author: Powers, J.,

text:
    COMMERCIAL & INDUSTRIAL PROPERTIES, INC. et al. v. VINCENT ANELLO et al.
    [No. 1111,
    September Term, 1976.]

      Decided May 17, 1977.

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

      Shale D. Stiller, with whom were Lawrence F. Rodowsky and Jonathan Eisenberg on the brief, for appellants.

      Morton H. Perry for appellees.
   Powers, J.,

delivered the opinion of the Court.

The somewhat unconventional basis upon which we return this case to the Circuit Court for Anne Arundel County follows logically the unconventional basis upon which the case came here from that court.

Appellants (Commercial) filed a bill of complaint on 14 May 1976 asking the circuit court to declare that an agreement for the sale of land had been breached by appellees (the Anellos), and that Commercial should have an additional 30 days to resolve a minor title problem, and asking the court to pass a decree requiring the Anellos to perform the agreement to sell the land to Commercial. Numerous documents were attached to and m^de a part of the complaint.

The answer of the Anellos, also enlarged by numeroüs appended documents, was filed on 22 June 1976. It raised many issues which appeared to go to the merits of the case. Among them was an averment that the plaintiffs did not have the financial ability to complete the transaction, nor the intention to do so, and that the complaint was not filed in good faith, but was merely a ploy to enable the plaintiffs to secure financing, or to sell the contract.

In extremely brief outline, the agreement, originally entered into on 17 July 1974, and extended and amended as late as 2 April 1976, and calling for settlement on or before 30 April 1976, ultimately provided for the sale and purchase of 15 acres of land on New Mountain Road in Anne Arundel County for the sum of $400,900.00, of which $47,000.00 had been paid. A determination of the case on its merits would unquestionably have required the resolution of many issues of fact and questions of law.

The case never reached the point of a decision on its merits. On the same day that the answer was filed, the Anellos zeroed in on Commercial’s financial ability to settle, by filing a “Motion To Require Tender And For Admission of Facts”. They moved that the court require Commercial to tender into court the sum of $375,000.00, or be required to admit that it is not able to consummate the purchase of the property. The motion was not accompanied by a statement of points and citation of authorities, as required by Maryland Rule 319. On the same day, the court ordered Commercial to show cause why the relief prayed in the motion should not be granted.

On 6 July 1976 Commercial answered the motion, saying in substance that there was no provision in Máryland practice for compulsory tender into court in a specific performance case, or for court ordered admissions of fact. After a hearing on 6 August 1976 the court ordered Commercial, within 15 days, to tender into court the sum of $375,000.00, or am enforceable loan commitment for that amount from a responsible third party, or to post a bond in that amount.

Commercial timely filed what it considered to be compliance, In the nature of a commitment from a third party. The Anellos filed a Motion For Dismissal on 31 August 1976, purportedly pursuant to Maryland Rule 310 a., attacking the sufficiency of Commercial’s showing of compliance. There was no statement of points or authorities. Rule 319. Commercial filed an answer, or memorandum opposing the Motion For Dismissal. The motion was heard before the chancellor on 24 September 1976.

A Memorandum Of Opinion And Order, signed by the Chancellor on 5 October 1976, and filed the following day, dealt primarily with the previous order requiring Commercial to show financial responsibility, and the insufficiency of Commercial’s compliance with that order. The court concluded:

“'The [financial commitment agreement] filed by the plaintiffs in these proceedings leaves open too many questions concerning its enforceability and Cordish’s fiscal soundness to assure the court of plaintiffs’ ability to perform according to the terms of the contract. Moreover, a reasonable time having expired since the date for performance under either of the contracts with the Anellos, this court declines to entertain the petition. It finds that the obligations existing between plaintiffs and defendants are not fair, reasonable, and certain in all terms.

“For the above reasons, plaintiffs’ bill of complaint is dismissed, with costs to be assessed to the plaintiffs. It is so ORDERED this 5th day of October, 1976.”

On the merits of the single question then being considered by the court — the financial ability of Commercial to consummate the contract — there was much to be said on both sides. It did not, as the Chancellor put it, “assure the court of plaintiffs’ ability to perform”, and for that reason the Chancellor dismissed the bill of complaint.

The financial ability to pay the contract price is, of course, a prime element of the obligations which a purchaser of real estate must perform at settlement. When the ability to pay is coupled with a readiness and willingness to do so, and with acceptance of the title tendered by the seller as in compliance with the contract between them, all else is mechanical detail.

When a court of equity decrees specific performance of an agreement for the sale and purchase of land, the two primary obligations — to deliver the deed, and to pay the purchase price — are left to the day of reckoning. Rarely is the court called upon to act again, after it has told the parties what they are required to do. The doing of it is left to the parties. The “proof of the pudding” —• actual performance by each party — “is in the eating”.

If either party fails to perform as ordered, the court may take further action, or it may have provided for that event by declaring in advance that failure to perform terminates a party's rights, or by appointing a trustee to perform for the defaulting party.

Appellants’ counsel have assured us that there is no reported case in the literature of American or English law in which a court of equity has required preliminary proof of ability to pay the purchase price before it will entertain the merits of a purchaser’s suit for specific performance of a real estate contract. Appellees do not dispute the assertion, and they cite no case. They argue that the court may impose such a requirement under its general equity power.

We do not think it is appropriate to introduce at this time a new step or precondition into a practice which has developed over a period of hundreds of years. We hold that the chancellor erred when he dismissed the bill of complaint for the reason that Commercial failed to make a preliminary showing sufficient to assure the court of its ability to pay the purchase price at settlement. We shall reverse the order, and remand the case for further proceedings.

In connection with those further proceedings, there are some comments We feel constrained to make. Commercial claimed, below and here, that it needed, and was entitled to have, an additional 30 days in which to resolve a minor title problem involving recorded public utility rights of way not precisely described.

On the other hand, the question relied upon by the Anellos in the circuit court was Commercial’s ability to pay. Other issues raised by their answer would have been available at a trial on the merits, but as counsel for the Anellos told this Court in argument, “if the plaintiffs had been able to show the ability to settle, fine — we would go no further — we would settle.”

We decline to entertain the suggestion of each side that his opponent’s ostensible contention is not real, but is merely a pretext for a true reason, not advanced on the record.

Accepting at face value the concerns expressed by both sides suggests a simple, time-saving, and cost-saving solution. Between the time this opinion is filed and the time of our Mandate, the parties should have no difficulty in agreeing upon the form of an order to be submitted promptly to the Chancellor, requiring settlement of the purchase and sale within a very limited time, not more than 30 days. Commercial would have its opportunity to straighten out the title. The Anellos would be assured of receiving the purchase price at settlement, or of knowing that the agreement no longer binds them. All parties would be assured that the controversy and this litigation are terminated, absolutely and forever.

Should the parties be unable to agree upon a simple “here’s the money — here’s the deed” solution of this case, then under our Mandate, further proceedings along the lines of traditional specific performance procedures will be necessary. If they are, the Chancellor would no doubt listen with a skeptical ear to any contention inconsistent with Commercial’s plaint, “All we want is good title”, and the Anellos’ rejoinder, “all we want is the purchase price.”

Order dismissing bill of complaint reversed.

Case remanded for further proceedings.

Appellees to pay costs.

      . Maryland Rule 310 a. permits dismissal of an action when the party asserting it is in default for failure to comply with the requirements as to time allowed for pleading. It has no applicability to the Motion for Dismissal filed by the Anellos. Neither did this Motion for Dismissal bear any relation to Rule 535, which may be used at the close of an opponent’s evidence in a trial without a jury.

      . Other reasons suggested in the Memorandum, that a reasonable time had expired since the date for performance, and that the obligations existing between the parties were not fair, reasonable, and certain in all terms, were unrelated to the issue raised by the Motion under consideration.


source: Caselaw Access Project

author: Moylan, J.,

license: Public Domain

text:
    BARBARA JEAN GILBERT v. STATE OF MARYLAND
    [No. 956,
    September Term, 1976.]

      Decided May 18, 1977.

      The cause was argued before Gilbert, C. J., and Moylan and Mason, JJ.

      Joseph A. DePaul and William C. Brennan, Jr., with whom were James E. Kenkel and DePaul, Willoner & Kenkel, P.A. on the brief, for appellant.

      W. Timothy Finan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Daniel J. Cassidy, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

In yet another of the legion of subsidiary issues spinning off from Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), and Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), affirmed State v. Evans, 278 Md. 197, 362 A. 2d 629 (1976), we are in this appeal required to come to grips with the problem of how the State proves a negative element and with the inevitably attendant issue of the legal sufficiency of the evidence in that regard. In effect, we are asking, “How big a legal prize does a defendant win when he succeeds in ‘bursting the bubble’ of a Thayer-Wigmore presumption?” The answer is that he wins a significant procedural bonus but not, generally speaking, the total “jackpot” of an acquittal as a matter of law.

The appellant, Barbara Jean Gilbert, was convicted in the Circuit Court for Prince George’s County by Judge William B. Bowie, sitting without a jury, of the first-degree murder of her husband, as well as the use of a handgun in the commission of a crime of violence.

The key appellate issue before us is the legal sufficiency of the evidence in terms of 1) negating self-defense and 2) negating mitigation through provocation. Since this was a court trial, no problem of jury instructions is involved. Nor is the fact of the first-degree verdict (in terms of disproving hot blood, at least) at all foreclosing on the appellant’s claim, because she objects to the right of the judge, as fact finder, even to consider such mental states as premeditation and deliberation. Hers is a flat claim of legal insufficiency.

The physical facts are undisputed. At shortly after 9:15 p.m. on April 14, 1976, the appellant intentionally shot her husband, William Gilbert, in the chest with a gun. He died the next day. Her homicidal agency is not contested. At issue, rather, is her state of mind as she pulled the trigger.

There was a great deal of testimony from both the State and the defense bearing upon the appellant’s state of mind. It is unnecessary to recount it in detail since what is here at stake is not its quantitative measure but rather its qualitative significance. Sufficeth it to say that the appellant produced legally sufficient evidence to generate legitimate jury questions on the issues of both self-defense and provocation. What are the legal consequences of the appellant’s having done that?

We begin by looking to the operation of the model generally and then to the triggering effect of the proof in this case upon each successive step in that operation.

Homicide in Maryland comes in five varieties—1) justifiable, 2) excusable, 3) manslaughter, 4) second-degree murder and 5) first-degree murder. The corpus delicti and the homicidal agency are the same in each of these varieties; which is the formalistic way of saying that they all share the common denominator of 1) a corpse lying on the floor and 2) a suspect standing there with a smoking gun in his hand. The variations are not in the actus but in the mens rea of the actor — the degree of moral blameworthiness. We are not concerned with the usual question of “Whodunit?” but with the more psychic question of “Why he done it?”

In ascending the ladder of culpability, the State needs to establish that the killing was 1) not justified and 2) not excused in order to climb from the non-criminal first and second rungs up to the third rung, where criminally felonious liability first attaches. It must then establish that the killing was 3) not mitigated in order to climb on from the third rung (or manslaughter level) onto the higher rungs (where the killing is not mitigated and is, therefore, murder). It must finally establish premeditation and deliberation (or some equivalent such as felony-murder) in order to climb from the fourth rung (murder in the second degree) onto the fifth and top rung (murder in the first degree). It will be perceived that only the final probandum involves an affirmative element. The probandum required for each of the first three steps up the ladder of culpability is a negative element. Because such notions as justification, excuse and mitigation are not monolithic phenomena but come rather in infinite variety, anticipatory disproof of them in the abstract becomes a practical impossibility.

An example may serve to illustrate the absurdity of requiring anticipatory disproof of every consideration that might lower a homicidal mens rea. Posit a bank robber, armed and wearing a ski mask, apprehended at the bank door as a teller lies dead inside. It is hypothetically conceivable that the man in the ski mask is a trusted governmental agent who has, in the nick of time, saved the country from an archenemy, cleverly disguised as a bank teller. It is conceivable, but it is not likely. Indeed, it is so unlikely that we do not require the State to disprove, as a matter of course, all such possibilities in advance as an element of its ease. The catalog of things to be disproved would be endless. The State would have to prove that the bank robber was not a lawful executioner, a policeman in pursuit of a fleeing felon, a soldier in time of war, a threatened victim killing the teller in self-defense, the cleaner of a gun which went off by accident, a hot-blooded victim beaten by the teller, a hot-blooded combatant involved in a mutual affray with the teller, an outraged husband cuckolded by the teller, someone killing in imperfect self-defense, someone killing under imperfect duress, etc., ad infinitum. There are a number of reasons why we do not require such anticipatory disproof by the State, not the least of which is the devastating impact it would have upon judicial economy. At the most fundamental level, however, we do not require it, because to require it would be an absurdity.

The device by which this relief is accomplished is called a presumption. The presumption operates in favor of the State. Absent some legally sufficient indication to the contrary, the homicide will be presumed to be not justified, not excused and not mitigated. Under the due process clause as interpreted by In Re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970), and applied by Mullaney v. Wilbur, supra, such a presumption in a criminal case has constitutional limitations. It may shift to the defendant the burden of producing evidence sufficient to generate a genuine jury question as to one or more of the possible defensive issues. It may never shift to the defendant the heavier burden of ultimate persuasion. In its lesser function of shifting to the defendant merely the burden of producing evidence, the presumption dissipates or totally disappears (“the bubble bursts”) as soon as the defendant has met his lesser burden of producing enough evidence to generate a genuine jury question. At that point, the State no longer has the benefit of the presumption. The State then assumes the burden of disproving, beyond a reasonable doubt, the defensive issue which has been generated. For a fuller discussion of these different forms of presumption, their proper functioning and their appropriateness to the criminal law, see Evans v. State, supra, at 28 Md. App. 706-730.

Turning to the case at hand, the establishment of the fact that William Gilbert died and that the appellant was the homicidal agent gave rise initially to the presumption (in its properly limited sense of shifting simply the burden of going forward with evidence) that the killing was not justified, not excused and not mitigated. The evidence, emanating both from the State’s case and from the defense, then generated, however, a genuine jury issue as to possible excuse, by way of self-defense, and an arguable jury issue as to possible mitigation, by way of hot-blooded response to legally adequate provocation. When we look to the legal sufficiency of the evidence to generate such defensive issues (and, thereby, to dissipate the presumptions to the contrary), we take that version of the facts most favorable to the defense. Assuming the truth of that most favorable version of the facts, the trial judge would be able to say, as a matter of law, that there was evidence sufficient to establish the elements of self-defense and of provocation. (Wé reiterate that we are not saying that the elements of provocation were established in this case; we are only making an assumption of convenience in this regard.) Once the judge makes a ruling of law that one or more presumptions are dissipated, the State constitutionally assumes its burden of disproving those defensive elements just as it must prove every affirmative element, by proof beyond a reasonable doubt.

The appellant does not here contend that the judge, sitting as a fact finder, did not place the appropriate burden of persuasion upon the State as to all elements, affirmative and negative. She urges rather the interesting point that when she successfully dissipated the presumptions of non-excuse and non-mitigation, that dissipation of the presumptions operated not simply to create genuine factual issues but went further and stripped the State’s case of its legal sufficiency in those critical regards, so as to have required the trial judge to grant a judgment of acquittal as a matter of law. In effect, she claims that the judge was clearly erroneous when he found her guilty of murder. We reject that thesis. The rejection is easy; the explanation therefor is somewhat more difficult.

Both the presumption, in the first instance, and the dissipation of the presumption, in the second instance, move the protagonists forward and backward upon the chessboard of proof. In order to appreciate the sweep and legal significance of each such move, it is necessary to examine the board itself. In Trovato v. State, 36 Md. App. 183, 373 A. 2d 78 (1977), we explained the stages of proof in the following terms:

“Upon the spectrum of proof, three distinct bands are discernible. The two at either extreme of the spectrum are the domain of the judge in his capacity to make rulings of law. Within this domain, the judge does not weigh the evidence or apply any burden of proof. He rather takes that version of the facts most favorable to the party against whom the adverse ruling is contemplated and decides whether those facts 1) do not establish the necessary elements of the thing needing to be proved by that party or 2) are so clear and decisive that reasonable minds could not differ in resolving the question against that party. There is a broad intermediate zone, however, wherein reasonable minds might differ as to the facts and wherein different readings of those facts would dictate very different legal results. This band in the middle is the unfettered domain of the fact finder with the prerogative to resolve genuine factual disputes in either direction. Each band has its own set of legal consequences.”

At one extreme is the State’s “back court” or “end zone,” wherein the State is vulnerable to a legal ruling, a directed verdict, against its ease. Once the State has marshalled enough evidence to move out from this danger zone, it has moved out into that “mid-court” or “playing field” whereon the ball can bounce either way in the unfettered prerogative of the fact finder. At the far extreme, is the defendant’s “back court" or “end zone,” wherein he is vulnerable to a legal ruling, in effect a directed verdict, against him, at least as to significant sub-issues of his case. When the State has advanced this far, it is entitled to a ruling of law in its favor, at least as to sub-issues, and is no longer vulnerable to the hazards and unpredictabilities associated with the fact finder.

A presumption, unlike an inference, has binding legal significance and, when unrebutted, moves the proof in a case into one end or the other of the spectrum of proof, where it is the judge’s domain to rule upon evidentiary questions as a matter of law. In a homicide case, the presumptions of non-justification, non-excuse and non-mitigation move the proof on these issues to the point where, unless they are dissipated, the judge rules as a matter of law that they are established. In effect, he has directed a verdict against the defendant upon these sub-issues, although in a criminal case he cannot, of course, direct a verdict against the defendant as to the ultimate issue. Thus, in a jury trial, the jury receives no instructions upon these matters and is not entitled even to consider them. In a court trial, the judge does not consider these issues when he moves from his capacity as a legal referee to his other capacity of resolving factual disputes.

Against this background, we are called upon to assess the sweep and legal significance of the successful defense maneuver of dissipating a presumption. At the very least, it has the legal effect of relieving the defendant of a directed verdict against him on a significant sub-issue. It has the effect of getting the ball out of his own “end zone” and back onto the “playing field.” Generally speaking, however, this is all of the effect which the dissipation of a presumption has. It precludes a directed verdict in either direction and creates a genuine jury issue, which the fact finder may resolve in either direction (under appropriate instructions, in a jury case, and according to the appropriate burden of persuasion).

The appellant urges more, however. She argues that the legal effect of dissipating a presumption is not simply to get the ball out of her own “end zone,” where a directed verdict could have gone against her, but serves to take it back, across the disputed middle ground of volatile fact-finding, all the way into the State’s “end zone,” where the State is now vulnerable to a directed judgment of acquittal against it. Her argument runs as follows: The State, theoretically, must prove the elements of non-justification, non-excuse and non-mitigation; it relies for that proof upon the presumption; the presumption, once dissipated, utterly disappears and the State is, therefore, bereft of any legally sufficient evidence as to these necessary elements to save it from a directed judgment of acquittal. The argument is subtle, and requires some subtlety by way of response.

When the State establishes a homicide and a homicidal agency and moves thereby to the very brink of a murder conviction, it has crossed en route two legally significant boundaries as it moves across the spectrum of proof. It has moved out from legal insufficiency and forward into the disputed middle ground of fact-finding, in the first instance, and has then moved on beyond, that middle ground of fact-finding, to the point where it is unnecessary to prove presumed facts, in the second instance. Actually, two distinct procedural devices are at work, but the lesser has almost universally been ignored in the discussion of the greater; It is the legal presumption which, when unrebutted, carries the State all the way into the defense “end zone,” where the judge directs verdicts in the State’s favor to these key sub-issues as a matter of law. Generally obscured by that more significant presumption, however, is the silent, junior partner of a permitted inference of fact, which carries the State, initially out of its own "end zone” into the mid-field of disputed fact-finding. This lesser step is not accomplished by the presumption itself, for a presumption never carries a party into the zone of disputed fact-finding. Indeed, in the criminal law, a presumption does not operate at all within the realm of the fact finder. A presumption, rather, carries a party out of the zone of disputed fact-finding into that very different zone where a judge makes evidentiary rulings as a matter of law. The flaw in the appellant’s argument is that although the presumption of a fact may have been dissipated, the permitted inference of that fact is not, thereby, automatically extinguished also. It may, as a survivor, have an independent life of its own. In this case, it does. The reason is obvious. The mere creation of a genuine doubt as to a fact is enough to dissipate the presumption of that fact, but that mere doubt is not enough to foreclose the permitted inference of that fact. The doubt simply places the question in the lap of the fact finder. It takes far less, defensively, to ward off disastrous consequences to oneself than to mount a fully effective counteroffensive and inflict equally disastrous consequences upon one’s adversary.

The thing that saves the appellant from the otherwise foreclosing effect of the presumption — the thing that dissipates the presumption — is evidence that is merely legally sufficient to raise the possibility of a defense. The fact finder may believe such evidence and the appellant is, for that reason, entitled to have the fact finder consider it. Just as the fact finder may believe it, so too may he utterly disbelieve it. In that case, it is as if the evidence had never been given. All that has occurred in a case such as this is that the appellant has generated a genuine jury issue. He does not suffer a directed verdict against himself; neither does he gain a directed verdict against the State.

This is typically the case when a presumption is dissipated. It is only in very rare instances that the defensive testimony will be so clear and decisive as to create a counter-presumption moving the proof backward, all the way across the disputed middle ground of the fact finder, into the “end zone” of the State, where the State becomes vulnerable to a directed judgment of acquittal against it if it cannot rebut the counter-presumption with some affirmative evidence of its own. A situation might well arise, in an area such as insanity, where the State would become susceptible to a directed judgment of acquittal. If the State relied initially upon the presumption of sanity; the defendant rebutted that presumption by competent medical testimony establishing, with requisite medical certainty, the clear diagnosis of insanity; and the State then failed utterly to offer any countervailing and medically competent evidence of sanity, the defendant might well 1) not simply be shielded from a directed verdict against him but might, indeed, 2) be entitled to a directed verdict against the State. Where defensive testimony, on the other hand, depends upon the more easily questioned credibility of lay witnesses (if not, indeed, upon that of the defendant himself and his relatives and friends), it does not possess that clear and decisive character as to which reasonable minds could not differ. The fact that it may be believed is enough to get the defense before the jury; the fact that it may not be believed is enough to keep the State’s case before the jury. It was of just such situations that we spoke in Evans v. State, at 28 Md. App. 728:

“When the defendant, therefore, produces evidence, he has in most cases simply generated an issue for the jury. The jury retains full prerogative to accept or reject the defensive evidence and it must be persuaded by all of the evidence that the defendant is guilty beyond a reasonable doubt. In some instances, however, where all evidence points toward the existence of the defense and where nothing in the State’s case, circumstantial or otherwise, controverts the defense in any regard, the evidence may be so clear and decisive as to leave no issue of fact and to generate a counter-presumption (not a mere jury issue) and to entitle the defendant to a directed verdict as a matter of law. As a general rule, however, the defendant will simply generate a jury question.”

In this case, the appellant has not established either that she shot in self-defense or shot in hot blood. She has simply established the possibilities that she may have done so. When we concurred in the dissipation of the presumptions which ran against her, we looked to that version of the facts most favorable to her. When, on the other hand, we now look to see whether the State should have a verdict directed against it on the grounds of legal insufficiency, we look to that very different version of the facts most favorable to the State. That version of the facts considers, as it must, the defense testimony as utterly disbelieved and, for that reason, as non-existent.

Positing the disbelief of defensive testimony, as we must, what we then have is the fact of homicidal agency unrelieved by any indication of justification, excuse or mitigation. From that state of the facts, the fact finder is permitted to infer the lack of such justification, excuse or mitigation. More broadly stated, the principle is that from the utter absence of believed evidence as to the existence of a condition, the fact finder may infer the non-existence of the condition. He need not infer it, but he may. Thus, by the very nature of the elements involved, the State will not be vulnerable to a directed verdict against it for the failure to disprove a negative. It will, of course, be vulnerable to the normal risks and perils of non-persuasion.

Both the more far-reaching presumption and the less far-reaching inference are rooted in the common human experience that unexplained killings are probably (says the presumption) or at least may be (says the inference) murderous. When the credibility of the offered explanation (the attempted rebuttal) is, as is generally the case, no more than genuinely debatable (that is, less than so clear and decisive that reasonable minds could not differ as to its truth), it has simply raised the genuine possibility that the killing may not have been murderous. It follows then that the legal effect of the offered explanation is simply to parry the presumptive thrust but not the inferential thrust of this common human experience, which is the very wellspring of all our procedure.

The possibility of such an inference being drawn does not impose an unconstitutional burden upon a defendant. The State still bears the burden of persuasion beyond a reasonable doubt. The fact finder need not draw the permitted factual inference. In a jury case, the defendant is entitled to an appropriate instruction telling the jury that they should not so infer unless they are persuaded of the truth of the inference beyond a reasonable doubt. The only “burden” upon a defendant is the purely tactical decision of choosing to controvert the State’s proof so as to help insure a reasonable doubt. (This is not a burden in the constitutional sense in which Mullaney v. Wilbur and In Re Winship speak.) To the extent to which the fact finder believes the defensive testimony, it is unlikely that he will draw the permitted inference beyond a reasonable doubt. To the extent to which the defensive testimony is disbelieved, the likelihood that the inference will be drawn becomes proportionately greater. The interplay of these possibilities is handled by the appropriate allocation of the heavy burden of persuasion to the State. This is the sum total of the constitutional protection in this regard to which a defendant is entitled.

Again, by the very nature of things, our conclusion could not be otherwise. Homicide frequently occurs where the suspect is the only living witness to the event. Generally speaking, the State cannot go into the brain of an accused to establish directly his state of mind. It is, of necessity, dependent upon an inference being drawn as to that state of mind from the circumstances of the homicide itself. Those circumstances are sometimes the mere fact of homicidal agency coupled with the absolute lack of any explanation. In this regard, an explanation which is utterly disbelieved is the equivalent of no explanation at all, if not worse. The prerogative of disbelief resides always in the fact finder. The very fact of homicidal agency, absent an ultimately believed explanation, gives rise at least to the permitted inference that the homicide was not justified, not excused and not mitigated. This is enough to shield the State from a directed verdict against it on the grounds of legal insufficiency.

If this were not so, an accused and a victim could walk into an empty room, a shot could ring out, and the accused could walk out alone, announcing cavalierly, “I killed him in hot-blooded response to legally adequate provocation.” If nothing more were known, the State would suffer a directed judgment of acquittal on the murder charge, notwithstanding the possibility that the fact finder (court or jury) might utterly disbelieve the testimony as to provocation. Even more preposterously, an accused and a victim could walk into an empty room, a shot could ring out, and the accused could walk out alone, announcing nonchalantly and unconvincingly, “I killed him as he was about to choke me to death,” or, “The gun went off by accident.” If nothing more were known, the State would suffer a directed judgment of acquittal as to all charges of unlawful homicide, notwithstanding the possibility that the fact finder (court or jury) might utterly disbelieve the testimony as to self-defense or as to accident. A defendant cannot, by mere self-serving testimonial assertions, thus entitle himself to directed judgments of acquittal. It is only the device of the permitted inference which shields us from such outrageous consequences. The most that a defendant is entitled to in this regard is the appropriate allocation of the burden of persuasion as to such disbeliefs to the State and the standard of proof beyond a reasonable doubt.

In this case, the trial judge, as fact finder, was entitled to disbelieve the evidence of both self-defense and hot-blooded provocation, as disbelieve he did. He was permitted to infer both non-justification and non-mitigation for the homicide which the appellant most clearly perpetrated. Under these circumstances, we cannot say that he was clearly erroneous in returning a judgment of guilty of murder in the first degree. Williams v. State, 5 Md. App. 450, 459, 247 A. 2d 731; Metz v. State, 9 Md. App. 15, 23, 262 A. 2d 331.

The remaining two contentions of the appellant need not detain us long. She claims that the record does not adequately reflect her intelligent waiver of formal arraignment or of her, right to trial by jury. A written waiver of formal arraignment is contained in the record. Her failure to object thereto at the trial also operates as a waiver. Ayala v. State, 226 Md. 488, 492, 174 A. 2d 160; Wilkins v. State, 5 Md. App. 8, 245 A. 2d 80. The record also fully reflects the free election of a court trial. Coincidentally, it also reflects an adequate waiver of trial by jury. In this State, however, we elect between equal trial modes. We do not waive a favored trial mode (trial by jury) in favor of an inferior or unfavored mode (trial by court). We elect between equally attractive and equally venerable modes of trial. State v. Zimmerman, 261 Md. 11, 273 A. 2d 156; Miller v. Warden, 16 Md. App. 614, 299 A. 2d 862.

The appellant’s final contention is that there was no adequate hearing on the admissibility of her confession and, further, that the confession should not have been received in evidence. The short answer to the combined contentions is that she did not object to the admission of the confession. Maryland Rule 1085; Hall v. State, 6 Md. App. 356, 251 A. 2d 219.

Judgments affirmed; easts to be paid by appellant.

      . The theory of mitigation through provocation was based upon the appellant’s recently acquired knowledge that her husband was having an adulterous affair with another woman. Were we dealing in this opinion with the substance of the defense of provocation, we might have a very real question over the issue of “cooling time” for the ostensible “hot blood.” We point out most emphatically that we are not dealing in this opinion with the substance of the law of provocation, but are simply assuming, as a convenience, that a genuine jury issue in this regard was generated.
      We use the phrase “genuine jury issue” as a term of art to mean “a genuine factual dispute, regardless of whether the fact finder is a lay jury or a judge.

      . The constitutional limitation does not so inhibit a presumption in a civil case. Plummer v. Waskey, 34 Md. App. 470, 368 A. 2d 478.

      . It is not uncommon for a defensive team to intercept a pass in its own “end zone.” It is a far rarer occurrence, however, to run the interception back all the way into the opposing “end zone.”

        , There is yet another and more fundamental difference between the lay of the land when the presumption of sanity has been dissipated and the state of things when the presumptions of non-justification, non-excuse and non-mitigation have been dissipated. The State, put to its burden of proving sanity, is required to prove an affirmative element and may well be susceptible to a directed verdict against it, if it proves nothing. With respect to non-justification, non-excuse and non-mitigation, by way of contrast, the elements are negative — not the existence of a condition but the non-existence of a condition. While it may not be possible (as in the ease of sanity) to infer something from nothing, it may well, as we shall see, be possible to infer nothing from nothing.

      . Actually, the State in this ease is blessed with some strong affirmative evidence indicating both the lack of self-defense and the lack of hot-blooded response to legally adequate provocation. We have deliberately refrained from cataloging it for fear of giving rise to the false conclusion that it is necessary to our holding. Our holding deals only with the bare minimum necessary to avoid a directed verdict on grounds of legal insufficiency. What the State possesses beyond that minimum may be very necessary to persuade the fact finder, but it is surplusage in terms of legal sufficiency.

      . We deliberately use the phrase “directed, verdict” m a very generic sense to indicate the occasions when evidentiary rulings will be made as a matter of law. The effect will be the same, whether we are talking about permitting the ease to go to the jury, in a jury trial, or we are considering whether the verdict of a judge is clearly erroneous, in a court trial. Williams v. State, 5 Md, App. 450, 459, 247 A. 2d 731; Metz v. State, 9 Md. App. 15, 23, 262 A. 2d 331.


author: Gilbert, C. J.,

text:
    ELDWICK HOMES ASSOCIATION, INC. v. HARVEY L. PITT et al.
    [No. 965,
    September Term, 1976.]

      Decided May 18, 1977.

    The cause was argued before Gilbert, C. J., and Morton and Menchine, JJ.

      William J. Chen, Jr., with whom was Arthur S. Drea, Jr., on the brief, for appellant.

      Harvey L. Pitt, with whom was Barry K. Thorpe on the brief, for appellees. Francis T. Lacey for appellee Montgomery County.
   Gilbert, C. J.,

delivered the opinion of the Court.

Pursuant to Md. Rule 1035 a 2 and b 7, we dismiss the appeal of Eldwick Homes Association, Inc. v. Harvey L. Pitt et al. We so do because the record extract required by Md. Rule 1028 fails to include one word of the testimony adduced at the hearing before the County Board of Appeals for Montgomery County at the appellant’s hearing on the application for special exception to the Montgomery County zoning ordinance.

While the appendix of the appellant does contain a copy of the resolution of the County Board and a reproduction of the opinion of Judge Richard B. Latham in the Circuit Court for Montgomery County on appeal from the action of the County Board, the record abstract is absolutely devoid of the evidence, oral or physical, presented to the zoning board. While Judge Latham referred in his opinion to a number of incidents before the County Board and in some instances by page referred to the transcript, we are not required to ferret out from the record those materials which counsel should have printed in the abstract. Md. Rule 1028 (b) (1) provides:

“The printed extract shall contain such parts of the record as may reasonably be necessary for the determination of the questions presented by the appeal, and shall ipclude:
(a) The judgment appealed from, together with the opinion or charge of the lower court, if any.
(b) So much of the evidence, pleadings or other parts of the record as is material to any question the determination of which depends upon the sufficiency of the evidence, pleadings or other matter contained in the record to sustain any action, ruling, order or judgment of the lower court.
(c) Such other parts of the record as may be designated by the parties pursuant to section c. of this Rule.”

In a not dissimilar case, Prime Contractors, Inc. v. Mayor of Baltimore, 241 Md. 55, 215 A. 2d 214 (1965), the Court of Appeals dismissed an appeal where the appellant’s appendix did not comply with Md. Rule 828, which is almost identical to Md. Rule 1028. In Prime, the Court said:

“The appellant’s appendix consists merely of the resolution of the Board of Municipal and Zoning Appeals and the opinion of Judge Cullen, and does not include any of the testimony of the witnesses presented to the Board or the exhibits and plats that were in evidence before the Board. This Court has repeatedly dismissed appeals where an appellant’s record extract or appendix was patently insufficient for a determination of the questions raised.” (Citations omitted.) 241 Md. at 57, 215 A. 2d at 216.

The Court further opined that it did "... not undertake to pass upon testimony contained in the transcript but not printed in the appendix to the brief.” Prime Contractors, Inc. v. Mayor of Baltimore, supra, 241 Md. at 58, 215 A. 2d at 216; Platt v. Wilson, 191 Md. 371, 62 A. 2d 191 (1948).

We are unable to distinguish any difference between the Prime case and the case now before us. Inasmuch as Md. Rule 828 as interpreted by the Court of Appeals requires dismissal and under the circumstances that Md. Rule 1028 is substantially the same and differs only in that it is made applicable to this Court, we believe we are compelled to follow the lead of the Court of Appeals in Prime and Platt and dismiss the appeal.

Appeal dismissed.

Costs to be paid by appellant.


text:
    STATE OF MARYLAND v. DONALD NELSON RHODES
    [No. 968,
    September Term, 1976.]

      Decided May 18, 1977.

    The cause was submitted on briefs to Gilbert, C. J., and Moylan and Mason, JJ.
    Submitted by Francis B. Burch, Attorney General, Alexander L. Cummings, Assistant Attorney General, Lawrence V. Kelly, State’s Attorney for Allegany County, and Michael R. Burkey, Assistant State’s Attorney for Allegany County, for appellant.
    Submitted by Gary G. Leasure for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The Fifth Amendment to the Constitution of the United States, made applicable to the several States through the Fourteenth Amendment, forbids the placing of a defendant twice in jeopardy for the same offense. Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969); Blondes v. State, 173 Md. 435, 330 A. 2d 169 (1975), rev'g on other grounds, 19 Md. App. 714, 314 A. 2d 746 (1974); Neal v. State, 272 Md. 323, 322 A. 2d 887 (1974); Cornish v. State, 272 Md. 312, 322 A. 2d 880 (1974); In re Anderson, 272 Md. 85, 321 A. 2d 516 (1974); Baker v. State, 15 Md. App. 73, 289 A. 2d 348, cert. denied, 265 Md. 744 (1972).

Jeopardy in a jury trial attaches when the jury is selected and sworn, Illinois v. Somerville, 410 U. S. 458, 93 S. Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Jorn, 400 U. S. 470, 91 S. Ct. 547, 27 L.Ed.2d 543 (1971); Blondes v. State, 273 Md. at 444, 330 A. 2d at 173; Neal v. State, 272 Md. at 327, 322 A. 2d 889; Blondes v. State, 19 Md. App. at 733, 314 A. 2d at 758; Hochheimer, The Law of Crimes and Criminal Procedure § 71 (1897); 3 Wharton’s Criminal Evidence § 655 (13th ed. C. Torcia 1973), and in a nonjury trial the “normal rule” is that jeopardy fastens when the trial commences, i.e., when the judge begins either to hear testimony or to receive evidence. Blondes v. State, 273 Md. at 444, 330 A. 2d at 174; Blondes v. State, 19 Md. App. at 733-34, 314 A. 2d at 758.

The Court of Appeals, in Blondes v. State, 273 Md. at 444-45, 330 A. 2d at 174, neither expressly adopted nor rejected the “normal rule,” but pointed out that there was a minority view that jeopardy attached “when the first witness is sworn.” It was unnecessary in Bkmdes for the Court to opt for either view in the light of the facts of that case because by either standard jeopardy would have attached. Id. at 446, 330 A. 2d at 175.

As in Blondes, we need not and do not decide whether Maryland will follow the normal or the minority view, for the ultimate result is the same whichever avenue we travel.

On August 25, 1976, the District Court of Maryland for Allegany County issued an arrest warrant for the apprehension of Donald Nelson Rhodes, appellee. Rhodes was charged with assault and disturbing the peace. The complainant named in the v/arrant was one Janet Jackson. Appellee was the complainant against one Alfred Wheeler for similar offenses arising out of the same circumstances, and a warrant for Wheeler’s arrest was also issued on or about the samé time.

Appellee’s trial before the District Court was scheduled for September 10, 1976, but the case was continued because on that date appellee and the State “stipulated” that appellee and complainant Jackson should submit to polygraph tests. The results of the tests are not reflected in the record.

Approximately two weeks later, the appellee, Miss Jackson, and Mr. Wheeler all appeared in the District-Court. The unusual happenings of that event have given rise to this appeal. The case was not set for trial at that time, and neither the prosecutor nor defense counsel was there. After the completion of the trial of an unrelated civil case in which none of the parties was involved, someone approached the judge and advised him that the trio of Rhodes, Jackson, and Wheeler wanted to dismiss the cases. Apparently, the judge was not informed that the trio had earlier gone to the State’s Attorney’s office and made the same request where it was rejected.

In any event, the record before us shows that the proceedings in the District Court “were something to this effect:”

“[The Court:] ‘Mr. Wheeler, I understand that Mr. Rhodes wants to dismiss the charge, is that correct?’
[Mr. Wheeler:] ‘That’s correct.’
[The Court:] ‘In that case the case will be dismissed.’ ”

Thereafter, with respect to the Jackson-Rhodes complaint, the record quotes the State’s Attorney's recollection of the proceedings as follows:

“[The Court:] ‘Are you Miss Jackson, the complaining witness?’
She said — she answered in the affirmative.
... [The Court] said,‘It's my understanding that you wish to dismiss the charges against Mr. Rhodes?’
You can’t exactly tell, it’s a bit murmured, mumbled, obviously in the affirmative, because the Judge responded:
[The Court:] ‘Well in that case the State of Maryland v. Donald Nelson Rhodes will be dismissed.’ ”

Later that same day, a criminal information was filed by the State’s Attorney in the Circuit Court for Allegany County charging appellee with the same offenses. Appellee’s motion to dismiss on the grounds of double jeopardy was granted, and the State appealed.

Obviously, the question presented is, did jeopardy attach at some stage of the happenings in the District Court?

Md. District Rule 726 provides:

“At the commencement of a trial, the court shall (a) ensure that the defendant has been given a copy of the charging document filed against him; (b) read or state the substance of each charge to him; (c) inform him, where applicable, of his right to trial by jury; and (d) thereafter, call upon him to plead to each charge.”

It is safe to say in the ease sub judice that in no respect was there adherence to the rule, so for purposes of the rule the trial did not commence.

We glean from the record that on September 10, 1976, the prosecutor and the defense, before the case was called in open court, advised the judge that they had “stipulated” that appellee and his accuser were to submit to a polygraph examination. Appellee, here and in the Circuit Court for Allegany County, quotes from Blondes v. State, 273 Md. at 445, 330 A. 2d at 174, which states that jeopardy .. could ... [attach] when documentary evidence is submitted, such as a stipulation____” (Emphasis supplied.) Appellee then urges that, because of the “stipulation” that the accused and the accuser would undergo lie detector tests, jeopardy attached, and in the light of the subsequent dismissal, no further prosecution may be maintained. If, indeed, the type of stipulation to which Blondes refers were present in this case, we would be inclined to agree with the appellee. As we see it, however, what transpired before the District Court judge was not a “stipulation” within the meaning of Blondes. Therefore, jeopardy did not attach at that time or subsequently, and the trial judge erred in dismissing the criminal information.

Chief Justice Burger said in Serfass v. United States, 420 U. S. 377, 388, 95 S. Ct. 1055, 1062, 43 L.Ed.2d 265, 274 (1975), that “[t]he Court has consistently adhered to the view that jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is ‘put to trial before the trier of facts, whether the trier be a jury or a judge.’ ”

The case law makes crystalline that, regardless of whether the claim of double jeopardy was meritorious, a “stipulation” must be in the form of evidence, unlike that in the case at bar. See Serfass v. United States, supra (pretrial dismissal of indictment charging petitioner with wilfully failing to report for and submit to induction, which ruling was based on trial court’s consideration of petitioner’s affidavit, selective service file, and oral stipulation of counsel that petitioner had established prima facie claim for conscientious objector status); Stevens v. State, 27 Md. App. 460, 340 A. 2d 717 (1975) (stipulated factual recitation); State v. Pittsburg Paving Brick Co., 117 Kan. 192, 230 P. 1035 (1924) (agreed statement of facts summarized by counsel for the court, which set the statement aside and scheduled another trial); In re Nolan v. Court of General Sessions, 11 N.Y.2d 114, 227 N.Y.S.2d 1 (1962) (hung jury forced second trial at which the parties stipulated, inter alia, to the judge’s trying the case entirely on the record of the first trial).

The State contends that a claim of double jeopardy is without merit because the District Court judge’s sua sponte dismissal of the case was unauthorized in that Md. District Rules 711, 718, 723,742, and 755 were violated.

We are loath to characterize the events that occurred in the District Court as “proceedings,” but by whatever name they are called, it is perspicuous that the appellee was not, in the words of Serfass, “put to trial before the trier of facts.” Indeed, he was never even called upon to tender a plea. The happenings before the District Court are analogous to a discharge at a preliminary hearing which does not give rise to a claim of double jeopardy. Perkins v. State, 26 Md. App. 526, 339 A. 2d 360, cert. denied, 276 Md. 748 (1975).

We think the dismissal of the charges by the District Court judge, sans a calling to trial, sans a swearing of a witness, sans a stipulation of evidence, sans any suggestion of a proper legal proceedings, is at best equivalent to the dismissal, prior to trial, of an indictment. No jeopardy attached to appellee. Bynum v. State, 277 Md. 703, 357 A. 2d 339 (1976); Blondes v. State, 273 Md. 435, 330 A. 2d 169 (1975); State v. Hunter, 10 Md. App. 300, 270 A. 2d 343 (1970), remanded, 263 Md. 17, 278 A. 2d 608 (1971); Greathouse v. State, 5 Md. App. 675, 249 A. 2d 207 (1969); Boone v. State, 3 Md. App. 11, 237 A. 2d 787, cert. denied, 393 U. S. 872, 89 S. Ct. 161, 21 L.Ed.2d 141 (1968).

Accordingly, we shall reverse and remand the matter for trial.

Judgment reversed.

Case remanded for further proceedings.

Costs to be paid by appellee.


author: Thompson, J.,

text:
    CATHERINE REBECCA CARTER v. STATE OF MARYLAND
    [No. 979,
    September Term, 1976.]

      Decided May 18, 1977.

    The cause was argued before Thompson, Davidson and Moore, JJ.

      Lee Gordon, Assigned Public Defender, for appellant.

      W. Timothy Finan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Surisher, State’s Attorney for Baltimore City, and Timothy Doory, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Catherine Rebecca Carter, the appellant, was convicted of murder and robbery by a jury in the Criminal Court of Baltimore. The only contention on appeal is that the trial judge improperly admitted the appellant’s confession over objection. The confession was the subject of a pretrial motion to suppress and thus we confine ourselves to the record at the suppression hearing.

Appellant argues that the trial judge’s remarks at the conclusion of the evidence offered by the State on the motion to suppress and at the end of the hearing, together, show that he applied an unconstitutional burden of proof in determining the voluntariness of the confession. While we are not entirely satisfied that the trial judge applied an improper standard in determining voluntariness, we are convinced that the record does not clearly show that he used a proper standard. We will, therefore, reverse and remand the case for a new trial.

After the State had concluded its evidence, the following transpired:

“The Court: Do you want to offer any evidence?
Mr. Byrd: I was going to say I think I should be in a position here to argue at the conclusion of the State’s case and then have the option of offering any further evidence.
The Court: All right, go ahead.
Mr. Byrd: Your Honor —
Mr. Doory: Your Honor, at this point —
The Court: Actually it’s your motion. You are the moving party, but the State took it over. All the State has to do is submit and it is your burden.
Mr. Byrd: That’s true, Your Honor. That is true. It never seemed to work out that way for me when I was a prosecutor.
The Court: All the State has to do is offer the statement and you have a right to cross examine on it, and then it is up to you, you have the burden. You have the burden of convincing the Court it was an improper statement.
Mr. Byrd: That’s what my point was. I think if the State offers it, that I have the right to object to it and argue on that and then have to put on testimony.
The Court: Well, I’ll let you do it, but actually all the State had to do was offer it and then it is up to you, but they take it over most of the time.”

At the conclusion of the hearing, the trial judge stated as follows:

“I am satisfied there was absolutely nothing in this interview. I believe the officers were attempting to be as complete and honest with her as they possibly could, and I think the thing that triggered the statement was probably what happened when the boy friend came and they permitted him to talk to her, and she said that they did, and she talked to him for a few minutes and when he advised her, she said she didn’t pay any attention to him, but the evidence is that afterwards she immediately or shortly thereafter did go ahead and sign a statement, whatever the statement says, and I see nothing that would persuade me that what was done or said was so overbearing that her will not to give a statement was suborned to the point where it became duress or coercion. I think she found out what was going on, what was happening, all of her friends were there — I think she said at least one other lady was there — and she just wanted to give the statement I suppose. I don’t know. You never know why people give statements, but they do frequently give them.
All right, I deny the motion and will admit the statement.”

It has long been established that the burden rests upon the State to show that a confession to be offered in evidence is the voluntary act of the accused. Kier v. State, 213 Md. 556, 561, 132 A. 2d 494 (1957). The State argues, however, that the statement by the trial judge that he was satisfied that there was no inducement offered to obtain the statement shows with unmistakable clarity that the court felt that the confession was voluntary after applying the proper burden of proof.

In Smith v. State, 189 Md. 596, 603-604, 56 A. 2d 818 (1948) and Kier v. State, supra, the Court indicated that a showing to the “satisfaction of the court” was sufficient. In Mulligan v. State, 18 Md. App. 588, 601, 308 A. 2d 418 (1973), this Court stated that while the Court in Smith had articulated that the evidence must be prima fade it had been applying the correct standard. In Kidd v. State, 33 Md. App. 445, 460, n. 4, 366 A. 2d 761 (1978), cert. granted, January 27, 1977, we stated:

“It is now, of course, clear since Lego v. Twomey, 404 U. S. 477, 92 S. Ct. 619, 30 L.Ed.2d 618 (1972), that the burden is that of a preponderance of the evidence and not that of demonstrating to the satisfaction of the court.”

Despite our comment in Kidd, supra, we note what we said in Hebb v. State, 31 Md. App. 493, 499, 356 A. 2d 583 (1976):

“Judges are presumed to know the law. Samson v. State, 27 Md. App. 326, 334, 341 A. 2d 817, 823 (1975). See Schowgurow v. State, 240 Md. 121, 126, 213 A. 2d 475, 479 (1965). Absent an indication to the contrary, we must assume that judges apply the law correctly to the case before them. Therefore, inasmuch as the trial judge in the instant case did not articulate his reasons for admitting the appellant’s statement into evidence, we deduce that he applied the preponderance of evidence test set out by Lego and the third Mulligan. [18 Md. App. 588, 308 A. 2d 418 (1973)].”

Absent the circumstances, hereinafter discussed, we might well hold in this case that the use of the word “satisfactory” was synonymous with proof by a preponderance of the evidence. We are precluded, however, from making súch a finding in view of the trial judge’s grievous misstatement of the law at the conclusion of the State’s evidence wherein he said that the defendant had the burden of convincing the court it was an improper statement. As to this, the State argues that at the time the court made the improper remark there was no evidence suggesting that the statement was anything other than voluntary and that the court was speaking of the situation at that time. We cannot accept this argument because at the end of the remarks the court indicated that it was not speaking of the present case but, rather, in all cases it was up to the defendant to offer evidence that a statement was involuntary. As the record does not disclose that the statement or confession was found by the trial judge, with unmistakable clarity, to be voluntary, there is reversible error. Hebb v. State, supra at 496. Even though the judge stated that he was satisfied that the statement was voluntary, it appears that he may have been satisfied under an improper standard. Although the trial court's statement as a general proposition of law that the moving party has the burden of establishing his factual premises is correct, that is not true with reference to confessions as is set out in all of the cases cited herein as well as all other cases that have come to our attention.

We do not reach the other questions presented as to whether the confession was obtained in violation of the strictures of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed 2d 694 (1966), or was otherwise involuntary.

Judgments reversed.

Case remanded for a new trial.

Costs to be paid by the Mayor and City Crnncil of Baltimore.

      . The State argues that this is evidence of acquiescence on the part of the defense in the trial judge’s error and should constitute a waiver. We agree that under certain circumstances a-statement such as this might constitute a waiver. In this case, however, defense counsel was not agreeing to an erroneous standard but was agreeing to the order of presentation. He was simply stating that after the State puts the statement into evidence he should be given a chance to argue. This is not the type of situation where Md. Rule 1085 could be invoked because the filing of a motion to suppress the confession calls upon the trial judge to apply the correct burden of proof. In other words, this is not a question that was not presented initially to the trial judge.

      . As we stated in Mulligan v. State, supra at 602:
      “Trial judges should not only apply the preponderance of evidence test to confessions, as has been required in this State for some time, Smith v. State, supra, and now nationally by Lego v. Twomey, supra, but they should, m order to avoid confusion, shun the use of the words prima facie in connection with the degree of proof required of the State to render a confession admissible.”
      We now indicate that trial judges should also shun the use of the word satisfied.

      . Of course the jury, or the judge if the case is tried without a jury, must ultimately find the confession voluntary beyond a reasonable doubt. Dempsey v. State, 277 Md. 134, 144-147, 355 A. 2d 455 (1976).


author: Lowe, J.,

text:
    HAIRY L. GLADDING et al. v. LANGRALL, MUIR & NOPPINGER
    [No. 998,
    September Term, 1976.]

      Decided May 19, 1977.

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

      Bayard Z. Hochberg for appellants.

      Rob Ross Hendrickson, with whom -were Henry M. Decker, Jr. and Frank M. Benson, Jr. on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

The interesting facts of this case are overshadowed by a procedural consequence which will compel reversal. The facts are simply that the accounting firm of Langrall, Muir & Noppinger (Langrall) recovered a $30,639 judgment in the Superior Court of Baltimore City against appellants Harry L. and Virginia L. Gladding (Gladdings) for some 17 hours of accounting work. Langrall’s total fee of $40,639 represented an amount that had been contingent upon whatever sum was saved by its joint effort with the law firm of Venable, Baetjer and Howard in protesting an assessment of approximately $1,300,000 against the Gladdings by the Internal Revenue Service.

The Gladdings did not question that the protest had resulted in a large recovery, or Langrall’s computation of its contingent share, but did question whether Langrall had provided its “very best efforts” as accountants in the tax case, which it had by its contract guaranteed to do. Because Langrall twice declined to assist the law firm in preparing the protest when requested, compelling the Gladdings to seek accounting assistance elsewhere, the Gladdings’ chagrin at the judgment is hardly frivolous. However, our review on the merits — were we to reach them — would not have permitted us to substitute our opinion for the trial judge’s. We are only empowered to ascertain whether the record contains any evidence sufficient to warrant the decision below. Stated otherwise, our task is to determine whether the trial judge below was clearly erroneous, Md. Rule 1086, and unless he was, we are compelled to affirm his judgment notwithstanding our personal views.

But before we reached that review, appellants Gladding contended that the case should never have been tried for procedural reasons. Md. Rule 530 provides that if no “proceedings of record” have taken place for a period of eighteen months, a pending action shall be subject to dismissal for lack of prosecution, and “nothing except the presence of proceedings of record will toll the operation of Rule 530”. Stanford v. District Title Insur., 260 Md. 550, 555. The declaration was filed on May 21, 1973. Because the record reflected no “proceedings” after August 23, 1973, the clerk of the court on August 26, 1975 notified the parties, in accordance with the rule, that an order for dismissal for lack of prosecution would be entered in 30 days.

Although self-executing, the rule does permit a reprieve under proper circumstances upon motion filed within 30 days after service of the notice of contemplated dismissal. On September 25, 1975 Langrall moved to suspend the dismissal. On the same day the motion was granted ex parte for 90 days; however, three days later the Gladdings answered the motion to suspend and prayed a hearing of which there is no record but to which an allusion is made in the subsequent order as having transpired on November 26, 1975. On December 15, 1975 the court struck the September 25th ex parte suspension order, and ordered that the case “be not dismissed under Rule 530, Maryland Rules of Procedure, for a period of six (6) months from the date hereof.” There is no record of what transpired at that hearing but we were told in the briefs and at oral argument that it consisted of an informal in-chambers discussion between court and counsel.

The question before us is whether there was any showing of “good cause” by appellee, which is a prerequisite to the trial court’s exercise of discretion in suspending the automatic dismissal:

“On motion filed at any time prior to thirty days after service of such notice, computed according to section c 3 of Rule 306 (Presumptions in Case of Service by Mail), the court for good came shown may suspend the operation of this Rule. The order of suspension shall prescribe the duration and any other terms of the suspension.” (emphasis added). Md. Rule 530 c.

All concede that a judicial exercise of discretion will not be set aside on appeal except in extreme cases of abuse. See Tydon v. Spong, 237 Md. 107, 110-111; Cooney v. Bd. of Co. Comm’rs, 21 Md. App. 57, 60. However, the discretion exercised under Md. Rule 530 is far more limited than that exercised pursuant to the court’s revisory power under Md. Rule 625 a. The broader revisory power discretion should be liberally exercised, Eshelman Motors v. Scheftel, 231 Md. 300, in cases where meritorious and substantial reasons are shown. J. B. Corporation v. Fowler, 258 Md. 432. But unless there is some showing of good cause under Md. Rule 530, there can be ho discretion for the court t© exercise. We are therefore called upon in this case to determine first, what will constitute “good cause” and, secondly, whatever it is, if there was any showing ©£ it to the court below.

Good Cause

Md. Rule 580 c requires the party desiring suspension of the dismissal to take affirmative action by motion before the court’s discretion may be exercised. Because the Court of Appeals made no attempt to define “good cause” in its rule, but committed that determination to the court’s discretion, we might assume that it was the Court’s intent to give a trial judge broad authority to forgive the neglect of a case which its rule condemns. Cf. Madore v. Baltimore County, 34 Md. App. 340, 346. That assumption, however, is not warranted because although the Court did not define the term by rule, it has since restricted its meaning by case law, while affirming the notion that suspending the dismissal is discretionary. After explaining the underlying purposes of the dismissal rule in Stanford, supra, 260 Md. at 555, Judge Digges turned his attention, oh behalf of the Court, to the narrowness of the escape route provided by the rule:

“Seizing upon eighteen months as the utmost reasonable time period in which a case can be permitted to remain catatonic, that rule permits the trial judge to allow a brief reprieve where it is affirmatively demonstrated that total inaction has been justified. The decision to permit the redemption of a cause lost through delay involves subtle judgment, requiring the trial judge to balance the individual litigant’s right to ultimately have his day in court against the public’s paramount interest in insuring that all citizens can obtain a prompt resolution of conflicts while they still remain current. The primary focus of his inquiry should he on diligence and whether there has been a sufficient amount of it during an eighteen month period of inaction for the court to affirmatively conclude that the case should not be automatically dismissed. That decision, whatever it may be, rests in the sound discretion of the trial judge and we will only invade his province on appeal in extreme cases of clear abuse.” (emphasis added).

Thus, while the Court of Appeals has assured us that the suspension .of a dismissal under Rule 530 remains discretionary, it has also, by its careful language, made it evident that such discretion may be exercised only within the niggardly limits set forth. We, therefore, conclude that the good cause rack which the moving party must provide upon which a trial judge may hang his discretionary hat in the absence of proceedings of record, must consist of some showing of diligence in moving the case forward, which was not reflected by the record. Whether such conduct is diligent, of course, must depend upon the circumstances of each case and its effect under the circumstances is measured by the court’s discretion.

We have carefully chosen the words “some showing” rather than “some evidence” of diligence because of the nature of the review reflected by Tydon v. Spong, supra. Although the Court in that case was not confronted with Md. Rule 530, it had before it a comparable local dismissal rule and affirmed reinstatement under that rule. But if we look to it for guidance in seeking the evidentiary limitations upon us when reviewing an exercise of discretion under a dismissal rule, it appears there is very little upon which we cannot rely for a showing of good cause. There, the Court, speaking through Chief Judge Hammond, expressly sought its jurisdiction in the petition, the answer, statements of fact in the briefs and apparently assertions at argument:

“In the present case the allegations of the petition to reinstate and of the answer thereto, considered with the statements of fact in the brief and at the argument, on which the parties did not differ significantly or materially, lead us to believe, that Judge Hamill could properly have concluded that counsel for the plaintiff in Garrett County, in good faith and with reason, believed as a result of his negotiations and conversations with his brother at the Garrett County bar who represented the defendant, it would not be necessary to take action as to the status of the case until either a settlement had been reached or a trial date agreed on.” (emphasis added). 237 Md. at 111.

Nor do the parties here “differ significantly or materially” upon that which transpired below. Although it is inconceivable that the Court of Appeals would consciously indicate that we should hold what would be in effect a de novo review on appeal, without even evidentiary safeguards, the case before us is so wanting in good cause as to permit our indulgence and still arrive at the same result. Thus, recognizing the probable error of our ways in so favoring appellee’s cause, we come down on the side of prudence. We, too, shall fling our evidentiary net broadcast, but in light of Stanford, supra, must limit our catch to indicia of diligence. Recognizing that the Rule clearly places the burden of showing its “good cause” for the relief prayed upon the moving party; and, because there was no evidence offered by appellee, no affidavits filed, no transcript of what transpired in chambers, and no reasons for the decision set forth by the judge, we search for whatever we can find in appellee's unverified Motion to Suspend Rule 530 (despite its failure to conform to the Md. Rule 321 b.), the briefs, and the arguments of counsel as best we can recall them.

Inversely, we recall no oral assertions of diligence. Appellee’s brief sets forth no facts or arguments directed to convincing us of diligence during^ the fateful period. It is limited to a speculative apologia for the trial judge. Appellee suggests that the judge may have considered that because limitations’had not run, dismissal, being without prejudice, would simply result in a refiled action, which would not effect the purpose of the rule in clearing up the “paper log jam” (see Mut. Benefit Soc’y v. Haywood, 257 Md. 538, 539), but would instead prolong it by starting all over. Appellee further argues that the case is not a “dead” case, which it contends from its reading of Stanford, supra, to be the focus of Rule 530. Assuming but certainly not agreeing with these premises, they clearly do not effect a showing of diligence and thus “good cause”.

Nor is that showing made by appellee’s factual arguments advanced in support of its motion to suspend Rule 530. It argues here and (with the exception of the last) assigned as reasons below, that:

1. Appellee’s unresolved motion for summary judgment was pending without a hearing having been set;
2. the Gladdings took three depositions during the hiatus;
3. the litigation was of a complex nature requiring financial analysis as revealed by the Gladdings’ depositions;
4. counsel’s calendar was congested; and
5. the court below had the benefit of the presence of counsel at the hearing of whom it could inquire for any relevant matters it wished to consider.

We find ourselves reflecting, as did Alice after she had read Jabberwocky in Lewis Carroll’s Through The Looking-glass:

“‘It seems very pretty* she said when she had finished it, ‘but it’s rather hard to understand! Somehow it seems to fill my head with ideas — only I don’t exactly know what they are.’ ”

First, appellee’s unresolved motion for summary judgment is as much its responsibility as the unresolved case itself. See Cooney v. Bd. of Co. Comm’rs, supra, 21 Md. App. at 59-60. Secondly, how the Claddings’ taking of depositions indicates Langrall’s diligence is “rather hard to understand.” Thirdly, that appellee only realized the complexity of the case after the depositions taken by the appellants seems quite the contrary of diligence, and if counsel’s congested calendar is good cause for overriding the dismissal rule established to overcome delay, the Court of Appeals had best repeal its rule. Finally, we cannot speculate what the court may have asked counsel at the informal hearing when there, is neither record nor proffer that anything was expressed. We have sought support for the judge from every conceivable source, but we will not speculate upon “what ideas might have filled his head”, nor can we guess what he might have asked counsel, but did not.

In concluding, we note that whether Stanford, supra, constrains the showing of good cause to the context of diligence as we have held is not controlling under the facts of this case. We need no authority but common sense to hold that a showing of good cause presupposes a showing of some cause, and nowhere in the broad sweep of our search have we found any cause for the delay beyond a tough case for busy lawyers.

Motion to Dismiss

Appellee moved to dismiss that portion of the appeal dealing with the order reinstating the case, pursuant to Md. Rules 1028, 1035 and 1036, on the gound that the appellants did not provide any record upon which this Court may sufficiently determine the basis of the trial judge’s ruling. Md. Rules 1035 and 1036 permit a dismissal for (among other reasons) failure to comply with Md. Rule 1028. That rule requires extracts in every civil case of

“such parts of the record as may reasonably be necessary for the determination of the questions presented by the appeal____”

Expressly required to be included in the record extract is the judgment appealed from and the opinion or charge of the .lower court, if any. Furthermore, it is to include:

“So much of the evidence, pleadings or other parts of the record as is material to any question the determination of which depends upon the sufficiency of the evidence, pleadings or other matter contained in the record to sustain any action, ruling, order or judgment of the lower court.”

Appellants have complied to the best of their ability with these rules. The extract includes all of the relevant record that exists — that is, there was nothing before the trial judge that is not in the record extract, and thus before this Court.

In response to the motion to dismiss, appellants conceded that counsel had an in-chambers meeting with the court on November 26, 1975, which was presumably the meeting referred to in the December 15, 1975 order as “Date of Hearing: November 26, 1975”, although the docket did not reflect a hearing entry on that date. Appellants’ answer to the motion to dismiss (of which we take cognizance pursuant to Tydon v. Spong, supra), asserts that at this meeting no testimofty or other evidence was either given or proffered and no stenographer was present. The answer states that “Counsel again advised the Court of their respective positions based on the file before the Court." (emphasis added). In short, the parties submitted on the record.

Although appellee did not “differ significantly or materially” with appellants’ assertions of what transpired (or did not transpire) below, either by brief or in argument, it points out that on appeal appellants have the burden of proving that the ruling of the trial court was an abuse of discretion, Franceschina v. Hope, 267 Md. 632, and this burden includes the responsibility of preparing the record extract to reflect that abuse. Citing case examples, appellee contends that we should dismiss the portion of the appeal dealing with Md. Rule 530 because appellants failed to provide “adequate record extracts”. The cases upon which appellee relies each had as their basis of dismissal or restricted view of an issue the failure of the appellant to provide extracts on appeal of that part of the record upon which they relied. E.g., Carroccio v. Thorpe, 222 Md. 38, 42 (testimony taken at summary judgment hearing but not transcribed); Naughton v. Paul Jones & Co., 190 Md. 599, 603 (sufficiency of the evidence appealed without the evidence or testimony provided the reviewing Court).

While it is apparent that the Court of Appeals will not excuse an appellant’s failure to provide extracts on appeal because that upon which he relies was not transcribed below, these rulings presuppose that there was something below to record or transcribe. In Newark Trust Co. v. Trimble, 215 Md. 502, 505-507, for example, the appellant challenged the action of the trial court in striking out a confessed judgment. But because the record contained no transcripts of the proceedings at the hearings on the motion to strike, the Court of Appeals held that appellant, in waiving its right to a stenographer at the hearings, had made it impossible for the Court to review that which did not exist. Similarly in this Court, we decided not to review a denial after hearing of a motion to change venue in White v. State, 8 Md. App. 51, 54, because appellant had not provided a transcript of the testimony at the hearing. The opinions in both of these cases made it quite clear that there had been testimony at an evidentiary hearing which could have been transcribed.

Even those related cases which dismissed appeals or declined to consider issues, for failure:

to extract pleadings from the original record, A. S. Abell Co. v. Skeen, 265 Md. 53, 55:
to transcribe an oral opinion, Basiliko v. Royal Nat'l Bank, 263 Md. 545, 548-549; or
to include in the record a stipulation upon which the lower court’s decision was in part based, Dormay Corp. v. Doric Co., 221 Md. 145, 149,

all presuppose a sometime availability of something upon which appellant relies upon appeal. By contrast, appellants in the case at bar rely on the absence of anything upon which the court they have charged with error could have based its decision. They contend that nothing transpired at the November 26, 1975 in-chambers conference but a submission upon the record by the parties:

“Judge Murphy’s ruling below had to be based solely on the file and record before him in that there was [a] total absence of anything further to be considered.”

Their record extract, they assert, complies with Rule 1028 in that it contains all of the record proceeding below material to the question concerning the application of Rule 530, and nothing further was offered to, or placed before, the trial judge for his consideration.

We agree. The original burden upon appellee as movant under Md. Rule 530 was to show good cause, without which there was no discretion in the court to exercise. It would be ridiculous to hold that because the appellants did not have transcribed that which they charge the appellee with failing to produce, we must dismiss the appeal.

Although the burden is upon appellants to convince this Court that there was no showing of good cause by appellee to justify the court’s reinstatement of the case, we repeat for emphasis that appellants cannot carry that negative burden by providing something where nothing exists. Appellants’ contention upon appeal is founded upon the failure of appellee to meet is burden upon motion below of showing good cause. It was solely upon such showing that the court was justified in exercising its discretion. By appellants’ assertion of the absence of any such showing, we think appellee must point to some evidence of good cause it tendered the court below and upon which it asserts would sustain that court’s judgment, or, at the very least, proclaim to this Court that such evidence did exist. The original and complete record in this case (which we have reviewed in its entirety in light of appellee’s motion to dismiss) disclosed nothing which the appellants have failed to extract pursuant to Md. Rule 1028, nor is there a hint by appellee that evidence was offered that was not transcribed.

The authorities cited in the motion to dismiss this point of the appeal are inapposite to the factual posture here. We deny that motion because Md. Rule 1028 was not intended as a device to permit a moving party to shift its burden below to another on appeal by its own failure to produce that which is prerequisite to the relief it prays.

Mandate

We vacate the judgment on the merits entered on August 4,1976. We reverse that portion of the ruling of the court on December 15, 1975 which suspended Md. Rule 530 for six months, but affirm the granting of appellants’ motion to strike the order of September 25, 1975; and, we direct the Superior Court of Baltimore City to dismiss the case including the appellants’ counterclaim in accordance with Rule 530.

Motion to dismiss appeal denied; order of August k, 1976 vacated; order of December 15, 1975 reversed in part and affirmed in part; case remanded for entry of dismissal pursuant to Md. Rule 530; costs to be paid by appellee.

      . The Gladdings had already paid Langrall $10,000 as a retainer.

      . In addition to the matters discussed at length hereinafter, appellants raise a number of contentions upon appeal relative to the merits of both Langrall’s claim and the Gladdings’ counter-claim. In view of our decision in this case wo will neither decido nor discuss these contentions.

      . Ironically, the limitations upon the exercise of judicial discretion under Md. Rule 530 c. would seemingly not apply where a judge exercises his revisory power under Rule 625 a., even over the final judgment effected by a dismissal. See Owen v. Freeman, 279 Md. 241. Theoretically, a trial judge might be compelled to deny a motion to suspend Rule 530 for want of a showing of good cause, but could revitalize the dormant case under his broader discretionary authority of Rule 625 a.

      . Md. Rule 321 b. provides in pertinent part:
      "A motion need not be supported by affidavit unless it is founded on facts not apparent from the record or from papers on file in the proceeding. In such event the motion shall be supported by affidavit and shall be accompanied by the papers on which it is based.”


text:
    WARREN B. DUCKETT, JR. v. T. JOSEPH TOUHEY et al.
    [No. 1015,
    September Term, 1976.]

      Decided May 19, 1977.

    The cause was argued before Thompson, Menchine and Lowe, JJ.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Frank R. Weathersbee, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellant.

      T. Joseph Touhey, District Public Defender, with whom was Ronald C. Cole, Assigned Public Defender, on the brief, for appellees.

      Amicus curiae brief filed by the National Center for Law and the Deaf, Seymour Dubow, Marc P. Charmatz and Robert Roseman on the brief.
   Thompson, J.,

delivered the opinion of the Court.

On August 25, 1976, a decree was filed in the Circuit Court for Anne Arundel County, in Equity, enjoining the State’s Attorney of that county from summonsing Mrs. Clara Gibson to appear before the Grand Jury, in relation to any statements given by David Allen Barker to her in the presence of Barker’s mother and brother on or about November 6, 1975. Appellant, Warren B. Duckett, State’s Attorney for Anne Arundel County, contends in this appeal that the decree should be reversed because the evidence was insufficient to support it,

On November 5, 1975, David Allen Barker was arrested in connection with a homicide investigation and taken to the Millersville Police Headquarters in Anne Arundel County. Because Barker is a deaf mute, the police called Mrs. Clara Gibson, a sign language interpreter, to come to the police station. The police also called Elliott S. Newcomb, an attorney, to provide Barker with legal assistance. Before Mrs. Gibson had an opportunity to meet or communicate with Barker, she agreed with Newcomb that anything she learned by reason of that employment would be confidential. While Barker was in custody, attorney Newcomb proceeded to confer with him with the assistance of Mrs. Gibson. On November 6, 1975, the suspect’s mother, Mrs. Evelyn Barker, and brother, Barry Barker, were present at the Millersville Police Station with Newcomb and Mrs. Gibson during a conference. On May 17, 1976, the State’s Attorney caused to be issued a subpoena for the appearance of Mrs. Gibson before the Grand Jury of Anne Arundel County. Upon learning that Mrs. Gibson had been subpoenaed, the appellee, T. Joseph Touhey, who is the public defender for Anne Arundel County, and a subsequent counsel for Barker, together with Newcomb, brought this suit for an injunction and order to quash the subpoena.

We are required to reverse the decree because the equity court lacked jurisdiction to issue it. Wilson v. State, 21 Md. App. 557, 321 A. 2d 549 (1974). Thus, we do not reach the questions whether the communication in the presence of one’s counsel, brother, and mother was confidential or whether Barker’s attorneys, as opposed to Barker himself, are proper parties to seek relief.

Maryland continues to adhere to the distinction between law and equity courts, the Court of Appeals having recognized such distinction as recently as Davidson v. Miller, 276 Md. 54, 344 A. 2d 422, n. 5 (1975). See also Olson v. Love, 234 Md. 503, 200 A. 2d 66 (1964) and Dormay Corp. v. Doric Co., 221 Md. 145, 152, 156 A. 2d 632 (1959). In Fooks’ Executors v. Ghingher, 172 Md. 612, 192 A. 782 (1937), Judge T. Scott Offutt gave a thorough discussion of equitable jurisdiction and said in part:

“Jurisdiction of the subject-matter means not simply the particular case to which the attention of the court is directed, but the class of cases to which it belongs, and over which the authority of the court extends. Freeman on Judgments, sec. 337. So if a court of equity tried an indictment for some criminal offense, and entered a judgment and sentence against the defendant, its judgment would necessarily be void, and so perhaps it would be if it assumed jurisdiction of a purely tort action, for, as stated in Freeman on Judgments, sec. 337, p. 676: ‘Courts of equity exercise a well defined jurisdiction over certain classes of matters; a jurisdiction largely inherent in the court although sometimes enlarged or curtailed by statutes. Any attempt by such a court to hear and determine a case not within either its inherent or statutory powers would result in a void decree rendered without jurisdiction of the subject matter, as where it undertakes to adjudicate the issues in a contested election case, a matter entirely outside its powers.’
* * *
“ ‘If this power does not exist with reference to any particular case, its determination by the court is an absolute nullity; if it does exist, the determination, however erroneous in fact or in law, is binding upon the parties until reversed or set aside in some proceeding authorized by the practice, and brought for that express purpose. It is plain that the term used in this strict sense may be applied to courts of equity as well as to any other tribunals. With this signification of the word, it would be said that an equity court has no jurisdiction to try the issues arising upon an indictment, and to render judgment in a criminal prosecution; the entire proceeding would be null and void. On the other hand, it is equally plain that this strict meaning is not always given to the term “equity jurisdiction,” as it is ordinarily used. ...”’
Id. at 620-621.

In Kardy v. Shook, 237 Md. 524, 207 A. 2d 83 (1965), the State’s Attorney filed a bill for an injunction to prohibit a Circuit Court judge from enforcing an order allowing an accused to depose the prosecuting witness. The trial judge denied the injunction and the Court of Appeals affirmed. Although that case is easily distinguishable from the case at bar, some of the language is helpful in deciding the case before us:

“It has long been recognized that courts of equity, in the exercise of their power to grant injunctive relief, have no superiority over the courts of law. When the jurisdiction of an equity court which pertains to the restraint of judicial proceedings is invoked, the injunction is directed not to the presiding judge of the court, but to the parties litigant, and in no manner denies the jurisdiction of the legal tribunal. An injunction of this nature controls the course of conduct of the person, or persons, to whom it is addressed, and is utilized to prevent him, or them, from using the process of courts of law where it would be contrary to good conscience to allow the party, or parties, to proceed. This class of injunctive relief is based upon the ground that some unfair advantage is being obtained, or has been obtained, in the law court, which, under the circumstances, equity, alone, can prevent from becoming effective. [Citations omitted.]
“It would, indeed, be an incongruous and dangerous situation if one Circuit Court judge of this State could paralyze the entire administration of justice in the law courts thereof, both civil and criminal, by way of injunction. And this is not permitted.” (Emphasis added.) Id. at 582-538.

We see no reason why the criminal court which convenes a grand jury cannot grant the appellees any relief to which they are entitled. Grand juries operate under the control of the court which convenes them. In Re Report of Grand Jury, 152 Md. 616, 137 A. 370 (1927); Byers v. State, 63 Md. 207 (1885). Although it may well be that in many instances the same judge is sitting in the equity court as in the criminal court, as long as Maryland maintains the distinction between the courts, it is sound policy to preclude one court from interfering with the other without some real reason. It is apparent in the case at bar that the criminal court could prevent any infringement of the appellees’ alleged rights. This seems to be the test. For a further discussion of the distinction between law and equity see Loyola Federal Savings & Loan Association v. Galanes, 33 Md. App. 559, 365 A. 2d 580 (1976).

Decree reversed.

Appellees to pay the costs.