reported. The police checked further with the Department of Motor Vehicles to ascertain the name of the owner. At the trial of Duncan, this name was not forthcoming. It was simply established that at some time on the early evening of June 18, the police called the home of the owner and spoke with a young child. A message was left with the child asking the owner to return a call to the police in Frederick. It does not appear from the record that any return call was ever made.

At the trial of Smith, it was developed that the owner of record was “a Shirley Ann Duncan. . . of 5229 St. Charles Avenue in Baltimore.” No direct contact was established with M’s Duncan and nothing was established as to who M’s Duncan might be. Smith seeks some solace in the fact that the last name of the registered owner of the automobile corresponds with the last name of his companion and codefendant. No relationship was ever established, let alone permission to use the automobile. In this regard, even the acknowledged fact of a father-son relationship did not establish, ipso facto, any permitted use by the son of the father’s farm in Combs v. United States, supra. A fortiori, a mere similarity of last names, particularly so common a Scottish name as Duncan, will not give rise to an inference of relationship with that inference, in turn, giving rise to an inference of permitted use. Even this tendril of strained logic was not, of course, developed during Duncan’s suppression hearing and is not available to him.

The Allocation of the Burden

The end result of both hearings on the question of standing is that the appellants did not affirmatively establish any direct or derivative right in the searched automobile and must fail, if the burden of producing evidence is theirs. By the same token, the State arguably did not affirmatively establish any lack of standing and would fail, if the burden were on it. We look then to the question of Who has the burden?

Until the partial establishment of the Exclusionary Rule in Maryland with the enactment of the Bouse Act in 1929 (Ch. 194, Acts of 1929), the very notion of standing was an irrelevancy. Between the enactment of the Bouse Act and the Supreme Court’s opinion in the case of Cecil Jones v. United States, supra, 362 U. S., in 1960, Maryland considered the question of standing in approximately 14 opinions. Our law not only required a defendant to have a proprietary or possessory interest in the things seized or the place searched but squarely placed the burden upon the defendant of establishing his standing. Baum v. State, 163 Md. 153, 157-158, 161 A. 244 (1932); Frankel v. State, 178 Md. 553, 562, 16 A. 2d 93 (1940) (“. . . there being no showing nor contention that any of them were the lawful occupants of those premises”); Leon v. State, 180 Md. 279, 286, 23 A. 2d 706 (1942); Bevans v. State, 180 Md. 443, 448, 24 A. 2d 792 (1942); Resnick v. State, 183 Md. 15, 18, 36 A. 2d 347 (1944) (“Where there is no showing nor contention that the persons complaining were the lawful occupants of the premises, they cannot invoke the constitutional provisions against unwarranted search and seizure.”); Kapler v. State, 194 Md. 580, 586, 71 A. 2d 860 (1950); Lambert v. State, 196 Md. 57, 63-64, 75 A. 2d 327 (1950); Delnegro v. State, 198 Md. 80, 86, 81 A. 2d 241 (1951); Curren v. State, 199 Md. 54, 56, 85 A. 2d 454 (1951) (“Since the appellant claimed no interest in the truck, he could not object to its search.”); Lingner v. State, 199 Md. 503, 506, 86 A. 2d 888 (1952); Cross v. State, 199 Md. 507, 509-510, 86 A. 2d 891 (1952); Saunders v. State, 199 Md. 568, 573, 87 A. 2d 618 (1952); Rizzo v. State, 201 Md. 206, 209, 93 A. 2d 280 (1952) (“There is no evidence — and no allegation other than any implication in mention of ‘the premises of your defendant’ in the unsworn petitions for return of property seized — that defendants Rizzo and Nicholson had any interest in the premises.”); Manger v. State, 214 Md. 71, 75, 133 A. 2d 78 (1957).

In several significant regards, Cecil Jones changed the law on standing. For certain possessory crimes and under certain circumstances it conferred “automatic standing” (to be discussed more fully hereinafter). This involved primarily standing in the things seized. Cecil Jones also significantly liberalized the law with respect to standing in the place searched. The law, pre-Jcmes, had austerely limited the class of persons who had enough interest in the place searched to raise a constitutional objection to those who could prove a proprietary interest in the place. The liberalization of Cecil Jones was to create the notion of “derivative standing” and to extend the Fourth Amendment protection to “anyone legitimately on premises where a search occurs.” This broadening of the class of those who had standing, however, did not in any way work to shift the burden of proving membership in the protected class. Though the class of “persons aggrieved” was broadened, it was still incumbent upon a defendant to establish that he was a “person aggrieved” by the allegedly unconstitutional search and seizure. This allocation of the burden on the question of standing is simply a particular instance of the general truth that he who pleads and asserts the affirmative of an issue has the burden of proving that issue and fails at his peril. It is a defendant who moves to suppress evidence and must give the court some basis for granting the motion. Cecil Jones was very explicit in this regard, at 362 U. S. 261:

“In order to qualify as a ‘person aggrieved by an unlawful search and seizure’ one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else. Rule 41(e) applies the general principle that a party will not be heard to claim a constitutional protection unless he ‘belongs to the class for whose sake the constitutional protection is given.’. . .
Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.” (Emphasis supplied)

This allocation to the defendant of the burden of proving the thing he asserts as the basis for the relief sought was applied by the Supreme Court at least as early as in Nardone v. United States, 308 U. S. 338, 341, 60 S. Ct. 266, 268, 84 L. Ed. 307 (1939):

“The burden is, of course, on the accused in the first instance to prove to the trial court’s satisfaction that wire-tapping was unlawfully employed.”

The allocation of the burden as set forth in Cecil Jones was reaffirmed by the Supreme Court in Mancusi v. DeForte, 392 U. S. 364, 88 S. Ct. 2120, 20 L.Ed.2d 1154 (1968); Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968); and Alderman v. United States, supra. Alderman said, at 394 U. S. 173-174:

“The rule is stated in Jones v. United States, 362 U. S. 257, 261, 4 L.Ed.2d 697, 702, 80 S. Ct. 725, 78 A.L.R.2d 233(1960):
. . . [citing the two paragraphs from Cecil Jones quoted above], . .
This same principle was twice acknowledged last Term. Mancusi v. DeForte, 392 U. S. 364, 20 L.Ed.2d 1154, 88 S. Ct. 2120 (1968); Simmons v. United States, 390 U. S. 377, 19 L.Ed.2d 1247, 88 S. Ct. 967 (1968).
We adhere to these cases and to the general rule that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.”

In discussing the impact of Cecil Jones, McCormick, Law of Evidence (2nd Edition 1972), § 179, “Enforcement of the Right to Exclusion: (a) Standing to Object,” p. 419, is very clear:

“In Jones v. United States the Supreme Court made clear that a defendant may obtain suppression of relevant but improperly obtained evidence only if he establishes that he himself was a victim of the improper activity which forms the basis for the challenge to the evidence. Only then does he have ‘standing’ to challenge the admissibility of the evidence.” (Emphasis supplied)

Although the allocation of the burden in Maryland had been more something axiomatically taken for granted than something consciously decided the allocation was more deliberately expressed in Stewart v. State, 1 Md. App. 309, 314, 229 A. 2d 727:

“Maryland follows the majority view of the federal and state courts, requiring the objector to present to the court an alleged violation of his own constitutional rights as a prerequisite to his right to object to ‘tainted’ evidence.” (Emphasis supplied)

Reaffirmed in Kleinbart v. State, 2 Md. App. 183, 205 234 A. 2d 288.

The academic commentators are in complete accord. See Abbott et al, Law and Tactics in Exclusionary Heatings (1969), at 52:

“In order to successfully invoke the exclusionary rules relevant to illegal searches and seizures the claimant must first establish his ‘standing’ to object.”

and again at 54:

“[T]he burden of proving standing is generally on the defendant at a motion to suppress.”

and again at 107-108:

“The burden of going forward with evidence at an exclusionary hearing is clearly upon the defendant. The defendant is the moving party and should be the first to introduce evidence under any rule of orderly procedure. Futhermore, compliance with this requirement alerts the hearing court to the nature and extent of the claimed illegal conduct.
If the defense fails to sustain its burden of going forward, the court may deny the motion.”

and again at 110:

“The burden of persuasion ‘remains throughout upon the one who at the outset has asserted the affirmative of the issue.’ At an exclusionary hearing the defense has asserted the affirmative because it has requested the court to suppress certain evidence. Thus, unless the government has been specially assigned the burden under a particular exclusionary rule [as in the case of a confession], the defense has the obligation to persuade the hearing judge at the conclusion of all the evidence that the facts are such as to require a granting of the motion.
When the burden of persuasion is imposed on the defense, the standard of proof usually required by the court is a ‘preponderance of the evidence’.”

And see White and Greenspan, Standing to Object to Search and Seizure, 118 U. of Pa.L.Rev. 333 (1970): “[T]he Court has traditionally held that a defendant who wishes to have evidence excluded must first establish standing to object to the unlawful search,” p. 333; Grove, Suppression of Illegally Obtained Evidence: The Standing Requirement on its Last Leg, 18 Catholic U.L.Rev. 150 (1968): “A claimant must establish specific standing in order to invoke exclusionary rules relevant to illegal searches and seizures,” p. 153, “Where the claimant can show he is such person, he has established a logical nexus between his status and the alleged illegality of the search and seizure . . . The defendant has the burden of proving standing on a motion to suppress,” p. 155; Weeks, Standing to Object in the Field of Search and Seizure, 6 Ariz.L.Rev. 65 (1964): “The rule is generally stated that before a person is entitled to object to the admission of illegally seized evidence he must claim and show a possessory or proprietary interest in either the property seized or the premises searched,” (emphasis supplied), p. 65; Comment, Standing to Contest Illegal Searches and Seizures, 46 Mississippi L.J. 147 (1975): “Relying solely on the illegality of the search or seizure, however, is not enough; the movant must also establish that he is the proper party to raise the claim of illegality,” (emphasis supplied), p. 147, “In its search and seizure context, the doctrine [of standing] requires a defendant to establish that he has suffered personal, financial, or some other direct injury from the illegal conduct. A defendant will not be allowed to complain that another’s rights have been violated; fourth amendment rights are personal and cannot be asserted vicariously,” (emphasis supplied), p. 148.

And see People v. Berrios, 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 888 (1971), wherein the New York Court of Appeals held:

“[W]e have made it clear that where a defendant challenges the admissibility of physical evidence or makes a motion to suppress, he bears the ultimate burden of proving that the evidence should not be used against him. . . .”

It is clear beyond peradventure of a doubt that the burden of asserting and establishing standing was upon the appellants. Since the burden was theirs they lose the nothing-nothing ties. The motions to suppress the physical evidence were properly denied.

The Possible Utility of “Automatic Standing”

There remains but to consider the possibility that the “automatic standing” notion of Cecil Jones might somehow apply to the appellants here. We hold that it does not, primarily because of our considered belief that the very concept of “automatic standing” has been superseded and rendered a dead letter by Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968).

To understand what happened to this aspect of Cecil Jones, we must understand what gave rise to this aspect of Cecil Jones. The harsh dilemma that generated the need for “automatic standing” in the first instance was the prendones practice of making a defendant, charged with the crime of possession, assert an interest in the goods allegedly possessed in order to raise the search and seizure issue and then, upon the merits, to permit the State to prove the crime by offering that very pretrial assertion. The defendant was heist on his own petard. The dilemma was starkly delineated by Judge Learned Hand in Connolly v. Medalie, 58 F. 2d 629 (2d Cir. 1932), at 630:

“Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma.”

It was the office of “automatic stahding” to remove a defendant from the horns of Learned Hand’s dilemma. Cecil Jones pointed out that the government, as well as the defendant, was faced with a choice of contradictory positions and was engaging, in Frankfurter’s words, in “elegantia juris,” in seeking to avoid its unpalatable choice by deferring to the defendant and making him choose first. It pointed out the fundamental unfairness of permitting “the government to have the advantage of contradictory positions as a basis for conviction,” 362 U. S. at 263. The cruel predicament which “automatic standing” was devised to avoid was summarized by Cedi Jones, at 362 U. S. 261-262:

“[PJrosecutions like this one have presented a special problem. To establish ‘standing,’ Courts of Appeals have generally required that the movant claim either to have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched. Since narcotics charges like those in the present indictment may be established through proof solely of possession of narcotics, a defendant seeking to comply with what has been the conventional standing requirement has been forced to allege facts the proof of which would tend, if indeed not be sufficient, to convict him. At the least, such a defendant has been placed in the criminally tendentious position of explaining his possession of the premises. He had been faced . . . with the chance that the allegations made on the motion to suppress may be used against him at the trial. . . .”

The unique problem which “automatic standing” was devised to avoid has now been solved far more efficaciously and more broadly by Simmons v. United States, supra. Simmons, in a nutshell, holds that any assertion made by a defendant to maintain his position in a pretrial hearing may not later be used against him at the trial upon the merits. The defendant is lifted from the horns of Learned Hand’s dilemma. He is no longer forced to assert his interest in the thing seized or the place searched at the risk that his assertion will return to haunt him as part of the State’s case in chief. The holding of Simmons is briefly stated at 390 U. S. 394:

“[I]n this case Garrett was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.”

Strong dicta in Brown v. United States, supra, suggests that the “automatic standing” aspect of Cecil Jones has been superseded by Simmons. The Supreme Court said in Brown, at 411 U. S. 228:

“The self-incrimination dilemma, so central to the Jones decision, can no longer occur under the prevailing interpretation of the Constitution. Subsequent to Jones, in Simmons v. United States, supra, we held that a prosecutor may not use against a defendant at trial any testimony given by that defendant at a pretrial hearing to establish standing to move to suppress evidence. . . . For example, under the Simmons doctrine the defendant is permitted to establish the requisite standing by claiming ‘possession’ of incriminating evidence. If he is granted standing on the basis of such evidence, he may then nonetheless press for its exclusion; but, whether he succeeds or fails to suppress the evidence, his testimony on that score is not directly admissible against him in the trial. Thus, petitioners in this case could have asserted, at the pretrial suppression hearing, a possessory interest in the goods at Knuckles’ store without any danger of incriminating themselves. They did not do so.”

Brown went on, at 411 U. S. 229:

“Again, we do not decide that this vice of prosecutorial self-contradiction warrants the continued survival of Jones’ ‘automatic’ standing now that our decision in Simmons has removed the danger of coerced self-incrimination. We simply see no reason to afford such ‘automatic’ standing where, as here, there was no risk to a defendant either of self-incrimination or prosecutorial self-contradiction. Petitioners were afforded a full hearing on standing and failed to allege any legitimate interest of any kind in the premises searched or the merchandise seized.”

This Court, indeed, anticipated Brown in Palmer v. State, supra, at 14 Md. App. 167-168, n. 12:

“The Simmons decision probably renders the first of the alternative holdings of Jones on the question of ‘automatic standing’ superfluous. It permits a defendant to raise a Fourth Amendment claim and to testify with respect to that claim with absolute immunity from any later use by the prosecutor at the trial upon the merits of his testimony or of his assertion. Since the defendant is no longer faced with the intolerable choice of asserting his Fourth Amendment claim only at the risk of waiving his Fifth Amendment privilege against self-incrimination, the dilemma has been removed which was the sole predicate for the first holding of Jones.

To be sure, Simmons leaves open the possibility that a pretrial assertion on standing might yet be used for impeachment purposes if a defendant should affirmatively swear under oath to two contradictory positions. As with the Viven Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971), limitation upon Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), however, the Supreme Court does not equate a salutary protection of constitutional right with a license for perjury. In terms of chilling effect, the insubstantiality of this residual deterrent on a defendant was well articulated by McCormick, Law of Evidence (2d Edition 1972), § 179, “Enforcement of the Right to Exclusion: (a) Standing to Object,” p. 421:

“Given the Supreme Court’s subsequent holding that testimony on a hearing at a motion to suppress is not admissible at the trial on the merits, the dilemma posed by all the automatic standing cases is much less aggravated than it was formerly. Except insofar as it removes the incentive for a defendant to perjure himself, the automatic standing rule is now unnecessary. A defendant’s interest in being able to assert inconsistent positions is significantly different from his interest in being able to assert his right to the exclusion of illegally seized evidence without fear of jeopardizing his right to put the prosecution to its proof on the issue of guilt. The former seems insufficient to support an exception to an otherwise justifiable rule.”

Simmons is a more sophisticated and carefully tailored second-generation remedy, replacing the cruder first-generation effort of Cecil Jones to deal with the same problem. “Automatic standing” was a blunt and inadequate ihstrument in several regards. At times it did too much; at times it did not do enough. Cecil Jones, by its very terms, applied “automatic standing” only to those crimes where present possession was an element of the crime itself — where the assertion of standing, if later used by the State in chief, did not simply contribute to a finding of guilt but was itself sufficient to establish guilt. The academic commentators have pointed out that four separate categories of seized goods may be involved and that each calls for separate analysis in terms of the applicability of Jones’ “automatic standing”: (1) contraband per se (squarely within the holding of Jones)’, (2) derivative contraband (such as the stolen goods where the charge is receiving stolen goods — logically also within the holding of Jones. See Anderson v. State, 9 Md. App. 532, 267 A. 2d 296 (1970)); (3) fruits of a theft (such as stolen goods but where the charge is larceny, burglary, robbery, etc. whereof the possession of the stolen goods is simply evidence and not an element of the crime itself — probably not covered by Cecil Jones as witness the robbery charge in Simmons — and as applicable to the appellant Smith in the case now before us); and (4) mere evidentiary items (not covered by Jones by the vast weight of authority). This possible inadequacy of “automatic standing” was pointed out by Simmons, at 390 U. S. 391-392:

“The dilemma faced by defendants like Garrett is most extreme in prosecutions for possessory crimes, for then the testimony required for standing itself proves an element of the offense. We eliminated that Hobson’s choice in Jones v. United States, supra, by relaxing the standing requirements. This Court has never considered squarely the question whether defendants charged with non possessory crimes, like Garrett, are entitled to be relieved of their dilemma entirely.”

Simmons thus afforded a broader Fourth Amendment protection in those instances where “automatic standing” in the things seized did not go far enough.

On the other hand, “automatic standing” in the place searched ran the distinct danger of going too far. Cecil Jones, given the proper possessory crime, appeared to make no distinction between standing in the things seized and standing in the place searched. Yet the distinction might often be called for. An acknowledgement of a possessory interest in the things seized — be it contraband or derivative contraband — would be tantamount to a confession of guilt in a crime of possession; an acknowledgement, on the other hand, of a possessory interest or of derivative standing in the place searched would not be tantamount to a confession of guilt, even though it might be some evidence of guilt. In terms of contradictory positions being taken by the State, the two classes of interest are analytically severable. The State may not with good grace deny, on the standing issue, the very possession which it has alleged and will seek to prove. The State’s denial of a defendant’s possessory or derivative interest in the place searched, however, is not contradictory to the State’s trial position. The State may prove its case as well by showing that a defendant “stashed” his contraband in a burglarized premises or a stolen car as by showing that he kept it in a place wherein he had a legitimate interest or was legitimately on the premises.

With respect to possession of the things seized, “automatic standing” simply permits the candid assertion of a true position without risk of being later incriminated by that candor. With respect to an interest in the place searched, on the other hand, “automatic standing” could lead to the conclusive presumption of palpable untruths. Given a charge of possession of contraband, should “automatic standing” be extended to a burglar in a burglarized premises or to a thief in a stolen car? Where a defendant clearly has no interest in the place searched, may “automatic standing” conclusively presume that he was “legitimately on the premises” during the search when he was demonstrably elsewhere (just as the defendants in Brown v. United States, supra, were in jail in Ohio when the search took place in Kentucky)? A logical extension of Cecil Jones ’ “automatic standing” in the place searched could lead to such manifest absurdities. This would be a socially intolerable instance of a Fourth Amendment doctrine run amok. Simmons, as a replacement for “automatic standing,” precludes such unacceptable positions being foisted upon the courts and contains the establishment of standing to the establishment of truth.

Between 1960 and 1968, “automatic standing” served a necessary purpose but at some cost. Since Simmons, the reason of necessity which gave rise to “automatic standing” no longer exists. It is not simply redundant but would now cause us to pay its costs unnecessarily. The reason for the law has ceased to exist and it should not be followed simply as a conditioned reflex. Although dealing with a time lag far greater than that between the birth of Simmons and the formal obituary of Cedi Jones, the words of Oliver Wendell Holmes are nonetheless pertinent:

“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

Cessante ratione legis, cessat et ipsa lex. So let it be with “automatic standing.”

The Alleged Miranda Violations

It is unnecessary even to consider on the merits the Miranda issues raised by the appellants. The admissions which they challenge were only those made to the arresting officers at the time of the arrests to the effect that the appellants did not own and had no interest in the white Mercury. Since, as we have held above, the burden was not upon the State to prove non-standing, admissions which were used in this regard went only to an immaterial issue. They are, therefore, harmless by definition.

Legal Sufficiency of the Evidence

In slightly varied forms, the two appellants challenge the legal sufficiency of the evidence. There is no merit in their claims. The stolen goods from Montgomery Ward’s were found in the trunk of the automobile with which they were linked by witnesses. There were, moreover, proximities of time and place between them and the larceny. There were also the observations of the security personnel at J. C. Penney’s which established that on the afternoon in question, the two appellants were acting in concert.

Judgments affirmed.

      . Even though hearsay, the declarations of the two appellants made to the various policemen were admissible substantively upon any of three theories: (1) Although hearsay, it was unobjected to, (2) As declarations by a party opponent, they are a recognized exception to the Hearsay Rule, and (3) The formal rules barring hearsay evidence do not apply at a suppression hearing before the judge alone. United States v. Matlock, supra. In any event, such evidence by the State tending to establish non-standing is superfluous if the burden is upon the appellants to establish standing.

      . Even if one could accept the improbable inference that the registered owner of the automobile and the appellant Duncan were related from the mere fact that they both had the same last name and even if one could pile upon that inference the further inference that the use of an unspecified relative’s car is with that relative's permission, the appellants here would not be helped. To begin with, such strained logic would at most give rise to permitted inferences and not to mandatory presumptions. The fact finder on the issue would, therefore, have full prerogative not to draw one or both of the inferences. More pertinently, however, the name of Shirley Duncan never came out in the trial of the appellant Duncan and the whole tenuous theory is, therefore, unavailable to him. At the trial of Smith, on the other hand, a permitted inference piled upon a permitted inference would at most give rise to the possibility that Smith's codefendant Duncan had been lawfully in possession of the car. Smith’s legitimate presence therein, as a passenger, would be only derivative, coming through Duncan. When one relies upon the derivative standing of being “legitimately on the premises [or, by logical extension, in the car] as a guest, licensee or invitee” of a lawful possessor, such standing is only available when one is physically present in the searched premises at the time of the search. The appellant Smith was not so present. Brown v. United States, supra, is absolutely dispositive on this point. In that case, two defendants who were under federal arrest in Ohio during an unconstitutional search of the premises in Kentucky of their codefendant were not physically present in the premises during the search and could not, therefore, claim derivative standing. Presence during the search is a sine qua non of derivative standing.

      . It is axiomatic that the Fourth Amendment does not extend its protective cloak over a thief in the enjoyment of a stolen automobile, Palmer v. State, supra, nor over an unauthorized user in the enjoyment of a temporarily misappropriated automobile, Shope v. State, 18 Md. App. 472, 307 A. 2d 730. See also Kaufman v. United States, 323 F. Supp. 623 (E.D. Missouri 1971); Williams v. United States, 323 F. 2d 90 (10th Cir. 1963); State v. Pokini, 367 P. 2d 499 (Hawaii 1961); Slyte v. State, 149 So. 2d 489 (Mississippi 1963); Harper v. State, 440 P. 2d 893 (Nevada 1968); State v. Edmonds, 462 S.W.2d 782 (Missouri 1971); Meade v. Cox, 310 F. Supp. 233 (W.D. Virginia 1970). But see Cotton v. United States, 371 F. 2d 385 (9th Cir. 1967). Even more compelling than the precedents is the inherent logic of the proposition. No valuable purpose could conceivably be served by extending the protection of the Fourth Amendment to those who have wrongfully appropriated premises or vehicles.

      . At least it did so as of the time when it became clearly binding on the states through Mapp v. Ohio, 367 U. S. 643, 81 S. Ct. 1684, 6 L.Ed.2d 1081 (1961), and Ker v. California, 374 U. S. 23, 83 S. Ct. 1623, 10 L.Ed.2d 726 (1963).

      . Justice Frankfurter wrote for a unanimous court (with respect to this part of the opinion) in Cedi Jones, at 362 U. S. 267:
      “No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him.”
      He then underscored the measured use of the adverb “legitimately” by stating the converse:
      “This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.”
      And see Walters v. State, supra, at 8 Md. App. 591.

      . As we said in Palmer v. State, swpra, at 14 Md. App. 162-163:
      “Where a defendant, in order to assert sufficient standing to challenge the admissibility of evidence, had to claim and to prove a proprietary interest in the very contraband the possession of which was the gravamen of the offense charged, and such damaging admissions could then be used by the prosecutor at the trial on the merits to establish the incriminating nexus between the defendant and the contraband, the defendant was faced with an intolerable ‘Hobson’s Choice.’ ”

      . Because the crime charged in Brown was not possession as such, it was not necessary to face squarely the overruling vel non of the “automatic standing” aspect of Cecil Jones. The Court said, at 411 U. S. 228:
      “But it is not necessary for us now to determine whether our decision in Simmons, supra, makes Jones’ ‘automatic’ standing unnecessary. We reserve that question for a case where possession at the time of the contested search and seizure is ‘an essential element of the offense. . .charged.’”

      . Grove, Suppression of Illegally Obtained Evidence:- The Standing Requirement on Its Last Leg, 18 Catholic U.L.Rev. 150 (1968); White and Greenspan, Standing to Object to Search and Seizure, 118 U. of Pa.L.Rev. 333 (1970); Abbott, et al, Law and Tactics in Exclusionary Hearings (1969), at 58-63. And see Palmer v. State, supra, 14 Md. App. at 164-165, n. 10.

      . The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897).

      . When the reason for a law ceases, the law ceases.


author: Lowe, J.,

text:
    PAUL SAMSON v. STATE OF MARYLAND
    [No. 975,
    September Term, 1974.]

      Decided June 30, 1975.

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

      Leonard A. Briscoe, Assigned Public Defender, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, A ttomey General, Richard R. Cooper, State’s Attorney for Kent County, and Basil Wadkovsky, Deputy State’s Attorney for Kent County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Paul Samson was convicted in the Circuit Court for Kent County of distributing, and conspiracy to -distribute, a controlled dangerous substance of the “Schedule III” variety. The “substance,” identified as phendimetrazine, was not listed in the statute, Md. Code, Art. 27, Sec. 279 (c) as subject to the distribution proscription in Sec. 286 (a) (1). The jury was told by the State’s Attorney in opening statement that “The Secretary of Health has deemed it to be a dangerous substance . . .”, however, the jury was not made privy to the State’s reasoning behind that theory. At argument we were so enlightened, given our choice of two procedural possibilities.

At the conclusion of opening statements, but before any witness was called, the State’s Attorney asked leave to approach the bench. He asked the judge “Can I at this point put that letter in evidence?” Little by little we are able to piece together what “that letter” was. Appellant objected but the judge admitted the letter over his objection.

“Mr. Oneglia: Well, I will object formally in Court. I would like a rule on it. I couldn’t find a case in my quick review on it.
Judge Rasin: Well, you’ll have to really offer it. Are you seeking the opportunity to argue to the jury that it is not the law, because that is a legal matter. I will have to instruct them on it. You can make the argument to me. It is not up to them to decide whether or not there is a law. I will permit you to go as far as to explain the law sets forth certain schedules, and also permits the Secretary to add certain substances and he has done that. The Secretary has done that in this case, but whether or not he should have is not up to the jury to determine, as to whether that is the way the law should be enacted. That is strictly a legal matter.
Mr. Oneglia: Well, I think the law is as it stands, but I can argue, §1 — I am not sure there may be some question as to whether the procedures followed were correct under the statute; §2 — the whole argument I made—
Judge Rasin: No, everyone is presumed to know the law. Everyone is afforded the opportunity to know the law. It is up to them to interpret the law, but not to determine whether the law was properly enacted or adopted, or whether the proper procedures have been followed. I don’t mean to say you don’t have a good point. You can do it before any Court, but not any jury.
Mr. Cooper: The question I am asking is whether the letter, which is actually the law, should be put in the record.
Judge Rasin: Yes, I think it should. You have to have something for the appellate court to see that this has been made part of the law by virtue of Dr. Solomon’s including it. You can offer it and Mr. Oneglia can always object to it.”

At the conclusion of the bench conference, and again without a witness having been called the case resumed.

“END OF BENCH CONFERENCE:
Judge Rasin: Proceed, Mr. Cooper.
Mr. Cooper: I would like to submit this as State’s Exhibit #1.
Judge Rasin: Let it be marked. Mr. Oneglia, you have seen it? The exhibit?
Mr. Oneglia: Yes, I have, Your Honor.
Judge Rasin: Do you object to it?
Mr. Oneglia: Yes, I do, Your Honor.
Judge Rasin: Overrule the objection and it will be admitted into evidence.
(Letter from Dr. Neil Solomon admitted over objection as State’s Exhibit #1.)”

The letter introduced was a mimeographed form letter, unsigned except for a certification by Dr. Solomon that “the above is a true and correct copy.” There was no testimony or other evidence to explain the effect — if any — of the form letter. Its admission for the purpose of showing “something for the appellate court” that phendimetrazine “has been made part of the law by virtue of Dr. Solomon’s including it,” commenced with a commendable purpose but was based upon a faulty foundation. Our own research convinced us that phendimetrazine was, at the time of the violation charged, a controlled dangerous substance; however, we are not yet convinced that it assumed controlled status by the Maryland Department of Health route. To the contrary, the Attorney General admitted at argument that phendimetrazine had yet to appear in the Maryland Register.

As indicated, not only was appellant’s objection to the admission overruled, but he was prohibited from arguing “to the jury that it is not the law,” even though he expressly raised “some question as to whether the procedures followed were correct under the statute.” The issue was again raised at the conclusion of the case when appellant was denied the right to argue that “the Defendant did not have any knowledge that this was a schedule 3 non-narcotic drug.” Upon denying that request the court ruled:

“Judge Rasin: Well, the Court in its comments already indicated that my ruling in that is that I will not permit you to argue that. Everyone is charged with knowledge of the law, and from a practical point of view I would think anyone trafficking in any type drug who is not a doctor is more or less on notice that he had better check. So I had no difficulty in finding what the law was at the time prohibiting distribution of this type of drug. I will not permit you to argue that to the jury.”

The schedules of proscribed drugs are subject to change by the Department of Health “by motion or on the petition of any interested party pursuant to the procedures of the Administrative Procedure Act, and after notice and hearing . ...” There are listed eight criteria for determination which the Department “shall” consider in deciding whether a substance should be added. After considering those factors “the Department shall make findings with respect thereto and shall issue an order controlling the substance if it finds that the substance has a potential for abuse.” Md. Code, Art. 27, Sec. 278 (a).

Additionally, for obvious reasons, the Department is admonished by subsection (d) to:

“ ... update and republish a schedule on a semiannual basis for two years from July 1, 1970, and thereafter on an annual basis.”

Finally we note that unless the provisions of Md. Code, Art. 41, Sec. 9 are complied with “No rule or regulation hereafter made, promulgated or adopted is effective . . . .” That section provides in full that:

“Prior to the adoption of any rule or regulation by an officer or department of the executive branch of the State of Maryland under any rulemaking power granted by the General Assembly of Maryland, the rule or regulation shall be submitted to the Attorney General of Maryland for approval as to its legality. Every officer, department, board, commission, bureau and similar agency of the State government other than those within the Legislative and Judiciary Departments who has power to make, promulgate, adopt or enforce rules and regulations shall file copies of them pursuant to the provisions of the State Document Law. No rule or regulation hereafter made, promulgated or adopted is effective until after compliance with this section.”

Proof of compliance with these provisions would not seem overly difficult.* 123** Pursuant to Cts. Art., Sec. 10-204:

“A copy of a public record, book, paper, or proceeding of any agency of the state or of any of its political subdivisions or of an agency of any political subdivision shall be received in evidence in any court if certified as a true copy by the custodian of the record, book, paper, or proceeding, and if otherwise admissible.”

An updated or “republished schedule” certified as a true copy by the custodian of the republished schedule adopted pursuant to law, would be prima facie evidence of compliance with subsection (a) and Art. 41, Sec. 9 which, if unrebutted, would presume conformity with the formalities prescribed by those sections. The burden would thus be shifted to the defendant to rebut that prima facie conformity with testimony or certification of non-compliance from an appropriate departmental custodian. If either the State fails to meet its initial burden or if the defendant proves non-compliance, there is no regulatory law upon which the prosecution can proceed. Cf. Md. Tobacco Grow. v. Md. Tobacco Auth., 267 Md. 20, 23-25.

The letter from Dr. Solomon to the specified parties in interest is not a “republished schedule” pursuant to Art. 27, Sec. 278 (d) showing changes made in conformity with Art. 27, Sec. 278 (a), but rather notification from the Department of Health. That letter of notification is not prescribed by statute but presumably is an agency service to those persons particularly affected; however, it could not substitute for an annual updated republished schedule.

The letter did indicate, however, the reason the Department had taken the action: “in order for the Maryland Controlled Dangerous Substances Act to conform with the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 . . . .” Such conformity relates to a second means of adding a substance to one of the schedules found in Art. 27, Sec. 278 (c).

“(c) New substances controlled under federal law. — Any new substance which is designated as controlled under federal law shall be similarly controlled under this subheading unless the Department objects to such inclusion or rescheduling. In such case the Department shall cause to be published and made public the reasons for such objection and shall afford all interested parties an opportunity to be heard. At the conclusion of such hearing, the Department shall publish and make public its decision, which shall be final. An appeal from a designation made pursuant to this section shall not stay the effect of such designation.”

We find in 21 C.F.R. Sec. 1308.13 that phendimetrazine was added as a “new substance . . . designated as controlled under federal law.” By virtue thereof and through operation of Art. 27, Sec. 278 (c), distribution of phendimetrazine, at the time appellant was so charged, was a violation of the Controlled Dangerous Substance Act.

Appellant’s complaint that:

“The alleged controlled dangerous substance was not such substance within the meaning of the law at the time of the alleged sale in this case, nor was there legally sufficient proof adduced at the trial to show that the substance, phendimetrazine, was in fact, at the time of the alleged sale a controlled and dangerous substance within the meaning of the law; and Appellant was denied due process as a result of being tried and convicted for allegedly distributing a substance which at the time of the alleged sale was not listed in the schedule published in accord with constitutional requirements.”,

is without merit. That there was no “legally sufficient proof adduced at the trial to show that the substance, phendimetrazine, was in fact, at the time of the alleged sale a controlled and dangerous substance . .is no defense, if in fact the substance was controlled as we have found. It is of no consequence that the wrong path was trod by the trial judge in arriving at a proper destination. The truth was in pectore judicis.

Finally, the publication that is required, Sec. 278 (d), is directive only and although its failure is an abrogation of the Department’s responsibility, its absence does not erase the law. Just as the sale of phendimetrazine subjected appellant to federal prosecution, through Sec. 278 (c) that same act subjected him to State prosecution. His ignorance of the law does not give him immunity from punishment for crime. Hopkins v. State, 193 Md. 489, 498-499. Judges, lawyers and laymen alike are all presumed to know the law regardless of conscious knowledge or lack thereof, and are presumed to intend the necessary and legitimate consequences of their actions in its light. Grumbine v. State, 60 Md. 355, 356. Without that presumption one could escape the consequence of the law merely by denying prior knowledge of its existence and one’s ignorance would become paramount to the law. Cf. Hopkins, supra. “[IJgnorance of the law, which every man is bound to know, excuses no man, is as well a maxim of our own law, as it was of the Romans.” 4 Cooley, Blackstone, Sec. 27 at 1233. That maxim applies equally to state and federal law, to both of which we are subjected.

Neither the letter of notification nor a subsection (d) republication is prerequisite to effecting an inclusion of a “new substance” under the control of Maryland law. There is an automatic inclusion under our Act by virtue of its having been included for control by the federal law. It follows that if phendimetrazine was included as controlled by the federal law at the time of the offense, it was the law of Maryland without more, by operation of Sec. 278 (c). It is the same law but in a different way — eadem est lex sed aliter.

Procedurally it would have been preferable for the State to have submitted proof of the federal rule or regulation in C.F.R. which added the substance to federal law pursuant to Cts. Art., Sec. 10-202 (a); notwithstanding we judicially notice federal rules and regulations. 31 C.J.S. Sec. 39.

Jury Argument

Appellant complains that he was denied the right to argue to the jury “a question of law and what in fact was the law.” We must strain to find that question preserved for our review. As we have indicated appellant contended prior to the opening statement:

“Well, I think the law is as it stands, but I can argue, #1 — I am not sure there may be some question as to whether the procedures followed were correct under the statute . . . .”,

which is hardly a proper preservation of the question which he now poses. However, prior to the court’s advisory instructions to the jury, appellant said:

“I would also like to renew my request that I be permitted to argue to the jury the Defendant did not have any knowledge that this was a schedule 3 non-narcotic drug.”

We find the judge’s denial of permission to argue either the operative effect of the law or appellant’s lack of knowledge of the law was not reversible error. While it is customary to give counsel relatively broad latitude in argument the limitation under the circumstances in this case was within the court’s discretion.

Appellant’s argument seems to take sustenance from the peculiar role of Maryland juries as judges of the law as well as fact. Although his argument borders on an ignoratio elenchi, the case of answer persuades us to overlook both the failure to preserve the question he asks and the peripheral argument he uses to persuade.

“ . . . Maryland’s constitutional provision making the jury in criminal cases ‘the Judges of Law’ does not mean precisely what it seems to say.” The conception is not without limitation including exceptions added by statute and others carved out by judicial construction. Giles v. State, 229 Md. 370, 382-386. As early as 1858 it was held that juries had no right to pass upon the constitutionality of a statute and that it was proper for the trial court to prohibit counsel from arguing that question before the jury. Franklin v. State, 12 Md. 236. In Slymer v. State, 62 Md. 237, 241 the Court of Appeals stated that not only was it a court function to

“pronounce on the sufficiency or insufficiency of the evidence to establish the bringing of the law into operation, it is evident, that whether the law has operative existence or not is a preliminary question for the Court, and the evidence offered is really evidence to the Court on which it pronounces and not the jury. If it were otherwise ... we might have the anomalous state of things of one jury finding the law operative and the traverser guilty; and another jury finding the law had not been adopted, and for that reason acquitting the accused. Reason and necessity alike require stability in the law.”

It is but a short step to reason that that which is not within the aegis of the jury is not subject to argument before them.

Nor does the “renewed” but tangential question give us more pause. If the operation of the law and its existence (or absence) may not be argued to jury and appellant’s knowledge thereof is presumed, if follows that the sole effect his actual lack of knowledge thereof could have had was as a circumstance of mitigation. There being no degrees of malevolence involved in distribution, mitigation related only to sentencing, not to guilt or innocence. Sentencing is the responsibility of the judge, not the jury.

We see no error in this case in the denial of argument either as to the law or to appellant’s knowledge of the law, whichever appellant contends. That this result not be misinterpreted we express and emphasize that it is not our intent to rule that there is never a right to argue law to a jury. The Court of Appeals has recognized that right under proper factual circumstances both expressly and sub silentio. Davis v. State, 168 Md. 10, 12; Rasin v. State, 153 Md. 431, 436; Dick v. State, 107 Md. 11, 19. But the right to do so is narrowly restricted to the factual context in those cases where the jury has the responsibility “ ... to resolve conflicting interpretations of the law [or] to decide whether the law should be applied in dubious factual situations.” Hamilton and Fletcher v. State, 12 Md. App. 91, 98, aff’d., 265 Md. 256, citing Schanker v. State, 208 Md. 15. In short it may not be directed to what the law ought to be, but what in fact the law is. Nor may the argument exceed the bounds of the province of the jury to decide the law, and that right, as we have noted, has been subjected to some limitations. Giles, supra.

“It does not confer upon them, however, untrammeled discretion to enact new law or to repeal or ignore clearly existing law as whim, fancy, compassion or malevolence should dictate, even within the limited confines of a single criminal case. That limitation upon the role of the jury as ‘judges of the law’ is implicit in the holdings that questions of constitutionality may not be argued to a jury, Franklin v. State, 12 Md. 236, Bell v. State, 57 Md. 108, Hitchcock v. State, 213 Md. 273, and that questions of the admissibility of testimony and the competency of witnesses will rest within the sole province of the trial judge. Jules v. State, 85 Md. 305, Deibert v. State, 150 Md. 687; Kirschgessner v. State, 174 Md. 195.” Hamilton and Fletcher v. State, 12 Md. App. 91, 98.

The remainder of appellant’s contentions are totally without merit. His contention that the court erred “in failing to make a ruling on defendant’s motion for removal in open court or in the presence of appellant” is not supported by the record. Although the decision was made in chambers, appellant’s attorney concedes that the judge said to him when deciding so “Don’t let me forget to rule on the motion to remove.” In any event, the discussion and decision would appear to be purely legal matters for which appellant has no right to be present. Redman and Johnson, 26 Md. App. 241.

Notwithstanding the fact that there is no affirmative showing that appellant was not in chambers during that colloquy, appellant further extends his argument, again ignoratio elenchi. He treats the motion as if it were never ruled upon, seeking reversal for failure to rule on a pretrial motion, which we have held to be error even as to a frivolous motion. Alston v. State, 11 Md. App. 624. However, the facts here, relating to counsel’s responsibility to bring that undecided motion to the attention of the judge at an appropriate time also have precedent in our annals. White v. State, 23 Md. App. 151.

The next contention that appellant’s conviction was obtained through perjured testimony was withdrawn at argument.

His questions numbered IV and V are broad accusations of denial of due process, denial of right to trial by jury, and instructional error, and are without specification, citation or argument, contrary to the requirement of Md. Rule 1031 c 4. The breadth of issues precludes our ability to understand their import or to respond to them. We consider them waived. Hyde v. State, 228 Md. 209, 218; State Roads Comm, v. Halle, 228 Md. 24, 31; See McMillan v. State, 3 Md. App. 699, 702.

Questions VII and VIII alleging error in denial of motion for acquittal and asserting insufficiency of evidence are answered by reference to the evidence from the trooper who purchased the phendimetrazine from the appellant whom he identified in court. Metallo v. State, 10 Md. App. 76. The evidence of conspiracy with Oliver Fisher was clearly established as Fisher arranged the sale from appellant to the trooper. Wilson, Valentine and Nutter v. State, 8 Md. App. 653, 671. The collateral complaint of denial of motion for new trial falls as well since it was within the Court’s discretion. Jones v. State, 16 Md. App. 472. Equally insubstantial is the argument relating to a chain of custody of the evidence introduced since appellant expressly withdrew any objection to its admission. Nor was there objection to the State’s Attorney’s argument now complained of. Had there been, we see no prejudice in the statements.

Judgments affirmed.

      . The letter is reproduced as an appendix.

      . Dr. Neil Solomon, Secretary of the Department of Health of Maryland.

      . The Maryland Register is an official publication of the State of Maryland. It contains adopted, emergency and proposed administrative rules, as well as other documents filed with the Division of State Documents pursuant to Art. 41, Secs. 256B-256S, Annotated Code of Maryland (1974 Supp.), and supplements the Code of Maryland Regulations (COMAR). The text of documents appearing in the Maryland Register is the only official, valid and enforceable text of such documents.

      . In 1970 a comprehensive revision of the Controlled Dangerous Substances Law was enacted by Chapter 403, Laws of Maryland. Among the proposed changes in Sec. 278 (a) was an attempt to strike out the initiation of an added substance “by motion or petition of any interested party.” The original bill, Senate Bill 793, also attempted to remove the requirement of “notice and hearing,” however, the General Assembly struck all proposed amendments and reenacted the subsection as originally enacted.

      . Appellee conceded at argument that phendimetrazine had not yet been listed among the proscribed drugs in the Maryland Register at the time this appeal was heard. Presumably the appellant’s denied request to argue whether he knew of the law was based upon the Health Department’s failure to comply with the annual republication direction in Sec. 2Í8 (d).

      . Under the State Document Law enacted by the Legislature and effective July 1, 1974, Md Code, Art. 41, Sec. 256B through 256S proof of agency regulations has been even more simplified. Sec. 256R reads:
      “(a) Presumptions. — The publication of any document in the Code of Maryland Regulations, the permanent supplement, or the Register creates a rebuttable presumption:
      (1) That it was duly issued, prescribed, or adopted;
      (2) That it was approved as to legality by the Attorney General, if the document is an agency rule; and
      (3) That all requirements of this subtitle have been complied with.
      (b) Admissibility. — Any document published pursuant to this subtitle is admissible as evidence in any court proceeding, if otherwise relevant and material.”
      However, since we are advised by appellee that the proscribed drug has never appeared in the Maryland Register this route was not available to the State.

      . “Ignorantia juris, quod quisque tenetur scire, neminem excusat.”

      . “(a) Publications covered. — Printed books or pamphlets purporting on their face to be the session or other statutes of the United States, any of the United States or its territories, or of a foreign jurisdiction, and to have been printed and published by the authority of a state, territory, or foreign jurisdiction or proved to be commonly recognized in its courts, shall be received in the courts of the state as prima facie evidence of the statutes.”


text:
    MARY LOUISE FAROOQ v. ADOLPH W. COSNER
    [No. 1017,
    September Term, 1974.]

      Decided June 30, 1975.

      The cause as argued before Morton, Gilbert and Lowe, JJ.

      Mercedes C. Samborslcy for appellant.

      Stephen A. Tarrant for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The adversary system of jurisprudence works quite well so long as parties on the same side of a case have a similarity of interest in the outcome. When parties so aligned do not, as when tenants by the entirety become divorced, the adversary system is hindered perhaps, but has the capacity to equitably overcome the incongruity.

The appellee, Adolph W. Cosner (Adolph) sought by suit brought in the Circuit Court for Harford County to impose a resulting trust upon two parcels of land, one consisting of 41.8 acres, the other 7.5 acres. The titles to both were in the name of his son Jerry Adolph Cosner (Jerry) and Jerry’s former wife Mary Louise Farooq. Because the land was conveyed to “Jerry Adolph Cosner and Mary Cosner, his wife” in both instances, the appellee sued his son Jerry as well as Jerry’s former wife. Although Jerry was thus compelled to join his erstwhile wife, it is apparent from his testimony and the counter-productive efforts of his counsel that his loyalties lay elsewhere. Shielded only by the strong presumption in favor of legal title as evidenced by the deeds, Mountford v. Mountford, 181 Md. 212, Mrs. Farooq faces the frontal assault of a father, buttressed by a flank attack from the son. While none of the parties proclaims eleemosynary motives, we are relieved of the necessity to determine who among them is most avaricious, the father, the son or the erstwhile spouse.

Initially we deny appellee’s motion to dismiss the appeal because only one of the “two co-trustees” has appealed. Appellee’s son was satisfied, indeed quite pleased, with the result below. Since the chancellor declared a resulting trust and only appellant Farooq appealed, appellee now asserts a violation of the rule that co-trustees must act with unanimity. In Sokol and Eliasberg v. Nattans, 23 Md. App. 600, 609, we recognized that the interest which a trustee has in the subject matter of the trust corpus was of a dual nature and decided that a right of appeal is universally recognized where a trustee’s personal rights are affected by the order or judgment. Furthermore, the unanimity rule, applicable to trustees’ actions in execution of trust-imposed obligations, can hardly be extended to a suit defending against the imposition of a constructive trust. The motion here is denied and we proceed to the merits of the case.

The Facts

Adolph and his former wife Rhoda (the father and mother of Jerry) sold a 79 acre tract of land to John W. Smith for $15,000. The Cosners took back a $7500 second mortgage. Soon thereafter some domestic turbulence developed and the marriage of Adolph and Rhoda erupted into a full scale legal storm. Their jointly owned real estate was sold at judicial sale and Adolph found himself faced with limited resources, mounting liabilities (alimony and support) and an estranged wife’s counsel ever vigilant for signs of attachable assets.

For four years John Smith had been unable to pay even the interest on the second mortgage and while Adolph presumably did not press as to his one-half interest, Rhoda through her attorney did.

41.8

Consequently Mr. Smith proposed to resell to Adolph a substantial portion of the land that Adolph and Rhoda had sold him. A bargain was struck and contract executed by Adolph and Smith to sell 41.8 acres for a contract price of $9,356.25. Fearing his former wife would somehow thwart his purpose, Adolph elected to have his son Jerry and daughter-in-law (now Mrs. Farooq) take title in their names. The purchase price was paid by satisfaction of the second mortgage including interest and costs, one-half of which Adolph simply absorbed. Rhoda’s mortgage interest was paid off through Jerry who submitted to her a check with Jerry’s name signed by Adolph (allegedly drawn from Adolph’s funds) and a 30 day demand note from Jerry to his mother for $2,593.75. According to Adolph’s version, that note was ultimately paid off with $943.75 of his own money and $1,650.00 of Jerry’s money, a loan to Adolph. This testimony was undoubtedly offered to help offset the Mountford presumption of title from the deed, and as tending to prove that payment of the purchase price by Adolph gave rise to a resulting trust in his favor. Fitch v. Double “U” Sales Corp., 212 Md. 324. Appellee thus took on the heavy burden of proving by plain, unequivocal and convincing evidence that the beneficial interest did not follow the legal title. Siemiesz v. Amend, 237 Md. 438.

The facts established evidencing the resulting trust in favor of Adolph may be summarized as:

1. Adolph negotiated and contracted to make the purchase.
2. Jerry, one of the alleged trustees, admitted understanding the trust relationship and purpose.
3. Jerry testified that he explained it to and had to convince appellant because of her fear of taxes and other expenses accruing as a personal liability. She was persuaded that Adolph would prevent this.
4. The testimony clearly showed the purchase price was paid by Adolph (although advanced in part by Jerry), involving the presumption that “where one purchases land, pays for it with his own money, and takes a conveyance in the name of another a trust results in favor of the purchaser, unless there be circumstances rebutting that presumption.” Taylor v. Merc.-Safe Dep. & Trust, 269 Md. 531, 539 citing Dorsey v. Clark, 4 H & J 551. There is no evidence that Mrs. Farooq either paid or subjected herself to liability for any part of that purchase price.
5. Grantor and his counsel recognized Adolph as the beneficial purchaser.
6. Adolph ordered, and ultimately paid for, a survey, although the surveyor’s testimony indicated he had looked to Jerry at Adolph’s instance for a delinquent payment.

Although Jerry’s blood relationship to his father and severed marital ties with appellant may suggest adverse motives, his position and credibility were vigorously attacked but little shaken by appellant who, in her own testimony, did not contradict Jerry's testimony without equivocation. We cannot find the chancellor’s opinion that

“ . . . Plaintiff and Defendants intended that Plaintiff [Adolph] would retain the beneficial interest in the property ...”,

to be clearly erroneous, Md. Rule 1086, as to the 41.8 acre tract.

7.5

The chancellor, however, concluded his opinion by saying that:

“The court is convinced of the merit of Plaintiffs claims and therefore gives Judgment for Plaintiff as to both tracts of land.” [Emphasis added].

Our review of the record compels us to disagree. As to the subsequent purchase of 7.5 acres we find little if any evidence of a resulting trust, let alone evidence that is so clear and strong as to remove every reasonable doubt as to its existence. Gray v. Harriet Lane Home, 192 Md. 251, 265.

The second tract was transferred six months after transfer of the first which Mr. Smith elected to sell. It consisted of only 7.5 acres abutting the 41.8 acre parcel. The purchase price was $2500.00 and again father and son testified that although title was in the name of Jerry and appellant, that device was utilized, as before, because of the domestic feud still running rife between Adolph and Rhoda. There is no testimony that the underlying intent of this transaction was explained to Mrs. Farooq, as it was on the 41.8 acre purchase. Nor was there evidence from which it could be inferred that she knew or should have known of such possible intent. To impute to the six-month delayed purchase of parcel two, Mrs. Farooq’s express knowledge of that intended purpose as to parcel one would require more imagination than reason. The evidence was all to the contrary. The settlement sheet showed the grantees to be “Jerry Adolph Cosner and Mary Cosner, his wife.” The purchase price was provided by mortgage in the amount of $3,000.00 to which both appellant and her then husband were alone committed. Since appellee neither advanced purchase price nor indebted himself on the purchase money mortgage, the resulting trust presumption from payment of purchase price was not available to him even though there was evidence that he made some of the mortgage payments. Appellee’s alleged “intent” to pay the indebtedness incurred by appellant and her husband did not give rise to a resulting trust, only payment of the purchase price “with his own money” would have. Taylor, supra, 269 Md. 531. Although the evidence of intent was admissible through both father and son, Taylor, 269 Md. at 540, its admission into evidence was to no avail. To permit so broad an inference would jeopardize every title evidenced by deed since the state of mind of parties collateral to a sale and purchase would create a presumption undermining them. Mountford, supra, 181 Md. 212.

Shorn of the presumption arising from payment of purchase money, appellee offers his intent to repay the purchase price, ie., to make payments on the mortgage incurred by appellant and Jerry, against the documented proof that the source of payment was appellant and Jerry. That evidence was in the settlement and mortgage records and was uncontradicted.

To rebut Jerry’s testimony supporting his father’s “intent” to repay, appellant sought to show Jerry’s state of mind after their separation, following the purchase. In a domestic proceeding, Jerry charged the appellant with her share of the taxes and the mortgage and deducted this amount from the child support and alimony due her. The chancellor here erroneously refused to consider that evidence, although it was admitted, as well as the evidence that Jerry Cosner paid off two-thirds of the mortgage principal. The chancellor stated in his opinion that:

"... the rule of Johnson v. Johnson [96 Md. 144] makes clear the duty of the Court to consider only events prior to or contemporaneous with the time of conveyance in determining whether or not a resulting trust has arisen.”

Such is not the holding of Johnson. That case precludes subsequent evidence of the acts or declarations of one presumed to be the donor of an advancement to the object of his natural bounty for the purpose of overcoming the presumption of an advancement. Johnson is totally inapposite, either as to the evidence of Jerry’s payment of the mortgage, or of his reducing Mrs. Farooq’s alimony and support by her share of that mortgage and the taxes.

Even if appellee’s mortgage payments were treated as part of the purchase price, that he did so in the name of his son and daughter-in-law for whom he was under a natural or moral obligation to provide, Lacey v. Van Royen, 259 Md. 80, 89; Mutual Fire Ins. Co. in Balt. v. Deale, 18 Md. 26, would have been prima facie an advancement or provision, and absent evidence to the contrary,* no presumption of a resulting trust would have arisen from the fact of the payment of the purchase money. It is this presumption of advancement that cannot be rebutted by evidence of acts or declarations made subsequent to the purchase, Johnson, 96 Md. at 148 not the presumption of a resulting trust (which presumption never arose). Accordingly, the evidence that the father made subsequent payments upon part of the mortgage indebtedness of his son and daughter-in-law was not admissible to rebut the advancement presumption. The prerequisite inferential or presumptive chain is incomplete. Since the purchase price was not paid by appellee there was no presumption of a trust. Evidence of subsequent mortgage payments, if admissible, served at best to raise a presumption of advancement. The quantum of evidence produced by appellee that the 7.5 acre tract was impressed with a resulting trust in his favor was naught.

Appellant submits further contentions to prevent appellee from prevailing which include the clean hands doctrine, laches and estoppel. These are all without merit.

1. There being no evidence of abuse of the trial court’s discretion in application of the clean hands doctrine, the chancellor’s discretion will be undisturbed. Space Aero Products Co. v. R.E. Darling Co., 238 Md. 93.
2. Since appellant denied ever having repudiated the trust we are unable to determine when limitations began to run. Her co-trustee has never repudiated. See Mathias v. Segaloff 187 Md. 690.
An annotation in 45 ALR 2d 382 indicates that limitations is inapplicable to a beneficiary in possession of the property subject to a resulting trust. The evidence here is that the father built his home on the 41.8 acre tract.
3. For the similar reason of failure to repudiate, the defense of laches is inappropriate. Scott, Law of Trusts, §409.
4. Finally estoppel is not available to appellant as to the 41.8 acre tract since there is no evidence that she moved to her detriment in reliance upon the representations of appellee. Lusby v. First Nat’l Bank, 263 Md. 492, 505.

In conclusion we affirm the chancellor below in granting judgment for appellee as to the 41.8 acre tract. We reverse that judgment as it applies to the 7.5 acre tract.

Judgment affirmed in part and reversed in part.

Costs to be divided equally between appellant and appellee.

      . The $500 excess over purchase price was never expressly explained. Presumably, however, it was substantially consumed by settlement costs.

      . Judge Smith’s broad analysis and complete discussion of the law of resulting trusts could, under the facts, be dispositive of the issues relating to the 7.5 acre tract.

      . We note here the strong evidence that was contrary to the presumption of advancement as to the 41.8 acre purchase.