text:
    LEONARD J. KERPELMAN v. WILLIAM T. S. BRICKER
    [No. 100,
    September Term, 1974.]

      Decided December 16, 1974

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

      Leonard J. Kerpelman for appellant.

      Thomas G. Peter, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and J. Michael McWilliams, Assistant Attorney General, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

In this action for libel, the appellant, a member of the Bar of the State of Maryland, alleged in a three-count declaration that the appellee, an attorney and a Deputy Administrator of the State Motor Vehicle Administration, falsely and maliciously charged in a letter addressed to the Chairman of the Grievance Committee of the Maryland State Bar Association, that appellant’s behavior “before a quasi-judicial representative of the State government was a disgrace to the legal profession, and conduct that certainly requires consideration by your Committee.” The communication further recited that it was written “not only as Deputy Administrator of a State agency, but as an attorney whose reaction to Mr. Kerpelman’s conduct was one of embarrassment and disgust.” A demurrer to the declaration on the ground of absolute privilege was sustained without leave to amend.

It is well settled in Maryland that statements made by counsel and by parties in the course of “judicial proceedings” are privileged so long as such statements are material and pertinent to the questions involved, irrespective of the motive with which they are made. DiBlasio v. Kolodner, 233 Md. 512, 197 A. 2d 245 (1964); Kennedy v. Cannon, 229 Md. 92, 182 A. 2d 54 (1962); Maulsby v. Reifsnider, 69 Md. 143, 14 A. 505 (1888). This constitutes an absolute privilege. It is distinguished from a qualified privilege in that the former provides immunity irrespective of the purposes or motive of the defendant or the reasonableness of his conduct, while the latter is conditioned upon the absence of malice and can be lost by abuse. Kennedy v. Cannon, supra. “This absolute immunity,” wrote Sybert, J. in Kennedy, “extends to the judge as well as to witnesses and parties to the litigation, for defamatory statements uttered in the course of a trial or contained in pleadings, affidavits, depositions, and other documents directly related to the case.”

Petitions or complaints charging professional misconduct of an attorney are customarily presented in the first instance to the Grievance Committee of a Bar Association and the proceedings are controlled by Code 1957 (1968 Repl. Vol.), Art. 10, §§ 11-26 “Misconduct of Attorneys — Negligence — Disbarment — Suspension” and by Maryland Rules of Procedure, Subtitle BV, “Discipline and Inactive Status of Attorney.”

A proceeding before a Grievance Committee has been characterized as a “judicial proceeding.” Braverman v. Bar Association of Baltimore, 209 Md. 328, 336, 121 A. 2d 473 (1956), cert. denied 352 U. S. 830 (1956). In investigations of such complaints and in the conduct of disciplinary proceedings, such a Committee acts as a quasi-judicial body and is invested with the authority, acting through its executive council, to file charges against an attorney in the Court of Appeals. Rule BV 3.

Clearly the filing of the complaint in this case initiated a judicial proceeding by setting in motion the grievance procedure. Other States have held that a communication similar to defendant’s letter is absolutely privileged. Wiener v. Weintraub, 22 N.Y.2d 330, 239 N.E.2d 540 (1968); Ramstead v. Morgan, 219 Ore. 383, 347 P. 2d 594, 77 A.L.R.2d 481 (1959). See also 3 Restatement, Torts §§ 587, 588. No previous Maryland case has squarely decided the matter and we are urged to rule that only a qualified ' privilege exists where the complaint is filed not by á lay person but “by a public official learned in the law” who is at once both a “brother and a competitor.” We strongly disagree with the latter characterization. Members of the bar are brothers, in a collegial sense, but they are competitors only in the spirit of public service and not — as argued by appellant Kerpelman in brief and at oral argument — in the pursuit of economic advantage, one against another. The practice of law is a profession, not a trade nor a business. Indeed, with the ministry and medicine, it is one of the three “learned professions.”

“For lawyers, the most important truth about the law is that it is a profession.” This statement by the renowned Dean John H. Wigmore from his Foreword to Carter’s, The Ethics of the Legal Profession, (1915), was quoted by Chief Judge Vanderbilt in the case of In re Rothman, 12 N. J. 528, 97 A. 2d 621 (1953), as well as these observations of Dean Wigmore which immediately followed:.

“As a profession, the law must be thought of a,s ignoring commercial standards of success as possessing special duties to serve the state’s justice and as an applied science requiring scientific training.
And, if it is thus set apart as a profession, it must have traditions and tenets of its own, which are to be mastered and lived up to. This living spirit of the profession, which limits yet uplifts it as a livelihood, has been customarily known by the vague term ‘legal ethics. ’ There is much more to it than rules of ethics. There is a whole atmosphere of life’s behavior. What is signified is all the learning about the traditions of behavior that mark off and emphasize the legal profession as a guild of public officers. And the apprentice must hope and expect to make full acquaintance with this body of traditions, as his manual of equipment, without which he cannot do his part to keep the law on the level of a profession.’ ” [Italics supplied.]

Moreover, appellant’s contention unfortunately overlooks the important principle that practitioners are required to conduct themselves in accordance with the Canons, Ethical Standards and Directives of the Code of Professional Responsibility adopted by Maryland Rule 1230 which impose upon the individual attorney a duty to call to the attention of the State or local Bar Association improper conduct of a fellow practitioner. This serious responsibility is clearly set forth in Ethical Consideration 1-4 of Canon One of the Code:

“The integrity of the profession can be maintained only if conduct of lawyers in violation of the Disciplinary Rules is brought to the attention of the proper officials. A lawyer should reveal voluntarily to those officials all unprivileged knowledge of conduct of lawyers which he believes clearly to be in violation of the Disciplinary Rules. A lawyer should, upon request, serve on and assist committees and boards having responsibility for the administration of the Disciplinary Rules.”

Misconduct is specifically defined in Disciplinary Rule 1-102 and the requirement of disclosure of professional misconduct is contained in Disciplinary Rule 1-103 (A):

“A lawyer possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.”

It is apparent, therefore, that appellant’s argument for a qualified privilege only is in derogation of the ethical standards to which he himself is required to adhere. We reject his contention. To Mr. Kerpelman’s complaint that the rule of absolute privilege which we adopt affords no protection from false and malicious charges, a ready response is found in the words of the Court of Appeals in Maulsby, supra (pp. 152-3):

“It is better therefore to make the rule of law so large that counsel acting bona fide in the discharge of duty, shall never be troubled, although by making it so large, others who have acted mala fide and maliciously, are included. The question whether words spoken by counsel were spoken maliciously or in good faith, are, and always will be, open questions, upon which opinion may differ, and counsel, however innocent, would be liable if not to judgments, to a vexatious and expensive litigation. The privilege thus recognized by law is not the privilege merely of counsel, but the privilege of clients, and the evil, if any, resulting from it must be endured for the sake of the greater good which is thereby secured.”

And Chief Judge Fuld, writing for the Court of Appeals of New York in Wiener, supra, stated with clarity:

“A lawyer against whom an unwarranted complaint has been lodged will surely not suffer injury to his reputation among the members of the Grievance Committee since it is their function to determine whether or not the charges are supportable. Any other risk of prejudice is eliminated by the provision of the Judiciary Law (§ 90, subd. 10) which declares that ‘all papers * * * upon any complaint, inquiry, investigation or proceeding relating to the conduct or discipline of an attorney * * * shall * * * be deemed private and confidential.’ ”

Confidentiality is also guaranteed in Maryland by Rule BV2, §f-

Based on the reasoning of the cases from other jurisdictions cited above and the considerations implicit in the Code of Professional Responsibility, we conclude that the court below had no alternative but to sustain the demurrer since the defendant was protected by an absolute privilege which is not dependent upon the existence or nonexistence of malice.

We reject appellant’s further suggestion that the court improperly sustained the demurrer without leave to amend. A demurrer is a proper method by which to assert the defense of absolute privilege. Maulsby v. Reifsnider, supra. the defense of qualified privilege cannot be raised on demurrer. Walker v. D'Alesandro, 212 Md. 163, 169, 129 A. 2d 148 (1957).

Appellant’s contention is that he should have been afforded an opportunity to amend the declaration to state a claim for malicious prosecution. This question was not before the trial court and is not before us. Maryland Rule 1085. We observe, however, that the foundation for his claim is Lilley v. Roney, [1892] 61 Q.B. 727 where the defendant in a libel action had addressed a letter of complaint against a solicitor to the Registrar of the Incorporated Law Society. The complaint was dismissed as groundless and the solicitor was exonerated of any professional misconduct. The lower court dismissed the action because it was made in the course of a judicial proceeding and was, therefore, absolutely privileged. This dismissal was affirmed on appeal, the court stating that “[t]he claim ought to have been for maliciously instituting proceedings, not for libel” and that “leave ought to be given to the plaintiff to amend his pleading to this effect if he wishes to do so.”

We would consider this case unpersuasive even if apposite. A disciplinary proceeding for professional misconduct is not a proceeding of a criminal character which is the first essential element of a cause of action for malicious prosecution. Nor is it the trial of an action at law. Balliet v. The Baltimore County Bar Association, 259 Md. 474, 478, 270 A. 2d 465 (1970); Braverman v. Bar Association of Baltimore, 209 Md. 328, 336, 121 A. 2d 473, cert. denied, 352 U. S. 830 (1956), supra.

We find it unnecessary to consider appellee’s claim that the lower court should have sustained his demurrer on the ground of governmental immunity.

Judgment affirmed; appellant to pay the costs.

      . We agree with the Supreme Court of California which, when confronted with a similar argument stated, “Notwithstanding the declaration of the petitioner, we do not believe that the profession of the law is, or ought to be, merely a ‘highly competitive business.’ ” Barton v. State Bar of Calif., 209 Cal. 677, 681, 289 P. 818 (1930).

      . Roscoe Pound in referring to these three “learned professions” states in The Lawyer from Antiquity to Modern Times (1953) at 6: “Historically, there are three ideas involved in a profession: organization, learning, i.e., pursuit of a learned art, and a spirit of public service. These are essential. A further idea, that of gaining a livelihood, is involved in all callings. It is the main if not the only purpose in the purely money making callings. In a profession it is incidental.”

      . See, Note: “Developments In The Law of Defamation, 69 Harv. L. Rev. 875, 921:
      “It would seem that courts, in deciding whether an absolute or a qualified privilege should be granted in a particular type of proceeding, should more appropriately consider whether the public interest in free disclosure outweighs the harm to individuals which may result from malicious defamation. The most significant criteria for appraising this interest are the size of the segment of the public affected by the proceeding and the extent to which that segment is affected.”

      . In the instant case, the record does not disclose the disposition of appellee’s complaint against Mr. Kerpelman.


source: Caselaw Access Project

author: Menchine, J.,

license: Public Domain

text:
    FRIENDSHIP HEIGHTS CITIZENS COMMITTEE v. MILTON A. BARLOW et al. FRIENDSHIP HEIGHTS CITIZENS COMMITTEE v. SUBURBAN TRUST COMPANY
    [No. 156,
    September Term, 1974.]
    [No. 157,
    September Term, 1974.]

      Decided December 16, 1974

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

      Edward L. Genn for appellant.
    In No. 156, Paul R. Connolly for appellee Milton A. Barlow, and Paul H. Mannes, with whom were Stanley Klavan, Kaye Truxton Brooks, D. Warren Donohue, Joseph S. McCarthy and McCarthy & Wharton on the brief, for other appellees.
    In No. 157, John C. Joyce, with whom were Duckett, Orem, Christie & Beckett on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Friendship Heights Citizens Committee (Friendship Committee) instituted separate suits at law in the Circuit Court for Montgomery County, seeking damages and declaratory relief against Milton A. Barlow and others (known here as No. 156, September Term, 1974) and against Suburban Trust Company (known here as No. 157, September Term, 1974). All defendants in both cases filed motions raising preliminary objection pursuant to Maryland Rule 323 upon the ground that Friendship Committee lacked legal capacity to sue. The trial court granted the motions and dismissed the actions. Friendship Committee has appealed.

The issue presented for our consideration is extremely narrow in scope. We find the legal principles controlling its determination to have application to both cases. We emphasize at the outset that the decision we announce is restricted to Friendship Committee’s capacity to sue and we make no finding upon the question whether either action as presently formulated will survive demurrer or other motions as to any or all of the parties defendant. We have not examined the declarations from the viewpoint of their legal sufficiency. We have examined the allegations of the declarations only to determine whether they are such as give rise to a right on the part of Friendship Committee to invoke the aid of judicial power under the circumstances they outline. We find that they do give rise to such right.

The allegations may be summarized as follows:

1. The individual defendants are former elected members of Friendship Committee. The corporate defendant dealt with the individual defendants during their stewardship and engaged in business transactions purporting to bind Friendship Committee.
2. That during the course of their terms of office the individual defendants conspired with each other and with agents of the Suburban Trust Company to borrow money for illegal or unlawful purposes, and did in fact cause notes or other evidences of debt to be executed by Friendship Committee by which it became obligated to Suburban Trust Company for the sum of $1,250,000.00, although the purposes for which said monies were to be used were unlawful, illegal and ultra vires.
3. That while occupying such offices the individual defendants continued to conspire with each other to use, and did in fact use, the major portion of the proceeds of the borrowed money, all with the knowledge and approval of Suburban Trust Company, for the purchase of parcels of land from some of the individual defendants at grossly inflated prices at a time when other land of equal or superior utility was available at lower prices and did conspire to pay, and did in fact pay, to a defendant real estate commissions for such sales.
4. That the loan and deed transactions were illegal and void because they were authorized by less than a majority of the elected members of Friendship Committee.
5. That the loan and deed transactions were illegal and void because such transactions were beyond the power and authority conferred by statute upon Friendship Committee.
6. That profits stemming from the illegal transactions have been retained by the defendants.
7. That during the terms of office of thedndividual defendants Friendship Committee had upon deposit in the Suburban Trust Company the sum of $300,000.00 upon which it was receiving annual interest at the rate of 7 /i%, but that the individual defendants conspired together and with agents of Suburban Trust Company to use the said sum to reduce the principal balance of Friendship’s 5A% loan, although no principal payment was required to be made until 1975. That the effect of such transaction was to cause Friendship to lose and Suburban to gain F/2% per annum on the said monies from the date of actual payment to the date when such payment would have fallen due without any benefit to Friendship Committee.
8. That the advance payment was made shortly before newly elected members of Friendship Committee took office following their election and was intended to serve their predecessors private purposes and to prevent their successors from effectively functioning in the conduct of the duties committed to Friendship Committee by the Legislature of Maryland, and
9. That the individual defendants, during their terms of office before their successors were elected and qualified, entered into contracts or agreements whereby valuable property rights and easements of Friendship were transferred without legislative authority.

That a public corporation, without express power to sue, may have inherent power to do so in some circumstances is well-established. A leading case on the subject is City of Toronto v. Bowes, 4 Grant 489 (Court of Error and Appeal of Upper Canada, 1854). In Bowes the Mayor of Toronto secretly planned to deal in a bond issue for the issuance of which he thereafter became an advocate. The Court at 503 declared, “The settled rule is, that he who is entrusted with the business of others cannot be allowed to make such a business an object of interest to himself.” Adding at 506:

“The cases are well known in the law books, both of England and Scotland, particularly with regard to the purchasing in of debts, with eases and compositions, and the like, where the law obliges the persons in the particular situation of trust, in all things relative to the estate of those for whom they are entrusted, to act for them and not for themselves. The reason is, the law will not allow them to act otherwise for the danger of their situation. And another reason may also be assigned namely, that the law in no case will permit persons who have undertaken a character or a charge to change or invert that character by leaving it and acting for themselves, in a business in which their character binds them to act for others.
“* * * but it was said that the defendant was the Mayor of the City of Toronto, and not an agent for the Corporation, and it was strenuously argued that none of the authorities apply to such a case.
“I cannot accede to that argument. Reason and authority are against it. The large estates belonging to the City of Toronto, and the income which they produce; the ample public revenue derived from taxation; all their complicated transactions, pecuniary and otherwise, are under the management of the Common Council. Now it is impossible to deny that these important rights have their corresponding duties. This is in substance and effect a trust. There is no magic in a name. The Common Council is in fact entrusted with the management of the affairs of the city of Toronto, and I am at a loss to discover why the rule applicable to every other case of trust should not be applied to this. If the rule be one of pressing necessity in cases of ordinary trust, why is it to be abrogated where the trusts are of such vast magnitude and importance? Why is the principle to be held inapplicable when the probabilities of an abuse of trust are so greatly multiplied? Such a determination in a country, the local concerns of which are managed to so large an extent by corporations of this sort, possessed of such extensive powers, would be productive, in my opinion, of the worst consequences to the moral and material interests of the community.” (Italics in original.)

In Antieau’s Municipal Corporation Law, Vol. 2 (1973), it is said in § 15 A.31:

“Where local government officers and employees are themselves recipients of municipal funds improperly disbursed, the law is clear that the public servants must return these funds in a suit brought by the local government or a taxpayer thereof.”

In Jersey City v. Hague, 115 A. 2d 8 (Supreme Ct. of N. J. 1955), the capacity of Jersey City to sue was questioned but sustained, the Court saying at 15:

“* * * the first count alleges that the defendants as individuals and as public officials ‘did steal and did unlawfully, fraudulently, corruptly and with gross breach of trust, extort and appropriate to themselves property of the city, to wit, money.’ * * * the city has the power to bring suit for the recovery of its property in the same manner as natural persons, see McQuillin on Municipal Corporations (3rd ed.), § 49.02.”

In City of Lowell v. Massachusetts Bonding and Insurance Company, 23 N.E.2d 91 (Supreme Judicial Ct. of Mass. 1939), it was said at 92:

“But the plaintiff [City of Lowell] was entitled to have its funds remain in its treasury until lawfully disbursed. It is now entitled to have all unlawful disbursement made good by the disbursing officer and his surety.”

In City of Minneapolis v. Canterbury, 142 N. W. 812 (S. Ct. Minn. 1913), the City of Minneapolis brought suit against a public official for excessive profits obtained by him from the sale of certain property to the city. The Court sustained the action, saying at 814:

“The question is: Can plaintiff recover the excess? The doctrine of constructive trust arising from abuse of fiduciary relations is too familiar to require exposition. Some consideration of its underlying principles is necessary, however, in order to determine whether it is applicable. No man can serve two masters, and ‘the same person cannot act for himself, and at the same time, with respect to the same matter, as agent for another, whose interest might be in conflict with his’, nor can he be allowed to profit by his own wrong, even if such be only constructive wrong.
“The rule applies to officers and agents of municipal corporations. * * * And in such application it is reinforced by the gravest considerations of public policy.” (Citations omitted.)

The Court added at 815:

“The instances of application of the rule under consideration to public officers in this state have been where the officer has sought a recovery from the municipality, and we are now for the first time called upon to determine whether it should be applied by constructing a trust in favor of the municipality upon the misconduct of an officer. The principle is the same, however, and it is settled that, ‘if the prohibited or void contract has been executed, the officer becomes a trustee for the municipality, and is bound to account for any profits which he derived from the transaction.’ 2 Dill. Municip. Corp. (5th Ed.) § 773, p. 1150.”

We are mindful, of course, that the previously cited cases relate to municipal corporations, and understand fully, as was made crystal clear in Friendship Heights Citizens Committee v. Funger, 265 Md. 339, 289 A. 2d 329, that the plaintiff here is not a municipal corporation, and thus does not possess the unlimited power to sue and be sued, granted by the provisions of Article 23A, § 1 of the Annotated Code of Maryland. Friendship Committee is, however, a body politic created by Ch. 131 of the Laws of 1914, which, as amended, may now be found in § 66-1 through § 66-12 of the Montgomery County Code (1965), and the 1973 supplement. It thereby was empowered to receive tax monies from the taxpayers resident within its borders and was directed to engage in public improvements for the protection and benefit of the community. The cases make plain tha,t the rules authorizing municipal corporations to seek judicial aid to assure that its ¡'properties and monies will not be unlawfully dissipated by wrongful acts of the public officers charged with the administration of its affairs, apply with equal force to lesser public corporations or associations.

In Board of Directors of Ft. Scott Public Library v. City of Scott, 7 P. 2d 533 (S. Ct. Kansas, 1932), the city questioned the capacity of library directors to sue under circumstances where it was made to appear that library funds unlawfully had been paid to the city. In sustaining the right of the library directors to bring the action, the Court said at 535:

“* * * We do not think it is necessary that express power be given by the statute to authorize an administrative board to maintain an action in court, where such board has the power to own and control property. Board of Park Commissioners v. Nashville, 134 Tenn. 612, 185 S. W. 694. The power to own and control property is nugatory unless the party vested with such power may call upon the courts to protect it in the ownership and use of such property. The board is a creature of the law, a legal entity, on which the statute confers powers and faculties which are of no force or effect unless it may vindicate the rights conferred in the courts.”

In Caddo Parish School Board v. Pyle, 30 So.2d 349 (Ct. of Appeal of La. 1947), the capacity of a school board to seek to enjoin the operation of a planing mill interfering with the conduct of the school was recognized, the Court saying at 351-52:

“It would be absurd for the Legislature to create a political corporation, such as a school board, authorize and empower it to acquire property, buildings, etc., with funds derived from taxation, in order to carry out the purposes for which created, and then withhold from such legal entity the right and power to invoke the aid of the judicial branch of the state government to protect it in the possession of such property, and in its efforts to achieve and attain the important results contemplated in its creation. This right is inherent in such a corporation, and an incident to its existence. McQuillin on Municipal Corporations, Volume 6, Section 2650; Board of Commissioners of Orleans Levee District v. Blythe, 163 La. 929, 113 So. 150.”

The appellees contend that the decision of the Court of Appeals in Friendship Heights v. Funger, supra, is controlling upon the capacity of Friendship Heights to sue. It is true that the capacity to sue of this very appellant was therein denied. It is true also that Funger stressed that appellant was a public body of limited authority without express power to sue or be sued. The decision, however, directed itself to the facts and circumstances of that case, wherein Friendship Heights had brought an action to declare invalid and unenforceable agreements to which it was not a party and to restrain the effect of a Master Plan and zoning amendments applicable to lands lying outside its borders. Significantly, the Court said at 343 [331]:

“We are not to be understood, however, as passing on the question whether the Committee has the power to sue for the breach of contract to construct a road, which might be implied from the express power which was granted to it, cf. McRobie v. Town of Westernport, 260 Md. 464, 466, 272 A. 2d 655; Perry v. Board of Appeals, 211 Md. 294, 303, 127 A. 2d 507, or whether it could sue or be sued under Code 1957, 1966 Repl. Vol. Art. 26, §138 in an action affecting the tax monies paid to it.”

It is of further significance that both McRobie and Rerry at the pages cited supra reiterated the Court’s prior approval of a statement from Dillon, Municipal Corporations, § 237 (5th Ed.):

“A municipal corporation * * * can exercise the following powers, and no others: first, created in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, — not simply convenient, but indispensable.” (Italics in original.)

We hold that this limited public corporation possesses a capacity to sue under the circumstances alleged in this case because such a right is necessarily implied or is fairly incident to the powers expressly granted to it and is essential for the accomplishment of the objects and purposes it is directed by legislative fiat to achieve.

We do not reach the question posed by the Court of Appeals in Funger, supra, whether Article 26, § 138 has application to the Friendship Committee.

Judgments reversed.

Costs in separate cases No. 156 and No. 157 to be paid by the respective appellees.

      . The defendants named in the declaration were Milton A. Barlow, Thelma Edwards, Lawrence Myers, Alfred McPhillips, Eleanor Darlington, Margaret Steneck and Arthur O. Dunn.

      . We so narrowly confine our decision because of the wide powers of amendment and transfer of actions accorded by Maryland Rules 320 and 515.

      . We express no opinion with respect to that question because the issue was not presented to or decided by the trial court. It is not before us. Maryland Rule 1085.


author: Morton, J.,

text:
    GEORGE EDWARD CHANDLER v. STATE OF MARYLAND
    [No. 213,
    September Term, 1974.]

      Decided December 17, 1974.

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

      Richard Karceski, Assigned Public Defender, with whom was Harold I. Glaser, Assigned Public Defender, on the brief, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Thomas R. Kane, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant, George Edward Chandler, was found guilty of murder in the first degree by a jury presided over by Judge Robert B. Watts in the Criminal Court of Baltimore. Chandler was sentenced to the jurisdiction of the Division of Correction for the balance of his natural life.

In this appeal two issues are raised: (1) was the trial judge in error when, over appellant’s objection, he failed to exclude evidence of prior offenses which were arguably neither connected in point of time nor circumstance to the instant case; and (2) was the trial judge in error when he failed to grant the appellant’s motion for judgment of acquittal.

The victim of the murder was Diana Rosalyn Chandler, the appellant’s estranged wife, who, at the time of her death, lived alone in an apartment in Baltimore City. Carolyn Smith, a co-worker of the deceased on the 11 p.m. to 7 a.m. shift at Western Electric Company, testified that when Diana Chandler failed to pick her up for work on Tuesday evening, March 13, 1973, and also failed to respond to her attempts to gain entrance to Mrs. Chandler’s apartment, she became alarmed and notified the police the next day.

Officer Cannan, a Baltimore City policeman, testified that while working the 4 p.m. to 12 p.m. shift on March 14, he went to Mrs. Chandler’s apartment in response to a “missing person call.” When he could not gain entrance, he contacted the management of the apartment and a representative let him in with a pass key. He turned on a light and discovered Mrs. Chandler’s unclad, lifeless body in the bedroom. According to the officer, there were no signs of forced entry, the windows were all locked from the inside and the lock to the front door was a dead bolt type requiring a key to lock and unlock it. After securing “the crime scene,” he notified the “Crime Lab Mobile Unit.”

According to the autopsy report, the body was examined at 9:40 a.m. on March 15, 1973, and at that time an electrical cord, cut from a television set, was found to be tightly wrapped around her neck. There were multiple stab wounds of her body, from one of which protruded the handle of a steak knife. The medical opinion was that death occurred between 9:40 a.m. and 9:40 p.m. on March 13, 1973, as a result of strangulation and multiple stab wounds.

A member of the police department’s crime laboratory unit testified that of the fourteen identifiable fingerprints found in the apartment, ten of them belonged to the victim and four to the appellant. Appellant’s prints were lifted from the bedroom door.

A police detective testified that he interviewed the appellant on March 15, 1973; that the appellant advised him that he and Diana Chandler were married in August, 1969; that they had had financial problems resulting in quarrels during which he may have slapped her; that he had moved out of the apartment about the third week of January, 1973; and that on the day of the murder he had worked from 1:30 p.m. to 10 p.m. at the International Harvester Company in Baltimore. The detective stated that he obtained verification from the employer that the appellant had, in fact, worked that day. According to the detective, appellant voluntarily submitted to fingerprinting for comparison purposes and also to a benzidine test to determine whether bloodstains were on his hands. The latter test proved negative. In the course of his testimony, he stated that he found the keys to the deceased’s automobile in her purse but found no other keys in the apartment.

The State then called William Brooks who stated that he was a co-worker of Mrs. Chandler’s; that he had a key to her apartment; and that he had dated her at times during her marriage to the appellant.

A brother of the deceased testified that the first time he saw appellant after his sister’s murder was at the wake and funeral. About a week or two later he saw appellant driving his deceased sister’s car and, when he asked him how he obtained the keys, the appellant stated that he had found them in a drawer by his wife’s bed.

A sister of Mrs. Chandler testified that sometime in June or July, 1969, prior to the Chandlers’ marriage, she “looked out the window and George hit Dianna and picked her up and throwed her on the ground.” During the summer of 1970, according to the witness, appellant had on one occasion “grabbed my sister and slammed her to the back of the wall” of an auditorium.

Belinda Jones testified that she had been a schoolmate of Mrs. Chandler and that once in January, 1971, Mrs. Chandler called her and asked if she could come over to her residence to stay awhile because “her husband had beaten her and knocked her on the bed and put the pillow over her head.”

Sandra K. Pusateri testified that she met appellant and his wife about a year and a half prior to the trial at the “Adapt Center” and had seen him once knock her down a flight of stairs saying “* * * you are asking for it, one of these days I’m going to kill you.”

Testifying for the defense, Janice McCullough stated that on March 13 and 14, 1973, the appellant was living with her in her apartment and was there when she left for work at 8 a.m. on each of those days; that she customarily telephoned him every morning at 11 a.m. and he always answered the telephone; that she had called him on March 13 and 14 and he had answered the telephone in the apartment both days.

The appellant took the stand and related a brief history of his marriage to the deceased, referring to several separations that had occurred. He stated that he moved back to his wife’s apartment in September, 1972, and they lived together until the latter part of January, 1973, when they again separated and he moved out. He stated that on March 13, 1973, he worked the 1:30 p.m. to 10 p.m. shift at the International Harvester Company and that the first time he knew about his wife’s murder was when his brother, Daniel, telephoned and so advised him.

We cannot agree with appellant’s first contention that the trial judge was in error “when, over appellant’s objection, he failed to exclude evidence of prior offenses, neither connected in point of time nor circumstance to the instant case.”

It is certainly true, as appellant contends, that evidence of prior offenses committed by an accused are ordinarily not admissible, the theory being “that the jury may be misled into a conviction for an offense for which the defendant is not indicted, or that he may be prejudiced by the accumulation of offenses which he is not prepared to defend.” Gorski v. State, 1 Md. App. 200, 202, quoting Wharton’s Criminal Evidence (10th ed.). On the other hand, there are several well ingrained exceptions to this general rule. As stated in Avery v. State, 15 Md. App. 520, 532, quoting Gordon v. State, 5 Md. App. 291, 306:

“* * * evidence of other crimes is admissible to prove the specific crime charged when such evidence tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial. To like effect, see Jones v. State, 4 Md. App. 445; Thomas v. State, 3 Md. App. 708; Gilchrist v. State, 2 Md. App. 635; Loker v. State, 2 Md. App. 1; Gorski v. State, 1 Md. App. 200.”

In the trial below, the State was clearly endeavoring to demonstrate the appellant’s prior course of conduct toward his wife by establishing his belligerent and antagonistic attitude toward her on earlier occasions as related by the witnesses for the purpose of shedding light upon his motive and intent. Because of the remoteness of time in the related episodes and the vague and generalized nature of the testimony, we think that the admission of this evidence barely passed muster as being within the “motive” exception to the rule. On the other hand, we cannot say that the trial judge was wrong in admitting such testimony and we are fortified in this conclusion by the fact that the trial judge carefully and lucidly instructed the jury with respect to this evidence. His instructions bear setting forth here:

“Now, there has been testimony in this case which I’ve allowed in evidence with respect to other offenses committed by this Defendant. The general rule is that the test with respect to other offenses, that the testimony with respect to other offenses is inadmissible. The theory on which evidence of other offenses is excluded is that the jury may be misled into a conviction for an offense for which the Defendant is not indicted, or that he may be prejudiced by the accumulation of offenses which he is not prepared to defend. And I certainly ask you not to let that happen.
So, therefore, you are advised to consider testimony which I have admitted of other offenses, that is, these other times when allegedly the Defendant attacked his wife, with respect to the crime that the Defendant is on trial in these proceedings, to the extent, and only to the extent, that it tends to establish a motive or an intent. Since this kind of evidence can be misleading, in other words, you can’t say, well, he did this to somebody two years ago, so he must have done this. Since this kind of evidence can be misleading as to probative value, there must appear between the previous offense and that for which the Defendant is charged in these proceedings some real connection other than the allegation that the offenses have sprung from the same disposition. This evidence cannot be considered to show the propensity of the accused to commit crimes similar to that for which he has been indicted.
The reason for the general rule excluding such testimony is that such evidence would tend to divert the minds of the jurors from the real issue and arouse their prejudices. Where intent is material, the conduct of the accused is relevant to show that intent. Hence, evidence of collateral offenses is admissible in the trial of the main charge to prove the intent. To be admissible as relevant, such offense need not be exactly concurrent. If they are committed within such time, or show such relation to the main charge as to make connection obvious, such offenses are admissible to show intent. And if you remember, there was some testimony about these happenings about a year ago, and some forgot the date, but they weren’t concurrent with this offense. If you don’t find any connection with them, of course, you should not, and 1 say this advisory, accept them.”

In view of these commendable instructions to the jury, we cannot perceive any prejudicial error suffered by the appellant by the admission of the evidence of his prior conduct toward the deceased.

We have considerably more trouble, however, in dismissing appellant’s final contention that the trial judge committed reversible error in denying appellant’s motion for a judgment of acquittal because the evidence was legally insufficient to support the jury’s finding that he was guilty of murder in the first degree.

The only evidence adduced by the State remotely connecting the appellant with the commission of the crime was the detection of his fingerprints in the apartment where the crime occurred. The evidence was uncontradicted that appellant had lived with the deceased in the apartment until a few months before her demise. There was expert testimony that of the fourteen fingerprints lifted in the apartment and evaluated, ten were those of the victim and four were those of the appellant, the latter being found only on the bedroom door. An expert witness testified that it was possible for these fingerprints to remain in a detectable condition for a period of four or five months. The police department examiner who actually made the identification of appellant’s fingerprints testified that there was, under the circumstances, no way to determine the age of the fingerprint. When asked specifically about a fingerprint on a door, the witness replied: “If the door is painted it could remain almost indefinitely depending on heating, drafts, and so forth. They all tend to dry them out.”

It is, of course, well established that the finding of the fingerprints of an accused at the scene of a crime tends to show that he was at the scene of the crime. Additionally, however, for them to have any probative value there must be shown attendant circumstances with respect to the fingerprints which indicate that the prints were impressed by the accused at the time the crime was committed. “If they do so show, it is a rational inference, consistent with the rule of law both as to fingerprints and circumstantial evidence, that the accused was the criminal agent.” Lawless v. State, 3 Md. App. 652, 659. See also Rogers and Hawkins v. State, 7 Md. App. 155, 159. Here, however, there has been no showing of attendant circumstances from which a rational inference might be drawn that the appellant’s fingerprints were placed on the door of the victim’s apartment at the time of her murder. The appellant, testifying in his own defense, denied being in the apartment on the day of the murder or at any time after he stopped living there some two months earlier. No one placed him in the apartment on the day of the crime and the only testimony definitely placing him near the apartment after he had moved out was that of a witness who said she had seen the appellant go in and out of the apartment “about two weeks before she was killed.”

We think, on the basis of all the evidence adduced below, it is an equally rational inference that the appellant’s fingerprints were impressed upon the door of the apartment at a time when he was a resident or, at the least, at a time other than the day of the crime. As Chief Judge Orth said in Rogers and Hawkins, supra, at 164-165: “We feel that the evidence before the court was not sufficient for it ‘to reasonably exclude the hypothesis’ that the prints of the appellants] were impressed at a time other than that of the crime * * *. We recognize the integrity of fingerprint identification, but here, although it tended to show that the appellants] had been at the scene of the crime, it was not coupled with attendant circumstances sufficient to show that [he was] at the scene of the crime at the time it was committed, so as to give rise to the rational inference, consistent with the rule of law both as to fingerprints and circumstantial evidence, that [he was] the criminal agentfs].”

We are unpersuaded by the State’s suggestion that the testimony of the deceased’s brother that he had observed appellant driving the deceased’s car a week or two after her death somehow contributes to proof of his criminal agency. It is true the brother testified that the appellant told him he found the keys in his wife’s dresser drawer after her death, while a police officer stated that the only set of car keys he found was in the wife’s purse and that he found no other keys in the apartment. We cannot find that this evidence points to appellant’s guilt, particularly since it was uncontradicted that appellant had accompanied members of his wife’s family to the apartment after the funeral in order to get her personal effects and close the apartment.

Nor can we subscribe toj the State’s argument that evidence of appellant’s prior hostile acts toward the victim are sufficient, when coupled with the other evidence, to establish his guilt. While such evidence goes to establish the appellant’s motive, evidence of motive cannot supply the ingredients necessary to establish guilt. As stated in Wharton’s Criminal Evidence (13th ed.) § 170: “Motive and intent are' not synonymous. Motive is the inducing cause, while intent is the mental state with which the criminal act is committed. * * * As motive is ordinarily not an element of the crime charged, evidence of motive does not establish guilt * * While “[p]roof of motive is not required because motive is ordinarily not an element of a crime,” the State may, however, “find it useful to produce evidence of motive in order to confirm the conclusion reached from the other evidence that it was in fact the defendant who had committed the offense charged.” [Emphasis supplied.] Otherwise stated: “Motive and lack of motive are always relevant, but motive alone is not enough to support a conviction.” Underhill’s Criminal Evidence (6th ed.) 1973 § 5. See also Van Dyke v. Commonwealth (Va. 1955) 86 S.E.2d 848, 852; State v. Jarrell (N.C. 1951) 65 S.E.2d 304, 308; Gilpin v. Commonwealth (Ky. 1944) 178 S.W.2d 964, 965; State v. Whisler (Iowa 1942) 3 N.W.2d 525, 528; Wittig v. State (Wis. 1940) 292 N.W. 879.

Here, the State sought to establish motive but evidence of motive could only confirm a finding of guilt from other evidence demonstrating that it was, in fact, the appellant who committed the murder. From our review of the record, the State produced no such other evidence legally sufficient to establish appellant’s guilt.

While we recognize that it is not for this Court to be convinced beyond a reasonable doubt of an accused’s guilt, that being the province of the trier of facts, it is for this Court to be convinced that there is in the record before us evidence legally sufficient to entitle the jury, in this instance, to draw the conclusion that the appellant was guilty beyond a reasonable doubt. Williams and McClelland v. State, 5 Md. App. 450.

We are not so convinced and, accordingly, find that the trial judge was in error in denying appellant’s motion for a judgment of acquittal made at the close of all the evidence.

Judgment reversed and case remanded for a new trial in accordance with the directions contained in Gray v. State, 254, Md. 385.


author: Thompson, J.,

text:
    ELLIS HARLEY BARBER v. STATE OF MARYLAND
    [No. 230,
    September Term, 1974.]

      Decided December 17, 1974.

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

      Paul D. Wright, III, Assigned Public Defender, with whom was Edward P. Camus, District 5 Public Defender, on the brief, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Alan E. D’Appolito, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Ellis Harley Barber, appellant, was convicted of grand larceny by the Circuit Court for Prince George’s County. He contends on appeal that the State failed to establish that the value of the stolen goods exceeded $100.00; therefore, his motion for acquittal should have been granted. We agree. We shall also discuss the validity of a search and seizure and the admissibility of certain evidence for the guidance of the trial court on retrial.

I Value

The record shows that the only goods stolen were a box of pills and a diamond ring. The State offered no evidence concerning the value of the pills. As to the diamond ring, during direct examination, the State’s Attorney asked the owner, “Can you state for the benefit of the Court and the jury what the fair market value of this ring is? ” A. “I would say approximately a hundred and fifty dollars.” On cross-examination the owner testified she did not know the fair market value, and that the ring was a gift.

Although the law is well established that an owner is presumed to know the market value of his possessions and is permitted to give his opinion thereon, when the record shows that he does not in fact know the market value, his opinion, even though perhaps in some cases admissible, is not alone sufficient to establish value. This is especially true where the value of the stolen goods barely exceeds $100, the amount which must be proven to support a charge of grand larceny. Md. Code, Art. 27, § 340. The Court of Appeals reviewed this question carefully in Cofflin v. State, 230 Md. 139, 142, 186 A. 2d 216 (1962) and stated:

“It is well settled in this State that an owner of personal property in common use may express an opinion as to its value without qualification as an expert. Bresnan v. Weaver, 151 Md. 375, 378; Bailey v. Ford, 151 Md. 664, 667; Casualty Ins. Co. v. Messenger, 181 Md. 295, 302; Jackson v. Linthicum, 192 Md. 272, 276. Cf. State Roads Com. of Md. v. Novosel, 203 Md. 619, 624. The case of Mutual Fire Ins. Co. v. Owen, 148 Md. 257, 267 is not here in point. The testimony of the owner’s wife was admitted on the theory that she had taken an inventory of the goods, in her husband’s store, at cost, based on actual records and in a few instances on wholesale catalogue prices. The rule applies in criminal as well as civil cases. Jewell v. State, 216 Md. 110, 112; Shipley v. State, 220 Md. 463, 466; Benton v. State, 228 Md. 309, 311. The rule is almost universally recognized. See Underhill, Criminal Evidence (5th ed.) § 603 P. 1474; Wigmore, Evidence (3rd ed.) § 716; 2 Wharton, Criminal Evidence (12th ed.) § 550. The cases are collected in an exhaustive note 37 A.L.R.2d 967. Wigmore, in an often quoted passage, seems to take the position that an owner is qualified per se, and that any lack of knowledge goes only to the weight of the evidence. But many courts have held that ownership establishes a rebuttable presumption of knowledge. See Sykes v. Wood, 91 So. 320 (Ala.), and cases collected in 37 A.L.R.2d. supra, p. 984 et seq. It has been held that the rule does not rest on the fact that the owner has title, but rather on the fact that ordinarily an owner knows the property intimately and is familiar with its value. Menici v. Orton Crane & Shovel Co., 189 N.E. 839 (Mass.). See also Shea v. Hudson, 165 Mass. 43, cited in both the Bresnan and Bailey cases, supra, in 151 Md., and in the Messenger case as well. Thus, an owner who has purchased the property in question or similar property would normally have some knowledge of its market price and present condition. In Rubin v. Town of Arlington, 99 N.E. 2d. 30 (Mass.) it was held that the qualification of an owner presented a preliminary question of fact for the trial judge, and this is the rule in other States. Thus, if it is demonstrated that the owner possesses no knowledge whatever of the market price and condition of the article in question, his testimony may be inadmissible. In Shipley v. State, supra, we noted that it was held in Narango v. State, 87 Tex. Crim. 493, 222 S. W. 564, that a bailee may likewise testify to value without qualification, but we found it unnecessary to pass on the point in that case.”

The Wigmore view referred to by the Court of Appeals in Cofflin seems to have been modified in later editions. 3 Wigmore on Evidence § 716 (Chadbourn rev. 1970) states as follows:

“Knowledge of value standard; what tests are proper? (continued): Personal-property value. Here the general test, that any one familiar with the values in question may testify, is liberally applied, and with few attempts to lay down detailed minor tests.1
“The owner of an article, whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth; the weight of his testimony (which often would be trifling) may be left to the jury; and courts have usually made no objections to this policy.2
“However, where it appears (either expressly or by reasonable inference) that the owner in fact lacks knowledge of the particular value at issue, his opinion may be ruled inadmissible.3
“The general rule that any owner may evaluate his own property does not apply to one who merely holds legal title and has not enjoyed the usual incidents of personal ownership.4 ”

In § 716, note 2, a number of cases are cited which hold that even though such evidence may at times be admissible, it is insufficient alone to sustain a finding of value. Other notes in the quote cite case authority for the point discussed.

In Shipley v. State, 220 Md. 463, 467, 154 A. 2d 708 (1959), the Court pointed out a further refinement of the rule pertaining to proof of value in a grand larceny case as follows:

“In such a case as this, where a portion of the stolen goods was before the trier of facts, together with a detailed list of the other clothing stolen, and the goods stolen were ordinary articles of clothing, the court or jury weighing the evidence could value the goods without the aid of expert testimony. 20 Am. Jur., Evidence § 894 (1939); State v. Peach, 70 Vt. 283, 40 A. 732; 3 Underhill, Criminal Evidence § 720 (5th Ed., 1957). Cf. 32 C.J.S., Evidence § 545 at 280 (1942). We think the lower court could reasonably infer from the clothing before it and from the description of the other articles stolen, and from the fact that the average value of each article need be only $1.45 for the total to exceed $100, that goods of a value in excess of $100 actually were stolen.”

This refinement is, of course, no help to us in deciding the instant case because it is apparent that a jury cannot adequately determine the value of a diamond ring or a bottle of medicine simply by looking at them. We, therefore hold that the testimony of the owner was not sufficient in and of itself to establish that the goods taken were worth more than $100.00. We have held an owner’s statement of value insufficient to support a conviction for grand larceny when it was shown he did not know the market value. Mason v. State, 9 Md. App. 61, 262 A. 2d 576 (1970), cert. denied, 258 Md. 729; Gazaille v. State, 2 Md. App. 462, 235 A. 2d 306 (1967). Compare Jones v. State, 6 Md. App. 344, 251 A. 2d 46 (1969).

II Seizures

Detective David Van Dyke of the Prince George’s County Police testified that on April 19, 1973, he received a telephone call from an informant stating that the appellant, Pinkey Barber, and George Vermillion had just broken into an apartment on 85th Avenue in New Carrollton; that they were in a gray ’56 Chevrolet; and that they were still in the area.

Detective Van Dyke relayed the information he had received to Detective Mark Nelson who immediately went with Detective McLamb to the area in question. As they approached the area, they observed a gray and green 1956 Chevrolet coming in their direction in thé opposite lane of traffic. They also saw that the car was occupied by two white males. Inasmuch as traffic precluded the two detectives from following the car, they called uniformed Officers Cherba and Nugent who were in a police car nearby and asked them to make a traffic stop of the vehicle. In response to this call, Officer Cherba and Officer Nugent stopped the vehicle in question which was being operated by the appellant, Ellis Harley Barber. Barber produced his driver’s license and registration card. In less than a minute, Detectives Nelson and McLamb arrived at the scene. Detective Nelson then approached the car and asked Mr. Vermillion to step out; he also asked if he was in fact George Vermillion. Vermillion replied “Yes.” Detective Nelson then looked into the vehicle which was a convertible with the top down. He saw a plastic bag containing what he thought to be marijuana. He stated that he had seen marijuana numerous times before and recognized it on sight. He added that he had had formal training in the Police Academy and had been involved in numerous “narcotics” cases. The officers then proceeded to search the car and found a master key, a diamond ring, a pill container with prescription pills in it, five gloves, a meat cleaver and two two-way radios. They also found an Indiana driver’s license, a birth certificate and a chemical company identification card which were all counterfeit. All of the items except the meat cleaver and a table radio (which were found in the trunk) were found in the interior of the car. Officer Cherba testified that they stopped the vehicle only because of the request of the detectives and that Mr. Barber was violating no traffic laws at the time. The trial judge denied the motion to suppress the diamond ring, the pills, the key, the two walkie-talkies, the gloves and the packet of I.D. cards.

On direct examination Detective Van Dyke stated that the aforementioned informant had previously given him information on fifteen or twenty occasions. On each occasion Van Dyke had checked the information out and it had proven to be correct. On cross-examination, Van Dyke stated that the informant had at one time told him that two persons who were involved in trafficking drugs would meet at a specified time. Based on this information he went to the location and observed a narcotics transaction in progress but did not at that time make an arrest. The officer further stated that the informant had taken him to various locations in Prince George’s County for the purpose of pointing out the residences of persons who dealt in drugs. He stated that a search and seizure warrant was issued as to one of these locations and that the search revealed narcotics. This, however, did not occur until after April 19, 1973 (the date of appellant’s arrest). He also stated that as a result of information furnished by this informant other cases were being pursued but that no arrests or seizures had as yet resulted. A check of the Prince George’s County’s files, however, indicated that the persons involved had been previously engaged in narcotic transactions.

The appellant claims that the State failed to show that the informant in the case at bar met the two-pronged test of Aguilar and Spinelli,

We hold the requirements of Aguilar-Spinelli were met, albeit by the narrowest margin. It is apparent that the information relied on by the detective in his determination that the informant was credible wás minimal. When the informant gave him the information regarding the appellant, Van Dyke had observed one illegal transaction and had verified from police files that the other persons named had prior drug arrests. We are thus faced with holding that the informant’s credibility was established simply by the observation of Detective Van Dyke of one illegal transaction. This conclusion is supported somewhat by the fact that all other information furnished, although possibly received from unreliable sources, nonetheless proved accurate. Although it is the thinnest evidence on which we have held an informant reliable under the credibility prong of Aguilar, we think it is sufficient. See State v. Edwards, 266 Md. 515, 295 A. 2d 465 (1972), State v. Kraft, 269 Md. 583, 307 A. 2d 683 (1973), McCarthy v. State, 22 Md. App. 722, 325 A. 2d 132 (1974). The statement of the detective that he had actually observed the narcotics transaction occurring at the time and place previously indicated by the informant when coupled with a track record showing the absence of false information is at least as reliable as a track record which shows that two or three arrests have been made as a result of information furnished by the informant.

We also think the “basis of knowledge” prong of Aguilar has been satisfied. In this regard the instant case comes within the rule established in Draper v. United States, 358 U. S. 307, 79 S. Ct. 329, 3 L.Ed.2d 327 (1959). In Draper a reliable informant advised the officers that a particularly described man carrying a briefcase would arrive on the train at a particular time. Although the suspect arrived twenty-four hours later than the informer had predicted the Cpurt held that since the future movements of the suspect wjere detailed by the informant, the details were sufficient in themselves to establish the basis of knowledge required by Aguilar even though the informant neglected to state how he had obtained this information. For a full discussion, see Stanley v. State, 19 Md. App. 507, 313 A. 2d 847 (1974) and McCarthy v. State, supra.

In the instant case, the information furnished by the informant was detailed and specific. He stated that George Vermillion and Pinkey Barber (the appellant) had just broken into an apartment on 85th Avenue, New Carrollton, that they were in a 1956 gray Chevrolet and that they were still in the area. The reference to the fact that the crime had just been committed; that the culprits were still in the area; and that the crime had occurred at a specifically named location; all indicate that the informer was speaking from present, firsthand knowledge and not from a “casual rumor circulating in the underworld.” Spinelli v. United States, supra at 416. Indeed under the circumstances it is difficult to imagine a more detailed statement unless the informant was himself a participant in the crime. Thus, although the informant did not in fact disclose the basis of his knowledge, a sufficient basis was established by the self-verifying detail contained in the information itself.

If the officers had probable cause to believe that the occupants of the vehicle were guilty of breaking and entering, there was also probable cause to believe that the vehicle contained evidence of the crime. Consequently, it was subject to a full search. Compare Howell v. State, 271 Md. 378, 318 A. 2d 189 (1974) and Dixon v. State, 23 Md. App. 19, 327 A. 2d 516.

Under Md. Code, Art. 66V2, § 6-112, a uniformed officer has the authority to stop and check the driver’s license and registration of any operator of a motor vehicle. Shipley v. State, 243 Md. 262, 267, 220 A. 2d 585 (1966) and Taylor v. State, 9 Md. App. 402, 406, 264 A. 2d 870 (1970). While the vehicle was stopped one of the officers involved observed what he recognized from his experience to be marijuana. This information leads to the conclusion that the vehicle might well have contained other prohibited substances and a search of the vehicle was then proper. In such a situation, the seizure of the bottle of pills would be reasonable despite the fact that they were contained in a bottle showing that the original contents had been obtained by prescription. It will be noted that the diamond ring was found within the bottle. Although the police officers at the time of the seizure did not know that the pills were fruits of the breaking and entering, it became apparent after it was discovered that the master key fit the apartment of the victim and that the diamond ring and the bottle of pills were missing.

The stopping of the vehicle could also be justified under another theory. In Adams v. Williams, 407 U. S. 143, 148, 92 S. Ct. 1921, 32 L.Ed.2d 612 (1972), a police officer was told by an informer, whom the police officer knew and who had provided him with information in the past, that an individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist. After calling for assistance, the officer approached the vehicle to investigate the informant’s report. The officer tapped on the car window and asked the occupant, Williams, to open the door. When Williams rolled down the window instead, the officer reached into the car and removed a fully loaded revolver from Williams’s waistband. The gun was not visible from outside the car. Williams was thereupon arrested for unlawful possession of the pistol. A search incident to the arrest was conducted by other officers who arrived at the scene. They found substantial quantities of heroin on Williams’s person and in the car, and they found a machete and a second revolver hidden in the automobile.

In holding that the stop was legal under Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968), the Court stated:

“.. . while the Court’s decisions indicate that this informant’s unverified tip may have been insufficient for a narcotics arrest or search warrant, see, e.g., Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the information carried enough indicia of reliability to justify the officer’s forcible stop of Williams.” 407 U.S. at 147, 92 S. Ct. at 1924.

The “indicia of reliability” in Adams were the fact that the informer was known to the officer and had given him information in the past. Also deemed important by the Court was the fact that under a state statute the informer could have been charged with a misdemeanor if the information had been false.

The holding in Adams applies with equal force to the instant case. Here the informer was known to Detective Van Dyke. He had given information in the past which had been verified. Finally, as in Adams, the informer in the case at bar was subject to criminal penalties if he was lying to the police. Md. Code, Art. 27, § 150. In short, we hold that there were enough “indicia of reliability” regarding the informant to warrant reliance by police.

Ill Admissibility of Evidence

Finally appellant argues that the trial court erred in admitting the counterfeit driver’s license, counterfeit birth certificates and counterfeit identification cards which were seized in the search of the motor vehicle. It is apparent that this evidence was not in any way related to the crime involved in these proceedings. Generally, evidence of other crimes can be admitted only where it tends to show identity, a common scheme or design, motive, intent, or absence of mistake or accident, if such showing has relevance in establishing the principal fact at issue or matter in dispute. Ward v. State, 219 Md. 559, 563, 150 A. 2d 257 (1958); Wilson, Valentine & Nutter v. State, 8 Md. App. 653, 665, 262 A. 2d 91 (1970). We think that on retrial these items should be excluded from evidence as not coming within the rule.

Judgment reversed.

Case remanded for new trial.

      . Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964).


author: Orth, C. J.,

text:
    ROY WILLARD POWELL v. STATE OF MARYLAND
    [No. 241,
    September Term, 1974.]

      Decided December 17, 1974.

    The cause was argued before Orth, C. J., and Moylan and Menchine, JJ.

      Edward, J. Pet-rick, Assigned Public Defender, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Martin M. Mrozinski, Assistant Attorney General, Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Stephen Sacks, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

CASE SUMMARY

The first count of an indictment filed in the Criminal Court of Baltimore on 19 March 1973 against ROY WILLARD POWELL presented that on 3 March 1973 he . . feloniously, wilfully and of deliberately premeditated malice aforethought did murder one Hattie C. Thurman. ...” Code, Art. 27, § 616. The indictment came on for trial before a jury on 18 October 1973. At the close of all the evidence the court granted a motion for judgment of acquittal as to murder in the first degree. Code, Art. 27, § 593; Maryland Rule 755 b. The case, therefore, as to the major offense, went to the jury for them to decide whether Powell was guilty of the homicide, and if he was, whether the killing was murder in the second degree or manslaughter. Wood v. State, 191 Md. 658, 666-668; Gray v. State, 6 Md. App. 677, 684; McFadden v. State, 1 Md. App. 511, 516. See Epperson v. State, 7 Md. App. 464, 473. A verdict of murder in the second degree was announced on 19 October 1973 by the Forelady and confirmed by unanimous concurrence upon poll. Rule 758, §§ a and d. The verdict was harkened. The imposition of sentence was deferred pending the determination of a motion for a new trial. The motion was heard and denied. On 11 December, after receipt of a presentence investigative report, Powell was sentenced to 30 years accounting from the date of the offense. He appealed.

FACTS

Powell does not protest the legality of the evidence which the jury found sufficient to prove the corpus delicti of murder in the second degree and his criminal agency. He questions, not the fact of his guilt, but the circumstances surrounding its determination. Therefore, there is no need to dwell on the sordid details of the murder. We give such factual posture of his prosecution as is necessary to resolve the two contentions he advances.

ISSUE ONE

“The appellant was denied due process of law by the actions of the State and trial court forcing appellant to abandon either his motion for a speedy trial or his objection to the failure of the State to timely comply with his motion for discovery and inspection.”

The first contention revolves around three motions filed by Powell, a motion for discovery and inspection, a motion to dismiss the indictment for failure to comply with the discovery request, and a motion for a speedy trial. The motion for discovery, requesting information usually sought by such means, was filed on 17 April 1973. On 19 April a supplemental motion for a copy of the autopsy and medical examiner’s report was filed. The motion to dismiss the indictment and the motion for a speedy trial were filed on 5 October 1973. The motion to dismiss was predicated upon the failure of the State to comply with the discovery requests. It pointed out that trial had been set for 18 October and alleged that it was imperative that Powell “be in possession of the information asked for in the Discovery and Inspection Motion to properly prepare this case for trial.” He explicitly objected “to a postponement by the State in order to gain more time to answer the Motion for Discovery” because he had also filed a motion for a speedy trial. The motion for a speedy trial simply read that Powell “hereby requests a speedy trial in the above captioned case.”

On 17 October the State answered the motion for discovery, substantially giving, or agreeing to make available, the information requested, except for a copy of the autopsy report, which was not specifically mentioned. The autopsy report was shown to defense counsel the next day, several minutes before the case came on for trial. When the indictment was called for trial, the motions were heard on argument of counsel as preliminary matters.

Powell’s argument on appeal is the same as his argument below. Defense counsel told the trial court:

“On . . . April 16, 1973 the defendant filed with the State a motion for discovery and inspection pursuant to rule 728. On April 18th the defendant filed a supplemental motion for discovery and inspection, in that case asking for the autopsy report. As of the date of the motion, the motion was filed at least and mailed to the Clerk on the 4th of October, the defendant had not received the answers. In addition to that, as a courtesy prior to the filing of a motion, Your Honor, I sent a letter on August 15, 1973 to the State’s Attorney’s office making reference to this file and indictment number as follows: ‘Gentlemen, on April 16, 1973 I filed a discovery motion in this case which to this date has not been answered. Would you please do so immediately since this defendant has been languishing in jail sometime and I’d like to prepare the case and get him to trial. That was done at the instruction of the defendant in this case, whatever visit I made to him at the jail, has asked me the moment I walked in the door ‘Is the State answering the motion for discovery?’, upon which I answered in the negative. Pursuant to his request I filed a motion for a speedy trial on the motion to dismiss. The reason we did this is as follows. The remedies that have been held at the Court of Special Appeals and Court of Appeals with respect to the discovery motions, is that the remedy that lies therein is not dismissal, per se; but is a postponement or some time for the defense to orient itself and get a defense in the particular case. * * * To complete this I might point out that last afternoon I concluded another jury trial, a six-day jury trial in Part I. I was handed by the Assistant State’s Attorney, Mr. Sacks, who is here today, for the first time the answer to discovery in this case. Less than twenty-four hours before this case was to begin. And that did not include the autopsy report. Now the autopsy report was just briefly shown to me for the first time five minutes ago before this case was to begin. Now there is a speedy trial motion in this case. The Chief Judge already refused the State’s right to dismiss, to postpone this case, and for that reason we are asking to have this case dismissed and the reason is very simple. The State is putting us in a position to wait until the last minute to provide the defense with the information entitled under 728, less than twenty-four hours ahead of time, leaving the only remedy available under this as a postponement. Now I am not asking for a postponement.”

The court said:

“I am not disagreeing with you that it was improper for them not to give you the information you sought prior to the day before trial. You are luckier than some people. Some people don’t get it until an hour before trial. You received it a day before. Where in fact have you been prejudiced by this information?”

Defense counsel replied:

“Well Your Honor, I haven’t had an opportunity to discover who the State’s witnesses are going to be in this case at all. I found out for the first time late yesterday afternoon who the State intends to prove its case in chief with. I don’t see the autopsy report which shows the manner of death until five minutes before trial. In effect what the State is doing, is forcing the defense into the position of a postponement which is precisely why the speedy trial motion was filed. In other words the State waits until the last minute in a case before it comes to trial when this case was set in many, many weeks ago.”

The court asked if a postponement was requested. Defense counsel made clear that he did not want a postponement:

“I request a dismissal, because the State is forcing a postponement on the defense when there is a speedy trial motion here. I have no remedy. I don’t want to postpone the case, I want to go ahead with the case. But the State waits until the last minute to provide me with the information. I have a Hobson’s choice, I’m in the middle. That’s why the speedy trial motion and the motion to dismiss was filed. So the State effectively precluding the defendant from a speedy trial by filing their answers to the motions, and I point out to Your Honor this motion had been filed for months. As a courtesy before even thinking this additional motion to dismiss, I sent them a letter back in August, August the 15th and asked please, you know, to do it. They didn’t do it. They wait until the day before trial and give me some of the answers, show me the autopsy record for the first time five minutes before I come to trial. And they put the defense in an impossible position. There’s only one remedy to this, that is to dismiss this indictment against the defendant and dismiss the case. Now there’s no other way we can proceed because effectively he is precluding the defendant to his right to a speedy trial. This defendant stood ready to come to trial today and stands ready to come to trial.”

The court indicated that it was willing to refer the matter to the Chief Judge of the Supreme Bench for postponement. See Code, Art. 27, 591 (a). Defense counsel" said: “I’m not asking for a postponement, I’m asking for a dismissal.”

The judge ruled: “I’m denying the motion to dismiss because of the failure to file the answers to discovery before they were filed yesterday, which is twenty-four hours before the case. Pm reserving my decision on the motion for a speedy trial at this time.” See Harris v. State, 6 Md. App. 7, 16-19, cert. denied, 255 Md. 741. The motion for a speedy trial was denied at the close of all the evidence.

DECISION ISSUE ONE

Powell makes an ad hominem argument. He demanded a speedy trial on 5 October 1973 and the trial commenced on 18 October. Although the court below “denied” the motion for a speedy trial, there was patently no delay of constitutional dimension between the demand and the trial, nor, as we understand it, does Powell claim that there was. In fact there was no unconstitutional delay from the institution of the prosecution to the time of trial. See McIntyre v. State, 17 Md. App. 526; State v. Lawless, 13 Md. App. 220. Powell obtained exactly what he sought in his speedy trial motion, a prompt trial. We see no merit in the argument that in order to obtain the prompt trial he had to relinquish a continuance to which he may have been entitled by failure of the State to make more timely answer to his motion for discovery. If he were not prepared for trial by reason of the State’s delay in answering the discovery motion, a reasonable time to prepare his defense would not have changed his situation with respect to a speedy trial. There had been no denial of a speedy trial up to the time of the hearing on the motion. In the circumstances, there had simply not been such delay as violated the Sixth Amendment guarantee. Thus, if he had accepted a postponement or continuance of the case, there would have been no waiver of a right accrued to him and he would have suffered no prejudice thereby. We note that he did not seek dismissal of the indictment because he had been denied a speedy trial but asked only that he be tried promptly. In other words, he could not be harmed by the possible waiving of a right which had not been denied him in any event. And he could have had his trial at his convenience. The prosecutor asserted: “The State is willing to continue this case to any day next week, the week thereafter, any day Mr. Harlan [defense counsel] will agree to give him adequate time to prepare an appropriate defense in this case. We do not'intend to let this case be postponed two or three months. We understand the defendant has been in jail since March the 3rd. I’m available at any time. I will assure him a Courtroom waiting to proceed at any time the defendant wants. If he wants tomorrow, Tuesday or Wednesday.”

The fact is, however, that there is ample showing that Powell was not prejudiced by going to trial on 18 October. When the court announced that it was denying the motion to dismiss and holding the speedy trial motion sub curia, the State indicated some apprehension about the status of the matter upon attack under post conviction procedures. The transcript reads:

“MR. HARLAN [Defense Attorney]: I object.
THE COURT: Mr. Harlan hasn’t said he is not prepared to try it.
MR. SACKS [Assistant State’s Attorney]: He has implied he’s not adequately prepared.
MR. HARLAN: That remark should be stricken from the record.
THE COURT: Mr. Harlan is a very able defense attorney. He was a State’s Attorney for many years, and he was handed cases the last minute to try and done a perfect job. He never indicated to me he’s not prepared to try the case, because he’s probably, not with any help from the State’s Attorney’s office, but he’s probably prepared in spite of the State’s Attorney’s office.”

Defense counsel then examined Powell on the record. Powell agreed that he and his attorney had “numerous discussions about this case.” The examination continued:

“MR. HARLAN: Now you’ve heard the argument I made. Do you wish me to request a postponement or do you want to go to trial today.
MR. POWELL: 1 want to go to trial today.
MR. HARLAN: Do you feel confident in my representation of you, do you feel 1 have done enough work in your behalf so that we are properly prepared to go to trial today?
MR. POWELL: I do.
MR. HARLAN: If not I will request the Court for a postponement and I will do any further work you want.
MR. POWELL: 1 wish to go on with the trial.
MR. HARLAN: You understand if we made a request, the Court doesn’t necessarily have to grant it, but the Court may well grant a continuance in this case; you understand that?
MR. POWELL: I don’t understand this continuance.
THE COURT: In other words, a continuance — I’ll postpone the case for another day.
MR. HARLAN: Do you understand that we can request that?
MR. POWELL: I understand.
MR. HARLAN: You want to postpone the case or go to trial today?
MR. POWELL: 1 want to go to trial today.
MR. HARLAN: Is there any area in which you figure that 1 or you are unprepared to go to trial today in this case?
MR. POWELL: No, I’m not.”

The trial proceeded.

The main objective of Rule 728 is to assist the accused in preparing his defense and to protect him from suprise. Mayson v. State, 238 Md. 283; Brunson v. State, 9 Md. App. 1. The Rule provides no sanctions for non-compliance. Jackson v. State, 8 Md. App. 260; Clark v. State, 6 Md. App. 91. We have indicated that the purpose of the Rule may be effected by the grant of a reasonable continuance when necessary. Jones v. State, 5 Md. App. 180. It seems that Powell is unhappy because the State was dilatory in responding to his motion for discovery and he would have the sanction be the dismissal of the charges against him. We in no sense condone the failure of the State to respond more promptly. But we observe that Powell did not seek an order of court prescribed by § § a and b of Rule 728 to fix a time of compliance.

We have ruled that non-compliance with Rule 728 provides no sanction calling for the dismissal of an indictment and that we would not presume one. Young v. State, 15 Md. App. 707, 711. We said in Jones v. State, supra, at 189, where, as here, actual prejudice was neither spelled out nor suggested and we saw none from our examination of the record:

“Justice is not the private preserve of the criminal defendant; it also serves the public. The raison d’etre of criminal justice is the determination by legal means of the guilt or innocence of one who, cloaked with the presumption of innocence, stands accused of an offense against the state as the representative of the public. In the circumstances here its ends would be subverted if we were to preclude this determination by construing Rule 728 as urged by the appellant.”

We see no error compelling reversal in the denial of the motion for a speedy trial and the motion to dismiss the indictment.

ISSUE TWO

“The trial court abused its discretion by refusing to declare a mistrial when the prosecuting attorney referred prejudicially in his opening statement to the appellant’s indictment by the Grand Jury.”

FACTS

In his opening statement to the jury the prosecutor distinguished between the civil and criminal processes because some of the jury had sat on a civil panel. He said:

“In a criminal case the case is brought here by the method of an indictment. That indictment is not to be considered as evidence in this case. An indictment is produced by a Grand Jury. You sitting here are what is known as a petit jury. A Grand Jury has the function of hearing only one side of the case. The State brings forth evidence to twenty-three people and they vote by a majority and bring in an indictment, but it’s not an adversary hearing. I want you to —”

At this point defense counsel objected and there was a bench conference. Defense counsel gave the reasons for his objection:

“MR. HARLAN: 1 object to the State’s Attorney making reference to how an indictment is returned. 1 do it for the following reasons. It leaves the impression with the jury that the Grand Jury whose body has already considered this case and by their weight of authority has felt that this man is in some way guilty. The reason I say this, this comes at a time one week after the Vice-President of the United States resigns as a result of a Grand Jury indictment. The Grand Jury news is in the newspapers and for the State to tell this jury twenty-three of them voted this man should be brought to trial is prejudicial.”

He noted that another member of the Supreme Bench had recently granted a mistrial for that reason. The prosecutor replied:

“I was cut off in the middle of my statement because counsel felt it was prejudicial. The last thing I said, it’s on the record, that that was not an adversary hearing. I believe the State’s obligation is to explain to the jury how a case gets here. I will also explain to them the same thing that it’s not an adversary hearing, this is the first time he’s had a chance to defend himself and bring forth his side of the case, which is purely explanatory. I do not believe it’s any implication from what the State’s case is that he’s been found guilty by the Grand Jury which has acted upon his case.”

The trial judge did not think the remark was grounds for a mistrial. He said:

“I think it is permissible for the State’s Attorney to say this, how it was brought before this Court, and as long as he tells that the Grand Jury proceeding is not an adversary hearing I will instruct them the fact that he is indicted is nothing more than the fact he is charged with something.”

The prosecutor resumed his opening statement. He added with respect to the Grand Jury:

“Now ladies and gentlemen of the jury, as I was saying before I was interrupted by Mr. Harlan, an objection to my opening statement, this case comes to you by way of what is known as a Grand Jury. The Grand Jury is not an adversary proceeding. It only hears one side of the case. The only purpose is a bridge, more or less a screening process for cases. Now the case comes to here, the first time, in an adversary proceeding. This is the first time the defendant will have an opportunity to put forth his case in this matter. This is an adversary proceeding.”

During the charge to the jury the judge explained:

“Now, we have referred to indictments in this case. You have heard about indictments in opening remarks to you by counsel. An indictment that I hold up before you is merely a piece of paper. You have the right to take this piece of paper with you to the jury room. The indictment is not evidence. It is merely a formal manner of accusing a person of a crime in order to bring him to trial, and you must not consider the indictment as any evidence of guilt of the defendant or draw any inference of his guilt merely because he has been indicted.”

Defense counsel had no objections to the jury charge.

DECISION — ISSUE TWO

In the circumstances here, viewing the challenged remarks with the totality of the trial judge’s charge to the jury, and, particularly, in the light of his explicit cautions regarding the indictment, we see no abuse of discretion in the refusal to grant a mistrial. Johnson v. State, 18 Md. App. 571, 574. See Wilhelm and Cook v. State, 272 Md. 404. Compare Killie v. State, 14 Md. App. 465; Holbrook v. State, 6 Md. App. 265.

Over a month after appellant’s brief was filed, appellant sent this Court a letter protesting his innocence and setting forth allegations to support his “continuing redress for Justice.” He cited and discussed additional authorities in arguing that the trial court erred in refusing to grant a mistrial. There is no provision in the Rules for the filing of an amended or supplemental brief. Cleveland v. State, 8 Md. App. 204, 223. We observe, however, that were his pro se document properly before us, and considered, the allegations and argument therein would not affect the conclusion we have reached.

Judgment affirmed.

      . The second and third counts of the three court indictment charged related crimes against the person of Hattie C. Thurman — assault with intent to murder and assault and battery, respectively. The court in instructing the jury told them they were only concerned with the first count. When arraigned immediately before the trial Powell pleaded not guilty to all the counts. No affirmative disposition of the second and third counts seems to have been made, but in any event, the express finding of guilty under the first count, and silence as to the remaining counts, had the effect of a verdict of not guilty as to the remaining counts. Williams v. State, 9 Md. App. 447, 448-449, n. 1.

      . The autopsy report gave the manner of death as “Homicide — throat slashed during argument", and the cause of death as “Incised wound of neck.” The opinion of the Assistant Medical Examiner was that “Hattie Thurman, a 38 year old, Negro female died of massive bleeding when her throat was slashed and large vessels cut. The manner of death is homicide.” A photograph of the deceased taken at the Office of the Medical Examiner was received in evidence. It appeared that her throat, in layman’s language, was cut from ear to ear. The wound was described in the autopsy report: “At a distance of 10” from the top of the head in the anterior neck region, there is a deep incised wound which involves both the skin and underlying tissue. This wound measures 4” in total length and z/i at its widest point in the approximate midline of the neck. The edges are clean and there is no bridging of the underlying tissue. Between the gaping edges of this wound is visible both external jugular veins which have been cut across and have bled profusely. The wound runs just beneath the thyroid notch and involves the right and left lobes of the thyroid gland, the strap muscles of the neck and the superficial vessels of the left side. This wound begins at the anterior border of the right sternocleidomastoid muscle and continues across the midline to the midpoint of the belly of the ipsolateral muscle. Gross bleeding has taken place from this wound, and the surrounding skin and clothing and soaked with blood. No hesitation marks are found in the area and the injury consists' of a single incised wound.”

      . The trope is not precisely apt. Powell says he could choose one of two. As for Tobias or Thomas Hobson (c. 1544-1631):
      “Where to elect there is but one.
      ’Tis Hobson’s choice — take that or none.”
      Thomas Ward, England’s Reformation (1630) ch. 4.
      Steele wrote in the Spectator, no. 509:
      “Mr. Tobias Hobson, from whom we have the expression . . . was a carrier ... the first in this Island who let out hackney-horses. He lived in Cambridge, and observing that the scholars rid hard, his manner was to keep a large stable of horses, with boots, bridles, and whips.... When a man came for an horse, he was led into the stable, where there was great choice, but he obliged him to take the horse which stood next to the stable-door; so that every customer was alike well served according to his chance, and every horse ridden with the same justice. From whence it became a proverb, when what ought to be your election was forced upon you, to say Hobson’s Choice.”
      See Bartlett’s Familiar Quotations (14th ed.) 312 b.
      Bergen Evans in the Dictionary of Quotations (1968) comments, 317:18,
      “It is one of fame’s whimsies that this obscure man should have had a street named after him in Cambridge, a number of the Spectator devoted to him, been the subject of two poems by Milton, and had his name become a proverb. New kings have gained as much fame.”

      . There was some question as to just when the motion for a speedy trial was denied. The trial concluded on 19 October. A docket entry under date of 26 October reads, “Motion for a Speedy Trial was in fact denied on 10/19/73.” It was the view of the trial judge that the motion for a speedy trial was included in a general denial of all motions at the close of all the evidence.