author: Davidson, J„

text:
    THERESA Z. KRAMER v. HOWARD CALVIN KRAMER
    [No. 927,
    September Term, 1974.]

      Decided June 4, 1975.

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

      John H. Price, Jr., and I. Duke Avnet for appellant.

      John J. Hirsch for appellee.
   Davidson, J„

delivered the opinion of the Court.

On 29 June 1973, in the Circuit Court for Baltimore County, Theresa Z. Kramer, the appellant (mother), filed a bill of complaint for an absolute divorce from Howard Calvin Kramer, the appellee (father), on the grounds of cruelty, constructive desertion and an uninterrupted separation of five years. Included among the prayers for relief were ones for alimony and for custody and support of the three minor children of the parties, Pamela, then age 17, Theresa, then age 14, and Priscilla, then age 12.

On 10 September 1974 Judge John N. Maguire filed a memorandum opinion and order in which he found that the father had not deserted the mother but that the parties had lived separate and apart for five years. His order, in pertinent part, awarded the mother an absolute divorce and denied her alimony, awarded the father custody of Theresa and Priscilla, and failed to provide child support payments for Pamela. It is from the denial of alimony to the mother, the award of custody to the father and the refusal of support payments for Pamela that this appeal is taken.

I

On appeal the mother’s primary contention is that the chancellor erred in awarding custody of the two minor children, Theresa and Priscilla, to the father. The governing principle with regard to an award of custody is that the best interest and welfare of the child are determinative. In undertaking appellate review of the chancellor’s award of custody, this Court has limited the applicability of the “clearly erroneous” rule to the factual findings underlying the chancellor’s conclusion as to what constitutes the best interest and welfare of the child, reserving the right to exercise our own best judgment as to the appropriateness of that conclusion. Barsallo v. Barsallo, 18 Md. App. 560, 565, 308 A. 2d 457, 460 (1973); Mullinix v. Mullinix, 12 Md. App. 402, 411-12, 278 A. 2d 674, 678-80 (1971); Sullivan v. Auslaender, 12 Md. App. 1, 4-5, 276 A. 2d 698, 699-701 (1971). Upon our review of the record in this case we cannot say that the chancellor was clearly erroneous in his findings of fact or that his ultimate conclusion that custody should be awarded to the father was incorrect.

Ordinarily custody should be changed only when the best interest of the child requires a modification. Winter v. Crowley, Jr., 231 Md. 323, 331, 190 A. 2d 87, 91 (1963); Peterman v. Peterman, 14 Md. App. 310, 320-21, 286 A. 2d 812, 819 (1972); Sullivan, supra, at 12 Md. App. 5, 276 A. 2d 701. In determining what is likely to be in the best-interest and welfare of a child, a court may properly consider, among other things, the fitness of the person seeking custody, the adaptability of the prospective custodian to the task, the age, sex and health of the children, the physical, spiritual and moral well-being of the children, the environment and surroundings in which the children will be reared, the influence likely to be exerted upon the children, and if old enough to make a rational choice, the preference of the children themselves. Hild v. Hild, 221 Md. 349, 357, 157 A. 2d 442, 446 (1960); Deckman v. Deckman, 15 Md. App. 553, 565-66, 292 A. 2d 112, 118-19 (1972).

The record shows that all three children lived with their mother after the parties’ separation in 1967. While the chancellor did not find the mother to be unfit, there was evidence to show that the mother, then working full-time as a nurse and staff development director at Maryland General Hospital, had a history of repetitive occurrences of mental depression, suicide attempts, and alcoholism problems, which ultimately required long-term psychiatric hospitalization. Although she had greatly improved, she still drank occasionally and was prone to hysterical exaggeration. Because she frequently attended Alcoholics Anonymous meetings and evening college classes in addition to working full-time, she spent such a considerable time away from the children that they had virtually no maternal supervision. In addition, there was a lack of involvement on her part in the children, their interests, and their emotional development.

There was evidence to show that the children were doing well. Both Theresa and Priscilla had been honor students at their respective schools the year before; Theresa was a high school cheerleader. Yet the probation officer’s report shows that Priscilla was recently suspended from junior high school and was becoming prone to temper outbursts; that neither of the children got along well with their older sister Pamela; and that Priscilla was not getting along well with her mother.

Finally, there was evidence to show that the father, a urologist, was a conscientious man, deeply concerned and involved in the welfare of the children; that he then lived in a spacious, attractively furnished two bedroom apartment which he shared with his 79 year old widowed mother; that he was then willing and able to obtain even more commodious accommodations if custody were granted to him; that during the years since the separation of the parties the father had spent four nights a week with the children and was generally available to them on call; that Theresa wanted to be in her father’s custody; that Priscilla wanted to be with Theresa; and that, in the opinion of the probation officer, the father is “presently more able to provide the most stable and consistent atmosphere for the girls.”

We agree with the chancellor’s conclusion that custody of these children should be awarded to the father. Priscilla’s difficulties at school, her inability to get along well with her mother, the inability of both children to get along with Pamela, and Theresa’s decided preference to be with her father, coupled with the fact that since 1967 the father has been more integrally involved with the children than has the mother, are all factors which demonstrate that a change in custody is in the children’s best interest. The strong paternal influence and involvement which the father offers far outweighs any disadvantage which may be suffered by transferring custody of the children to him. Accordingly, the chancellor’s determination with respect to the custody of the children will be affirmed.

II

The mother additionally contends that she was entitled to support payments, including college expenses, for Pamela, notwithstanding the fact that Pamela had become 18 years old in January, 1974, and was, therefore, no longer a minor at the time of the award in July, 1974. She asserts that before 1 July 1973, the effective date of Art. I, § 24, which changed the age of majority from 21 to 18 years, the father had verbally agreed to support the children and that that agreement meant that he agreed to support the children until they reached the age of 21. The father contends that before 1 July 1973 there was no agreement to support the children until age 21 and in the absence of any support agreement or court decree executed or entered into prior to 1 July 1973, the mother was not entitled to child support for Pamela.

The record shows that the parties separated in August, 1967. According to the mother, the parties after discussion verbally agreed, sometime in September or October, 1967, that the father should pay the mortgage, utilities and insurance expenses as well as $150.00 every two weeks as support for the three children. The mother testified that payments in accordance with this agreement were made until January, 1974, at which time the father ceased making support payments for Pamela who then became 18 years old and who was attending college.

While the father testified that at the time of the separation of the parties he and the mother were both represented by counsel, and while no formal written separation agreement making disposition of the property of the parties was introduced into evidence, the father at no time during the trial denied the existence of an agreement with respect to child support as testified to by the mother. Moreover, he himself testified that from the time of the separation of the parties in August, 1967, he paid $150.00 every two weeks for the three children and, in addition, another $150.00 per month for utilities, the mortgage and “a number of other things.” Finally, he testified that, whereas he intended and hoped to contribute to the cost of a college education for his daughters Theresa and Priscilla, he would not contribute to Pamela’s education for the sole reason that “my wife had enough money that if she had been prudent she could have paid for Pamela’s education. She should have taken care of that during that period.”

Here the evidence presented compels the conclusion that an agreement between the parties with respect to support payments for the three children did exist long before 1 July 1973, the effective date of Art. I, § 24. There is no requirement that there be a formal written agreement in matters involving separation, alimony, child support and custody. Wilner v. Wilner, 251 Md. 13, 24, 246 A. 2d 273, 279 (1968); Hahn v. Hahn, 192 Md. 561, 568, 64 A. 2d 739, 742 (1949). The existence of an agreement with respect to such matters may be verified from testimony, the conduct of the parties, and other evidence in the case. Wilner, swpra, at 251 Md. 24, 246 A. 2d 279. Here the mother’s acceptance of payments unilaterally determined by the father to be appropriate, for a period of six years, without resort to a support action, constitutes acquiescence in and acceptance of an offer of support for the children made by the father, and, therefore, constitutes an agreement between the parties with respect to support payments for the three children. See Eckard v. Gardner, 255 Md. 171, 178, 257 A. 2d 174, 177 (1969); Rethorst v. Rethorst, 214 Md. 1, 15, 133 A. 2d 101, 109 (1957).

Moreover, the fact that these parties, each of whom were represented by counsel from the time of their separation in August, 1967, never entered into or executed a formal written separation agreement, making final disposition of all their property rights, does not establish that the parties previously had not effectuated an agreement with respect to child support. Even a temporary measure providing for child support pending the completion of negotiations between parties’ counsel, concededly nothing more than an interim measure which does not purport to make a final determination of property rights, is nonetheless a valid and enforceable agreement. Wilner, supra, at 251 Md. 24-25, 246 A. 2d 279.

Here both the father and mother testified as to facts which support a rational inference that an agreement with respect to the support of the children did in fact exist prior to 1 July 1973. There was no denial by the father of the existence of that agreement. Although the chancellor made no finding with respect to the existence of such an agreement, the corroborated evidence supports such a finding. A finding to the contrary, had one been made, would have been clearly erroneous.

On the basis of the record before us we are persuaded that an agreement between the parties with respect to the support of their three children, which required the husband to pay $25 per week per child, did, in fact, exist before 1 July 1973, the effective date of Art. I, § 24. The question next to be resolved is whether, by virtue of that agreement, and notwithstanding the provisions of Art. I, § 24 which made 18 rather than 21 the age of majority, the father was obligated to support Pamela after she reached the age of 18 in January, 1974.

Article I, Section 24 provides:

“(a) Except as otherwise specifically provided by statute, a person eighteen years of age or more is an adult for all purposes whatsoever and has the same legal capacity, rights, powers, privileges, duties, liabilities; and responsibilities as prior to July 1, 1973, persons had at twenty-one years of age, and the ‘age of majority’ is hereby declared to be eighteen years.
“(b)(1) The terms ‘adult,’ ‘of full age,’ or ‘of legal age’ refer to persons who have attained the age of eighteen years.
“(2) The term ‘minor,’ as it pertains to legal age and capacity, refers to persons who have not attained the age of eighteen years.”

Section 51 stipulates:

“That the provisions of this Act shall be construed only prospectively and shall not be applied or interpreted to have any effect upon or application to any event or happening occurring prior to the effective date of this Act, or to any gift made under the Uniform Gift to Minors’ Act prior to that date, or to any court decree, trust, will, deed or other instrument in effect prior to the effective date of this Act.” (Emphasis added.)

Section 52 of the Act provides that the Act shall take effect 1 July 1973.

The impact of Art. I, § 24 on a parent’s obligation to provide child support has been considered in Maryland on three occasions. The Court of Appeals in Monticello v. Monticello, 271 Md. 168, 315 A. 2d 520 (1974), initially determined the effect of Art. I, § 24. There a part of a divorce decree, entered in 1968, ordered a father to pay support for his three “infant children.” In construing Section 1 in conjunction with Section 51, the court said at 271 Md. 173, 315 A. 2d 523:

“. . . [w]e are prepared to hold that the use of phrases such as ‘infant’ child, ‘minor’ child, ‘during infancy,’ ‘during minority,’ ‘until attaining majority,’ or ‘until age of majority,’ in an agreement or in a decree relating to child support dated prior to 1 July 1973, must have meant support until attaining age 21, in the absence of a clear expression of contrary intent, since this is the only meaning which could reasonably have been within the contemplation of the parties at the time such an agreement was executed, or in a judge’s mind when such a decree was entered. However, we do not decide whether this holding governs the interpretation of an agreement or decree which refers to ‘child’or ‘children,’ otherwise unidentified, or to a child, by name, without further elaboration from, which intent can be inferred.’’ (Emphasis added.)

The same result was reached by this Court in O’Connor v. O’Connor, 22 Md. App. 519, 522, 323 A. 2d 632, 634 (1974), in which this Court considered a decree entered in 1971 which required the father to pay support for the “minor children” of the parties and in Abb v. Crossfield, 23 Md. App. 232, 237-38, 326 A. 2d 234, 238 (1974), in which this Court considered a 1963 support order, based on a pre-existing agreement of the parties that expressly obligated the father to provide support for a child “until the said child reaches her 21st birthday or becomes self-supporting.” Neither of these cases decided the question eschewed by the Court of Appeals in Monticello and now squarely before us concerning the impact of Art. I, § 24 on a preexisting oral agreement relating to child support which refers to “child” or “children” otherwise unidentified, or to a child by name without further elaboration.

Since we are here concerned with the construction and interpretation of an agreement for child support we follow the objective law of contracts which requires us to determine, from the language of the agreement itself, what a reasonable person in the position of the parties would have thought the agreement meant at the time it was effectuated. Monticello, supra, at 271 Md. 173, 315 A. 2d 522-23; Slice v. Carozza Properties, Inc., 215 Md. 357, 368, 137 A. 2d 687, 693 (1958). The same principle would, of course, be followed if we were concerned with a similarly worded judicial decree imposing child support. Monticello, supra, at 271 Md. 173-74, 315 A. 2d 523. The agreement here, whether viewed as arising from the verbal assent of the parties or from their .conduct, is an agreement by which the father undertook to pay $150 every two weeks for the three “children.”

The agreement contained no express provisions as to when the payments might terminate. Nor did it contain any express provisions as to any contingencies upon which the payments might terminate. In the absence of any specific provisions for the termination of payments only two interpretations of the agreement are reasonable. Because Pamela, Theresa, and Priscilla will remain the children of their father until the time of his death, the agreement to pay $150 every two weeks for the support of “the children” could be viewed as a promise by the father to support the children for the rest of his natural life. Or, because the agreement was made by married persons living separate and apart, it could be viewed as one designed to satisfy the father’s legal obligation to support his children, which obligation, under then existing law, required him to support his children until they reached the age of 21. The fact that the agreement contains no express provision for termination of payments does not permit it to be viewed as one allowing the father to terminate payments at any time. Such an interpretation would, in essence, view the father’s promise as one to provide payments so long as he was willing so to do, a view which negates the very existence of an agreement because of the illusory nature of the father’s promise. See Stamatiades v. Merit Music, 210 Md. 597, 614-15, 124 A. 2d 829, 838 (1956); Foster-Porter Enterprises v. De Mare, 198 Md. 20, 30-31, 81 A. 2d 325, 331 (1953).

We think it obvious that in 1967 reasonable married persons, who had separated and had entered into an agreement for the support of their children, would have thought that that agreement was an agreement designed to satisfy, without the need of a court adjudication, the legal obligation of the supporting parent to his children, an obligation which at that time required support until the age of 21. We now hold that the use of words such as “child” or “children” otherwise unidentified, or a reference to a child by name, without further elaboration, in an agreement or in a decree relating to child support, dated prior to 1 July 1973, in the absence of a clear expression of contrary intent must have meant support for the parties’ offspring at least until they attain the age of 21. The only meaning, which could reasonably have been within the contemplation of the parties at the time such an agreement was effectuated, was one that required support to be continued at least until the child attained 21 years of age. The same would be true for a similarly worded judicial decree providing for child support entered before the effective date of Art. I, § 24.

Such a holding is consonant with the provisions of Section 51, which direct that the “Act shall be construed only prospectively and shall not be applied or interpreted to have any effect upon or application to any event or happening occurring prior to the effective date of this Act.” It is also consistent with the well-known maxim of the law that when a contract is ambiguous the intent of the parties at the time it was entered into controls the interpretation of the contract, Hardy v. Brookhart, 259 Md. 317, 326-27, 270 A. 2d 119, 125 (1970); Garfinkel v. Schwartzman, 253 Md. 710, 720, 254 A. 2d 667, 673 (1969), and with the familiar principle that constitutional and statutory provisions in effect at the time a contract is made become a part of the contract, Denise v. Spotswood I. Quimby, Inc., 248 Md. 428, 433-34, 237 A. 2d 4, 7 (1968); Holmes v. Sharretts, 228 Md. 358, 367, 180 A. 2d 302, 306 (1962). This holding also comports with the rule of statutory construction and constitutional law that disfavors a construction which will impair existing rights and/or the obligations of existing contracts or will effect the retroactive operation of a statute. Dryfoos v. Hostetter, 268 Md. 396, 407-08, 302 A. 2d 28, 34 (1973); Dixon v. Checchia, 249 Md. 20, 23, 238 A. 2d 247, 249 (1968); Janda v. General Motors Corp., 237 Md. 161, 169, 205 A. 2d 228, 232 (1964); Beechwood Coal Co. v. Lucas, 215 Md. 248, 253-54, 137 A. 2d 680, 683 (1958); Equitable Trust Co. v. Smith, Trustee, 26 Md. App. 204, 210, 337 A. 2d 205, 208. In addition such a holding has the salutary effect of providing consistency of treatment for all agreements and decrees relating to child support in effect before the effective date of the Act, irrespective of the presence or absence of words or phrases used to describe the children. It thus promotes fairness and protects children by assuring that their right to support is not dependent upon the chance wording of an agreement or a decree effectuated at a time when the inclusion or exclusion of words and phrases such as “minor,” “minority,” “infant,” or “infancy” had no significance. See Shelley v. Smith, 249 Md. 619, 627, 630-31, 241 A. 2d 682, 686, 688 (1968); Staley v. Staley, 25 Md. App. 99, 105, 335 A. 2d 114, 118-19.

The chancellor, having correctly determined that Pamela was 18 at the time of his award, made no finding with respect to her entitlement to support although the father’s contractual liability for her support had not yet terminated. In our opinion the equity court had power to enforce specifically the agreement between husband and wife and should have done so. Schacter v. Schacter, 251 Md. 304, 308-10, 247 A. 2d 268, 271 (1968); Zouck v. Zouck, 204 Md. 285, 295-96, 104 A. 2d 573, 576-77 (1954); Offutt v. Offutt, 106 Md. 236, 241, 67 A. 138, 139-40 (1907); Helms v. Franciscus, 2 Bland Chancery 544, 564 (1830); McClure v. McClure, 15 Md. App. 226, 289 A. 2d 610 (1972). In Zouck, supra, at 204 Md. 296, 104 A. 2d 577-78, the Court of Appeals said:

“A court of equity will not require specific performance, as a matter of course. It will evaluate the conduct of the parties, the circumstances and the equities of each particular case. It will not use its discretion to grant the remedy unless its exercise will subserve the ends of justice and the result of its assistance is fair, just and reasonable. We think that the Court did not err in finding the contract in the instant case met the standards necessary for specific performance. Zouck did not deny the execution of the agreement or claim that it was procured by fraud or duress. He did not challenge the fairness of the amount he agreed to pay nor claim that he was unable to pay it, or that its payment would be a hardship on him. A court, of course, is not bound in the amount fixed by the parents for the support of a child. It is free to adopt the amount agreed upon and incorporate it in its decree as its own, but it is not bound to do so. Here, the chancellor followed the permissible course, of adopting the amount agreed upon as fair and reasonable, the expression of such adoption being the enforcement of the contract so providing. Under the facts of the case, we think this course of action was fully justified.”

Here, as in Zouck, the father did not at trial deny the execution of the agreement or claim that it was procured by fraud or duress. He did not challenge the fairness of the amount he agreed to pay nor claim that he was unable to pay it, or that its payment would be a hardship upon him. We find that the chancellor erred in failing to exercise his discretion and to enforce specifically the agreement by adopting the amount agreed upon as fair and reasonable and by requiring payment of both the amount then due and unpaid and that to be paid in the future.

In addition, in our view, Pamela was entitled to an order requiring the payment of her college expenses so long as she remained in college and until she reached the age of 21, notwithstanding the fact that at the time the chancellor made his award she was over the age of 18. The instant suit for divorce, custody and child support was filed on 29 June 1973, two days before the effective date of Art. I, § 24, and at a time when Pamela was only 17 years of age.

, Ordinarily, a court that has acquired jurisdiction of a case will not be deprived of its jurisdiction by subsequent events in the course of its proceedings, even if such subsequent events are of such a character as would have prevented jurisdiction from attaching in the first instance. Automatic Retailers of America, Inc. v. Evans Cigarette Service Company, 269 Md. 101, 105, 304 A. 2d 581, 584 (1973); Ledford Construction Co. v. Smith, 231 Md. 596, 599-600, 191 A. 2d 587, 589 (1963); Thompson v. State, 26 Md. App. 442, 448, 338 A. 2d 411, 414; Gray v. State, 6 Md. App. 677, 682, 253 A. 2d 395, 398 (1969); Collins v. Robbins, 84 A. 2d 536, 538 (Me. 1951); 20 Am.Jur.2d Courts, § 148 (1965). We believe that this rule should be applied in this case.

At the time this suit was filed, the court, having jurisdiction of the subject matter, had the obligation and the power to protect Pamela’s best interest by determining the appropriate amount of money to be paid for her support during her minority which then connoted the period until age 21. The court thus had a number of alternatives available to it, among which were: (1) the power to incorporate into a decree the agreement then existing between her parents for the payment of $25 per week for her support until she reached the age of 21, Pumphrey v. Pumphrey, 11 Md. App. 287, 291-92, 273 A. 2d 637, 640 (1971); and (2) the power to modify the contract by increasing the amount of the payments, Tvardek v. Tvardek, 257 Md. 88, 97, 261 A. 2d 762, 767 (1970); Bebermeyer v. Bebermeyer, 241 Md. 72, 77, 215 A. 2d 463, 466 (1965); Stern v. Horner, 22 Md. App. 421, 429-33, 324 A. 2d 134, 138-40 (1974); Maryland Code (1957, 1973 Repl.Vol.) Art. 16, §§ 25, 28, 66 (a) [Art. 16, § 66 (a) now codified in Courts Article (1974), § 3-602], Had the court exercised its power promptly, and before Pamela became 18 in January, 1974, she would have been protected until age 21, not by a contract for an amount of support agreed upon by her parents, enforceable in civil actions for breach of contract and/or for specific performance, but rather by a court decree entitling her until age 21 to support payments judicially determined to be adequate, to subsequent court review and modification as circumstances changed, and to enforcement through the court’s power of contempt. To hold under the present circumstances that, as a consequence of the enactment of Art. I, § 24, the equity court lost jurisdiction to enter such a decree once Pamela had reached the age of 18 would result in the total deprivation of the substantial rights she possessed by virtue of filing of the suit for child support, an event which occurred two days before the enactment of Art. I, § 24. Such a result is contrary to Section 51 which specifies that the Act should not be applied in such a way as to have “any effect ... upon any event or happening” occurring before the effective date of the Act. Moreover, such a result is inconsistent with the role of the court as a protector of the child. An equity court has a substantial interest and particular concern in the welfare of children, and while these courts are not a party to custody or support proceedings they do stand as parents patriae to the child when the jurisdiction of the court is invoked. Taylor v. Taylor, 246 Md. 616, 621, 229 A. 2d 131, 135 (1967); Jackson v. Jackson, 13 Md. App. 725, 733-34, 284 A. 2d 654, 658-59 (1971) ; Myers v. Butler, 10 Md. App. 315, 316, 270 A. 2d 341, 342 (1970). Here an equity court’s failure to act with dispatch cannot be permitted to deprive a child of its rights. Consequently, we believe that the chancellor erred in failing to consider Pamela’s entitlement to support, including her college expenses.

Ordinarily the amount to be awarded for child support is governed by the circumstances of the case and is entrusted to the sound discretion of the chancellor, whose determination should not be disturbed on appeal unless he arbir trarily used his discretion or was clearly wrong. Blumenthal v. Blumenthal, 258 Md. 534, 540-41, 266 A. 2d 337, 340; Pet v. Pet, 238 Md. 492, 496, 209 A. 2d 572, 574 (1965); Gosman v. Gosman, 19 Md. App. 66, 83, 309 A. 2d 34, 43, rev’d on other grounds, 271 Md. 514, 318 A. 2d 821 (1974); Lott v. Lott, 17 Md. App. 440, 450, 302 A. 2d 666, 672 (1973). The factors which he should consider in awarding child support include the financial circumstances of the parties, their station in life, their age and physical condition, their ability to work, and the expense of educating the children. Bowis v. Bowis, 259 Md. 41, 43-44, 267 A. 2d 84, 86 (1970); Smith v. Smith, 227 Md. 355, 361, 176 A. 2d 862, 866 (1962); Flood v. Flood, 16 Md. App. 280, 285, 295 A. 2d 784, 787 (1972) ; Quinn v. Quinn, 11 Md. App. 638, 643-44, 276 A. 2d 425, 427, cert. denied, 262 Md. 749 (1971). The supporting parent’s financial ability and the needs of the children are the controlling factors. Rothchild v. Strauss, 257 Md. 396, 397, 263 A. 2d 511, 512 (1970); Wagshal v. Wagshal, 249 Md. 143, 147-48, 238 A. 2d 903, 906 (1968); Chalkey v. Chalkey, 240 Md. 743, 744, 215 A. 2d 807, 808 (1966); Richardson v. Richardson, 17 Md. App. 665, 667, 304 A. 2d 1, 8, cert. denied, 269 Md. 765 (1973); Fainberg v. Rosen, 12 Md. App. 359, 369, 278 A. 2d 630, 635 (1971).

Here the record shows that the father, age 51, is a medical doctor, holding the position of chief of urology at one of the United States Veterans’ Hospitals in Baltimore, who receives a salary of $35,799 annually plus a yearly pension of about $1,200. The mother, age 49, is a registered nurse who holds the position of staff development director at the Maryland General Hospital in Baltimore, in which capacity she is responsible for the selection and training of nursing and office personnel. She receives a salary of $12,700 a year. Both parties are in relatively good physical health although the mother previously suffered severe psychological difficulties, and is presently suffering from difficulties with her back. Since both the mother and the father are professionals it is obvious that they have each enjoyed a considerable amount of schooling beyond the high school level.

Yet the father, who agreed to support Pamela until age 21, has impeded her efforts to obtain a college education by refusing to pay either for her support or her college expenses. Simultaneously he brashly assured the trial court that he intended to provide and was financially able to provide a college education for his two younger daughters, Theresa and Priscilla, whose custody he then sought and, in fact, obtained. An uncontradicted expense statement submitted by the mother indicates that Pamela’s general living expenses have risen in recent years and that Pamela, who is living with her mother while attending Towson State College, now required $114 per month for the sole purpose of paying for her college tuition and other college associated needs.

There can be no question under the present circumstances that a college education is a necessary incident of Pamela’s station in life, the cost of which is, therefore, a part of the father’s legal obligation to support her until she reaches the age of 21. Wooddy v. Wooddy, 258 Md. 224, 231, 265 A. 2d 467, 472 (1970); Rhoderick v. Rhoderick, 257 Md. 354, 367-69, 263 A. 2d 512, 519-20 (1970); Smith, supra, at 227 Md. 360-61, 176 A. 2d 865-66; Fainberg, supra, at 12 Md. App. 368-69, 278 A. 2d 635. It appears that the father has the financial ability to carry out his legal obligation to support Pamela until she reaches the age of 21. Accordingly, we shall remand this case for the chancellor’s determination of an appropriate amount for Pamela’s support and college expenses until she becomes 21. Maryland Rule 1071.

Ill

The mother finally contends that the chancellor erred in failing to award her alimony. She maintains that the father deserted her and that since the separation of the parties and the destruction of the home was attributable solely to the fault of the father she was entitled to an award of alimony.

The Court of Appeals and this Court have recognized fault as one of the several factors to be considered in awarding alimony in divorce suits based on non-culpatory grounds. Rhoad v. Rhoad, 273 Md. 459, 465-66, 330 A. 2d 192, 195-96 (1975); Flanagan v. Flanagan, 270 Md. 335, 340-42, 311 A. 2d 407, 410-11 (1973); Renner v. Renner, 16 Md. App. 143, 159-60, 294 A. 2d 671, 679-80, cert. denied, 266 Md. 744 (1962). These courts have made it clear that a party seeking such an award, who is free from fault, is not precluded from obtaining alimony under the appropriate circumstances. It is equally clear that one whose wrongdoing consists of acts which are either adultery or abandonment is not entitled to alimony if such acts are the sole cause of the demise of the marriage, “except in rare instances where there exist extremely extenuating circumstances.” Rhoad, supra, at 273 Md. 465-66, 330 A. 2d 195; Flanagan, supra, at 270 Md. 341, 311 A. 2d 411; Flood v. Flood, 24 Md. App. 395, 399, 330 A. 2d 715, 718 (1975).

The Court of Appeals and this Court have consistently held that it is for the chancellor to assess the credibility of the witnesses and determine the weight to be given to the evidence and that his findings of fact are not to be disturbed on appeal unless clearly erroneous. Styka v. Styka, 257 Md. 464, 469, 263 A. 2d 555, 558-59 (1970); Herring v. Herring, 251 Md. 516, 518, 248 A. 2d 117, 118 (1968); Pitts v. Pitts, 181 Md. 182, 190, 29 A. 2d 300, 304 (1943); Colburn v. Colburn, 15 Md. App. 503, 513, 292 A. 2d 121, 127-28 (1972); Maryland Rule 1086. Here the chancellor found that the mother had deserted the father and was not entitled to alimony. The explanation of the events preceding the separation of the parties, offered by the father and others, was sufficient, if believed, to support a finding that the mother abandoned the father and was solely responsible for the destruction of the home. Accordingly, the chancellor did not err in denying the mother alimony.

Case remanded for a determination of an appropriate amount for the support of Pamela.

Order affirmed in all other respects.

Costs to be paid by appellee.

      . On 6 January 1974, a date after the filing of the bill of complaint and before the date of the hearing, Pamela, the eldest of the three children, had become 18 and, therefore, an adult. Code (1957, 1968 Repl. Vol., 1974 Cum. Supp.) Art. I, § 24 [hereinafter referred to as Art. I, § 24]. In a memorandum of law submitted to the chancellor, the mother contended that she was nonetheless entitled to support for Pamela since before the effective date of Art. I, § 24 the father had verbally agreed to support the children until they reached the age of 21.

      . Parol agreements for child support are not violative of the Statute of Frauds’ requirement that agreements not to be performed within a year must be in writing. It is possible that the child will die within the year so that the contract would be fully performed. Wilhelm v. Hardman, 13 Md. 140, 149 (1859); Ellicott v. Turner, 4 Md. 476, 487-91 (1853); Wooldridge v. Stern, 42 F. 311, 312-15 (8th Cir. 1890); Beattie v. Traynor, 49 A. 2d 200, 201-03 (Vt. 1946); 2 A. Corbin, Contracts, § 446, at 549 (1950).

      . Because the evidence regarding the conduct of the parties and the agreement is uncontradicted and uncontroverted and because the testimony of both parties establishes the existence of such an agreement, a finding to that effect is not dependent on the credibility of the witnesses. Thus, we find it unnecessary to remand the case, under Maryland Rule 1071, for a determination by the chancellor. See Donigan v. Donigan, 208 Md. 511, 520-21, 119 A. 2d 430, 434 (1956).

      . While some 30 states have lowered their age of majority since 1964, Wilner, Family and Juvenile Law — Section Report, 6 Md.Bar J., No. 2, at 38-41 (1974), only one state has considered the precise question here presented. In Blackard v. Blackard, 426 S.W.2d 471, 472-73 (Ky. 1968), the Court of Appeals of Kentucky held that where a separation agreement, as related to support payments, provided simply that the payments would be made “until further orders of the court” and did not specifically provide for payment of support until the child “reached the age of majority” there was no evidence of intent that the payments would continue to the then fixed age of majority. The court held that in the absence of any specific contractual intent that payments continue to age 21 the obligation for support ended when the child reached 18. For reasons set forth below we refuse to adopt the rationale and result in Blackard.

      . The virtue of consistent and uniform treatment of agreements and decrees relating to child support in effect before the effective date of an act lowering the age of majority has been recognized in a number of states. In such states, courts considering the question of the retroactive application of statutes lowering the age of majority upon agreements or decrees relating to child support, which contained words modifying phrases such as “child” or “children,” avoided the creation of distinctions between agreements and decrees including and excluding such words by the simple device of holding that such laws are not retroactive and do not apply to any decrees or agreements entered before the effective date of the act lowering the age of majority. Baker v. Baker, 498 P. 2d 315, 319 (Wash. 1972); Vicino v. Vicino, 298 A. 2d 241, 244 (Conn. Sup. 1972); Finn v. Finn, 294 So. 2d 57, 59 (Fla. App. 1974).


source: Caselaw Access Project

author: Davidson, J.,

license: Public Domain

text:
    BILLY RICH KIMBROUGH v. GIANT FOOD, INC. et al.
    [No. 570,
    September Term, 1974.]

      Decided June 5, 1975.

      The cause was argued before Orth, C. J., and Davidson and Melvin, JJ.

      George Molnar for appellant.

      James P. Salmon, with whom were Sasscer, Clagett, Channing & Bucher on the brief, for appellees.
   Davidson, J.,

delivered the opinion of the Court.

At about 7:25 a.m. on 13 February 1972 two store detectives employed by Giant Food, Inc., arrested the appellant, Billy Rich Kimbrough (Kimbrough), a security guard then employed as a night watchman, at a Giant store located on Annapolis Road in Prince George’s County, Maryland. The arrest took place after Kimbrough, having completed his shift as a night watchman, had left the Giant store and while he was walking toward his car carrying two bags full of grocery store items. On 12 May 1972 the District Court acquitted Kimbrough of the charge of shoplifting.

On 14 September 1973 Kimbrough filed suit in the Circuit Court for Prince George’s County against the appellees, Giant Food, Inc., and one of the store detectives (Giant), seeking, insofar as here relevant, damages for false arrest and malicious prosecution. After the presentation of all the evidence at a jury trial held on 9-10 May 1974, Judge Samuel W. H. Meloy found, as a matter of law, that Giant had probable cause to detain and arrest Kimbrough for shoplifting and, consequently, that no civil liability could attach. Accordingly, he granted a directed verdict in favor of Giant. On 13 May 1974 Kimbrough filed a motion for a new trial which Judge Meloy denied, after a hearing, on 4 June 1974. On that day final judgment was entered in favor of Giant. This appeal is from that final judgment.

Maryland Code (1957, 1971 Repl. Vol.), Art. 27, § 551A, provides, in pertinent part:

“Section 551 A. Shoplifting.
(a) What constitutes. — In any mercantile establishment, it is unlawful for any person 1) to remove any goods, wares or merchandise from the immediate place of display or from any other place within the establishment with the intent to appropriate the same to the use of the person so taking, or to deprive the owner of the use, or value, or any part thereof;
(c) Civil liability for detention or arrest. — A merchant or an agent or employee of the merchant who detains or causes the arrest of any person shall not be held civilly liable for detention, slander, malicious prosecution, false imprisonment, or false arrest of the person detained or arrested, whether the detention or arrest takes place by the merchant or by his agent or employee, if in detaining or in causing the arrest of the person, the merchant or the agent or employee of the merchant had at the time of the detention or arrest probable cause to believe that the person committed the crime of shoplifting as defined in this section.”

Under the common law want of probable cause has always been an essential element of an action for malicious prosecution. Thus, the existence of “probable cause” to believe that a crime had been committed by the plaintiff, on the part of the person initiating the criminal action, barred the recovery of damages against him. The same was not true with respect to the tort of false arrest or imprisonment. Under the common law, in a false arrest or imprisonment case, an arrest or detention without legal authority, with or without probable cause, rendered the arresting person liable for compensatory damages, and, if the act was inflicted maliciously or wantonly, for punitive damages. The existence of “probable cause” on the part of the person making an arrest could be considered for the purpose of mitigation of punitive damages but not for the purpose of defense. Article 27, § 551A (c), by its express terms, changed the common law so that the existence of “probable cause” for an arrest or detention with respect to the crime of shoplifting relieved a merchant from civil liability when false arrest or false imprisonment was claimed. As a result it is now the law that want of probable cause is an element not only of an action for malicious prosecution but also for an action for false arrest or imprisonment. In the case of false arrest and imprisonment, however, a merchant is relieved from civil liability only if the crime causing the arrest or detention is shoplifting as that crime is defined in the Act.

The question here is whether as a matter of law Giant, at the time of Kimbrough’s arrest, had probable cause to believe that he had committed the crime of shoplifting as defined by Section 551A (a) of the Act.

Kimbrough contends that in order to establish the crime of shoplifting as defined by the Act, it is necessary to show, among other things, that (1) a seller-customer relationship exists between the merchant and the person taking the goods; (2) that the merchandise is taken during business hours; (3) that the merchandise was taken from the display shelves of the merchant’s store; and (4) that the merchant was the owner of the goods taken. He further asserts that in order for the merchant to establish probable cause he must produce evidence to establish each of these elements.

We do not agree that all of the factors set forth by Kimbrough are requisite elements of the crime of shoplifting. Nor do we agree that a merchant must produce evidence to show each of the requisite elements of the crime of shoplifting in order to establish probable cause to believe that that crime was being committed.

The words of Art. 27, § 551A (a) are, for the most part, clear and unambiguous, thus requiring no interpretation or construction. The plain meaning of the words used is the best indicator of legislative intent. The statute says that when any person in a mercantile establishment removes any goods, wares or merchandise from a place within the establishment with the intent to appropriate the same to his own use, or to deprive the owner of the use thereof, the crime of shoplifting has been committed. There is no requirement that the person taking the goods be a “customer” of the establishment or that a “seller-customer” relationship exist; that the goods be taken during business hours; or that the merchandise be taken from the display shelves.

The words of the statute are not clear and unambiguous with respect to the question of whether “ownership” or “lawful possession” of the goods by the merchant is an essential element of the crime of shoplifting. Where the language of a statute is of doubtful meaning the courts will adopt a meaning which will best harmonize with the objectives and purposes of the enactment.

Giant contends that the use of the disjunctive word “or,” preceding the statute’s requirement of an intent to deprive the owner of the use or value of the goods, eliminates ownership or lawful possession as an essential element of the crime of shoplifting. We do not agree that by the use of that disjunctive connective the legislature intended so material and radical a departure from the traditional larceny concept that ownership or lawful possession in a person other than the taker is an essential element of the crime. The purpose of the Act was to help protect merchants from the theft of their goods. Under the construction urged by Giant, a theft of goods from a customer within a mercantile establishment would constitute the crime of shoplifting. We do not believe that this was intended by the legislature. Our view is supported by the fact that the items taken must be “goods, wares or merchandise” removed from a mercantile establishment, which indicates that the goods taken must be ones owned by or lawfully possessed by the merchant. Moreover, such an interpretation precludes the existence of a possible inconsistency with or repugnancy between the shoplifting statute and those larceny laws applicable to theft from a mercantile establishment. We therefore conclude that under Section 551A (a) ownership or lawful possession of goods by the merchant is an element of the crime of shoplifting.

Whereas ownership or lawful possession by the merchant is an element of the crime of shoplifting which must be proved in a criminal proceeding, it is not necessary for a merchant to prove either ownership or lawful possession in order to establish probable cause to believe that that crime had been committed. The rule of probable cause is a nontechnical conception, requiring less evidence for such belief than would justify conviction, but more evidence than that which would arouse a mere suspicion. Probable cause has been defined as:

“. . . a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves tc warrant a cautious man in believing that the accused is guilty . . . mere belief, however sincere, is not sufficient. There must be such grounds of belief founded upon actual knowledge of facts as would influence the mind of a reasonable person.”

Thus, in order for probable cause to exist, there must be facts known to the person making the arrest such as would influence the mind of a reasonable man to believe that the goods taken are owned or lawfully possessed by the merchant. At the time of the arrest the person making it is not required to know that the goods are owned or lawfully possessed by the merchant but only to have reason to believe that they are.

Kimbrough next contends that the trial court erred in granting a directed verdict for Giant. He maintains that the facts concerning the existence of probable cause, and in particular the question of the ownership of the goods, were disputed and that the question of probable cause should have been submitted to the jury.

Before the enactment of Section 551A (c), the burden of proof in malicious prosecution cases was, as we have said, on the plaintiff to show that the defendant instituted criminal proceedings against him without probable cause. Now, in addition, under Section 551A (c), the plaintiff must establish want of probable cause to believe that the crime of shoplifting had been committed in order to recover in an action for false arrest or imprisonment.

The existence of probable cause is a question to be determined as a matter of law by the court upon a given set of facts from which only one inference can be drawn. When the facts are disputed or more than one inference can be drawn from a given set of facts, the question must be submitted to the jury under adequate instructions. As accurately stated in Kennedy, swpra, the rule is:

“If the facts relied on to constitute probable cause, or the inferences to be drawn therefrom are clear and undisputed, the question is one of law for the court; but if the evidence or inferences to be drawn therefrom are disputed, it becomes a mixed question of law and fact.”

Additionally, when a trial court directs a verdict in favor of one of the parties, this Court must assume the truth of all credible evidence in the case tending to sustain the contentions of the party against whom the verdict is directed as well as all inferences of fact reasonably and fairly deducible therefrom. Thus, in determining whether a plaintiff has produced sufficient evidence to go to the jury, the evidence produced as well as all legal and permissible inferences drawable therefrom, must be considered in the light most favorable to the plaintiff. If such evidence and the inferences deducible therefrom lead to conclusions from which reasonable minds could not differ, then the issue is one of law for the court and not one of fact for the jury.

Viewing the evidence in this light, we narrate the facts as follows. On Saturday night, 12 February 1972, a store detective employed by Giant Food stationed himself at the employees’ entrance to the supermarket. At about 11:25 p.m. the detective observed Kimbrough enter the store and watched him punch in. The detective noted that Kimbrough had no packages with him when he entered the store. Because Kimbrough had no duties to discharge until midnight he walked from the store to a nearby People’s Drugstore to purchase some cigars. En route he noticed a Giant shopping cart which held two bags full of groceries that he assumed belonged to a customer who would shortly pick the items up. When Kimbrough returned from the drugstore he observed that the groceries were still in the cart. He wheeled the cart inside the Giant telling Mr. Young, a fellow security guard, what he had done. When no one claimed the groceries within the next five or ten minutes, he stamped the words “Giant Security” on each of the bags. He stapled cash register receipts which he found in the shopping cart, one in the amount of $.15 and the other in the amount of $.35, on top of each bag. He placed each of the bags under a desk at the front door, telling Mr. Young that, in case someone called for them, the packages could be found under the desk. Although the store detective was then in the store, he was making his rounds and was not standing at the front of the store.

At midnight all of the cash registers were closed. They remained closed throughout Kimbrough's shift at the store. Kimbrough made no purchases during the time that the cash registers were open. All of the employees and agents of Giant other than Kimbrough, including the store detective conducting the surveillance, left the store by 12:40 a.m. on Sunday morning. Kimbrough remained in the store alone. Throughout the night he performed his usual guard duties, remaining inside the store. At 6:00 a.m. the store detective, accompanied by an additional detective, returned to the store parking.lot, parked about 75 feet from the store entrance, and watched the store entrance through binoculars. At 7:20 a.m. Kimbrough was relieved by another security guard. Notwithstanding company policies which required that goods mislaid or lost by customers and recovered by store employees or agents be inventoried in a log book and then returned to the shelves for sale, if perishable, or kept by security, if non-perishable, and which prohibited employees and agents from taking lost or misplaced goods out of the store, he picked up the bags previously marked “Giant Security” and walked out the front door of the store toward his car. He was then arrested for shoplifting by the store detectives. Kimbrough thereafter accompaniéd the two store detectives back inside the Giant where the detectives searched him, unpacked' the bags and inventoried their contents. During the search they noted the $.15 and $.35 register receipts which had been stapled to the bags and looked for but did not find any other register receipts, either in the bags or upon Kimbrough’s person. The only explanation offered by Kimbrough was that he was planning to take the goods to the house of his supervisor. The detectives called the county police who came and arrested Kimbrough.

Having resolved all the factual disputes in favor of Kimbrough, we now turn to the question of whether more than one inference can be drawn from that given set of facts or whether that given set of facts leads to conclusions from which reasonable minds could not differ. Kimbrough contends that this evidence, viewed in the light most favorable to him, was legally sufficient to submit to the jury the question of a want of probable cause, on the part of the detectives making the arrest, to believe that the crime of shoplifting had been committed. He maintains that the evidence showed that the groceries taken did not belong to Giant but rather to a customer who had left them in a basket in front of the Giant store. He argues that the evidence establishes that the goods taken by him were abandoned; that he was the finder of those abandoned goods; and that he became first a bailee of those goods, and then their lawful owner. He concludes that under these circumstances Giant did not have probable cause to believe the crime of shoplifting had been committed.

The facts, however, do not support the conclusion that the goods taken by Kimbrough from the Giant were abandoned goods. The elements necessary to constitute an abandonment of goods by a purchaser were enumerated in Merryman v. Bremmer. There the Court of Appeals, quoting from Dorman v. Mayor and City Council of Baltimore said:

“Abandonment depends upon concurrence of two factors, (a) an intention to abandon and (b) some overt act, or some failure to act, which carries the implication that the owner does not claim or retain any interest in the subject matter. Time is not an essential element, but may be considered in connection with acts manifesting such an intention.”

Here the evidence shows that when Kimbrough discovered the two bags of groceries in the cart outside the Giant at about 11:25 p.m., he himself assumed that the customer intended to return to pick up the groceries. At about 11:35 p.m. when he placed the bags under a desk at the front door he still believed that the owner of the groceries intended to return for them. In the absence of any evidence to show when the goods were purchased, the failure of the owner to return within the next 20 minutes, before the closing of the store at midnight, can hardly be regarded as an adequate passage of time to establish either an intent to abandon the goods or a failure to act with respect to the goods from which such an intention might have been inferred. The evidence was simply insufficient to support a conclusion that the goods were abandoned.

In contrast, the facts do support the inference that the goods taken by Kimbrough from the Giant were mislaid property. Mislaid property is property which an owner intentionally places where he can again resort to it, and then forgets. Kimbrough’s testimony that he himself assumed that the groceries he saw in the cart had been purchased by a customer who would return to reclaim them is indicative of the fact that the evidence was sufficient to establish that the goods were mislaid property.

Larceny is a crime against possession. 2 Wharton’s Criminal Law and Procedure, § 497, at 169-70 (1957), states:

“The ownership of property by the victim of larceny may be either an absolute or a special interest in the goods. It is sufficient that he has any legally recognized interest in the property which entitles him to possession as against the defendant, or that he is in possession which is lawful as to the defendant. It is sufficient if he has possession as bailee or pledgee under a contract of bailment or pledge. Moreover, it is not even necessary that the person from whom the property is taken should have the right of possession as against the true owner.”

In Maryland it is recognized that the owner of premises where personal property is mislaid by an invitee has a right to possession against everyone except the true owner. When he takes possession he becomes a gratuitous bailee by operation of law, with a duty to use ordinary care to return it to the owner Thus, when a third person steals goods from a bailee having a special right of property therein, it may be treated as larceny either from the general owner or from the bailee and the indictment may lay the ownership in either.

Viewed in the light most favorable to Kimbrough, the facts establish that at the time of his arrest he left the grocery store having removed from it mislaid property, lawfully in the Giant’s possession, for which he had not paid. Under these circumstances it is clear that the sole inference to be drawn from the facts is that Giant had probable cause to believe that at the time of his arrest Kimbrough had committed the crime of shoplifting and to institute criminal proceedings against him. The only explanation offered by Kimbrough was so incredible, under the circumstances here, as to make a further investigation unnecessary. Kimbrough failed to produce evidence of want of probable cause sufficient to go to the jury. In sum, Section 551A (c) was applicable; Giant was thereby exempt from civil liability for false arrest and imprisonment as well as for malicious prosecution; and the trial court did not err in granting a directed verdict in favor of Giant.

Finally, Kimbrough contends that Article 27, Section 551A (c) is unconstitutional because it takes away “a property right guaranteed under the Federal and Maryland constitutions.” He offers no argument on either the facts or the law to support his position. His only citation of authority is to a footnote in a law review article, Kerr, supra, at 19 Md.L.Rev. 35 n. 53, in which the author merely noted that an- American Civil Liberties Union official at one time had suggested that shoplifting statutes might be unconstitutional.

Maryland Rule 1031 c 4 provides that the brief of an appellant to this Court shall contain argument in support of his position. The Court of Appeals has held that issues, even of constitutional dimension, can be waived for failure to comply with the procedural- requirements to- preserve the right to appellate review. Under the present circumstances the constitutional issue is not properly before this Court and will not be considered.

Judgment affirmed.

Costs to be paid by appellant.

      . Brewer v. Mele, 267 Md. 437, 440, 298 A. 2d 156, 159 (1972); Gladding Chevrolet v. Fowler, 264 Md. 499, 505, 287 A. 2d 280, 284 (1972); Banks v. Montgomery Ward & Co., 212 Md. 31, 38, 128 A. 2d 600, 604 (1957); Kennedy v. Crouch, 191 Md. 580, 586, 62 A. 2d 582, 585-86 (1948); Shipp v. Autoville Ltd., 23 Md. App. 555, 570-71, 328 A. 2d 349, 358 (1974).

      . Great Atlantic & Pacific Tea Co. v. Paul, 256 Md. 643, 654, 261 A. 2d 731, 738 (1970); Clark’s Brooklyn Park, Inc. v. Hranicka, 246 Md. 178, 186, 227 A. 2d 726, 730 (1967); Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173-74, 122 A. 2d 457, 460 (1956); Mahan v. Adam, 144 Md. 355, 365, 124 A. 901, 905 (1924); Fleisher v. Ersminger, 140 Md. 604, 620, 118 A. 153, 159 (1922); Lewin v. Uzuber, 65 Md. 341, 348, 349, 4 A. 285, 289 (1886); Shipp, supra, at 23 Md. App. 568-70, 328 A. 2d 357-58; see Roberts v. Hecht Co., 280 F. Supp. 639, 640 (D. Md. 1968).

      . Montgomery Ward & Co. v. Cliser, 267 Md. 406, 411-12, 415-16, 421, 298 A. 2d 16, 20, 22, 25 (1972); see Great Atlantic & Pacific Tea Co., supra, at 256 Md. 656-57, 261 A. 2d 739.

      . Chillum-Adelphi v. Prince George’s County, 269 Md. 486, 491, 307 A. 2d 481, 484 (1973); Scoville Service, Inc. v. Comptroller, 269 Md. 390, 393-95, 306 A. 2d 534, 537 (1973); Maryland National Bank v. Comptroller, 264 Md. 536, 541, 287 A. 2d 291, 294 (1972); Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52, 71, 225 A. 2d 294, 306 (1966); Secretary of State v. Bryson, 244 Md. 418, 425, 224 A. 2d 277, 281 (1966); Falcone v. Palmer, 242 Md. 487, 493-94, 219 A. 2d 808, 810-11 (1966); Pressman v. Barnes, 209 Md. 544, 558-59, 121 A. 2d 816, 823 (1956); League v. State, 1 Md. App. 681, 687, 232 A. 2d 828. 832 (1967).

      . In Maryland the word “mercantile” is defined as the “buying and selling of goods or merchandise, or dealing in the purchase or sale of commodities . . . habitually as a business.” American National Fire Insurance Co. v. Lapidus, 210 Md. 389, 395, 123 A. 2d 597, 601 (1956); see 27 Words & Phrases. “Mercantile,” at 95 (Perm. ed. 1961).

      . Fairchild Industries v. Maritime Air Service, Ltd., 274 Md. 181, 185-86, 333 A. 2d 313, 316 (1975); Sanza v. Maryland Board of Censors, 245 Md. 319, 340, 226 A. 2d 317, 328 (1967); Walker v. Montgomery County, 244 Md. 98, 102, 223 A. 2d 181, 183 (1966); Truitt v. Board of Public Works, 243 Md. 375, 394, 221 A. 2d 370, 382 (1966); Whitt v. Dynan, 20 Md. App. 148, 160-61 n. 13, 315 A. 2d 122, 130 n. 13 (1974); Chambers v. State, 6 Md. App. 339, 343, 251 A. 2d 30, 32, cert. denied, 255 Md. 740 (1969)

      . Sippio v. State, 227 Md. 449, 451, 177 A. 2d 261, 262 (1962); Richardson v. State, 221 Md. 85, 88, 156 A. 2d 436, 437-38 (1959); Peaper and Lowe v. State, 14 Md. App. 201, 211, 286 A. 2d 176, 181, cert. denied, 409 U. S. 987, 93 S. Ct. 342 (1972); Prior v. State, 10 Md. App. 161, 167, 268 A. 2d 563, 567 (1970); Melia v. State, 5 Md. App. 354, 360-61, 247 A. 2d 554, 558 (1968); Anderson v. State, 3 Md. App. 85, 89, 237 A. 2d 813, 816 (1968), cert. denied, 393 U. S. 1106, 89 S. Ct. 912 (1969).

      . See Comment, Survey and Analysis of Criminal and Tort Aspects of Shoplifting Statutes, 58 Mich.L.Rev. 429, 433 (1960); Kerr, Shoplifting and, the Law of Arrest: A Problem in Effective Social Legislation, 19 Md.L.Rev. 28, 37-38 (1959); Annotation: Validity, construction and effect of statutes establishing shoplifting as specific criminal offense, 90 A.L.R.2d 811, 811-12 (1963).

      . See Saunders v. State, 8 Md. App. 143, 148, 258 A. 2d 776, 779 (1969).

      . Nilson v. State, 272 Md. 179, 184, 321 A. 2d 301, 304 (1974); Mobley and King v. State, 270 Md. 76, 81, 310 A. 2d 803, 806-07 (1973), cert. denied, 416 U. S. 975 (1974); Williams v. State, 14 Md. App. 619, 626, 287 A. 2d 803, 807 (1972); Terrell v. State, 3 Md. App. 340, 359, 239 A. 2d 128, 138 (1968).

      . Gladding Chevrolet, supra, at 264 Md. 505-06, 287 A. 2d 284; Banks, supra, at 212 Md. 39, 128 A. 2d 604; Shipp, supra, at 23 Md. App. 573, 328 A. 2d 359-60.

      . Comi v. State, 26 Md. App. 511, 519, 338 A. 2d 918, 924; Anglin v. State, 1 Md. App. 85, 90-91, 227 A. 2d 364, 366-67, cert. denied, 246 Md. 755 (1967).

      . Cliser, supra, at 267 Md. 416, 298 A. 2d 22; Shipp, supra, at 23 Md. App. 573-74, 328 A. 2d 359-60.

      . 191 Md. 590-91, 62 A. 2d 587.

      . See also W. T. Grant Co. v. Guercio, 249 Md. 181, 187, 238 A. 2d 855, 858-59 (1968).

      . Wood v. Abell, 268 Md. 214, 231, 300 A. 2d 665, 673 (1973); Durante v. Braun. 263 Md. 685, 689, 284 A. 2d 241, 243 (1971); Rusnack v. Giant Food, Inc., 26 Md. App. 250, 252, 337 A. 2d 445, 447; Mike v. Service Review, Inc., 19 Md. App. 287, 298-99, 310 A. 2d 585, 592 (1973); Pratt v. Coleman, 14 Md. App. 76, 78, 286 A. 2d 209, 210-11 (1972).

      . Kaplan v. Baltimore & Ohio Railroad Co., 207 Md. 56, 62, 113 A. 2d 415, 418 (1955); Stitzel v. Kurz, 18 Md. App. 525, 531, 308 A. 2d 430, 434, cert. denied, 269 Md. 755, 761 (1973); Buchanan v. Galliher, 11 Md. App. 83, 87, 272 A. 2d 814, 817, cert. denied, 261 Md. 722 (1971).

      . 250 Md. 1, 11, 241 A. 2d 558, 565 (1968).

      . 187 Md. 678, 684, 51 A. 2d 658, 661 (1947).

      . Mickey v. Sears, Roebuck & Co., 196 Md. 326, 330, 76 A. 2d 350, 352 (1950); Rofrano v. Duffy, 291 P. 2d 848, 850 (2d Cir. 1961); Goss v. Bisset, 411 S.W.2d 50, 53 (Ky. 1967); Schley v. Couch, 284 S.W.2d 333, 335-36 (Tex. 1955); Dolitsky v. Dollar Savings Bank, 118 N.Y.S.2d 65, 68 (N.Y.Mun.Ct.1952); Jackson v. Steinberg, 200 P. 2d 376, 377 (Ore. 1948).

      . Mickey, supra, at 196 Md. 330, 76 A. 2d 352; see Norris v. Camp, 144 F. 2d 1, 3 (10th Cir. 1944); Silcott v. Louisville Trust Co., 265 S. W. 612, 613-14 (Ky. 1924); 1 Am.Jur.2d, Abandoned, Lost and Unclaimed Property, §§ 23, 30 (1962).

      . Richardson, supra, at 221 Md. 88, 150 A. 2d 437-38; Loker v. State, 2 Md. App. 1, 24, 233 A. 2d 342, 357 (1967), aff'd, 250 Md. 677, 245 A. 2d 814 (1968), cert. denied, 393 U. S. 1082, 89 S. Ct. 862 (1969); 50 Am.Jur.2d, Larceny, § 132 (1970).

      . See Montgomery Ward & Co. v. Keulemans, 23 Md. App. 81, 94-99, 326 A. 2d 45, 54-56 (1974).

      . Hyde v. State, 228 Md. 209, 218, 179 A. 2d 421, 425 (1962), cert. denied, 372 U. S. 945, 83 S. Ct. 938 (1963); State Roads Commission v. Halle, 228 Md. 24, 31, 178 A. 2d 319, 323 (1962).

      . Maryland Rule 1031 e 4- f; see McMillan v. State, 3 Md. App. 699, 702, 240 A. 2d 765, 767, cert. denied. 251 Md. 750 (1968).


author: Gilbert, J.,

text:
    CONNIE M. HOFFER v. ANTHONY DE CRENZO, INCORPORATED
    [No. 930,
    September Term, 1974.]

      Decided June 5, 1975.

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

      Richard R. Beauchemin, with whom were Herbert J. Arnold, Joseph Y. Brattan and Arnold, Beauchemin & Huber. P. A., on the brief, for appellant.

      James D. Peacock and E. Charles Dann, Jr., with whom were Semmes, Bowen & Semmes on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

The appellant, Connie M. Hoffer, brought suit in the Superior Court of Baltimore City on January 13, 1969 against the appellee, Anthony De Crenzo, Incorporated. The suit alleged that because of the negligent construction and installation of a “gondola”, the appellant was severely injured on January 14,1966 when the gondola “collapsed and fell on top of the body of the” appellant. We were advised on oral argument that appellant had been determined by the Workmen’s Compensation Commission to be disabled totally and permanently.

After the litigation had been commenced in the Superior Court, the appellee filed its plea on February 3, 1969, and the case was entered on the consolidated trial docket on February 6, 1969. The case was not tried during the succeeding three years. The docket entries under date of July 13, 1972 reveal, “Notice sent in accordance with Supreme Bench Rule 528 L.” Section (1) of that rule provides:

“(1) Each year within not less than thirty days and not more than sixty days prior to the beginning of the September Term of Court, the Assignment Commissioner shall return to the Clerk of the Court where the same was instituted all cases which have been on the Consolidated Trial Docket for a period of two years or more. Immediately upon receipt thereof the Clerk of the Court shall notify all counsel of record at their respective addresses, as shown on the pleadings, served in the manner provided by Maryland Rule 306, that an order of dismissal for lack of prosecution will be entered after the expiration of thirty days unless, prior to the expiration of such period, a motion is filed pursuant to subsection (3); in the event counsel has died or his appearance has been stricken pursuant to Maryland Rule 125 and the party represented is not represented by another attorney of record, or is proceeding in proper person, the Clerk shall send the notification required by this Section to such party at the address shown on the pleadings.”

Following notice being sent to counsel, the appellant moved to restore the case to the trial docket, and an order of court dated September 1, 1972, in which the case was set for trial on December 4, 1972, was filed. We observed that the date fixed for trial was within the first term of court after the restoration of the case to the trial docket. The issue was not tried on December 4, 1972, instead a series of petitions and orders thereon rescheduling the trial date was commenced. The case was carried forward from term to term until November 13, 1974 when appellee moved to dismiss pursuant to Rule 528 L. The motion was resisted and a hearing was held before Judge James W. Murphy who determined that the case had to be dismissed. Accordingly, Judge Murphy granted the appellee’s motion.

This is the second time within the year that we have been called upon to construe Supreme Bench Rule 528 L. The rule provides that any case that has been on the trial docket for two years or more shall be entered as dismissed after thirty days unless, prior to the expiration of that time, a motion is filed to restore the case to the trial docket.

Subsections (4) and (6) of Supreme Bench Rule 528 L provide:

“(4) Any order issued by the Assignment Judge of the Supreme Bench restoring a case to the Consolidated Trial Docket pursuant to subsection (3) of this Rule shall therein set a right-of-way date for the trial of said case, which date shall not extend beyond the expiration of the next Term of Court; except that where the Assignment Judge is satisfied that it has been impossible to try said case on the date assigned, or a day subsequent thereto within that Term, because of the pendency of other cases on the Consolidated Trial Docket, he may assign a trial date not beyond the next subsequent Term of Court.
(6) Any case not tried or otherwise finally disposed of within the term of Court following the date of issuance of an order replacing a case on the consolidated trial docket pursuant to subsections (3) and (4) of this rule shall under no conditions be ordered reinstated by any order of Court or otherwise and shall be returned by the Assignment Commissioner to the Clerk of the Court in which the case was instituted and shall be forthwith marked dismissed by the Clerk.” (Emphasis supplied).

This Court in Chase v. Jamison, 21 Md. App. 606, 320 A. 2d 580 (1974) had before it a case wherein the rule was employed, and a “motion to restore the case to the trial docket was filed.. . . The motion was heard and an order was entered restoring the case and setting ... [a] final trial date.” The case was not tried on the “final trial date”, which occurred in the September Term, 1972, nor was it reached for trial in the January Term, 1973. In the words of Judge Powers, speaking for this Court at 21 Md. App. 610, the case then, “reached the end of its rope.” Judge Powers pointed out that:

“The court’s discretionary control over the case extended for a period in excess of three [] years, plus the span of two more terms of court. We think that the purpose and the effect of Rule 528L are to fix an outside limit on the time for termination of litigation, beyond which limit the reasons why a case has not been terminated become irrelevant, the case is removed from the area of judicial discretion, and the only action permitted is the application of the self-executing provisions of the rule, willy-nilly, however harsh or arbitrary the result may be.”

In the case now before us counsel for the appellant seek to distinguish their cause from Chase. They argue:

“It should be noted that in the time span within a nine month period prior to the date set for trial of this case . . . both Plaintiff and Defendant’s counsel had been engaged in continuing discovery proceedings and that Depositions were, in fact, taken on the day before the hearing on the Motion to Dismiss filed herein. Additionally, and more significantly, it should be noted that during that same period of time, all counsel had full knowledge as to what facts were transpiring during that time span and, in fact, negotiations were being conducted, an offer having been made by Appellee’s counsel to the Appellant to settle her claim.”

We recognize that both the appellant and the appellee proceeded to carry forward the instant case from term to term, apparently oblivious to the strict requirements of Rule 528 L. Indeed, it was not until after Chase v. Jamison, supra, that appellee moved to dismiss, and in so doing bottomed its motion on Chase.

We are cognizant that Rule 528 L may in some cases produce harsh results, but the Rule is founded with,

“. . . a clear eye on justice . . . which must be always available to litigants who diligently seek it .... To achieve it, those responsible for running the machinery of the court system, the means to that end, must be ever watchful that the machinery does not become fouled by cases which impair the system’s ability to achieve its broad goal. Supreme Bench Rule 528L is one way of keeping watch.” Chase v. Jamison, supra at 611.

Chase v. Jamison, supra, is dispositive of the case at Bar. It is to be observed that Judge Cole’s order of January 5, 1973, see n. 3, supra, set the case for trial on April 4, 1973, a date falling within the second term following the restoration of the case to the trial docket. See Supreme Bench Rule 528 L(4) and (6). Trial not having occurred within the second term following the restoration of the case to the trial docket, the matter was terminated, and no amount of judicial orders, n. 3, supra, or agreements of counsel, could resurrect the court’s control over the case. In short, when discretionary control was terminated, “All the king’s horses and all the king’s men couldn’t. . . [revive it] again.”

Judgment affirmed; costs to be paid by appellant.

      . A health and beauty aid counter.

      . The terms of court before all courts of the Supreme Bench begin on the second Monday of January, May and September of each year. See Supreme Bench Rule 21.

      . The docket entries reveal:
      September 1,1972: Order of Court setting case for trial on December 4, 1972 (Cole, J.).
      January 5,1973: Plaintiffs petition to extend time for trial until April 4,1973. Order of Court granting same (Cole, J.).
      June 25, 1973: Plaintiffs petition to extend time for trial. Order of Court granting same and setting case for trial on October 10, 1973 (Thomas, J.).
      October 12,1973: Order that case be continued to be rescheduled sub-to December (Carter, J.).
      June 18,1974: Order that case be tried on December 2,1974 (Poster, C. J.).

      . Prior to September 9,1974 the time period was three years.

      . But see n. 4, swpra, and current Supreme Bench Rule 528 L(l).


author: Menchine, J.,

text:
    LEE ANDREW McMORRIS v. STATE OF MARYLAND
    [No. 932,
    September Term, 1974.]

      Decided June 5, 1975.

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

      Joseph C. Wich, Jr., Assigned Public Defender, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William E. Brannan, State’s Attorney for Baltimore County, and John F. Hanson, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Lee Andrew McMorris was indicted on July 22, 1974 on three counts charging: (1) conspiracy on 23 January 1973 with Herman Green and Walter Smith to distribute heroin; (2) conspiracy on 23 January 1973 with Herman Green and Walter Smith to violate the controlled dangerous substance laws; and (3) distribution of heroin. Brought to trial under Count 2 and Count 3 in the Circuit Court for Baltimore County, McMorris was convicted by a jury as to both. He was given a general sentence of eight years imprisonment, consecutive with a sentence then being served for an unrelated offense.

On appeal he contends:

1. That the court’s charge was erroneous;
2. That his trial counsel was incompetent;
3. That the court and jury were prejudiced against him;
4. That his sentence was cruel and unusual, and
5. That the trial court erred in rejecting his motion for judgment of acquittal, in that:
(a) the evidence was not legally sufficient to convict for either offense, and
(b) the prosecution for conspiracy was barred by the statute of limitations.

The first four contentions, wholly without merit, may be disposed of summarily. No exception to the court’s charge was taken. The suggested error is not before us. Maryland Rule 1085. The suggested incompetency of trial counsel was not raised below. It thus is not an issue on direct appeal. White v. State, 17 Md. App. 58, 299 A. 2d 873. The suggested prejudice of court and jury is without factual support of record. The sentence imposed was well below the maximum authorized by law. There is nothing in the record to show that it was dictated by passion, prejudice, ill will or other unworthy motive. Minor v. State, 6 Md. App. 82, 91, 250 A. 2d 113, 118.

Sufficiency of the Evidence

There was evidence tending to show the following:

On January 23, 1973, Officer Kenneth Redding, in an undercover assignment, was in a parked automobile with two other persons. The appellant approached the vehicle and asked “if they were looking,” street terminology meaning, “are you looking for drugs.” Receiving an affirmative answer, appellant then said: “I have a contact and we’ll see what we can do for you. ” (Emphasis supplied). Appellant thereupon called Herman Green to the car. Appellant there told Green that Officer Redding was “looking” for “smack” (Heroin). Appellant previously had informed Redding that the cost could be $12.00 per bag. Green thereupon gave instructions that the vehicle be driven to another location and the appellant entered the Redding vehicle for that movement. Green then talked to Walter Smith. Later, Green approached the Redding vehicle at its new location, collected $72.00 from Redding, and then walked over to and conversed with Smith. Smith thereupon approached the Redding vehicle and handed six glassine bags containing white powder to Redding. The white powder was shown to be heroin. The Redding vehicle then returned to its initial parking site, where the appellant alighted from the vehicle.

We defined the offense of conspiracy in Wilson, Valentine and Nutter v. State, 8 Md. App. 653, 671, 262 A. 2d 91, 101, as follows:

“* * * Conspiracy is a combination by two or more persons to accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means.”

We pointed out in Silbert v. State, 12 Md. App. 516, 528, 280 A. 2d 55, 63:

“* * * it is not necessary that there be any formal agreement manifested by formal words, written or spoken; it is enough if the parties tacitly come to an understanding in regard to the unlawful purpose and this may be inferred from sufficiently significant circumstances.”

The evidence, summarized above, was legally sufficient to prove the conspiracy of the accused with Green and Smith beyond a reasonable doubt.

The evidence showed as well that heroin was in fact distributed. Although appellant was not shown to have been in actual possession of the drug, he was an aider and abettor in its distribution and thus responsible as a principal in the second degree. Handy v. State, 23 Md. App. 239, 326 A. 2d 189. A criminal conspiracy is distinct from the substantive crime and when the latter actually is carried out, separate offenses are shown. Jones v. State, 8 Md. App. 370, 259 A. 2d 807.

Limitations

Undisputed in the record are the facts: (a) that the conspiracy began and ended on January 23, 1973, and (b) that appellant was indicted for conspiracy on July 22, 197L Appellant contends that the statute of limitations was a bar to his conviction and that his motion for a judgment of acquittal should have been granted upon that ground.

It was early held that the crime of conspiracy was a misdemeanor subject to the statute of limitations. Archer v. State, 145 Md. 128, 125 A. 744. Its status as such a misdemeanor was held not to be affected by passage of Article 27, § 38, whereby the permissible sentence for conspiracy had been made coequal with punishment for the offense one conspired to commit. State v. Michael, 2 Md. App. 750, 237 A. 2d 782.

The statute of limitations in effect on the date of the conspiracy (January 23, 1973) was Article 57, § 11 of the Annotated Code of Maryland (1972 Replacement Volume) and reads, in appropriate part, as follows:

“No prosecution or suit shall be commenced for any fine, penalty or forfeiture, or any misdemeanor, except those punished by confinement in the penitentiary, unless within one year from the time of the offense committed; * * *”

The statute in effect on the date of the indictment (July 22, 1974) appears in Courts & Judicial Proceedings Article § 5-106 and reads, in appropriate part, as follows:

“§ 5-106. Prosecution for misdemeanor.
(a) One Year. — Except as provided by this section, a prosecution for a misdemeanor not made punishable by confinement in the penitentiary by statute shall be instituted within one year after the offense was committed.”

We perceive no legislative intent to change the effect and meaning of the statute of limitations in the recodification. Thus the decisions in Archer and State v. Michael, both supra, continue viable, so that prosecution for conspiracy will be barred unless commenced or instituted within one year from the date of the end of the conspiracy. Mills v. State, 12 Md. App. 449, 461, 279 A.2d 473, 481-82, certiorari denied 92 S. Ct. 2411, 406 U. S. 967, 32 L.Ed.2d 666.

Appellant contends that because the conspiracy began and ended on January 23, 1973 and McMorris was not indicted until July 22, 1974, eighteen months later, his prosecution was barred by the statute. We hold that under the facts of this case, the contention is without merit.

The record shows that an arrest warrant was issued out of the District Court of Maryland for Baltimore County by a judicial officer on August 21, 1973 — within a year of the offense. The record also shows that immediate efforts to serve the warrant and effect the arrest of McMorris were ineffectual. The warrant then was delivered to the fugitive squad of Baltimore County Police Department but was not actually served by Detective Sergeant Gomeringer until June 14, 1974. As previously noted, McMorris was indicted on July 22,1974.

In Wharton, Criminal Law and Procedure (Anderson, 1957) § 184, it is said at 425-26:

“Statutes of limitation are suspended when proceedings are begun or brought against the defendant, but the statutes differ as to what action is to be taken against the defendant. The statutes may be classified in three groups: (1) statutes which provide that an indictment must be found and returned within a specified time after the commission of the offense charged; (2) statutes which do not refer to the time of the finding of an indictment or the filing of information, but merely provide that prosecutions must be commenced within a specified time; and (3) statutes which provide that if an indictment is quashed, set aside, dismissed, or otherwise fails, and a new indictment is found or a new information is filed, the time elapsing between the return or filing of the two indictments or informations, respectively, shall not be counted as part of the period of limitations; or that a new indictment may be found and returned or a new information filed within a specified time after the first indictment or information is quashed, or otherwise disposed of.
“Under statutes which merely require an indictment or information to be found or filed within a specified time after the commission of an offense, the finding of an indictment and its return by the grand jury or the filing of an information within the specified time prevents a bar of the prosecution. Sometimes the first step taken against the defendant is a preliminary proceeding, and when such is the case the prosecution is commenced, within the scope of a class (2) statute, at the time a complaint is laid before a magistrate and a warrant of arrest issued, if the defendant is not already in custody. On the other hand, action by the grand jury or the filing of an information is sometimes the first step in a criminal case, and in that event the prosecution is commenced by the finding and return of the indictment, or the filing of the information, and the running of the statute is thereby stopped.” (Italics supplied).

In 21 Am.Jur.2d Criminal Law, § 161 (1965), the general rule governing the tolling of the statute of limitations is thus stated:

“§ 161. Generally.

The statute of limitations runs from the time the offense is committed until the prosecution is commenced, unless some intervening act occurs to interrupt it. If the finding of an indictment or the filing of an information is the first step in a criminal case, the prosecution is commenced by the finding and return of the indictment or the filing of the information, and the running of the statute is thereby stopped. But when, as is usually the case, there are preliminary proceedings, the prosecution is commenced and the statute is tolled, at the time a complaint is laid before a magistrate and a warrant of arrest is issued; * * *” (Italics supplied).

The decided cases clearly justify the texts. In State v. Emanuel, 153 So. 2d 839 (D. Ct. of App. of Fla., 2d Dist. 1963), the Court held that the filing of a warrant, sufficient for arrest purposes when placed in the hands of a proper officer for service, commenced the State’s prosecution of a crime and tolled the statute of limitations. See also: State v. Hickman, 189 So. 2d 254 (D. Ct. of App. of Fla., 2d Dist. 1966), cert. den. S. Ct. Fla. 194 So. 2d 618.

In State v. Hemminger, 502 P.2d 791 (S. Ct. Kan. 1972) it was said at 795: “This Court has repeatedly said that a prosecution is commenced by the filing of a verified complaint and the issuance of a warrant in good faith. The commencement of the prosecution, as that phrase is used in K.S.A. 62-503, does not depend upon the warrant being served.”

To the same effect is: Jarrett v. State, 292 P. 888 (Crim. Ct. of App. of Okla. 1930).

The Maryland statute clearly falls within the class 2 genre used in Wharton, supra. The precise question here in issue has not been the subject of appellate consideration in Maryland. There have been decisions, however, persuasive to a conclusion that under the wording of the present and prior Maryland statutes, the obtention of a valid warrant will toll the statute.

It is plain that an indictment is not necessarily the action required to toll the statute. In State v. Kiefer, 90 Md. 165, 44 A. 1043, wherein the indictment had been found more than one year after the date of the misdemeanor but presentment had been filed unthin a year, the prosecution was held to be timely commenced. Judge Fowler, speaking for the Court, after analogizing the criminal with the civil aspects of the statute of limitations, said at 174-75 [1044-45]:

“* * * it would seem to be clear that the commencement of such a [civil] suit must be the time when it is docketed whether the summons be issued or not. Banks v. Lyles, 10 G. & J. 326; Logan v. State, 39 Md. 177. We see neither objection to, nor difficulty in applying the same rule to both classes of proceedings mentioned in sec. 10 [11], namely, that the first act which clearly indicates an intention to proceed, if it be made public and a matter of record in the proper Court, shall be held to be the commencement of the prosecution or of the suit as the case may be.” (Emphasis added).

Although the Court restricted its holding to the filing of a presentment — the sole requisite to its decision — the language used strongly indicates that Maryland would follow the Wharton rule, supra.

Again in Hahn v. State, 188 Md. 166, 52 A. 2d 113, the appellant was indicted for bastardy more than 3V2 years after the child’s birth. No money ever had been paid for the child’s support. The statute of limitations for the offense then was two years. The record showed that an arrest warrant had been issued within one year after the child’s birth, but because the accused was in the armed forces outside the State it had not been served. Although the appellant won a reversal of his conviction and sentence upon the technical ground that issuance of the warrant had not been proved by competent evidence, a new trial was awarded to allow the State to attempt to supply the evidentiary deficit and thus to demonstrate that the prosecution had been commenced within the period of the statute of limitations. It is true that the bastardy statute in express terms provided that proceedings might be started before a Justice of the Peace upon the written oath of the woman but such procedure is quite like the present method for initiation of most criminal proceedings — namely, the issuance of a charging document by the District Court, now a court of record.

We hold that issuance of the arrest warrant by the District Court tolled the statute of limitations. The prosecution of McMorris was timely.

Judgments affirmed.

      . The Revisor’s Note states: “Subsections (a) and (b) are new language derived from Article 57, § 11. This section applies to all misdemeanors, including common law misdemeanors but excluding misdemeanors made punishable by imprisonment in the penitentiary by statute.”

      . The warrant conformed fully to the pertinent requirements of Maryland District Rule 706 a, b, c, and e.
      “RULE 706. CHARGING DOCUMENT.-
      a. APPLICATION FOR WARRANT OR SUMMONS.
      An application for an arrest warrant or summons to a defendant shall be made in writing, signed by the applicant upon oath before a judicial officer.
      b. INQUIRY BY JUDICIAL OFFICER.
      At the time an application is made for an arrest warrant or summons, the judicial officer may make inquiry concerning the defendant’s residence, employment, family relationships, past history of response to legal process, and past criminal record.
      c. ISSUANCE.
      1. Warrant.
      Except where a judicial officer is required or permitted to issue a summons, an arrest warrant shall be issued if it appears to the issuing officer upon application pursuant to section a of this Rule that there is probable cause to believe that a crime has been committed and that the defendant has committed it. Before issuing a warrant, the judicial officer may seek the advice of the State’s Attorney with respect to the offense charged. A warrant may issue to any officer authorized by law to execute it.
      e. CONTENTS OF CHARGING DOCUMENTS.
      An arrest warrant shall command that the defendant be arrested and brought before a judicial officer. A summons shall (i) command a defendant to appear in court at a stated time and place, (ii) inform him that upon his failure so to appear a warrant for his arrest shall issue, and (iii) contain a statement of his promise to appear at the time and place specified and a space for his signature to such promise. A warrant, summons and statement of charges shall also contain:
      (1) the name of the defendant, or, if his name is unknown, any name or description by which he can be identified with reasonable certainty; and
      (2) a plain, concise and definite statement of essential facts constituting each offense charged, and each formal charge placed against the defendant; and
      (3) the identity of the person upon whose application the charging document has been issued; and
      (4) the date, time and place of execution or service, when such has been made; and
      (5) the signatures of the officers issuing and executing the warrant or serving the summons, or the officer preparing the statement of charges; * * *”