author: Thompson, Jm

text:
    THE STEFANOWICZ CORPORATION v. RICHARD E. HARRIS et ux.
    [No. 942,
    September Term, 1976.]

      Decided May 16, 1977.

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

      William J. Rubin, with whom were James J. Dawson and Cable, McDaniel, Bowie & Bond on the brief, for appellant-eross/appellee.

      Wilson K. Barnes, with whom was Marvin H. Schein on the brief, for appellees-cross/appellants.
   Thompson, Jm

delivered the opinion of the Court.

When this case originally came for trial in the Circuit Court for Baltimore County the bill of complaint was summarily dismissed. On appeal this Court reversed because of the erroneous summary nature of the procedure. We did not reach the merits of the case. See Harris v. Stefanowicz Corp., 26 Md. App. 213, 337 A. 2d 455 (1975). After a second trial in the Circuit Court for Baltimore County, a decree awarding $63,615.00 was entered in favor of the appellees and cross-appellants, Richard E. Harris, et ux. The Stefanowicz Corporation, the appellant, presents a multi-faceted attack on that decree.

On February 23, 1972, the appellees, Richard E. Harris and Joan Harris, his wife, entered into a contract to purchase from the appellant, The Stenfanowicz Corporation, a “Queen Anne” model dwelling house to be constructed on Lot 21, Block R in Stefanowicz’s Ravenview (Spring Lake) Development in Baltimore County. The “Queen Anne” was described as “now existing on Lot 15, Block M in said development.” According to the contract, the lot was valued at $15,000, the house at $39,000 and various extras at $8,375, totalling $62,375. At the time the contract was executed the Harrises, appellees, accompanied by their real estate agent, J. Thomas Lutz, met with Wanda Cosgrove, a sales agent for Grempler Realty, the broker for the appellant. Mrs. Cosgrove called Walter Stefanowicz of The Stefanowicz Corporation to discuss an acceptable settlement date to put in the contract, and Mr. Stefanwicz indicated that June 30, 1972, “sounds all right.” Thereafter, The Stefanowicz Corporation signed the contract.

On May 16, 1972, the Harrises’ counsel, Marvin H. Schein, at the direction of the Harrises, directed a letter to The Stefanowicz Corporation, the full text was as follows:

‘This office represents Mr. and Mrs. Richard E. Harris with regard to your contract to building the dwelling on the above-captioned lot.
“The contract calls for completion and settlement on or before June 30, 1972. The buyers have a mortgage commitment that expires August 22, 1972. Please note that we must have settlement prior to August 22, 1972.
“Whereas Mr. Harris states you have not broken ground yet, we request that since the deadline is rapidly approaching you begin construction without delay.” (Emphasis in original letter).

Mr. Stefanowicz did not reply to the letter of May 16, because “it didn’t call for a reply” and “because there was no need for any reply.” He assumed that Mr. Schein had authority to extend the expected settlement date for his clients, and he understood the letter as extending the time for delivery of the house to August 22.

On July 7, 1972, Mr. Schein again wrote to The Stefanowicz Corporation, the full text of which follows:

“Whereas no response has been received to our letter of May 16, 1972 regarding the above-captioned property, and the expiration date for your performance has passed, please be advised that Mr. and Mrs. Richard E. Harris hereby cancel their contract and request refund of the $3,000.00 heretofore paid.
“Unless your refund of $3,000.00 is received within one week from the date of this letter we are instructed to institute prompt suit not only for the down-payment but also for damages resulting from your inability and failure to perform.” (Emphasis in original letter).

As found by the trial judge, “Stefanowicz did not reply to the July 7, 1972, letter as he felt, under the terms of the contract, no response was necessary. He felt nothing was due to Harris, and stopped work. He instructed Mr. Lee of M.C.A. Company (Stenfanowicz’s Company Engineers), to slow down.”

On September 11, 1972, this suit was brought on the contract and the Harrises, appellees, prayed relief as follows:

“A. ORDER the Defendant to execute to the Plaintiffs a sufficient conveyance of a good and merchantable title of said property at and for the purchase of $15,000.00, adjusted by the $3,000.00 deposit being held by the Defendant with all proper guaranties and warranties, free of liens and encumbrances, all pursuant to the settlement apportionment terms stated in the contract.
“B. ORDER the Defendant to promptly restore the real estate to its condition at the time the contract was negotiated or pay, in the alternative, to the Plaintiffs the sum of $10,000.00 as damages or such sum as the Court may deem appropriate under the circumstances, said restoration to be completed within a reasonable time from the date of this Honorable Court’s Order.
“C. ORDER the Defendant to pay unto the Plaintiffs such sum of money as would represent the damages suffered by the Plaintiffs in their loss of the benefits of their bargain.
“D. ORDER the Defendant to pay unto the Plaintiffs such other interest, costs and damages as are allowable by law.
“E. GRANT unto the Plaintiffs such other and further relief as the nature of their cause may require.”

In an amended answer filed February 5, 1974, the appellants, The Stefanowicz Corporation, stated in part as follows:

“15. That further answering said Complaint, Defendant avers that:
“(a) Plaintiffs breached the contract between the parties when, on July 7, 1972, they communicated with Defendant through their authorized agent and attorney a demand for refund of their $3,000 deposit, which demand was not authorized by either the contract or by law. A copy of said demand letter is attached hereto and made a part hereof as Answer Exhibit No. 1;
“(b) Plaintiffs cancelled the subject contract by letter dated July 7, 1972, copy of which is attached hereto and made a part hereof as Answer Exhibit No. 2; and
“(c) Notwithstanding said breach and cancellation, Defendant is presently constructing on the subject premises a Queen Anne dwelling house in substantial accordance with the provisions of the Contract of Sale between the parties on February 3, 1972 and Defendant stands ready, willing and able to convey said premises, upon completion, (approximately April 1, 1974) to the Plaintiffs at and for the contract price, with such adjustments therefrom as may be appropriate for minor variations from contract specifications.”

In his opinion, the trial judge summarized the testimony and then addressed the issues presented by the parties as follows:

“1. TIME NOT OF THE ESSENCE.
“The Court finds from the clear, unequivocal wording of the contract that time was not of the essence. The cases quoted by the Plaintiffs are not apposite. Although, the June 30, 1972, completion date was discussed, it was never the intention of the parties to make that the day when performance was expected.
“2. DID STEFANOWICZ PROCEED WITH DILIGENCE AND GOOD FAITH TO DISCHARGE ITS CONTRACTUAL OBLIGATION?
“The Court believes that this is the key point in this case. After full and careful consideration of the testimony, the Court is convinced that Stefanowicz failed to act in good faith, failed to act with diligence, and failed to make any effort to discharge its contractual obligation to the Plaintiff. Despite the protestations of the Defendant, it is obvious that the Defendant knew the Plaintiff was insisting on completion and settlement before August 21, 1972, so that arrangements could be made for the children’s schooling, and further, so that they would not lose their mortgage commitment. In spite of this, the Defendant ignored both the telephone calls of the Plaintiffs and letters from their attorney. The Defendant failed to request grading studies in proper time, failed to apply timely for permits and failed to make any effort to complete the home as it had contracted to do. In addition, the Court believes that the allegations made by Stefanowicz that the home could have been completed in 6 weeks, including the two week time necessary for the granting of the building permit, are unsubstantiated and unbelievable.
“3. THE DATE OF SETTLEMENT WAS EXTENDED UNTIL AUGUST 21, 1972.
“4. PLANTIFFS’ LETTER OF JULY 7, 1972, CONSTITUTED AN ANTICIPATORY BREACH OF THE CONTRACT OF SALE.
“5. STEFANOWICZ WAS NOT GUILTY OF THE ANTICIPATORY BREACH OF THE CONTRACT ON JULY 7, 1972, BY REASONS OF HIS FAILURE TO PERFORM.
“The above issues raised by the Defendant are all related to the interpretation of the letter of Plaintiffs’ counsel dated July 7, 1972, (Plaintiffs’ Exhibit No. 6).
“The Court has studied and restudied that exhibit. There can be no doubt that the Defendant’s interpretation of the letter, i.e., that it automatically extended the settlement date, that it was an anticipatory breach, and that it was not necessary for the Defendant to respond thereto, is utterly and totally ridiculous. It is apparent from the letter, that its intent was to put the Defendant on notice that the Plaintiff needed the house completed by a date certain. The Plaintiff advised it would lose its mortgage commitment, and further, would have trouble placing its children in school in the area of the new home after that date. The Defendant, in its Memorandum, indicated that it treated the contract as cancelled. The uncontradicted evidence indicated to the contrary. The fact is, the Defendant chose to ignore the letter. The Defendant argues that because of the previous letter of May 16, 1972, (Plaintiffs’ Exhibit No. 5), the Plaintiff was equitably estopped from complaining. This again, is an unreasonable interpretation of that exhibit. As pointed out by the Plaintiff in its Memorandum, the letter of July 7, 1972, could not have been evidence of an anticipatory breach as it was not considered as such by the Defendant. At best, the most favorable interpretation in favor of the Defendant’s position that could be read into the July 7, 1972, letter would be that it was a conditional cancellation based upon the return of the $8,000.00 deposit. It is undisputed that the $3,000.00 deposit was not proffered to the Plaintiff until months after the suit was filed. The Court does not adopt that interpretation. The Defendant relies upon Griffith vs. Schengrub, 219 Md. 27 (1959), that the delay in construction was not caused by the Defendant, but because of difficulty of obtaining a grading permit from Baltimore County. They argue (page 4 of their Memorandum of January 8, 1976), that the existing administrative standards regarding minimum construction requirements are to be considered as much a part of a construction contract, as if they were expressly referred to and incorporated in the contract itself.
“The short answer to this point is that the delay was not because of the Plaintiffs’ refusal to cooperate with Baltimore County, but because Baltimore County refused to issue the grading permit. The delay was occasioned because Stefanowicz had proceeded to remove large amounts of dirt from the subject property and had materially altered its topography without prior county approval. The evidence is clear that when the grading permit was applied for, the building inspectors found work had already been done materially altering the grade, and therefore, required further topographical studies. The Defendant cannot complain that Baltimore County delayed in granting a permit when the delay was the clear responsibility of the Defendant.
“The Court, after carefully reviewing all of the testimony and exhibits, believes that although Stefanowicz was not guilty of an anticipatory breach of the contract on July 7, 1972, by reason of its failure to perform, that a reasonable time for the completion of the contract by the sellers would have been no later than August 21, 1972, and the house was not then completed (Plaintiffs’ Issue No. 1).”

The first step in determining the contentions raised is to evaluate what effect the letter dated May 16, 1972, had on the date of settlement, June 30, 1972. As the trial judge properly found, time was not made of the essence either by the express terms of the contract or by the conduct of the parties. The accepted doctrine in the ordinary case of contract for the sale of land is that even though a certain date is stipulated as the date of settlement, unless time is made of the essence, this provision is formal rather than essential, and the parties are given a reasonable time within which to perform. Chapman v. Thomas, 211 Md. 102, 108, 126 A. 2d 579 (1956). While the date is relative and not to be interpreted literally, it does mean something. It cannot be totally disregarded. It is an approximation of what the parties consider a reasonable time under the circumstances of the sale, so the seller could not sit by, do nothing, and then claim an additional reasonable time to perform his side of the agreement. Doering v. Fields, 187 Md. 484, 490, 50 A. 2d 553 (1947).

The words of the letter make it clear that the buyer was not insisting upon timely completion of the house by June 30, and this constitutes a waiver. Kimm v. Andrews, 270 Md. 601, 625, 313 A. 2d 466 (1974); Evelyn v. Raven Realty, Inc., 215 Md. 467, 472, 138 A. 2d 898 (1958). It is equally clear that the appellees were attempting to establish August 22, 1972, as a firm date of settlement, which can be done, in the appropriate case, even without the use of the words “time is of the essence.” See Acme Building Co. v. Mitchell, 129 Md. 406, 99 A. 545 (1916). The appellant materially changed his position in reliance upon this new date of settlement, whether it was firm or not; therefore, the appellees were estopped from asserting a date of settlement before August 22, 1972. Kimm v. Andrews, supra at 625, Evelyn v. Raven Realty, Inc., supra at 472 and Doering v. Fields, supra.

Having established that the appellant had until August 22, 1972, to construct the house for the Harrises, we must now determine whether the Harrises had the right to cancel on July 7, 1972, on the basis of an anticipatory repudiation. The case of String v. Steven Development Corporation, 269 Md. 569, 307 A. 2d 713 (1973) is most persuasive on this point. In that case, the buyer of a residence to be constructed convinced himself that the new home would not be completed on schedule and had his attorney send a letter dated June 21, to the builder which said in part:

“ ‘According to the contract, the seller is to complete improvements on the lot and make settlement before August 28, 1971, which is obviously impossible because to date, there is not even a building permit issued.
* * *
“‘Since it is impossible for your principal to comply with its contract to deliver the premises on or before August 28, 1971, we demand refund of the $1,000.00 deposit and declare the contract of August 28, 1971 [sic] breached and null and void.’ (emphasis added).” Id. at 571-572.

The Court cited Comment i of the Restatement of Contracts, § 318 (1932), which states:

“ ‘Though where affirmative action is promised, mere failure to act, at the time when action has been promised, is a breach, failure to take preparatory action before the time when any performance is promised is not an anticipatory breach, even though such failure makes it impossible that performance shall take place, and though the promisor at the time of the failure intends not to perform his promise.’ ” (emphasis added). String, supra at 579.

It also cited Illustration 11:

“ ‘A contracts with B in May, 1929, to have a specific vessel at B’s wharf in New York on July 1, 1929, ready to load and carry a cargo for B. At the time when the contract is made, the vessel is in Charleston, South Carolina. After making the contract A determines not to perform it, though he does not so state, and permits the vessel to remain at Charleston until after July 1. There is no breach until that day.’ (emphasis added).” String, supra at 579.

Under the facts of String, supra, and the instant case, a mere delay in preparing for construction, or in its commencement, unaccompanied by any other words or acts reflecting a repudiation of the contract, was insufficient to establish an anticipatory breach. String, supra at 580.

Although the trial court concluded that Stefanowicz had not committed a breach, one of its specific findings of fact was that the delay in obtaining a building permit was caused by the builder’s removal of large amounts of dirt from the property without county approval (an affirmative act). It further found that Stefanowicz’s claim that the home could have been completed in 6 weeks was unsubstantiated and unbelievable. Obviously, these findings are in conflict with his conclusion. While the trial judge is not required to accept the testimony of witnesses, the record in this case is void of any other estimate of the length of time to complete the house. This is not a matter as to which judicial notice can be taken, and thus the burden was on the appellees to prove the impossibility of performance by August 22, 1972; therefore, we accept the trial judge’s conclusion that the appellant, Stefanowicz, had not committed an anticipatory breach as of July 7, 1972.

We now look at the letter dated July 7, 1972. If it amounted to a cancellation of the contract, then the Harrises, appellees, committed an anticipatory breach, because there was no legal basis for them to cancel. The trial judge found that it was not a cancellation because it was conditioned upon the return of the $3,000.00 deposit and was not accepted as such by the appellant. We find that the trial judge was clearly erroneous when he found that the cancellation was conditional on the refunding of the $3,000.00. The language of the letter is plain, certain, unambiguous, and susceptible to only one meaning. When the letter states that, “Mr. and Mrs. Richard E. Harris hereby cancel their contract,” it can only mean that they positively and unconditionally repudiated the contract. Weiss v. Sheet Metal Fabricators, 206 Md. 195, 203, 110 A. 2d 671 (1955). The only condition expressed by the appellees was that if they did not receive the return of their deposit they would file suit. This, however, had no effect on the cancellation.

In regard to the trial judge’s finding that the cancellation by the Harrises could not be an anticipatory repudiation because it was not treated as such, we also find him to be clearly erroneous. The appellees cite Fast Bearing Co. v. Precision Development Co., 185 Md. 288, 309, 44 A. 2d 735 (1945) for the proposition that in order for there to be an effective anticipatory repudiation it must be accepted by the injured party. It is interesting to note that in that case the injured party wrote a letter expressly refusing to accept the cancellation. No such letter was written in the instant case. It is true that in that case the Court did recite the old rule as follows:

“It has been generally held in this country that before a plaintiff can rely on an anticipatory breach in order to recover prospective damages, he must accept the repudiation of the contract as such. Friedman v. Katzner, 139 Md. 195, 114 A. 884; Williston on Contracts, Revised Edition, Vol. 5, page 3722 [1937]; Hennessy v. Bacon, 137 U. S. 78, 34 L. Ed. 605; U. S. Potash Co. v. McNutt, 70 F. 2d 126 and cases cited. That the plaintiff failed to do in this case.” Id. at 309-310.

We examine some of the more important authorities cited in support of the rule. In Friedman v. Katzner, supra, although the Court mentioned the rule that an anticipatory breach must be accepted by the injured party, the case was decided on the basis that repudiation was equivocal in that the letter stated that the purchaser demanded either the house or a return of the deposit, and the rule that the anticipatory breach must be accepted by the injured party was mentioned but not discussed. In Williston on Contracts, § 1322 (Rev.ed. 1937), the rule was criticized and the adoption of the contrary rule of the Restatement was urged. Professor Williston stated:

“Not only, moreover, do logic and the defendant suffer, but the very practical convenience which is the excuse for their suffering is not attained. A few illustrations from the cases will show that as at present applied the doctrine of anticipatory breach is so full of pitfalls for the unwary as to be objectionable rather than advantageous practically. In a leading English case it is stated: Tt would seem on principle that the declaration of such intention [not to carry out the contract] is not in itself and unless acted on by the promisee a breach of contract____Such declaration only becomes a wrongful act if the promisee elects to treat it as such. If he does so elect, it becomes a breach of contract, and he can recover upon it as such;’ and these words were quoted by Chief Justice Fuller of the Supreme Court of the United States. The conception that a breach of contract is caused by something which the promisee does is so foreign to the notions not only of lawyers but of business men that it cannot fail to make trouble. A simpler mode of expression and one less open to this objection is adopted in the Restatement of Contracts. The repudiation is said to be^a breach, which is subject to nullification. It is true that the American cases also commonly say that in order to make out a breach the injured party must ’elect’ to treat the repudiation as such, and under the English law this is important; but, if it is held, as it generally is in the United States, that whether repudiation is treated as a breach or not, the injured party is not privileged to continue performance and recover damages based on such continued performance, the only logical consequence of the difference of expression seems to be the effect on the Statute of Limitations.

In the revised Williston on Contracts, (Jaeger ed. 1968) the criticism is continued and includes a further appeal for the adoption of the Restatement rule. See §§ 1332 and 1334. In the more recent Maryland cases, String v. Steven Development Corp., supra and C.W. Blomquist & Co. v. Capital Area Realty Investors, 270 Md. 486, 311 A. 2d 787 (1973), the Court does not discuss the acceptance of the rejection by the injured party but indicates that in this area of the law the Court is now following the Restatement rules which do not require such acceptance.

While the trial judge stated that the uncontradicted evidence indicated that the appellant did not treat the contract as cancelled, he also found that Stefanowicz upon receiving the letter, “felt nothing was due to Harris, and stopped work[;] [h]e instructed Mr. Lee, of M.C.A. Company, to slow down.” This Is sufficient to manifest his election to treat the letter as a repudiation. Even under the old rule requiring acceptance of election “it is, however, apparently not necessary to bring home to the repudiating party the election of the injured party.” Williston on Contracts, § 1323 (Rev. ed. 1937).

The appellees base an argument on a letter dated November 9, 1972, which was not presented at the trial, although it was in the record of the prior proceedings. The letter was not reproduced in the record extract and we decline to consider that argument for both reasons. They also allege that the answer to the bill of complaint did not allege as a defense that the letter of July 7 cancelled the contract. We do not consider that to be of any importance because the case was tried on the basis of an amended answer which did refer to the letter of July 7, 1972 as a breach of contract. See Shapiro v. Sherwood, 254 Md. 235, 239, 254 A. 2d 357 (1969). Finally, the appellees argue that the chancellor quite properly rejected the testimony of Walter Stefanowicz, that he considered the letter of July 7, as the cancellation, in view of his subsequent inconsistent acts and pleadings and the continued negotiations between the parties. Our review of the record fails to disclose the inconsistent acts and pleadings. On the contrary, the record clearly shows that the continued negotiations between the parties were directed towards the settlement of a law suit and not a recognition of the contract. The appellant, Stefanowicz, must have recognized the cancellation of the contract, otherwise, there would have been no need for negotiations to settle the suit by entering into a new contract.

As the appellees, the Harrises’ letter of July 7,1972, under the circumstances of this case, constituted an anticipatory breach of contract, they are not entitled to recover damages. Clause 8 stated upon default or cancellation of the buyer, the buyer would forfeit his deposit and be liable for damages. The trial judge found that this clause did not control because it had been mutually waived. We see no evidence in the record to support the proposition that this clause was waived, thus this finding is clearly erroneous. As the clause was not waived, the appellees are bound by the provision and can recover no damages. See Hupp v. The George R. Rembold Building Company, 279 Md. 597, 369 A. 2d 1048 (1977).

The chancellor found the seller, The Stefanowicz Corporation, has breached the contract, denied specific performance and awarded damages in lieu thereof. Stefanowicz has appealed from the award of damages and the appellees have appealed because the damages were insufficient. Under our view of the case, there is no need for us to discuss the remaining issues.

Decree reversed.

Appellees to pay the costs.

      . It seems apparent the trial judge confused the two letters dated July 7, 1972 and May 16, 1972.

        , The trial court found that The Stefanowiea Corporation had not committed an anticipatory breach as of that day. We agree with that finding.

      . We note that when construing the language of a written document, as opposed to oral testimony, wherethe trial judge has the most advantageous opportunity to judge the credibility of the witnesses, we are still bound by the clearly erroneous rule, even though the document can be interpreted by this Court as well as the trial judge. See, however, Perlmutter v. Bacas, 219 Md. 406, 411, 149 A. 2d 23 (1959) and Sewell v. Sewell, 218 Md. 63, 71, 145 A. 2d 422 (1958).

      . Johnstone v. Milling, 16 Q.B.D. 460, 472, per Lord Bowen.

      . Roehm v. Horst, 178 U.S. 1, 20 S.Ct. 780, 44 L.Ed. 953....

      . § 318.

      . Rest., Contracts, § 319.

      . Hettrick Mfg. Co. v. Waxahachie Mills, 1 F.(2d) 913 (C.C.A. 6); Dominey v. Johnson-Brown Co., 219 Ala. 666, 123 S. 52; Robinson v. Raquet, 1 Cal. App.(2d) 533, 36 P (2d) 821; Yaffe v. Glens Falls Indemnity Co., 115 Conn. 375, 161 A. 521; Darnell v. Toney, 45 Ga. App. 27, 162 S.E. 918; Dougherty v. Equitable L. Assur.Soc., 144 Misc. 363. 259 N.Y.S. 146, mod., but affd. on this point, 238 App. D. 696, 265 N.Y.S. 714, revd. on other grounds, 266 N.Y. 71, 193 N.E, 897; Zuck v. McClure, 98 Pa. 541. But see per Baker, J., in Lagerloef Trading Co. v. American Paper Prod. Co., 291 F. 947 (C.C.A. 7), cert. den. 263 U.S. 706.

      . See infra, § 1333.

      . See supra, § 1298.

      . See. infra, § 2027; Rest., Contracts, § 322.

      . Apparently the trial judge was of the opinion that acceptance of the , cancellation must be communicated to the other party.

      . Clause 8 of the contract provided as follows:
      “(8) Should Buyers cancel or default hereunder for any reason all monies paid by Buyers, including the cost of all change orders, will remain the property of the Seller and Seller shall be entitled to recover from Buyers all damages sustained as a consequence of such cancellation or default in excess of said monies. Should Seller cancel or default hereunder for any reason all monies paid by Buyers shall be returned by Seller, with no further liability on the part of one to the other.”


source: Caselaw Access Project

author: Menchine, J.,

license: Public Domain

text:
    JOEL LEWIS KAPLAN v. WILLIAM S. BACH et ux.
    [No. 803,
    September Term, 1976.]

      Decided May 17, 1977.

      The cause was argued before Menchine, Moore and Liss, JJ.

      Joseph S. Casula for appellant.

      Richard J. Sincoff for appellees.
   Menchine, J.,

delivered the opinion of the Court.

William S. Bach and Barbara R. Bach (appellees) filed an action in the Circuit Court for Montgomery County against Joel Lewis Kaplan (appellant) and another.

Service of process was had upon the appellant under the “long arm” statute by registered mail addressed to him at 7107 Colgate Drive, Alexandria, Virginia. Jurisdiction under the “long arm” statute was grounded upon allegations that appellant had committed a tortious act (conversion of personalty) within the State of Maryland.

When no answer had been filed within sixty days after completion of service as required by Maryland Rule 107 b, appellees filed a motion for judgment by default. Judgment by default was entered on January 23, 1976. On the same day the Clerk of Court notified the appellant of the entry of judgment as prescribed by Maryland Rule 611.

There was, in short, full compliance with all jurisdictional requisites as to the judgment by default.

On February 13, 1976, a hearing was had for assessment of damages following judgment by default. Maryland Rule 648.

After testimony in open court, judgments for $8,000.00 compensatory damages and $25,000.00 punitive damages were extended on the same date.

At that hearing, plaintiffs-appellees offered evidence that the defendant-appellant had occupied a condominium unit in Ocean City, Maryland, from April until June pursuant to a contract of sale with the appellees; but that the parties had agreed to rescind the contract, and the appellees were to refund the $300.00 deposit, provided that the unit was clean. On or about June 23, the appellees called appellant and told him that they were coming down to the unit that night and that they would refund the $300.00 deposit.

Their observations upon arrival were described in the following words:

“We went up to the unit and found it completely empty, with the carpets torn out in both the bathroom, the porch; the drapes, all the furniture, fixturing and everything, was taken from the apartment, with the exception of one large couch which was missing the pillows. Evidently they could not get it through the door.
JÍe * *
“I went to the manager and asked people at poolside. No one seemed to know anything about it. I called the police. When the police came they could not find anything either. I walked around the. apartment and I found my carpet folded up from my porch on someone else’s porch. The police knocked at the door and, sure enough, all my furniture and fixtures were in that particular apartment.
* * *
“I found Mr. Joel Kaplan and another party had bought that particular unit in the condominium and Mr. Kaplan had called his partner and advised him to move everything out of my apartment before I got down there.
* * *
“I talked to their attorney on the phone who advised me all my goods would be returned to me by 12 o’clock the next day. I came back at 12 o’clock the next day and found they had left the apartment and all my goods were locked in and I could not get in. They had gone back to Virginia where they lived.
“He told [me] he knew he had wrongly taken [my] furniture.”

The appellant was described as follows:

“He is a real estate broker, promoter-type.... A young guy. Drives a Rolls Royce.”

Bach testified that the furniture, fixtures, drapes and carpeting were never returned.

Proof was offered that the furniture and appurtenances had a value of about $3,000.00.

On February 23, 1976, the appellant filed a motion to set aside the judgment by default.

On June 30, 1976, after hearing, the motion to set aside judgment by default was denied and the monetary extensions of that judgment were continued in force.

On July 29,1976, appellant entered an appeal to this Court asking:

1. Was the defendant-appellant denied Due Process of law by the failure of the Clerk to give notice of the ex parte proof of damages?

2. Did the trial court abuse its discretion in denying defendant-appellant’s timely motion to set aside the judgment by default?

Due Process

Appellant contends that he received no notice of the inquisition as to damages conducted subsequent to the entering of the judgment by default. Maryland Rule 648 requires no notice.

He maintains that the failure to give notice amounted to a denial of due process. The issue was not raised in the motion to set aside the default judgment nor presented to the trial court at the hearing on the motion. The issue, therefore, is not properly before this Court. Maryland Rule 1085. But see Capobianco v. Gordon, 19 Md. App. 662, 313 A. 2d 517 (1974).

In any case, we note that in the course of the hearing upon the motion to strike the judgment, the trial judge made the following comment:

“(The Court) Here is a man who was served with process, and he was served with process well in advance of the time that the matter was heard in court. He was served — I forget the date — November 4 or whatever it was, and there is a certificate, there is a return receipt which is attached to Mr. Sincoffs affidavit of service. He was properly served. He had ample opportunity to come in this court, seek your advice, seek his own counsel’s advice. He was in consultation, apparently, with Mr. Sincoff during this period. He acknowledged to Mr. Sincoff he knew about the existence of this proceeding, and he chose to do nothing about it.
“Now, what possible basis is there for now saying, ‘Oh, I am sorry, I should have done something about it. Let me back in.T

Due process, as it relates to judicial proceedings, requires notice and an opportunity to defend. Matter of Easton, 214 Md. 176, 188, 133 A. 2d 441, 448 (1957). It is satisfied not only by personal service but also when there is adherence to the Maryland Rules with respect to service of process. J. Whitson Rogers, Inc. v. Hanley, 21 Md. App. 383, 393, 319 A. 2d 833, 839 (1974).

The failure to answer and defend was a matter of the personal choice of the appellant — not a product of the failure of notice and opportunity to be heard. This record demonstrates no denial of due process.

A base of Discretion

We think that the motion to strike the judgment by default has a dual aspect, namely: (a) as to the interlocutory judgment by default itself and (b) as to the extension of that judgment by default by the grant of compensatory damages in the amount of $8,000.00 and the grant of punitive damages in the amount of $25,000.00. We shall separately discuss the motion as applied to these dual aspects.

(a)

The Interlocutory Judgment by Default

It is quite firmly established that both the interlocutory judgment by default for want of plea (Maggin v. Stevens, 266 Md. 14, 291 A. 2d 440 (1972)) and the subsequent monetary judgment entered in extension thereof (J. C. Penney Co. v. Harker, 23 Md. App. 121, 326 A. 2d 228 (1974)) are within the reach of the revisory power of the trial court under Maryland Rule 625 a.

The motion to strike, having been filed within thirty days of the order of dismissal, is governed by the following provision of Maryland Rule 625 a:

“a. Generally.
For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment.. ..”

The discretionary power conferred upon the trial court by the quoted portion of Rule 625 a is broad and must be exercised liberally “lest technicality triumph over justice.” Eshelman Motors v. Scheftel, 231 Md. 300, 301, 189 A. 2d 818, 818 (1963).

It is firmly established, however, that the broad discretionary power thus conferred, should be exercised only when the movant shows a reasonable indication that there is merit in his cause. Clarke Baridon v. Union Co., 218 Md. 480, 483, 147 A. 2d 221, 222 (1958); Brewer v. Mele, 267 Md. 437, 441, 298 A. 2d 156, 159 (1972); Industrial Developers v. Berg, 269 Md. 250, 251-52, 305 A. 2d 121, 122 (1973).

Appellant raised no specific, substantial defense to the action other than a general contention that the action was “frivolous and without merit.” He states that his failure to file an answer to the action was due to a lack of representation by counsel and his ignorance of the law. Appellant, however, has no one to blame but himself for his predicament since he should have sought counsel immediately upon receiving notice of the appellees’ complaint. This excuse is governed by the ancient legal maxim: “ignorantia legis neminem excusat.” Appellant also maintains that he was relying on appellees’ counsel to keep him informed on the latest developments in the case and that the appellees failed to notify appellant that they would enter a default judgment against him. Such reliance is misplaced, since there is no obligation to advise an opponent of intent to obtain a judgment by default. Maryland Rule 306 (b). Maggin v. Stevens, supra; Ventresca v. Weaver Brothers, 266 Md. 398, 292 A. 2d 656 (1972). A party is under an obligation to keep abreast of all matters involved in a case, and actual knowledge of subsequent proceedings is immaterial. Pumphrey v. Grapes, 215 Md. 573, 138 A. 2d 916 (1958).

We find that appellant failed to allege or show a reasonable indication of a meritorious defense as to liability in the action and hold that the trial court did not abuse its discretion in denying the motion to set aside the default judgment.

(b)

The Extension of Monetary Judgments

We think that a different decision must be reached by us with respect to the monetary judgments of $8,000.00 and $25,000.00. We think that the trial judge abused his discretion in declining to strike those judgments. While the appellant had shown no reasonable indication that he had a meritorious defense as to liability, he did present to the court below evidence tending to show that the monetary judgment for compensatory damages far exceeded in amount the appellees’ pre-trial evaluation of the damages they had sustained.

Moreover, our examination of the record shows that an erroneous measure of damage was applied by the trial judge in the assessment of compensatory damages.

In B & O RR Co. v. Carr, 71 Md. 135, 17 A. 1052 (1889), it was said at 143 [1054]:

“The rule by which damages are to be estimated is, as a general principle, a question of law . to be decided by the Court; that is to say, the Court must decide, and instruct the jury, in respect to what elements, and within what limits, damages may be estimated in the particular action.”

See also Russell v. Stoops, 106 Md. 138, 66 A. 698 (1907), wherein judgment was reversed because the trial judge “failed to instruct the jury as to the true measure of damages.”

Similarly, the trial judge, in a non-jury case, must apply the true measure of damages when that issue is submitted to him for determination. We think he failed to do so. In Checkpoint v. Sweeney, 250 Md. 251, 242 A. 2d 148 (1968), it was said at 253 [149]:

“This Court has held that in an action for conversion of personal property, the measure of damages is the fair market value of the property at the time of the conversion, with legal interest running to the date of the verdict.”

We are mindful that there may be extraordinary circumstances when the loss to the litigant is greater than the value of the property at the time of conversion if it has been shown that such loss is not speculative or conjectural. Weishaar v. Canestrale, 241 Md. 676, 684-85, 217 A. 2d 525, 530-31 (1966). This extension of the rule generally applicable in conversion cases, however, is subject also to the restriction common to all tort actions, namely, that it must appear that such special damages have been affirmatively proved with reasonable certainty to have resulted as the natural, proximate and direct effect of the injury. Empire Realty Co. v. Fleisher, 269 Md. 278, 284, 305 A. 2d 144, 147 (1973).

The record in the subject case makes quite clear that the value of the personal property taken by the appellee did not exceed $3,000.00. It shows as well that the compensatory damages awarded included $1,000.00 for loss of rental of the condominium itself and $4,200.00 in lost equity stemming from a later foreclosure of a mortgage upon the realty. The evidence failed to demonstrate that either such loss was the “natural, proximate and direct effect” of the injury complained of. Allowance for the same in the assessment of damages was error in the absence of such a showing.

Under these circumstances we think that the refusal to strike the judgment for $8,000.00 was an abuse of discretion.

We make no determination in this appeal whether the essential nexus required for allowance of either or both of such claims can be shown on retrial.

In the light of the circumstance that we must reverse and remand the cause for reconsideration upon the question of compensatory damages, we consider it necessary also to remand as to the question whether punitive damages should be awarded and if so, to fix the amount thereof.

We are aware that under Maryland law it is unnecessary to demonstrate a ratio between the judgment for compensatory damages and the judgment for exemplary damages. D. C. Transit Systems, Inc. v. Brooks, 264 Md. 578, 589-90, 287 A. 2d 251, 257 (1972). We believe, however, that when a cause of action is of such character that both compensatory and punitive damages may be assessed, the right to and assessment of both should be simultaneously considered.

It is plain that under proper circumstances there can be punitive damages in a suit for conversion, Siegman v. Equitable Trust Co., 267 Md. 309, 314, 297 A. 2d 758, 761 (1972), as where the act of the defendant is accompanied by wilful disregard of the plaintiffs rights or other circumstances tending to aggravate the injury. McClung-Logan v. Thomas, 226 Md. 136, 148, 172 A. 2d 494, 500 (1961).

We think the evidence in the subject case relating to the conduct and actions of the appellant was of such nature as would permit the trier of fact to conclude that punitive damages should be awarded by reason of the existence of the legal equivalent of actual malice, i.e., that such conduct and actions were “of an extraordinary nature characterized by a wanton or reckless disregard for the rights of others.” Wedeman v. City Chevrolet Co., 278 Md. 524, 532, 366 A. 2d 7, 13 (1976).

Order denying motion to strike interlocutory judgment by default affirmed; order denying motion to strike monetary judgments reversed.

Case remanded for inquisition as to damages.

One-half of the costs to be paid by the appellant, one-half by the appellees.

      . David Cohen was sued as a single defendant in count two of the declaration and jointly and severally with Kaplan in count three thereof. Cohen was never served with process and is not a party to this appeal.

      . C.J. Articles 6-103.

      . Maryland Rule 107.

      . Rule 648 in pertinent part reads as follows;

        “Inquisition — After Interlocutory or Default Judgment ...Law
      Where an interlocutory judgment or judgment by default has been entered, the court shall on motion of the plaintiff, make an order in the nature of a writ of inquiry, ... [whereby] the court where such judgment is, shall without the jury, inquire of the damages and costs sustained by the plaintiff in such action, and shall assess the damages and costs and order the judgment to be extended for the amount so found to be due, and interest?’

      . February 22, 1976, the thirtieth day after entry of judgment by default, was a Sunday. Thus the judgment had not become enrolled so that the motion was within the discretionary power of the trial court under Rule 625 a. See Maryland Rule 8 a.

      . Appellant was not in attendance at the hearing upon the motion to strike. His absence produced the following colloquy between court and counsel for appellant;
      “(The Court) Mr. Kaplan is here?
      (Mr. Richin) I have him on telephone call. The only reason was he told me there had been so many communications between Mr. Sincoff and him I did not feel it was in his best interests to not have Mr. Sincoff and him in the same courtroom.
      (The Court) You can’t mean that?
      (Mr. Richin) I am telling you what he told me.”


author: Lbs, J.,

text:
    WADE IGLEHART JOHNSON v. STATE OF MARYLAND
    [No. 950,
    September Term, 1976.]

      Decided May 17, 1977.

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

      James M. Kramon, Assigned Public Defender, with whom wereKramon & Gmham on the brief, for appellant.

      Stephen B. Caplis, Assistant Attorney General, with whom were Fnmc&s B. Burch, Attorney General, and Warren B. Duckett, State’s Attorn,ey for Anne Arundel County, on the brief, for appellee.
   Lbs, J.,

delivered the opinion of the Court.

The appellant, Wade Iglehart Johnson, was indicted in Anne Arundel County, Maryland, in three cases charging the robbery of an employee of Rainbow Cleaners in Annapolis during the course of which the employee was shot and seriously injured, and the robbery and assault of an employee of the Acme Market in Annapolis. The cases were removed for trial to the Circuit Court for Carroll County and were tried before a judge and jury. The jury found the appellant guilty of one or more counts in each of the indictments. Concurrent terms of imprisonment were imposed and it is from these judgments that the instant appeal was filed.

We shall refrain from detailing at length the evidence given at the trial which for the most part is not material to the issues raised by this appeal. We shall, instead, highlight the portions of the evidence which pertain to the legal questions raised by the appellant. He raises the following questions to be determined in this appeal.

I. Did the trial court err in refusing to grant appellant's motion to suppress his extrajudicial, inculpatory statement because (a) the statement was the product of an unlawful arrest, and (b) the statement was involuntary?

II. Did the trial court err in failing to exclude the in-court identifications of the appellant on the ground that such identifications were the product of impermissibly suggestive prior photographic identifications?

III. Did the trial judge err in refusing to declare a mistrial because of inflammatory and prejudicial arguments to the jury by the prosecutor?

We answer each of these queries in the negative for the reasons we shall hereafter elucidate and shall affirm the judgments of the trial court.

Ka).

We have carefully reviewed the voluminous record of the suppression hearing and from the testimony have distilled the following factual chronology of the events. The robberies occurred on January 13 and January 24, 1975. An arrest warrant was obtained for the appellant on January 25, and the police in several trips to his home advised his family that they wished to talk to him about one of the robberies. On January 30 at 3:15 p.m., the appellant, accompanied by several members of his family, surrendered himself at the Annapolis police headquarters. He was advised at that time that the police had a warrant for his arrest for the robbery of the Acme Market. He was turned over to one of the officers for processing (i.e., fingerprinting and photographing) and then delivered to two officers for interrogation. The accused was given his Miranda rights, each of which was read to him; he was asked whether he understood each of them after they were read to him and he indicated that he did; then he placed his initials after each of the rights read to him and signed his name at the bottom of the sheet indicating that he had been read his rights, that he understood them, that there were no threats or inducements, that he waived his right to an attorney and that he was prepared to make a statement.

At this point in the proceedings, the appellant advised the officers that he was feeling sick because of a number of pills, prescribed by a doctor, which he had taken shortly before he came to the station. The officers asked if he wanted treatment at a hospital and started to make arrangements for his transfer to the Anne Arundel General Hospital, but the accused changed his mind and asked for some time for a rest. The officers noted that he appeared glassy-eyed and that his lips were very wet. The officers immediately terminated the interrogation and returned the accused to the police lockup.

The following morning at about 9:45 a.m. the accused was taken to the interrogation room. The appellant, according to the police officers, looked alright — the glassiness of the eyes had disappeared, but his lips were still very moist. The Miranda rights procedure was repeated and the appellant again initialed each of the rights sentences and signed the rights sheet indicating that he wished to make a statement. The officers testified that during the questioning the appellant was permitted several periodic relief breaks, a coffee break, a food break and several cigarette breaks. He was also permitted to make at least two telephone calls. The appellant made an inculpatory statement as to the Acme Market robbery and interrogation was completed at 3:45 p.m. He was then taken before a commissioner where bail was set. It is conceded by the State that a commissioner was available at all times, in an adjoining building to the police headquarters, from the time of arrest of the appellant until the time that he was actually taken before the commissioner.

Later in the afternoon of January 31, as a result of certain information developed by the officers, the accused was advised that they wished to discuss the Rainbow Cleaners holdup with him. At about 5:55 p.m. he was again advised of his rights and gave an inculpatory statement. That interrogation was completed at 6:55 p.m. At about 10:45 p.m., as a result of a complaint of stomach cramps, the appellant was taken to the hospital, given an injection, and then released for return to the police station.

A total of seven arrest warrants for the appellant had been obtained by the police beginning on January 25, 1975. The appellant was in custody for the first time on January 30, and the first warrant was served on January 31 at 3:45 p.m. after the Acme statement had been obtained. The remaining warrants were served on February 1 at 11:55 p.m.

Our task is to assess the correctness of the trial court’s denial of the appellant’s motion to suppress the in-custody extrajudicial statements made by the accused to the police. We are limited in our review to the evidence produced at the suppression hearing. Dobson v. State, 24 Md. App. 644, 335 A. 2d 124 (1975).

The appellant contends that the statements obtained from him were the result of an illegal arrest and that as “fruits of the poisonous tree” they should not have been received into evidence. The rule upon which appellant relies was promulgated by the Supreme Court in Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963). The Maryland courts disassociated themselves from that decision in a long line of cases in both the Court of Appeals and this Court, but reversed their position by adopting the Wong Sun rationale in the case of Everhart v. State, 274 Md. 459, 337 A. 2d 100 (1975), rev’g, 20 Md. App. 71, 315 A. 2d 80 (1974). We followed suit in the case of Ryon v. State, 29 Md. App. 62, 349 A. 2d 393 (1975), aff'd, 278 Md. 302, 363 A. 2d 243 (1976).

Ryon was originally before this Court on appeal from Ryon’s conviction by a jury in a case of murder in the first degree. On direct appeal this Court affirmed; certiorari was denied by the Court of Appeals. Ryon v. State, No. 376, September Term, 1973, filed 19 June 1974 (unreported), cert. denied, 272 Md. 747 (1974). The Supreme Court of the United States subsequently in a memorandum opinion did grant certiorari, Ryon v. Maryland, 422 U. S. 1054, 95 S. Ct. 2674, 45 L.Ed.2d 705 (1975), vacated the judgment of this Court and remanded the case for further consideration in light of Brown v. Illinois, 422 U. S. 590, 95 S. Ct. 2254, 45 L.Ed.2d 416 (1975). In Brown the accused had been arrested without probable cause and without a warrant under circumstances indicating that the arrest was investigatory. He gave two in-custody inculpatory statements. The Illinois Supreme Court sustained a denial of a motion to suppress by the trial court on the ground that the giving of the Miranda warnings served to break the causal connection between the illegal arrest and the giving of the statements and the statements were therefore sufficiently an act of free will to purge the primary taint of the unlawful invasion.

The Supreme Court reversed on the ground that the Illinois courts erred in adopting a per se rule that the Miranda warnings, in and of themselves, were sufficient to purge the taint of the illegal arrest under the Fourth Amendment to the United States Constitution. It held that the question of whether a confession is voluntary under Wong Sum must be answered on the facts of each case and the burden of showing admissibility of in-custody statements of persons who have been illegally arrested rests on the prosecutor. We followed this reasoning in Ryon, supra, where Chief Judge Orth of this Court laid down the following guidelines:

“1) The Fourth Amendment exclusionary rule applies equally to statements and tangible evidence obtained following an illegal arrest or an otherwise illegal search and seizure.
2) Such statements are not rendered inadmissible simply because of the illegal arrest or unreasonable search and seizure,
3) Such statements are not rendered admissible simply because the Miranda warnings were fully given.
4) Admissibility of such statements, vel non, must be answered on the facts of each case, upon consideration of:
(a) the voluntariness of the statement, which is a threshold requirement;
(b) compliance with the Miranda safeguards, which is important in determining whether the statements were obtained by exploitation of the illegal conduct;
(c) other relevant factors, such as
(i) the temporal proximity of the arrest and the confession;
(ii) the presence of intervening circumstances; and
(iii) ‘particularly, the purpose and flagrancy of the official misconduct.’ ” Id. at 71-72, 349 A. 2d at 399-400.

We believe both Brown and Ryon are distinguishable from the case sub judice. We do not agree, as urged by the appellant, that there was a lack of probable cause to arrest the accused. We point out that prior to the issuance of the arrest warrant the police were in possession of a report of the commission of a felony, a physicial description similar to that of the accused, and the tag number of the motor vehicle alleged to have been involved in the robbery. The motor vehicle was owned by the appellant. There was a photographic identification of the appellant by an eyewitness. While it is true that the photographic identification was subsequently suppressed by the trial court, the determination of probable cause must be related back to the facts and circumstances existing at the time of the issuance of the warrant rather than to those developed at a full-blown suppression hearing. Judge Moylan speaking for the Court in dicta found in Everhart v. State, 20 Md. App. 71, 93, 315 A. 2d 80, 94 (1974), rev’d on other grounds, 274 Md. 459, 337 A. 2d 100 (1975), posed a series of rhetorical questions which he answered in the negative as follows:

“A policeman might allege that a suspect had a prior criminal record; would he be required to establish ‘aid and assistance of counsel’ under Burgett v. Texas, 389 U. S. 109, 88 S. Ct. 258, 19 L.Ed.2d 319 (1967)? A policeman might allege that a robbery victim had selected a photograph of the suspect, for whose home a warrant was being sought; would he be required to negative ‘impermissive suggestiveness’ under Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968)? A policeman might allege a confession by the suspect or by a codefendant; would he be required to negative a violation of Miranda v. Arizona, [384 U. S. 436 (1966)]? The problems would be infinite, and the mischief overwhelming.”

We conclude that his reasoning in that case is equally applicable in this one.

We point out, further, that even allowing for the suppression of the tainted photographic identification, the facts known to the police at the time of the issuance of the warrant were more than sufficient to justify an arrest. See: Williams and Jones v. State, 3 Md. App. 115, 238 A. 2d 140 (1968), cert. denied, 250 Md. 732-33 (1968), cert. denied, 393 U. S. 1006 (1968) (description of perpetrators of a felony by an unidentified informant, together with "elusive” movements of an automobile was ruled sufficient to establish probable cause); Duckett v. State, 3 Md. App. 563, 240 A. 2d 332 (1968) (description of kidnappers and their automobile was held adequate probable cause for arrest); Hale v. State, 5 Md. App. 205, 245 A. 2d 908 (1968) (report of “four white males” with the tag number of an automobile involved in a breaking and entering was sufficient to justify an arrest); Franklin v. State, 18 Md. App. 651, 308 A. 2d 752 (1973), cert. denied, 270 Md. 739 (1973) (description of a car operated by the accused was sufficient probable cause for an arrest).

On this issue appellant has another arrow in his quiver. He contends that the statements obtained by the police were tainted because of the failure of the police to comply strictly with the provisions of the Maryland District Eules. The pertinent portions of these rules read as follows:

M.D.R. 706 f. 1. (a) states:

“A warrant shall be executed by the arrest of the defendant. The arresting officer need not have the warrant in his possession at the time of the arrest, but in that case, he shall at that time inform the defendant of the offense charged and of the fact that a warrant has been issued, and shall show the warrant to the defendant as soon as possible.”

M.D.E. 706 d. provides:

“Promptly after his arrest the defendant shall be given a copy of the warrant by the arresting officer.”

M.D.E. 709 a. directs:

“A defendant shall be taken before a conveniently available judicial officer without unnecessary delay and in no event later than the earlier of (1) twenty-four hours after [the defendant’s] arrest or (2) the first session of court after the defendant’s arrest upon a warrant....”

The appellant would have us rule that these provisions are mandatory and that a failure to comply with them must automatically require us to suppress any statement obtained while the accused is being illegally detained. We cannot accept his suggestion. First, the trial court had before it the testimony of the police officers that they did not comply with the requirements of the rule because the defendant appeared ill and was returned to his detention cell after his Miranda rights had been given to him the first time. Some credence can be given to this contention since the officers, as anxious as they were to get a statement, made no effort to question the accused until the following morning. Had the warrants been delivered, we can conceive of able counsel complaining bitterly that the police were sufficiently impressed with appellant’s illness not to question him but rather had merely complied pro forma with the provisions of the District Rules at a time when the appellant could not understand what was going on because of his physical condition.

Second, we do not believe, after our own independent review of the record in light of the totality of circumstances here existing, that the sanctions of the exclusionary rule should apply. So far as the warrant is concerned, it is conceded that the police notified the accused that they wished to question him about the Acme Market robbery immediately after he was taken into custody. Maryland District Rule 706 provides no sanctions for its violation and in the absence of such provision it is procedural only and is at best one of the matters to be considered by the court in determining whether the statements obtained by the police are the product of free will or of a will overborne by official misconduct. See Jackson v. State, 8 Md. App. 260, 259 A. 2d 587 (1969), cert. denied, 257 Md. 734 (1970).

We note also that the legislature has addressed itself to the problem of the failure to deliver a copy of the warrant in Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 617, where the only penalty prescribed for a failure to deliver a true copy of the warrant within six hours after the copy has been demanded is the forfeiture of $500 by the officer or other person neglecting or refusing to deliver a true copy of the warrant to the person detained. The absence of demand has been the basis of rejecting similar arguments before this Court and there is no evidence of demand in this record. See Stackhouse v. State, 1 Md. App. 399, 230 A. 2d 358 (1967), citing 4 Anderson, Wharton’s Criminal Law and Procedure, Section 1617, page 282.

Nor, after our examination of the totality of the circumstances, do we find any necessity for applying the exclusionary rule because of the alleged violation of the requirement of M.D.R. 709 a. that the accused be taken before a judicial officer within the above-mentioned time frame. There was testimony from both the police and the appellant from which the finder of fact could conclude that the appellant was taken before a judicial officer on January 31, 1975, after the Acme statement, and on February 1, 1975, after the Rainbow Cleaners statement — both within 24 hours of the arrest for each offense. The original arrest on January 30, 1975 was for the Acme Market robbery only. In addition, if there was in fact a technical violation of the Rule, the circumstances of the illness of the accused and the suspension of questioning for that reason would be a justifiable excuse for the failure to comply strictly with the Rule. Here, also, we find no sanction provided for a failure to comply with the Rule and are required only to consider a violation of the rule as one of the elements to be included in testing the voluntariness of the statements.

We conclude that the provisions of Maryland District Rules 706 and 709 are not mandatory and that their violation, vel non, does not require suppression of a statement obtained in the course of a custodial interrogation. Rather, the failure to deliver a warrant under M.D.R. 706 and the failure to produce an accused before a judicial officer under the M.D.R. 709 guidelines are two of the factors to be considered in testing the voluntariness of a subsequent statement under the totality of the circumstances test. Our own independent review of the record convinces us that the arrest in this case was lawful and that the statement obtained by the police was the product of the free will of the accused knowingly and voluntarily given.

Kb).

The appellant urges that the State has not met its burden of proving by a preponderance of the evidence that the statements admitted into evidence were freely and voluntarily made. Lego v. Twomey, 404 U. S. 477, 92 S. Ct. 619, 30 L.Ed.2d 618 (1972). The trial court’s finding of voluntariness must appear in the record with unmistakable clarity before the statement may go to the jury for its ultimate determination of whether, beyond a reasonable doubt, the statement was freely and voluntarily made. Sims v. Georgia, 385 U. S. 538, 87 S. Ct. 639, 17 L.Ed.2d 593 (1967); Mulligan v. State, 18 Md. App. 588, 308 A. 2d 418 (1973).

The appellant, at the suppression hearing, told a lurid tale of alleged threats of violence and coercion including being shown a gun rack with the suggestion that its contents might be used if the police were displeased with the appellant’s cooperation. The police allegedly told the appellant that if he failed to make a statement he might be released and shot and they supposedly took advantage of his illness, caused by his withdrawal from narcotics, to extract the confessions. All of his allegations including these and others were rebutted by the police officers.

A confession is not inadmissible in evidence merely because the accused is under the influence of a narcotic drug, although the condition of the accused is a factor to be considered. Hopkins v. State, 19 Md. App. 414, 311 A. 2d 483 (1973), cert. denied, 271 Md. 738 (1974); 3 Wharton’s Criminal Evidence, Section 689 (18th ed. 1973). The Court of Appeals held in Bryant v. State, 229 Md. 531, 185 A. 2d 190 (1962), that confessions made while under the influence of self-administered narcoties may be admitted in evidence against the accused.

The trial judge in this case was presented at the suppression hearing with two dramatically opposite versions of what occurred prior to and at the time of the confession. He chose to believe the State’s version of the incidents. On our constitutionally mandated independent appraisal of the entire record at the suppression hearing, we are not convinced that the trial judge’s conclusion was wrong. Davis v. North Carolina, 384 U. S. 737, 86 S. Ct. 1761, 16 L.Ed.2d 895 (1966); Hebb v. State, 31 Md. App. 493, 356 A. 2d 583 (1976); Ponds v. State, 25 Md. App. 162, 335 A. 2d 162 (1975); Hopkins v. State, supra; Mulligan v. State, supra; Layman v. State, 14 Md. App. 215, 286 A. 2d 559 (1972). Nor do we find reversible error because the trial judge failed to announce that he found the State had met its burden of proving by a preponderance of the evidence the voluntariness of the statements. Hebb v. State, supra, is authority for the proposition that because the trial judge is presumed to know the law, he will be deemed to have found the statement voluntary by a preponderance of the evidence absent an indication to the contrary.

We conclude from the totality of the circumstances that the statements in this case were the product of the appellant’s free will, and were knowingly, freely and voluntarily made and were, therefore, properly submitted to the ultimate trier of the facts, the jury, for its consideration.

II.

The appellant argues that the trial court erred in refusing to exclude in-court identifications of the appellant where such identifications were the product of impermissibly suggestive prior photographic identifications. The Supreme Court in Simmons v. U.S., 390 U. S. 377, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968), and Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L.Ed.2d 1199 (1967), held that an identification procedure was violative of due process whenever it was so suggestive that under the totality of the circumstances the procedure utilized resulted in a very substantial likelihood of irreparable misidentification. In Neil v. Biggers, 409 U. S. 188, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court held that even though an identification might be suggestive it was not violative of due process unless it was also unreliable. The Court laid down a five factor test for the determination of the reliability of the identification: the opportunity of the witness to view the accused at the time of the crime; the witness’ degree of attention; the accuracy of prior description; the level of certainty expressed by the witness; and the length of time between the crime and confrontation. See: Foster and Forster v. State, 272 Md. 273, 323 A. 2d 419 (1974).

The trial court was called on to determine whether under the totality of the circumstances the in-court identification was by clear and convincing evidence independent of the impermissibly suggestive prior photographic identifications of the accused. Smith and Samuels v. State, 6 Md. App. 59, 250 A. 2d 285 (1969), cert. denied, 254 Md. 720 (1969) (as to Smith), 255 Md. 743 (1969) (as to Samuels).

The record disclosed that the appellant was identified in court by two witnesses: Robin Woolford, who was shot during the Rainbow Cleaners robbery, and Stephen Bloss, who was a store detective employed by Acme Market. There is testimony that Woolford had an opportunity to view the accused who was not more than a few feet away in a well lighted premises for three to four minutes; that the description he gave to the police was accurate and detailed; and that when a photograph of the accused was included in a series shown to him some 20 days after the robbery, he identified the appellant. It is also true that on at least one other occasion he was alleged to have identified another person as the culprit and that under cross-examiantion he stated that his in-court identification was based in part on his recollection of events and in part on his recollection of the photographic identification. We conclude that there was clear and convincing evidence independent of the photographic identification to justify a submission of the facts to the jury. The weight of the evidence of identification was a matter to be determined by the triers of the fact.

Bloss was a store detective trained to observe people. There is evidence that he saw the appellant twice with the aid of the high beams of his own automobile headlights; that the description given to the police was sufficiently accurate to cause them to include the appellant’s photograph in the first spread of pictures shown to Bloss; and that Bloss immediately identified the accused the same night of the robbery. Bloss” photographic identification was suppressed because the photograph of the appellant shown to him had written on it the date of the robbery. The photographic identification was not offered into evidence by the State. Bloss stated that his in-court identification was primarily made on his memory of the man he saw that night although he admitted his identification was based on both his recollection of the event and the recollection of the photographic identification. Again under the totality of the circumstances the in-court identification was properly submitted to the jury for its consideration.

III.

The appellant complains finally that the trial court erred in failing to grant a mistrial because of inflammatory and prejudicial arguments by the prosecutor to the jury. He suggests that throughout the State’s closing argument the State’s Attorney attempted to arouse the passions of the jury. Our reading of the State’s argument does disclose some excesses on the part of the zealous prosecutor, but it also discloses that the trial court was in firm control of the proceedings and where necessary gave instructions and cautions to the jury as to the offending statements. Our concern is necessarily limited to whether the jury was actually misled or influenced in this case to the prejudice of the accused. See: Pierce and Jackson v. State, 34 Md. App. 654, 369 A. 2d 140; Wilhelm v. State, 272 Md. 404, 326 A. 2d 707 (1974); Wood v. State, 192 Md. 643, 65 A. 2d 316 (1949).

We think this case clearly falls within the ambit of United States v. Socony Vacuum Oil Co., 310 U. S. 150, 240, 60 S. Ct. 811, 852, 84 L. Ed. 1129, 1177 (1940), where the Supreme Court said:

“Of course appeals to passion and prejudice may so poison the minds of jurors even in a strong case that an accused may be deprived of a fair trial. But each case necessarily turns on its own facts. And where, as here, the record convinces us that these statements were minor , aberrations in a prolonged trial and not cumulative evidence of a proceeding dominated by passion and prejudice reversal would not promote the ends of justice.”

Applying the standards delineated in the cases cited we find no prejudice to the accused and no reversible error.

Judgments affirmed.

Costs to be paid by appellant.

      . The history of Wong Sun’s treatment in the Maryland appellate courts can be found in Ryon v. State, 29 Md. App. 62, 73-74, 349 A. 2d 393, 401-02 (1975) n.13.


author: Gilbert, C. J.,

text:
    JENNIFER E. KLEIN v. JEFFERY A. KLEIN
    [No. 962,
    September Term, 1976.]

      Decided May 17, 1977.

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

      Eileen M. Stein, with whom was Kathy Mazzaferri on the brief, for appellant.
    No appearance by appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Believing that the Circuit Court for Montgomery County has blotted out her maiden name by refusing to restore it to her at the time of the passage of a decree of divorce a vinculo matrimonii, Jennifer E. Klein asks us to “[s]et down ... [her] name .. .” because “[a] good name is better than riches.” We shall do so for the reasons hereafter stated.

The record shows that appellant and appellee entered into a voluntary separation and property settlement agreement on April 10,1975. The agreement recited the marriage of the parties; the birth of a son, then age 4; various financial arrangements, including support for the appellant and child; the appellant’s having custody of the child; property settlement; the “unfortunate and irreconcilable differences” that had arisen between appellant and her then husband; and the separation of the parties on February 19, 1975.

One year and four days later, the husband filed a Bill of Complaint in the circuit court seeking a divorce a vinculo matrimonii. The Bill suggested that the appellant was the proper party to have custody of the minor child and that the separation agreement “be incorporated into the Decree of Divorce insofar as this Court has jurisdiction to do so.”

Appellant filed an Answer to the Bill in proper person, admitting the allegations thereof and praying affirmatively that she “have her maiden name, Jennifer Evans, restored to her.” In due time, the case was referred to a Master in Chancery for hearing on the Bill and Answer. Appellant appeared at the hearing and testified as to her desire to have her maiden name restored in the decree. She stated that she had “no fraudulent Intent,” that she would “notify all ... creditors,” and that the purpose was not to avoid debts or obligations incurred in the name of Klein. Appellant further said that she had given “quite a bit of thought” to the fact that she had a minor sou whose middle name was “Evans.”

The Master’s report recommended the divorce a vinculo rmtñmonii, custody of the child to the appellant, the incorporation without merger of the separation agreement into the decree, and the restoration of the appellant’s maiden name to her. Counsel for the husband submitted to the court a proposed decree which was in conformity with the Master’s recommendations. For reasons not apparent from the record, the judge struck from the decree that portion which restored appellant’s maiden name to her.

By 1973 Md. Laws, ch. 811, § 1, the legislature provided that:

“Whenever the court shall grant a decree of final divorce, the decree may include a restoration of the woman’s former name.” (Emphasis supplied.)

The use of the verb “may” by the General Assembly is indicative of that body’s belief that whether a former name should be restored in the decree at the time of divorce is vested in the sound discretion of the court.

Just what limitations are placed on the court’s exercise of that discretion have varied from jurisdiction to jurisdiction, but it is not unbridled. See, e.g., In re Marriage of Banks, 42 Cal. App. 3d 631, 117 Cal. Rptr. 37 (1974) (setting a standard of whether the change “may seem right and proper”); In Re Hauptly, 262 Ind. 150, 312 N.E.2d 857 (1974) (holding that discretion is abused if the court looks beyond a question of fraudulent intent on the part of the petitioner); In re Reben, 342 A. 2d 688 (Me. 1975) (pointing out that at “common law a person could change his name nonjudicially, provided this was not done with fraudulent intent” and holding that failure to change the wife’s name to her maiden name under the circumstances was an abuse of discretion); Egner v. Egner, 133 N.J. Super. 403, 337 A. 2d 46 (1975) (trial judge had expressed concern for possible future harassment of minor children if mother had prenuptial name restored, but the appellate court held an abuse of discretion noting that the statute permitting the restoration of the prenuptial or maiden name was in the light of the common law and not in derogation of it); Ogle v. Circuit Court, 227 N.W.2d 621 (S. Dak. 1975) (burden upon an applicant in divorce proceeding to have maiden name restored is practically non-existent; had the legislature’desired the rule to be different when the parties were parents of minor children, they had but to so state); Elwell v. Elwell, 132 Vt. 73, 313 A. 2d 394 (1973) (trial court must show “good cause” for denial of maiden name restoration, and the fact that there is a minor child is insufficient reason to deny the request); In re Strikwerda, 216 Va. 470, 220 S.E.2d 245 (1975) (discretion of trial judge abused in denying requested change absent findings of illegal, fraudulent, or immoral purposes); In re Kruzel, 67 Wisc. 2d 138, 226 N.W.2d 458 (1975) (ambit of discretion is very narrow as name can be changed unless sufficient cause to the contrary is shown).

At common law, a person could take any name he pleased, so long as it was not done for fraudulent purposes or to interfere with the rights of others. Hall v. Hall, 30 Md. App. 214, 351 A. 2d 917 (1976); 74 Colum. L. Rev. 1508 (1974); 44 Cornell L.Q. 144 (1958). That Maryland follows the common law with respect to a name change is no longer open to question. Hardy v. Hardy, 269 Md. 412, 306 A. 2d 244 (1973); Stuart v. Board of Supervisors, 266 Md. 440, 295 A. 2d 223 (1972); Romans v. State, 178 Md. 588, 16 A. 2d 642 (1940); Hall v. Hall, supra.

This State’s name change statutes, Md. Ann. Code art. 16, §§32 and 123, are not to be interpreted as the exclusive manner in which a name may be changed, Hall v. Hall, supra, but are in furtherance of and confer an official sanction upon a common law prerogative. We think that an adult or emancipated person may adopt as his or her legal name any name he or she pleases provided that at the time of the adoption of the name it is not illegal, fraudulent, obscene or otherwise offensive, and does not interfere with the rights of others. See Egner v. Egner, supra.

In the case at Bar, the uncontradicted testimony is to the effect that the name change desired by appellant was not illegal, was without fraudulent intent, and patently was not obscene or otherwise offensive. The sole reason that the trial judge could have relied upon was that the change would interfere with the rights of the minor son of the parties. See note 5, supra. While there unquestionably was a time that a child might be harassed if his or her name differed from that of the mother, that day has long since passed. Indeed, the Court of Appeals, in West v. Wright, 263 Md. 297, 302, 283 A. 2d 401, 404 (1971), took judicial notice that in this country “nearly 25% of all marriages in a given year involve previously married people" and that “it is not an unusual occurrence to have children and parents living together with different last names." (Footnote omitted.)

We note that when a marriage is annulled the woman resumes her prenuptial name irrespective of whether there have been children born of the voided marriage. Sometimes custody of children is awarded to maternal grandparents, or to the married sister of one of the natural parents, and in those events the child’s surname is usually different from that of his guardians.

Today, it is no longer an oddity for a married woman to continue to use her maiden name and not that of her spouse. Stuart v. Board of Supervisors, supra. The fact that at some stage in the marriage a child is born does not operate so as to deprive the wife of the use of her prenuptial name.

The trial judge’s refusal to restore the appellant’s maiden name because of the minor child, while perhaps correct years ago, is, in the light of the times and trend, an abuse of discretion. We hold that it is an abuse of discretion to deny a woman who requests it at the time of divorce the restoration of her prenuptial name, absent illegal, fraudulent, or immoral purposes.

Rather than reverse and remand this matter for further proceedings, we shall, pursuant to Md. Rule 1075 b, amend the decree of divorce entered in the Circuit Court for Montgomery County on August 10, 1976, in the case of Jeffery A. Klein v. Jennifer E. Klein by appending thereto the following:

“Ordered that Jennifer E. Klein, the Defendant, be, and the same is, hereby restored to her maiden name, Jennifer Evans.”

On oral argument we were advised, and the record so reflects, that the appellee, the former husband of appellant, interposed no objection to the appellant’s having her maiden name restored. Thus, while the case appears to be one involving the appellant vis a vis the appellee, that is actually not the situation. Appellant recognizes that it would be grossly unfair for the appellee, who is at best a nominal party to this appeal, to be saddled with the costs. Therefore, appellant has voluntarily assumed those costs.

Decree amended and as amended affirmed.

Costs to be paid by appellant

      . See I Peter 3:6.

      . John Bunyan, Pilgrim's Progress, Apology for His Book, Pt. 1 (1678).

      . Cervantes, Don Quixote, Pt. II, bk. II, ch. 33 (1615).

      . From the record, we infer that appellant is a law student.

      . Although not part of the record, the appellant has reproduced in her brief a letter dated September 1, 1976, from the trial judge to her which roads in pertinent part:
      “Dear Ms. Klein:
      In response to your recent phono conversation, I cannot permit in your divorce decree that your maiden name- be restored to you. This is by virtue of the fact that you have a minor child, Gregory E, Klein, now placed in your custody, and my concern is for the child of the parties.
      I suggest you consult counsel of your choice as I am sure he will advise you that you may assume whatever name you wish so long an it is not done with the intention to defraud or deceive. Again, however, in my judgment it would create great confusion to your minor child, now only five years of age.”

      . Codified as Md. Ann. Code art. 16, § 82.

      . We observe that 1973 Md. Laws, ch. 811, § 1, introduced as House Bill 844, originally read:
      “Whenever the court shall grant a decree of final divorce, such decree shall include, as the option of the woman, a provision that she shall be restored to her maiden name. No further action need be instituted for the maiden name restoration. Thereafter, by pro se petition to the court, she shall be restored to the use of her maiden name."

        The italicized portion was deleted by amendment and the words “divorce, the decree may include a restoration of the woman’s former name” were added in lieu thereof.

      . At the 1977 Session of the Legislature, House Bill 412, which would have allowed the restoration of a maiden name at the woman’s request, passed the House of Delegates but received an unfavorable report by Senate Judicial Proceedings Committee.

      . Judge Learned Hand said on granting the Petition of Samuel Goldfish to change his name to Samuel Goldwyn, “A self-made man may prefer a self-made name.”


author: Moylan, J.,

text:
    GLENN JOSEPH TROVATO v. STATE OF MARYLAND
    [No. 1054,
    September Term, 1976.]

      Decided May 17, 1977.

      The cause was submitted on briefs to Moylan, Powers and Moore, JJ.
    Submitted by Raul F. Harris, Jr., for appellant.
    Submitted by Francis B. Burch, Attorney General, Gilbert Rosenthal, Assistant Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and James W. Dryden, Assistant State’s Attorney for Anne Arundel County, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

This case involves the distinction between two measures of proof — 1) that which is legally sufficient to permit a result and 2) that which is so conclusive and decisive as to require a result.

The appellant, Glenn Joseph Trovato, was convicted in the Circuit Court for Anne Arundel County by Judge Matthew S. Evans, sitting without a jury, of burglary and larceny. His appellate arguments boil down to the single contention that a State’s witness, Paul B. Johnson, Jr., was an accomplice, as a matter of law, so as to have compelled a judgment of acquittal because of the lack of corroboration of his testimony.

On March 17, 1975, the office of Chris Coile and Associates, Inc., was burglarized and looted. Two calculators and a typewriter were stolen. The key testimony implicating the appellant was that of Roy Junior Hines, an admitted and undisputed accomplice. Hines described how he, the appellant and one Bruce Dotson broke the window of the burglarized premises and stole the office machinery. He described having hidden the stolen goods in his own car trunk, how the appellant later received $100 for selling the stolen typewriter and how the appellant turned over $25 of those proceeds to Hines. Since Hines was unquestionably an accomplice, the evidence against the appellant would not have been legally sufficient to sustain a conviction unless the testimony of Hines was corroborated by non-accomplice evidence.

The key witness in that regard was Paul B, Johnson, Jr. Nothing linked Johnson to the burglary itself. Johnson’s own testimony, however, revealed that he had inquired of the appellant about obtaining a typewriter for Johnson’s employer. The appellant indicated that he “would work on it.” Johnson testified that a few days later, a typewriter was placed in his car and he subsequently paid the appellant $100 for it. Johnson’s testimony was sufficiently damning to himself to indicate that he was quite possibly a knowing receiver of stolen goods. He was employed by the Future Carpet Company as a laborer. His employer told him that he wanted to purchase a typewriter. Johnson asked the appellant if he knew where he could get a typewriter. The appellant replied that he did not but “would check around and see.” Several days later, the appellant advised Johnson that he had located a typewriter. Johnson told the appellant to “leave it in the car, in my car.” Johnson there found the IBM typewriter and took it to his employer who paid him $100. The next evening, Johnson turned over the $100 to the appellant. Johnson admitted that he knew that the appellant was a mechanic with no access to business equipment. He admitted that he knew that the appellant had a criminal record. He admitted that when he bought the typewriter, he suspected that it was stolen. His possible, or even probable, guilt as a receiver of stolen goods is not the issue for present purposes, however.

The law is clear that a receiver of stolen goods is not, ipso facto, an accomplice of the thief. The person who is the receiver may be an accomplice, but not by virtue of his act of receiving. If the man who is the eventual receiver also happens to be the one who instigated and procured the theft, then he is an accomplice. This is so not because he is coincidentally the receiver but, more significantly, because he is independently an accessory before the fact. That is the critical act of participation that makes him an accomplice. The law in this regard is clear-cut. In Gardner and Maple v. State, 6 Md. App. 483, 495, 251 A. 2d 901, we said:

“Nor is a receiver of stolen goods an accomplice of a thief unless they conspire together in a pre-arranged plan for one to steal and deliver to the other and pursuant to such plan one does steal and deliver to the other ... No such plan was here shown. We hold that [the witness] was not an accomplice.”

In Osborne v. State, 4 Md. App. 57, 61-62, 241 A. 2d 171, we stated both the general rule and its exception:

“While the rule is that a thief and a receiver are not accomplices..., an exception to that rule is recognized when the thief and the receiver of stolen property conspire together, or enter into a pre-arranged plan, for one to steal and deliver the property to the other; and pursuant to such plan, one does steal and deliver to the other.”

At issue is not Johnson's possible status as a receiver of stolen goods but his possible status as an accessory before the fact to the theft. His own testimony is all we have in that regard. Focusing in upon his actions before the fact of the larceny, the testimony is equivocal. There may have been possible “larceny in his heart,” but he and the appellant had not, according to the testimony, agreed upon a clear and direct course of action. Johnson asked the appellant if he knew where he could get a typewriter. The appellant replied that he did not but “would check around and see.”

“An accomplice is one who knowingly, voluntarily, and with common criminal intent with the principal offender unites with him in the commission of the crime, either as a principal or as an accessory before the fact.” Foster v. State, 11 Md. App. 40, 46, 272 A. 2d 810; Watson v. State, 208 Md. 210, 117 A. 2d 549. In the present case, we conclude that there was a genuine factual question in this regard and that the issue was, therefore, properly referred to the fact finder in his fact-finding capacity. We are in that zone whereof former Chief Judge Murphy spoke in Foster v. State, supra, at 11 Md. App. 46;

“We have held repeatedly that when evidence relating to whether a witness is an accomplice is capable of being determined either way and justifies different inferences in respect thereto, the question is for the determination of the trier of fact and in a jury case should be submitted to the jury with propea’ instructions. Christopher v. State, 9 Md. App. 277; Gaskins v. State, 7 Md. App. 99; Burley v. State, [5 Md. App. 469].”

We agree with the appellant that the evidence was legally sufficient to have permitted a finding that Johnson was an accomplice. The test for legal sufficiency in this regard is precisely what it would be if Johnson himself were on trial and we were measuring the legal sufficiency of the evidence to sustain his conviction. “[T]he generally accepted test as to whether a witness is an accomplice is whether he himself could be convicted for the offense, either as a principal or accessory before the fact.” Foster v. State, supra, 11 Md. App. at 46; Sutton v. State, 10 Md. App. 353, 270 A. 2d 497.

To say that Johnson might be an accomplice on these facts is not, however, to say that he must be an accomplice on these facts. The permissibility of such a finding would simply entitle the appellant in a jury trial to an instruction, upon proper request, to the effect that if the jury found the witness to be an accomplice, they must then find independent corroborative evidence linking the appellant to the crime. The fact that the evidence was legally sufficient to permit the finding that the witness was an accomplice does not imply that the evidence could not also have been legally sufficient to permit the finding that the witness was not an accomplice. The fact finder was entitled to resolve that question either way. Therefore, the appellant was not entitled to a judgment of acquittal, for the reason that the fact finder could have found, within his prerogative, that the witness was not an accomplice so as to require corroboration. Upon that permitted finding, the total evidence in the case was legally sufficient to sustain the verdict. The ultimate test of legal sufficiency, whether to permit the case to go to the jury in a jury trial or to save the judge from being declared clearly erroneous in a court trial, is whether the admissible evidence either shows directly, or circumstantially, or supports a rational inference of, .facts from which the fact finder could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. Williams v. State, 5 Md. App. 450, 459, 247 A. 2d 731; Metz v. State, 9 Md. App. 15, 23, 262 A. 2d 331.

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

What are these sets of legal consequences where the issue is that of the possible status of a witness as an accomplice so as to require corroboration of his testimony? At one end of the spectrum, in that band least favorable to the State and most favorable to the accused, the proof would be so clear and decisive that * reasonable minds could not differ in finding that the witness was an accomplice. In such a situation, the State would be vulnerable to a motion for a judgment of acquittal at the end of the State’s case and, in a jury trial, at the end of the entire case, if the witness’s testimony had not been adequately corroborated. In a court trial, the accused would be entitled to an acquittal. In a jury trial, even if the accomplice testimony were prima facie corroborated so that the motion did not go against the State, the defendant would still be entitled to an instruction, upon proper request, to the effect that the witness was an accomplice, as a matter of law, so as to require the jury to find for themselves independent corroboration. By way of analogy to the civil law, if the burglarized company were bringing a civil suit against a Paul Johnson, it, as plaintiff, would be entitled to a directed verdict in its favor.

At the far end of the spectrum, in that band least favorable to the accused and most favorable to the State, the proof would be so clear and decisive that reasonable minds could not differ in finding that the witness was not an accomplice. The accused here would not even be entitled to a jury instruction on the subject of corroboration because the judge could and should properly declare the witness to be a non-accomplice, as a matter of law. Again by way of analogy to the civil law, if the burglarized company were bringing a civil suit against a Paul Johnson upon such a set of facts, he, as civil defendant, would be entitled to a directed verdict in his favor.

In the middle of the spectrum, we are in a world of fact and not of law, a world wherein the fact finder and not the judge reigns supreme. Within this band, neither the State nor the defendant is entitled to the resolution of a factual question, with its attendant legal consequences, as a matter of law. The state of the proof is sufficiently equivocal to permit the fact finder, in his unfettered discretion, to find that the witness either was or was not an accomplice. The defendant is not entitled to a judgment of acquittal, on the one hand, but he is entitled to a jury instruction on the subject of corroboration, on the other hand. Again, by way of analogy to the civil law, if the burglarized company were bringing a civil suit against a Paul Johnson upon such a set of genuinely disputed facts, neither the plaintiff nor the defendant would be entitled to a directed verdict in its favor. Involved, rather, would be a genuine jury question.

In the present case, we stand upon such disputed middle ground. If the fact finder found, as was his right, that Paul Johnson was not an accomplice, then Paul Johnson’s testimony needed no corroboration. In such an eventuality, the total evidence was legally sufficient to sustain the verdict. The judge, as fact finder, was not, therefore, clearly erroneous in returning a verdict of guilty. Williams v. State, supra; Metz v. State, supra.

Judgments affirmed; costs to be paid by appellant.

      . His status as a receiver does not make him an accomplice but neither does it preclude him from being an accomplice.

      . The, fact that at his own trial the witness, as a defendant, could only bo convicted by proof beyond a reasonable doubt does not. generate a distinction between the two situations. As Judge Powers very ably pointed out for this Court in Fisher v. State, 28 Md. App. 243, 251, 345 A. 2d 110:
      “In this test of legal sufficiency, the court is not concerned with any burden of proof. A burden of proof is a yardstick used only by the trier of the facts in performing the function of assessing weight and credibility of evidence.”

      . For a somewhat similar analysis where the defensive question was one of entrapment, see Fisher v. State, supra, at 28 Md. App. 248-251. Therein, Judge Powers took the three measures of proof: 1) legally insubstantial, 2) genuinely disputed and 3i legally compelling and assessed the impact of each measure of proof upon the questions of motions for a judgment of acquittal and requested jury instructions.