author: Orth, C. J.,

text:
    BURNETT SNYDER v. HOLY CROSS HOSPITAL et al.
    [Misc. No. 36,
    September Term, 1975.]

      Per Curiam Order January 22, 1976.

      Opinion filed February 26, 1976.

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

      Marcia K. Docter for appellant.

      Paul Walter, Special Assistant Attorney General, and Francis B. Burch, Attorney General, for State Department of Health and Mental Hygiene.

         Note: Certiorari denied, Court of Appeals of Maryland, February 2, 1976.

   Orth, C. J.,

delivered the opinion of the Court.

STATEMENT OF THE CASE

On 20 January 1976 Burnett Snyder instituted an action in the Circuit Court for Montgomery County to prevent a postmortem examination from being made on the body of his son, Neal. The Bill of Complaint alleged that the son, eighteen years of age, died suddenly on 19 January 1976 at 12703 Layhill Road in Silver Spring, where he resided with his parents. The body was at Holy Cross Hospital, and a Deputy Medical Examiner of the State of Maryland, Dr. John Rogers, had directed that it be removed to Baltimore for a post-mortem examination. The father was “a practicing member of the Jewish Orthodox Faith, and ... his religious convictions prohibit any molestation of the body after death.” He sought that the Hospital, Dr. Rogers, and Dr. Russell S. Fisher, the State Medical Examiner, “be enjoined temporarily and permanently from tampering with the body of Neil Snyder in any manner whatsoever, and that they further be enjoined from performing any and all post-mortem examinations.” He prayed that they be directed to release the body immediately to a designated funeral home “for proper burial in accordance with the precepts of the Jewish Faith.” A plenary hearing was held the same day, and on 21 January 1976 the court issued an order denying the prayer for an injunction but directing the defendants “to maintain the status quo and refrain from undertaking any steps to perform an autopsy upon the body of the decedent . . . until determination of the appeal noted this date.” The appeal to this Court was noted on 21 January and on that date the father filed a Motion for Immediate Hearing and Other Relief. We ordered that a hearing be held on 22 January at 1:30 p.m., and that the filing of briefs be waived. A transcript of the proceedings below was received, and the hearing proceeded as ordered. Upon its conclusion, after due deliberation, we issued a Per Curiam Order:

“For reasons to be stated in an opinion to be filed later, it is this 22nd day of January, 1976
ORDERED, by the Court of Special Appeals that the judgment of the Circuit Court for Montgomery County of 21 January 1976 denying the injunctive relief prayed in the bill of complaint be, and it is hereby affirmed with costs; and it is further
ORDERED, that the mandate be issued forthwith:”

On 23 January the father petitioned the Court of Appeals for a writ of certiorari and moved that it stay our decree. The same date the Court of Appeals denied the motion to stay. It denied the petition for the issuance of a writ of certiorari on 2 February. We now give the reasons for our order of 22 January 1976 denying the relief sought.

FACTS

The circumstances surrounding Neal’s death on 19 January 1976 were elicited from his father at the hearing below. Mr. Snyder picked up his son at school about 1:00 p.m. and they went directly home. Neal was in the house with his father the rest of the afternoon. They were in “contact” with each other “[a]ll the time. We walked from room to room. He came into our room, and we would go into his room.” Neal died about 6:00 p.m. “He was in our room. I really don’t know, we were just talking and he started to go into his room. He walked out, I was kidding around with him, but he didn’t answer. He walked into his room and we heard a thud. I went in and thought he was kidding around and said, ‘Come on [Neal] get up’. He was dead.... We called the Rescue Squad. ... He was taken to Holy Cross Hospital. He was already dead before they ever got there.” The father said that his son had no history of heart trouble. “The only time he was in the hospital was twice, when he was born and when he had his tonsils out. He was never sick a day in his life, other than a cold. ... He was never sick.” The father was asked if he had discussed the cause of his son’s death with his pediatrician or family doctor. “The pediatrician said he spent 20 minutes going through his chart and could not find any reason. The family doctor never examined him. He would not know.”

The Hospital notified the Deputy Medical Examiner about 7:15 p.m. He testified: “I inquired as to circumstances surrounding the death, the information from the medic unit that brought the patient to the hospital, the history given to the doctors there, the history upon arrival from the doctor in charge of the emergency room, and I got the story from Officer Wheatman who talked to various members of the family for the first time.” The result was that the doctor could not determine the cause of death. “I have no idea. . . . There is nothing that shows. The man was in good health. He just suddenly died.” In such circumstances, “we do a post-mortem in Baltimore at the Medical Examiner’s Office to try to determine the cause of death. It is my position, my job, to give a cause of death on death certificates. Without any knowledge of what caused it, I can’t fill one out.” He knew of no way “short of a complete post-mortem examination to determine the cause of death.” “If a person is young [25 or lower] and dies in apparent health, I order one invariably. ... It is unusual to die of a sudden death without any reason for it, unless a person has a long history of heart trouble, or things you might expect him to die from. Then we may not do one. If a person is in good health, we do one.” Neal Snyder’s death was sudden and unexplained.

The police had started an investigation of the death. “They went to the hospital and conferred with Dr. Rogers and the other emergency room people.” An officer talked to the family. The “background on the death”, however, had not been entirely checked out because of the press of other matters. Sergeant O. J. Lennon, of the Montgomery County Police Department, assigned to the homicide squad said:

“Our primary concern is what happened around the time of death, the history of the individual, who his associates are, certainly his medical history, if there is any. As a result of these we try and compile what happened or what may have been the cause of death which we are not always successful in. Many times it is necessary to request that an autopsy of the individual be conducted to help establish what the cause of death may have been.”

The police investigate all cases of sudden death. “When there is no outward sign of what the cause of death was, we do investigate.” The investigation of Neal Snyder’s death had not determined the cause of death. “My understanding as of now, there is no information which we have which indicates why the young man died.” The investigation would continue.

The right of the State to conduct a post-mortem examination of Neal Snyder is challenged on religious grounds. The father said that he was an Orthodox Jew. The tenets of his religion do not permit post-mortem examinations. The testimony of Rabbi Herzel Kranz and Rabbi Moshe Silverman corroborated this and explained the prohibition.

THE LAW

A certificate of death shall be filled out and signed within twenty-four hours after death by the physician last in attendance upon the deceased except in such cases where the Medical Examiner takes charge of the corpse, in which case the certificate shall be executed by him. Code, art. 43, § 20 (a). The Medical Examiner must take charge of the corpse when he is required to investigate the death. He is required to investigate the death of any person who dies (1) as a result of violence, or (2) by suicide, or (3) by casualty, or (4) suddenly when in apparent health or when unattended by a physician, or (5) in any suspicious or unusual manner. Code, art. 22, § 6. The statute was implemented by “Regulations of the Maryland State Board of Post Mortem Examiners Governing Medical Examiner Cases” (P-M Rules). “Medical Examiner case” is defined as “any death which is the result wholly, or in part, of a casualty or accident, homicide, poisoning, suicide, criminal abortion, rape, therapeutic misadventure, drowning, or a death of a suspicious nature, or of an apparently healthy person.” P-M Rule 10.33.01.01. Subsection B of 10.33.01.01 provides: “A case which is dead on arrival at the hospital, however, shall be considered a Medical Examiner case unless the physician who pronounces death has been in previous attendance on the patient.” Each hospital shall appoint an agent “with whom the Medical Examiner can at any hour communicate regarding Medical Examiner cases in such hospital. . . .” 10.33.01.05 A (1). The agent shall submit promptly certain information as to each Medical Examiner case to the Medical Examiner” in order to allow him to decide the disposition of each such case.” 10.33.01.05 B (3). And see Code, art. 43, § 23. The Deputy Medical Examiner in a county may release to the hospital four types of Medical Examiner cases as set out in 10.33.01.03 A. As to cases so released, the hospital agent shall complete the death certificate, but it must be countersigned by the Medical Examiner. A sudden death case may be released to the hospital only when associated with a therapeutic procedure. 10.33.01.03 B and A (3).

In those cases in which the Medical Examiner takes charge of the body, if the cause of death is established beyond a reasonable doubt, he may simply so report. “If, however, in the opinion of such medical examiner, an autopsy is necessary, the same shall be performed. . . .” Code, art. 22, § 7. The section makes it “the duty of any deputy medical examiner to call upon the chief medical examiner or an assistant medical examiner, or other person authorized and designated by the chief medical examiner, to make an examination or perform an autopsy whenever he deems it necessary or desirable, and it shall be the duty of said chief medical examiner or assistant medical examiner to perform such examination, except in such cases as a competent pathologist is so authorized by the chief medical examiner to perform such autopsy.”

DECISION

It is clear that the Medical Examiner was obligated by law to take charge of the body of Neal Snyder. The young man was dead on arrival at the Hospital, and there was no physician who had been in previous attendance. He died suddenly when in apparent good health. It was a “Medical Examiner case”, and the Medical Examiner had to investigate the death to determine its cause.

It is equally clear from the evidence adduced, that, on the investigation conducted, the cause of Neal Snyder’s death was not established beyond a reasonable doubt. It appeared that the cause of death could only be so established by ascertaining the medical reasons for it, and that an autopsy was required to determine the medical reasons. The responsibility imposed by law was manifest. An autopsy had to be performed, and a medical examiner had to perform it.

Father claims, however, that even if the law requires that an autopsy be performed, the law is unconstitutional. He does not contend that the law is unconstitutional on its face, but he urges that it is unconstitutional as applied to him. He put it this way in his petition for writ of certiorari: “The substantial constitutional issue is . . . whether the interest of the State in directing a post-mortem examination on the body of Neal Snyder, deceased, is a sufficiently compelling reason to overrule the religious objections of [Burnett Snyder]

The challenge to the law is bottomed on constitutional rights commonly referred to as “freedom of religion.” The first amendment to the Constitution of the United States, applicable to the States through the fourteenth amendment, Cantwell v. Connecticut, 310 U. S. 296, 303 (1940); Hopkins v. State, 193 Md. 489, 496 (1949), provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;. . . .” Article 36 of the Declaration of Rights of the Constitution of Maryland, declares, in pertinent part: “[A] 11 persons are equally entitled to protection in their religious liberty; wherefore, no person ought by any law to be molested in his person or estate, on account of his religious persuasion, or profession, or for his religious practice, unless under the color of religion, he shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others in their natural, civil or religious rights; . . . .” Those clauses are unexceptionable under the first and fourteenth amendments. Levitsky v. Levitsky, 231 Md. 388, 397 (1963).

The federal and State free exercise clauses give extensive protection of religious liberty. McMillan v. State, 258 Md. 147, 151 (1970). “But the First Amendment embraces two concepts, freedom to believe and freedom to act. On one hand, it prevents compulsion by. law of the acceptance of any creed or the practice of any form of worship. On the other hand, it safeguards the free exercise of the chosen form of religion. Freedom to believe is absolute, but freedom to act is not. Conduct is subject to regulation for the protection of society. While the power to regulate must be so exercised in every case as not to infringe the protected freedom, the State, by general and nondiscriminatory legislation, may safeguard the peace, good order and comfort of the community without unconstitutionally invading the liberties protected by the Fourteenth Amendment.” Hopkins v. State, supra, at 496. And Article 36 of the Declaration of Rights, as we have set out, contains the express proviso that a person may not, under the color of religion, disturb the good order, peace or safety of the State, infringe the laws of morality, or injure others in their natural, civil or religious rights. So, as the Court said in Craig v. State, 220 Md. 590, 599 (1959): “While a person’s freedom to believe is absolute, his freedom to act is not. His conduct is subject to regulation for the protection of society, and, while the power to regulate must be so exercised in every case as not to infringe the protected freedom, the State, by general and nondiscriminatory legislation, may safeguard the peace, health and good order of the community without constitutionally invading the liberties guaranteed by the Fourteenth Amendment.” See Levitsky v. Levitsky, supra, at 396. “Accordingly, the State may abridge the religious practices of any individual only upon a demonstration that some compelling state interest outweighs the interest of the individual in his religious tenets.” McMillan v. State, supra, at 152. The ultimate question is whether such a compelling state interest was demonstrated here.

It is the religious practices of the father which are alleged to be abridged by the performance of an autopsy on the body of his son. The preliminary inquiry is whether the father may assert his own constitutional rights relating to freedom of religion with regard to an autopsy to be performed on the body of his son.

In this country it is “universally held that those who are entitled to the possession and custody of [a dead body] for purpose of decent burial have certain legal rights to and in it which the law recognized and will protect. Indeed, the mere fact that a person has exclusive rights over a body for the purposes of burial leads necessarily to the conclusion that it is his property in the broadest and most general sense of that term, viz., something over which the law accords him exclusive control.” P. E. Jackson, The Law of Cadavers and of Burial and Burial Places (2nd ed. 1950) 132. The right is to the possession of the corpse. The invasion or violation of the right furnishes a ground for a civil action for damages. “Likewise the right to possession of a dead body for purposes of burial has been described as a "quasi-property’ right in the nature of a "sacred trust’ that a court will uphold as a result of natural sentiment, affection, and reverence. ‘It would be more accurate to say that the law recognizes property in a corpse but property subject to a trust and limited in its rights to such exercise as shall be in conformity with the duty out of which the rights arise’.” op. cit. at 133. Jackson continues, at 133-134: “Thus our courts have evolved the necessary juridical basis for conferment of jurisdiction, i.e. a qualified property right, one of custody, control, and disposition of a res that itself is not material property. This denomination of a qualified property right is a happy one from the standpoint of sustaining the equitable right to grant temporary relief by injunction,. ...”

The rule set out by Jackson is the law of this State. It was said in Painter v. U. S. Fid. & Guar. Co., 123 Md. 301, 308 (1914):

“The Courts hold that the surviving husband or wife or next of kin have a quasi property right in the body in the absence of testamentary disposition. The right is not a property right in the general meaning of property right, but is extended for the purpose of determining who shall have the custody of the body in preparing it for burial. And Courts of Equity will protect those having this right from unreasonable disturbance.”'

See Unterstitzung Verein v. Posner, 176 Md. 332 (1939) in which the Court said, at 334: “It has generally and long been recognized that equity only affords an adequate remedy in cases involving the disposition of bodies of the dead,” and in which, at 337, the Court iterated, in part, the quote from Painter. We conclude that the father had such a justiciable right in his son’s body as would permit him to seek equitable relief from untoward interference with the father’s possession and custody of that body for the purpose of decent burial.

We assume for the purpose of decision in this case only, that the judicial relief father sought could be properly predicated upon the free exercise clauses of the constitutions as applicable to him. We find that the religious practices of the father were properly abridged by the State in the application of the statutes concerning post-mortem examinations because there were compelling state interests which outweigh the interest of the father in his religious tenets.

It is patent that the State has a compelling interest to safeguard the peace, health and good order of the community. To this end it needs to know when a death results from a criminal act or when the cause of death is such that the health and well-being of others may be adversely affected. That it may obtain this knowledge is the purpose and the underlying basis of the statutes pertaining to post-mortem examinations. These statutes and the rules implementing them are general and non-discriminatory. They are a valid exercise of sovereign power. When they are properly applied, as they were here, their purpose may not be defeated by invoking the constitutional guarantees of free exercise of religion with respect to the practice of religion. Practice in pursuit of the exercise of religion is not entirely free from government regulation. Here, the evidence was legally sufficient to establish that the cause of Neal Snyder’s death could not be determined without an autopsy, and the interest of the State in ascertaining the true cause by an autopsy outweighed the interest of the father in his religious tenets. Thus, the chancellor was correct in refusing to enjoin the performance of the autopsy.

The father referred to three cases in support of his position, Sherbert v. Verner, 374 U. S. 398 (1963), Wilensky v. Greco, 344 N.Y.S.2d 77 (S. Ct. N. Y. 1973), and People v. Miller, 368 N.Y.S.2d 788 (S. Ct. N. Y. 1975). They do not persuade us from our view.

Sherbert is in accord with the law as we have found it to be. It concerned a denial of workmen’s compensation benefits by a state because of the claimant’s faith. 374 U. S. at 410. The Court said that although “[t]he door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, . . . the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for ‘even when the action is in accord with one’s religious convictions [it] is not totally free from legislative restrictions’.... The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order.” 374 U. S. at 402-403. The conduct here posed such threat.

Wilensky is comparable to the case sub judice only in that a coroner wanted to conduct an autopsy on the body of the son of Orthodox Jews who resisted the proposed action as repugnant to their religious beliefs. County law permitted an autopsy when “necessary.” The son had died from multiple serious injuries sustained in an automobile accident with no evidence of criminality or foul play. That the death was caused by the injuries was evident but the coroner wanted to know which of the injuries was the immediate cause. Obviously there was no compelling need for the State to determine precisely which one of the multiple serious injuries was the cause of death, and the court found, properly we think, that the autopsy was not “necessary” in the contemplation of the law.

In Miller the District Attorney sought an order permitting him to exhume the body of a decedent who died in an automobile accident which gave rise to a charge of vehicular homicide against Miller. The widow of the decedent opposed the application. The District Attorney conceded that there was enough evidence available to obtain an indictment but that the evidence should be buttressed by a medical opinion as to the cause of death obtained by an autopsy. A statute gave any district attorney the right to obtain an order to exhume whenever he shall deem it necessary. The court held that there must be a reasonable basis for the district attorney’s conclusion that an exhumation was necessary and that in the case before it he had not adequately explained why the hospital records and the testimony by those physicians who attended the deceased from the time of the accident to the time of his death were not adequate to supply such proof as may be necessary as to the cause of death. Miller is clearly factually inapposite to the case before us.

SUMMARY

1) Under the constitutional guarantees respecting religion, the freedom to believe is absolute, but the freedom to act is not:

a) acts in pursuit of the exercise of a religious belief may be regulated by the State to safeguard the peace, health, and good order of the community.

2) In the circumstances of Neal Snyder’s death:

a) the laws of Maryland require that

i) the Medical Examiner take charge of the body and investigate the death;

ii) upon investigation, if the Medical Examiner is unable to determine the cause of death beyond a reasonable doubt, he shall perform an autopsy.

b) there was a compelling State need to ascertain the cause of death to safeguard the peace, health, and good order of the community.

c) the cause of death could be determined beyond a reasonable doubt only through an autopsy.

3) Therefore, it is our independent constitutional appraisal that the conduct of the autopsy on the body of Neal Snyder would not be repugnant to the free exercise of religion guaranteed by the federal and State constitutions.

It was for those reasons that we affirmed the judgment of the Circuit Court for Montgomery County denying the injunctive relief sought by Burnett Snyder.

      . Burnett Snyder v. Holy Cross Hospital, Dr. John Rogers and Dr. Russell S. Fisher, Equity No. 54674.
      In the transcript of the proceedings below and sometimes in the pleadings, the name is spelled “Neil”.

      . A report of the death which appeared on 23 January 1976 in the Metro Section of the Washington Post under the by-line of B. D. Colen, Washington Post Staff Writer, relates circumstances which were not brought out at the hearing below or before us. The newspaper article read:
      About 6:30 p.m. Snyder and his parents were in his parents’ bedroom at the family’s home on Layhill Road. “We were kidding around and I was testing out a new electric heater. It gave off a stench and he said ‘I’m going to get out of here,’ ” remembered Burnett Synder.
      “He started to leave the room and slipped on the box the heater had been in and rolled onto the bed,” said the elder Snyder, who added that his son did not hit his head or fall onto the floor.
      As the young man got up off the bed he looked at his mother. According to his father, “The look in his eyes said, ‘Help me.’ I think he was already in God’s hands as he left the room. He walked into his bedroom and I heard him hit the floor. When I got there he was dead.”

      . Dr. Rogers explained when a post-mortem may not be ordered:
      “Considerable years [of age] and a history of illness, for instance hypertension, heart disease, heart failure or the like, and they suddenly up and die in their sleep, without any other circumstances surrounding it, then after proper investigation with the police and so on we would not do one sometimes.”
      On cross-examination it was elicited that at one time Dr. Rogers was entertaining the possibility of waiving the post-mortem. “I had not agreed to it, I was in the process of possibly doing that after consultation with the State’s Attorney, with the police department and with Dr. Fisher’s office. ... I had not made up my mind.” If he had waived it, what would be written in the death certificate would have been “strictly a guess as to the cause of death.” That guess would have been “Asphyxiation due to vomiting.” At one point the doctor had indicated that he would waive the post-mortem on the “say-so” of the State’s Attorney, but changed his mind when he learned that the death of a young person in the county within the past twenty-four hours had been apparently “drug-related”, although he had no information which connected that death to the death of Neal Snyder.

      . Rabbi Kranz of the Silver Spring Jewish Center and Silver Spring Day-Institute, said:
      “In the Jewish Religion, as the live human is considered holy, so is the deceased. The body does not lose its sanctity. In regard to death, of course we have the broader perimeters of resurrection. Along with that we have regard to the resting of the soul.
      In Jewish Law, and it is a verse in the Old Testament, the greatest concentration of the soul is in the blood. The soul touches all parts of the living body, but its greatest concentration is in the blood. Therefore, under any and all circumstances, down even to the laws of kashruth, in which we eat kosher meat, we go to extremes to extract the blood even from the kosher meat in order not to tamper with the essence of live — whatever live creature it is.
      In Jewish Law, except for a situation of saving a community or the act of saving another person’s life, it is not permissible to tamper in any way with another person’s body. If there is an epidemic, and this was so in the Middle Ages, where a Jewish court was convened to permit the tampering with the body, checking the body in order to help the living. But under any other circumstances that I know of there has not been any permission granted in basic Jewish law.”
      Rabbi Silverman of the “B’nai B’rith Ilillel Foundation, University of Maryland”, stated that “Judaism is very, very strong and very adamant in maintaining the purification and the wholeness and completeness of the body. . . . God himself views the sanctity of a body, in its completeness it should be returned to the ground. . . . God takes the soul away, but the body is to remain in perfect condition and treated with the utmost respect, more so than one’s living body.”

      . The General Assembly created the Department of Post-Mortem Examiners, headed by a Commission, as part of the Department of Health and Mental Hygiene. Code, art. 22, § 1. The Commission is authorized to appoint six medical examiners, one to be known as the chief medical examiner, § 2, and a deputy medical examiner for'each county in the State, §3.

      . Code, art. 22, § 6, reads, in pertinent part:
      “When any person shall die in Baltimore City, or in any county of the State, as a result of violence, or by suicide, or by casualty, or suddenly when in apparent health or when unattended by a physician, or in any suspicious or unusual manner, it shall be the duty of the police or sheriff immediately to notify the chief medical examiner and assistant medical examiner, or a deputy medical examiner, as the case may be, and the State’s attorney of Baltimore City, or of the county, as the case may be, of the known facts concerning the time, place, manner and circumstances of such death. Immediately upon receipt of r,_eh notification, the said medical examiner shall go to the dead body and take charge of the same. Such medical examiner shall fully investigate the essential facts concerning the medical causes of death and may take the names and addresses of as many witnesses thereto as may be practicable to obtain, and, before leaving the premises shall reduce such facts, as he may deem necessary to writing and file the same in his office.”

      . Code, art. 22, § 4, authorizes the Commission to adopt and promulgate rules it deems necessary to make effective the Post-Mortem Examiners article.

      . The four types are:
      (1) Death from acute or chronic alcoholism without manifestation of trauma.
      (2) Death from accidental burns occurring in the home.
      (3) Death, or sudden death, associated with a therapeutic procedure.
      (4) Death following a fracture in an elderly person and resulting from a simple fall in the home.

      . Section 7 prescribes: “A detailed description of the findings written during the progress of such autopsy, and the conclusions drawn therefrom, shall thereupon be filed in the office of the chief medical examiner, or in the office of the deputy medical examiner in the county where the death occurred. A copy of the findings aid conclusions as to the autopsies performed in the several counties shall also be filed in the office of the chief medical examiner.”
      Acts 1974, ch. 338, effective 1 July 1974, reenacted § 7 without making change in the provisions as enacted by Acts 1955, ch. 29.

      . Chief Justice Waite put it thus in Reynolds v. United States, 98 U. S. 145, 166 (1878): “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions they may with practices.” Mr. Justice Roberts tersely stated in Cantwell v. Connecticut, supra, at 303: “[T]he [first] Amendment embraces two concepts — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.”

      . The evidence established, and appellees concede, that the tenets of the religion of the father prohibited the performance of an autopsy in the circumstances. The record does not show that Neal Snyder embraced the Orthodox Jewish Faith. We postulate that he did. His older brother, Joseph Moshe Snyder, “preparing for the rabbi in that faith”, was a student at the “Rabbinical College of America in New Jersey”, characterized as “an Orthodox Jewish College”. Whether any constitutional rights Neal Snyder may have had survived him, and if they did, whether they may be asserted by someone else, is not before us.

      . This is not to say that a dead body is property in the ordinary commercial sense or that it has value as an article of traffic. The courts in the United States have refused to treat a dead body in a material sense.
      “[I]t is not part of the assets of the estate (though its disposition_may be affected by the provision of the will); it Is not subject to replevin; it is not property in a sense that will support discovery proceedings; It may not he held as security for funeral costs; it cannot be withheld by an express company, or returned to the sender, where shipped under a contract calling for cash on delivery; it may not be the subject of a pit causa mortis; it is not common law larceny to steal a corpse. Rights in a dead body exist ordinarily only for purposes of burial and, except with statutory authorization, for no other purpose.” Jackson, at 130. (footnotes omitted)

      . See, for example, Palenzke v. Bruning, 98 Ill. App. 644 (1901); Patrick v. Employers Mut. Liab. Ins. Co., 118 S.W.2d 116 (Missouri App. 1938); Brown v. Broome Co., 197 N.Y.S.2d 679 (A.D. 1960); Streipe v. Liberty Mut. Ins. Co., 47 S.W.2d 1004 (Ky. App. 1932) in which damages were allowed when coroners failed to comply with statutes giving statutory permission for autopsies.
      See also Young v. The College of Physicians and Surgeons, et al., 81 Md. 358 (1895) where it was held that a coroner who had authority to order an autopsy to be made and a physican who performed the autopsy on the order of the coroner were not liable to the wife of the deceased when there was no evidence that in directing the autopsy to be made the coroner acted maliciously or corruptly.

      . The Court observed in Young v. The College of Physicians and Surgeons et al., supra, at 366:
      “It is to be hoped that few persons in a civilized country would wantonly mutilate a dead body, or would without warrant of law attempt to prevent surviving friends and relatives from performing the rites of Christian sepulture. Such acts would manifest a great depth of depravity.”
      We note that in Painter v. U. S. Fid. & Guar. Co., supra, the Court held, in the face of a constitutional challenge based on deprivation of property without due process, that a contract right of an insurance company as the insurer in an accidental death policy to make an autopsy in case of death was superior to any property right as to the body of the insured in any member of the family of the insured. 123 Md., at 309.

      . We point out, however, that in Matter of Quinlan, 137 N. J. Super. 227, 348 A. 2d 801, decided 10 November 1975 by the Superior Court of New Jersey, Chancery Division, now on appeal before the Supreme Court of New Jersey, the court said, 348 A. 2d at 823:
      “The temporal world is what the Free Exercise Clause deals with — not the hereafter. All instances where a religious belief has been freed of attempted governmental interference dealt with life styles and life circumstances. ... In those instances where the parental standing to assert the religious belief has been upheld, it dealt with future life conduct of their children, not the ending of life. Wisconsin v. Yoder, 406 U. S. 205, 92 S. Ct. 1526, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters, 268 U. S. 510, 45 S. Ct. 571, 69 L.Ed.2d 1070 (1925).”

      . This balancing process has long been recognized and applied by the Supreme Court. As the balance goes so goes the decision. See Wisconsin v. Yoder, supra, Cantwell v. Connecticut, supra, and Reynolds v. United States, supra.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    ROBERT TYRONE TISDALE v. STATE OF MARYLAND
    [No. 346,
    September Term, 1975.]

      Decided February 27, 1976.

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

      Leonard J. Sperling, Assigned Public Defender, for appellant.

      John A. Austin, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, Marshall Feldman and Charles Chiapparelli, Assistant State’s Attorneys for Baltimore City, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Appellant, Robert Tyrone Tisdale, was convicted by a jury in the Criminal Court of Baltimore, Hargrove, J. presiding, of robbery with a deadly weapon and the use of a handgun in the commission of a felony. He was thereafter sentenced to terms of 15 years and 5 years, respectively, the sentences to run concurrently. Appellant contends here that the trial court committed reversible error'when it:

1) Refused to strike for cause two jurors who admitted on voir dire that they would give more weight to the testimony of a police officer merely because he was a police officer;

2) Denied appellant’s motions to dismiss the handgun count and refused to grant appellant’s instruction concerning the definition of a handgun;

3) Refused to give instructions regarding the voluntariness of appellant's statement to the police;

4) Refused to permit introduction of certain testimony during the cross-examination of Officer Watkins for the reason that it would be hearsay;

5) ' Refused to give a limiting instruction on the burden of proof during the course of the opening statement by the State; and

6) Denied appellant’s motion for a continuance to obtain counsel of his choice.

Testimony was produced at trial from which the jury could find that the facts were as follows: On October 2,1974, at approximately 12:20 A.M., the victim, William Cunningham, was operating his taxicab in the vicinity of Warwick and North Avenues, Baltimore, Maryland, and picked up appellant as a fare. Upon reaching his destination at the 1500 block of Whitelock Street, appellant alighted from the taxicab, pulled a gun out of his pocket and demanded Mr. Cunningham’s money. He then took eight or nine dollars from Cunningham’s shirt pocket, disabled his radio and told him to drive off. Mr. Cunningham drove one quarter block, stopped the cab, took a revolver from under the seat and began to pursue appellant, firing several shots before overtaking and apprehending him.

Officer Boysie Watkins, on routine patrol, came upon the scene and observed Mr. Cunningham holding the appellant against the side of his cab. Mr. Cunningham explained that he had just been robbed. At that point, according to the testimony of the officer and the victim, appellant made an utterance in which he admitted the robbery. He was then arrested. Appellant’s weapon was described as a .22 caliber gas pistol. It had been submitted to the police ballistics laboratory but was not processed because it was a “blank gun.”

1. Refusal To Stnke Two Jurors For Cause

On voir dire the prospective jurors were asked the following questions by the court:

“Now, are there any of you here who are inclined or would be inclined to give more weight to a police officer’s testimony merely because he is a police officer than the testimony of any other witness in the case? ”

Thereupon, a juror from Judge Ross’ panel who identified himself as Markland Boyce, juror 21, responded:

“I would give more weight to it.”

A second juror then arose and gave his name as “Louis Schneider, Judge Ross’ panel, number 10.” Counsel for defendant challenged these two jurors for cause. The court ruled “[T]hat is not enough to disqualify ... I think you have to use your strikes. . . .” He also observed that each juror challenged for cause had “indicated there’s no reason at all that he would not render a fair and impartial verdict based on the evidence.”

Appellant was entitled to exercise twenty peremptory challenges. Maryland Rule 746 a. Turpin v. State, 55 Md. 462 (1881); Johnson v. State, 9 Md. App. 143, 262 A. 2d 792 (1970). As the Court of Appeals stated in Brice v. State, 264 Md. 352, 366, 286 A. 2d 132 (1972):

“[T]he right to exercise the peremptory strike is unfettered and may be exercised by either party for any reason or indeed for no reason. Hunch, passing impression, appearance of the prospective juror, or any other consideration may lead to the exercise of the peremptory challenge and no inquiry may be made in regard to why it is exercised.”

While the challenge for cause permits rejection of a juror only on the specified, provable and legally cognizable basis of partiality, the peremptory challenge permits rejection for an imagined partiality. See, Johnson v. State, supra, quoting extensively from Swain v. Alabama, 380 U. S. 202 (1965).

A challenge for cause is proper where it is shown that the mind of a juror is not free to hear and impartially consider the evidence and render a verdict thereon. Garlitz v. State, 71 Md. 293, 300, 18 A. 39 (1889). The fact that a prospective juror would give more weight to the testimony of a police officer plainly indicates his lack of impartiality — assurances to the court of an ability to weigh the evidence impartially being patently inconsistent — and the two challenges for cause in the proceedings below should have been sustained. State v. Jones, 282 So. 2d 422 (La. 1973), on rehearing at 430; Harvin v. United States, 297 A. 2d 774, 778 (D.C. App. 1972); Chavez v. United States, 258 F. 2d 816 (10th Cir. 1958). In Harvin, the Court observed:

“[T]he very purpose of the voir dire is to permit counsel to satisfy themselves that they have an impartial jury. Nothing could be plainer than that a predisposition to attach greater or lesser credence to any witnesses’ testimony is inconsistent with this fundament of our legal system. . . .” (Footnote omitted.)

And in Chavez, supra, the Court stated at p. 819:

“But the inquiry should be directed to the question of whether the prospective juror would give greater or less weight to the testimony of a law enforcement officer than to that of another witness simply because of his official character. A defendant cannot be fairly tried by a juror who would be inclined to give unqualified credence to a law enforcement officer simply because he is an officer.” (Emphasis in original.)

For the view that prospective jurors need not be excused for cause when they respond that they would believe more readily a police officer when he is testifying “as to matters for which he is trained,” see Parson v. State, 275 A. 2d 777 (Del. Supr. 1971) and, with respect generally to voir dire interrogation concerning prejudice as to certain witnesses, see 47 Am. Jur. 2d, Jury, Sec. 285.

Since appellant was required to use peremptory challenges in order to eliminate the two jurors who had properly been challenged for cause, his total number of peremptories was effectively reduced from 20 to 18. The failure of the trial court to allow the appellant 20 peremptory strikes was reversible error. Pearson v. State, 15 Md. App. 462, 291 A. 2d 167 (1972); Swain v. Alabama, supra. No showing of prejudice is necessary. As the Supreme Court stated in Swain, at 219:

“The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury. . . . Although ‘[t]here is nothing in the Constitution of the United States which requires the Congress [or the States] to grant peremptory challenges,’ . . . nonetheless the challenge is ‘one of the most important of the rights secured to the accused,’ . . . The denial or impairment of the right is reversible error without a showing of prejudice.” (Citations omitted.) (Emphasis added.)

We observe, although the subject is not addressed in appellee’s brief, that trial counsel for appellant stated in response to an inquiry by the clerk before the jury was sworn, “The panel is acceptable to the defense.” The State also replied, “Acceptable,” and the jury was then sworn. No waiver of appellant’s challenges for cause occurred. His objection to the two jurors, for cause, had been clearly stated on the record and counsel’s response — that the jury ultimately selected was “acceptable” — was merely obedient to the court’s rulings and obviously not a withdrawal of the request, timely made, that the jurors be excused for cause.

The situation here is, therefore, distinguishable from that presented in Neusbaum v. State, 156 Md. 149, 143 A. 872 (1928) where defense counsel was given the opportunity for an entirely new panel but refused it and elected to go forward with a panel already chosen, some of the members of which had heard a prejudicial remark by the prosecutor. It is also distinguishable from the more recent case of Glover, Robinson and Gilmore v. State, 273 Md. 448, 330 A. 2d 201 (1975), citing Neusbaum, which involved an objection that talesmen were not selected in accordance with Code, Art. 51, Sec. 9 (e). The Court found it unnecessary to consider that question, ruling the objection had been waived when defense counsel, at the court’s suggestion, deliberately consulted with each of the defendants as to whether they were satisfied with the jury and then announced to the court, “. . . the Defendants have expressed that they are satisfied with the jury.”

We note in this case, furthermore, that the claim of error was diligently pursued in trial counsel’s motion for a new trial and in oral argument on that motion.

Accordingly, we must reverse on this ground alone. In addition, as will next be shown, there are independent grounds for reversal of appellant’s conviction of a handgun violation.

2. Handgun Violation

The victim, William Cunningham, testified that at the time of the robbery the appellant pointed a pistol at his head and demanded his money. The weapon was, as previously indicated, subsequently taken from the appellant by the victim after the latter armed himself with his own revolver and gave pursuit. At trial, during the testimony of Officer Watkins, the “gun” was described as a .22 caliber gas pistol and was received in evidence over objection. The officer also testified that it was not processed by the Ballistics Unit because it was a “blank gun.” There was no other testimony — expert testimony or otherwise — adduced by the prosecution or the defense with respect to the precise nature of the weapon or the manner in which it was designed to operate, if at all.

On appeal it is contended that the court erred in denying appellant’s motion to dismiss the handgun count prior to trial, in refusing to grant appellant’s requested instruction concerning the handgun count, in denying appellant’s motion for judgment of acquittal and appellant’s motion for a new trial on that count. The question has been abundantly preserved for our review.

Appellant’s requested instruction was as follows:

“You are instructed that to convict a Defendant of the charge of unlawful use of a handgun in commission of a crime of violence the State must prove beyond a reasonable doubt that a handgun was used. A handgun is defined as ‘any pistol, revolver or other firearm capable of being concealed on the person. ’A firearm has been defined as a ‘gun capable of firing shot, shell or bullets by the action of gunpowder exploded within it. ’ If you find from all the evidence in this case that the Defendant was carrying a blank gun at the time of the alleged incident, and that a blank gun is not a handgun, then you must find him not guilty of the charge of use of a handgun in commission of a crime of violence.” (Emphasis added.)

This instruction was denied and the court instead instructed as follows with respect to the definition of a handgun:

“Now I should also advise you that the term handgun under the law of Maryland includes a pistol or revolver and also Maryland law defines a firearm or a handgun as any weapon, [having] a barrel less than 12 inches in length, which includes a signal, a starter or blank pistol. Under the law of Maryland ... a pistol includes a signal gun, a starter gun or a blank pistol.” (Emphasis added.)

It is quite apparent that the court was incorporating into its instruction the language of Md. Code Annot., Art. 27, Section 441 (c) which defines “pistol or revolver” as “any firearm with barrel less than twelve inches in length, including signal, starter, and blank pistols.”

The crime alleged against appellant in the challenged count of the information is, of course, that of unlawful use of a handgun in the commission of any felony or a crime of violence as defined in Section 441 of Art. 27. The offense is thus described in Art. 27, Section 36B, subsection (d):

“Unlawful use of handgun in commission of crime — Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § ^1 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.” (Emphasis added.)

It is to be noted that the only reference to Section 441 in the handgun statute is in the above subsection which incorporates only the definition in Section 441 of a “crime of violence.” The term handgun is specifically defined in Art. 27, Section 36F as follows:

“(a) The term ‘handgun’ as used in this subheading shall include any pistol, revolver, or other firearm capable of being concealed on the person, including a short-barreled shotgun and a short-barreled rifle as these terms are defined below, except it shall not include a shotgun, rifle or antique firearm as those terms are defined below.” (Emphasis added.)

While handgun is thus defined to include any “pistol, revolver, or other firearm . . .”, Section 441 (c) which contains a definition of the term “pistol or revolver” is not mentioned. We think it clear that the definition of “pistol or revolver” contained in Section 441 may not be incorporated into the definition of handgun in Section 36F. Different offenses are involved. Sections 441, et seq. regulate the registration and sale of firearms and thus possess an altogether different objective from the handgun law. Appellant was charged with an offense under the latter and not the former. It was therefore an error for the trial court, in his instructions to the jury, to use the language of Section 441 (c) defining the term “pistol or revolver” when appellant stood accused under Section 36B.

On the other hand, the court correctly rejected the instruction requested by the appellant, the burden of which was that a handgun is a firearm “capable of firing shot, shell or bullets by the action of gunpowder exploded within it.” As this Court held in Todd v. State, 28 Md. App. 127, 343 A. 2d 890 (1975), the legislative intent of the handgun statute was “to include any hand weapon simulating the appearance of a pistol or revolver that is capable of discharging a missile by any method of propulsion.” In Todd, the weapon involved was described by a witness as a .45 caliber pistol. While the evidence as to its precise nature and operation was, in the words of Judge Menchine, “quite sparse,” there was expert testimony that it was fired by a CO2 cartridge. A colloquy between the trial judge and the witness revealed its method of operation:

“THE COURT: How does it fire?

“THE WITNESS: CO2 cartridge that is placed inside of the handle grips; there is a screw on the bottom which you tighten to engage it. It will fire a .22 caliber pellet. At the time I received it there was one pellet in it and the gun was charged. I subsequently, prior to taking it to court in the City of Falls Church, disarmed the weapon.

“THE COURT: It is the carbon dioxide which causes the pellet to go out of the gun?

“THE WITNESS: Yes, sir.”

More recently, we had occasion to follow the rule in Todd in the case of Howell and Kaschenback v. State, 29 Md. App. 646, 350 A. 2d 145 (1976), where Chief Judge Orth, writing for the Court, traced the history and background of the Maryland handgun statute, explicated the rule in Todd and held that a tear gas gun was a handgun within the contemplation of Code, Art. 27, Section 36B (d). In stating the decision, Chief Judge Orth observed:

“In Todd, it was manifest that the weapon propelled a projectile, and the issue turned on the nature of the propellant. In the case subjudice, it is manifest that the propellant was an explosive charge, and the issue turns on whether the weapon propelled a projectile. The evidence adduced was legally sufficient to show, in light of the definitions above set out, that the weapon here propelled projectiles, and the expert witness so testified. ‘Tear gas’, he explained, ‘is a rather large quantity of very fine particles, it’s not actually a gas at all. And to fire it, firing would expel these projectiles, which are very highly irritating to the eyes.’ (emphasis added). We think that the size of the projectile is of no moment. Whether it be as big as an artillery shell or as small as a subatomic particle, it is still a projectile.
“That the weapon in question was a gun is plain. That it may be carried and used in the hand is equally clear; so it was a handgun. It projected an object by means of an explosive force, and it had the appearance of a .22 caliber pistol. We have found that what it propelled were projectiles or missiles. It was capable of inflicting serious injury; ‘it would be’, the expert said, ‘extremely destructive to an individual’s eyes.’ In short, its characteristics were such as to meet all the requirements of a handgun within the contemplation of the ‘handgun’ statute. We hold that its use in the commission of a felony or a crime of violence as defined by art. 27, § 441 was a misdemeanor proscribed by § 36B (d).” (Footnotes omitted.)

In the instant case the description of the instrument involved is not “sparse” — it is altogether lacking. We have related the full extent of the testimony bearing upon the description of the weapon. It is our conclusion that while neither the court nor the appellant was correct in the definition of handgun under Section 36B, the question of reversal or affirmance of the conviction of a handgun violation turns here on the question of the sufficiency of the evidence. Upon our review of the record we find that there was a gross insufficiency of evidence as to the nature of the weapon and that the conviction under this count must also be reversed and remanded for a new trial. Gray v. State, 254 Md. 385, 255 A. 2d 5 (1969), cert. denied, 397 U. S. 944 (1970).

Because a retrial of this ease will be ordered, we find it appropriate to consider also appellant’s third and fourth assignments of error.

3. Refusal of Voluntariness Instruction

Officer Watkins testified that when he arrived at the scene and observed Mr. Cunningham, the taxicab driver, holding appellant at bay, he inquired “what was going on” and that Cunningham stated, “This guy just robbed me.” The appellant, according to the police officer, responded, “Yes, I robbed him but you all don’t understand.”

Mr. Cunningham’s version of appellant’s statement was slightly different. He testified that appellant stated, “I robbed him but don’t know why.”

A pretrial motion was filed to suppress appellant’s statement. Judge Hargrove denied it and, we think, his decision was correct. Thereafter, the court refused to instruct the jury on the question of the “voluntariness” of the appellant’s statement and also refused to grant an instruction that the jury did not have to believe that appellant had made any statement at all. We find that the court was again correct.

In the first place, there was no custodial interrogation here, and appellant’s statement, if made and however made, was clearly a spontaneous utterance, admissible as such. Miranda would not have been applicable even if appellant had then been in custody. Cummings v. State, 27 Md. App. 361, 341 A. 2d 294 (1975). The trial court correctly ruled that appellant’s statement was admissible and there was no need to submit to the jury the issue of voluntariness.

Appellant’s alternative, if not inconsistent, contention that the court should have granted an instruction that the jury need not find that appellant made any statement that he committed the robbery, is also without merit. As the trial court remarked to appellant’s counsel, “I gave them an instruction on credibility . . . pretty much the same thing you are asking.” We have examined the court’s instructions in their entirety. An instruction concerning the credibility of the witnesses was carefully set forth, and we find no error in the denial by the court of the specific instruction requested.

4. Attempted, Impeachment of Victim

During cross-examination of Officer Watkins, the court sustained objections by the State to defense counsel’s inquiries concerning statements allegedly made by the victim and contained in the officer’s written report which he had consulted during direct examination. The trial court ruled that any such statements would be hearsay and inadmissible.

The apparent purpose of defense counsel was to show that a statement or statements by the victim, Mr. Cunningham, to the police may have been inconsistent with his testimony at trial. In a word, the defense was endeavoring to impeach the victim by prior inconsistent statements. Hearsay was not involved. McCormick, Evidence § 225 (1 ed. 1964). Frey v. State, 3 Md. App. 38, 48, 237 A. 2d 774 (1968).

Nevertheless, on the record before us, we cannot hold that the trial court’s refusal to permit this line of inquiry was erroneous. No proffer was made to the trial judge concerning the nature of the victim’s prior inconsistent statements to the police officer — nor was any foundation laid in defense counsel’s cross-examination of Mr. Cunningham, other than to elicit testimony that his statements to the police were truthful. Accordingly, appellant failed to preserve this objection for appellate review. Magness v. State, 2 Md. App. 320, 234 A. 2d 481 (1967); Maryland Rule 1085.

Judgments reversed; case remanded for a new trial.

      . Voir dire interrogation also revealed that Mr. Schneider once drove a Yellow Cab and that he had a nephew who was an Assistant State’s Attorney.

        . Under Rule 746 e, a peremptory challenge “may be exercised as a matter of right until the time the jury is sworn.” Even jurymen who have been selected and accepted and are seated in the jury box, may be challenged peremptorily up to the time of swearing. Whittemore v. State, 151 Md. 309, 134 A. 322 (1926); Kelley v. State, 12 Md. App. 251, 278 A. 2d 87 (1971). Under Rule 747, all jurors and alternate jurors must be sworn at the same time.

      . As we had occasion to observe in the recent case of Deaver and Digoia v. State, 30 Md. App. 263 (1976), footnote 2, we recognize that a retrial under this count may pose a serious question of double jeopardy. See, Benton v. Maryland, 395 U. S. 784 (1955).


author: Davidson, J.,

text:
    GARY A. DUCKWORTH v. KELLY-SPRINGFIELD TIRE COMPANY et al.
    [No. 349,
    September Term, 1975.]

      Decided February 27, 1976.

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

      Ronald J. Levasseur, with whom were Levasseur & Held on the brief, for appellant.

      Dennis M. Andreone, Special Assistant Attorney General, with whom was Francis B. Burch, Attorney General on the brief, for appellee Subsequent Injury Fund. Hugh A. McMullen, with whom were Geppert, McMullen & Paye on the brief, for other appellees.
   Davidson, J.,

delivered the opinion of the Court.

On 20 April 1971, the appellant, Gary A. Duckworth (claimant), injured his back while at work. On 5 February 1974, the Workmen’s Compensation Commission (Commission) found that the disability suffered by the claimant resulted from an accidental injury arising out of and in the course of his employment and amounted to a permanent partial disability of 52 per cent industrial loss of the use of his body, 42 per cent of which was reasonably attributable to his accidental injury, while 10 per cent was attributable to a previous impairment. The Commission ordered the appellees, Kelly-Springfield Tire Company (employer) and Travelers Insurance Company (insurer), to pay the claimant $7,350.00 at the rate of $35 each week for 210 weeks, and thereafter, the appellee, Subsequent Injury Fund (Fund), to pay the claimant $1,750.00 at the rate of $35 per week for 50 weeks. On 24 May 1974, after a rehearing, the Commission affirmed its previous order

On 6 June 1974, the claimant filed an appeal in the Circuit Court for Allegany County. On 7 May 1975, Judge Harold E. Naughton entered an order affirming the Commission. This appeal is taken from that order.

Chapter 446 of Laws of Maryland 1970, codified in Maryland Annotated Code (1957, 1964 Repl. Yol., 1975 Cum. Supp.) Art. 101, § 36 (4), effective 1 July 1970, provides in pertinent part that when an employee suffers a permanent partial disability:

“the Commission shall determine the portion or percentage by which the industrial use of the employee’s body was impaired as a result of the injury . .. and shall award compensation in such proportion as the determined loss bears to the sum of $17,500, the said compensation to be paid weekly at the rate of sixty-six and two-thirds per centum of the average weekly wages... .”

Chapter 446, codified in Maryland Annotated Code (1957, 1964 Repl. Vol., 1975 Cum. Supp.), Art. 101, § 36 (4a), further provides in pertinent part that:

“A person who, from, one accident, receives an award of compensation for a period of two hundred and fifty (250) weeks or more under subsections (S) or U) or a combination of both, is thereby considered to have a Serious Disability. . . . The weeks for such award shall be increased by one-third .. . and the compensation shall be for sixty-six and two-thirds per centum of the average weekly wages.. ..
“SEC. 2. And be it further enacted, That the provisions of this Act shall be applicable only to such injuries as occur and such actions as are initiated after the effective date hereof.
“SEC. 3. And be it further enacted, That this Act shall take effect on July 1, 1970.” (Emphasis added.)

Chapter 809 of Laws of Maryland 1963, effective 1 June 1963, codified in Maryland Annotated Code (1957, 1964 Repl. Vol.) Art. 101, § 66 (1), the law applicable to this case, provides in pertinent part:

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

The claimant contends that under Art. 101, § 36 (4a) he was entitled to additional benefits because he suffered a serious disability. He maintains that the legislative intent expressed in Art. 101, § 66 (1), establishes that the total payment to which he is entitled is the compensation that would be due for the combined effects of the previous impairment and the subsequent injury. He points out that that combined effect consists of a 52 per cent disability of his body as a whole, and that the award of compensation which he received from the 20 April 1971 accident, was for a period of 260 weeks. He concludes that under these circumstances, his award should be increased by one-third.

In our view, the legislative declaration of intent in Art. 101, § 66 (1) does not mandate that an award of compensation for a previous impairment under that section, and an award of compensation for an injury under Art. 101, § 36 (4), be combined to determine eligibility for serious disability benefits under Art. 101, § 36 (4a). Therefore, we cannot agree that the claimant is entitled to increased benefits.

In Zebron v. American Oil Co., this Court held that a claimant was not entitled to combine an award of compensation for a previous impairment with an award of compensation for a subsequent injury, in determining eligibility for serious disability benefits. Chapter 322 of Laws of Maryland 1965,4 the then applicable law, provided in pertinent part:

“(bo,) A person who receives under Subsection (b) of this section an award equal in total to forty per centum or more of $12,500 is thereby considered to have a serious disability. He automatically shall be entitled to (in addition to the award under Subsection (b)) an extra award of a number of weeks equal to one-third (computed to the nearest whole number) of the number of weeks awarded under Subsection (b); and the award of compensation to him in no case shall exceed forty dollars per week; and as to him the maximum limitation of $12,500 shall not apply. This subsection, to the extent of any inconsistency, prevails over Subsection (b); but otherwise Subsec tion (f) applies to persons covered by this subsection. PROVIDED, HOWEVER, THAT ANY ADDITIONAL COMPENSATION FOR PERMANENT PARTIAL DISABILITY ON A PETITION TO REOPEN SHALL NOT INCREASE THE AMOUNT OF COMPENSATION PREVIOUSLY AWARDED AND PAID.
“SEC. 2. AND BE IT FURTHER ENACTED, THAT THE PROVISIONS OF THIS ACT SHALL BE APPLICABLE ONLY TO SUCH INJURIES AS OCCUR AND SUCH ACTIONS AS ARE INITIATED AFTER THE EFFECTIVE DATE HEREOF.
“SEC. 3. And be it further enacted, That this Act shall take effect June 1, 1965.” (Emphasis added.)

The facts of that case showed that Zebron had sustained two accidental injuries, the first on 29 May 1965, the second on 15 March 1966. The Commission found that as a result of the second accident, Zebron had sustained a 70 per cent industrial loss of the use of his body, of which 30 per cent was due to the second injury and 40 per cent due to his previous impairment. In determining that Zebron was not entitled to “serious disability” benefits under Art. 101, § 36 (4a), this Court said:

“In enacting the Section, [§ 36 (4a)], the Legislature expressly provided, as heretofore indicated, that ‘the provisions of this act shall be applicable only to such injuries as occur and such actions as are initiated’ after June 1, 1965. While it is true, as stated in Barnes, that an ambiguity in the compensation law is to be resolved in favor of the claimant, we find no such ambiguity in Section 36 (4a); to us, the intent of the Legislature was clearly to limit application of the ‘serious disability’ provisions to compensable injuries, all of which were sustained after June 1, 1965. To apply Section 36 (4a) to a pre-June 1, 1965 injury in determining whether a ‘serious disability’ has been sustained by a post-June 1, 1965 injury would, in effect, constitute a retroactive application of the Act’s provisions, and would, in our judgment, constitute an interpretation wholly at odds with the legislative intention that ‘the provisions’ of the Section apply only ‘to such injuries as occur’ after June 1,1965.”

In Zebron, the question of the ambiguity created in Art. 101, § 36 (4a) by the impact of the declaration of legislative intent found in Art. 101, § 66 (1), that the claimant should receive total payments equal to the compensation which would be due for the combined effects of the impairment and the subsequent injury, was not considered. However, we find nothing in the declaration of intent expressed in Art. 101, § 66 (1) which requires a contrary result. This declaration of intent, originally enacted in 1945, and re-enacted in- 1963, preceded the provision of “serious disability” benefits under Art. 101, § 36 (4a), which was not enacted until 1965. Moreover, subsequent amendments to Art. 101, §§36 and 66 (1), indicate a consistent legislative pattern of narrowly limiting the benefits provided under Art. 101, § 66 (1).

this conclusion is supported by the enactment in 1970 of Chapter 446 set forth above, which amended Art. 101, § 36 (4a), by changing the definition of persons eligible for serious disability benefits from a person who receives an award “equal in total” to 40 per cent of $12,500, to one who “from one accident” receives an award for 250 weeks or more. This amendment indicates that the Legislature did not intend that, in computing eligibility for serious disability benefits, an award for a previous impairment be added to an award for a subsequent injury.

Further support for this conclusion is found in the enactment in 1975 of Chapter 638, which amended Art. 101, § 66 (1) to require not only that benefits from the Fund not be payable unless the combined effects of a previous impairment and a subsequent injury result in a permanent disability exceeding 50 per cent of the body as a whole, but also that such benefits shall not be payable unless “the previous impairment and subsequent accidental injury is each compensable, as determined by the Commission, for a period of not less than 125 weeks.” This amendment, which prohibits adding the number of weeks of a compensation award attributable to a subsequent injury to the number of weeks of such an award attributable to a previous impairment in order to establish eligibility for benefits from the Fund under Art. 101, § 66 (1), also implies that such awards not be combined in order to establish eligibility for “serious disability” benefits under Art. 101, § 36 (4a).

Finally, in Subsequent Injury Fund v. Chapman,* this Court held that Art. 101, §§36 and 66 (1) must be read together, and that the survivorship benefits provided by then § 36 (1) (c) and (4) (c) applied to awards under § 66 (1), which had no such survivorship provisions. Chapter 638 of Laws of Maryland 1975 amended Art. 101, § 36 (1) (d) and (4) (c) to read: “This paragraph does not apply to the provisions of section 66 of this article.” Thus the Legislature, in overriding Chapman, indicated its intent that the survivorship provisions of § 36 not be read into § 66 (1). This amendment indicates that the language in § 36 (4a) that a person must receive an award of 250 weeks compensation under § 36 (3) or (4) or a combination of both to qualify for serious disability benefits, should not be read as including an award under § 66 (1).

Under these circumstances, we are persuaded that notwithstanding the declaration of legislative intent found in Art. 101, § 66 (1), a claimant may not add an award of compensation for a previous impairment to an award of compensation for a subsequent injury to qualify for serious disability benefits under Art. 101, § 36 (4a). A claimant is entitled to “serious disability” benefits only when the award of compensation for a subsequent accidental injury alone equals or exceeds 250 weeks. Accordingly, we shall affirm.

Judgment affirmed.

Costs to be paid by appellant.

      . Md. Ann. Code (1957, 1964 Repl. Vol., 1975 Cum. Supp.) Art. 101, § 36 (4).

      . Md Ann. Code (1957, 1964 Repl. Vol., 1975 Cum. Supp.) Art. 101, § 66 (1).

      . 1975 Laws of Maryland Ch. 638, effective 15 May 1975, added in pertinent part the following language to paragraph two:
      “AND THAT THE PREVIOUS IMPAIRMENT AND SUBSEQUENT ACCIDENTAL INJURY IS EACH COMPENSABLE, AS DETERMINED BY THE COMMISSION, FOR A PERIOD OF NOT LESS THAN 125 WEEKS.”

      . 10 Md. App. 308,270 A. 2d 339 (1970).

      . Then codified in part as Md. Ann. Code (1957, 1964 Repl. Vol., 1969 Cum. Supp.) Art. 101, § 36 (4a).

      . 10 Md. App. at 311, 270 A. 2d at 340-41.

      . 1945 Laws of Maryland Ch. 637.

      . 1963 Laws of Maryland Ch. 809.

      . 1965 Laws of Maryland Ch. 322.

      . Supra, note 3.

      . 11 Md. App. 369, 376, 274 A. 2d 870, 874, aff'd, 262 Md. 367, 277 A. 2d 444(1971).

      . 1973 Laws of Maryland Ch. 671, effective 1 July 1973, moved the survivorship benefit provision from § 36 (1) (c) to § 36 (1) (d).


author: Mason, J.,

text:
    LARRY CARL McBRYDE and CECIL DOUGLAS BLAND v. STATE OF MARYLAND
    [No. 356,
    September Term, 1975.]

      Decided February 27, 1976.

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

      Frank B. Haskell, III, Assigned Public Defender, for appellants.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, A ttomey General, Arthur A.

      Marshall, Jr., State’s Attorney for Prince George’s County, and Alan E. D’Appolito, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The appellants, Larry Carl McBryde and Cecil Douglas Bland, were convicted by a jury in the Circuit Court for Prince George’s County of being accessories before the fact to the crime of robbery with a deadly weapon. They were each sentenced to a term of twenty years.

The appellants’ only assignment of error is that the evidence was insufficient to support their conviction as accessories before the fact to the crime of robbery with a deadly weapon.

The evidence adduced at trial by the State disclosed that the appellants, with one Carlton Robert McLaughlan, drove into the parking lot of a 7-Eleven store. After remaining there for a short period of time, they left the parking lot and drove into an alley which runs behind the shopping center located directly across the street from the 7-Eleven store. At the entrance of the alley McLaughlan got out of the automobile, talked briefly with the appellants, and then walked in the direction of the 7-Eleven store. Meanwhile, the appellants drove through the alley and emerged in front of the shopping center. They cruised slowly in front of the stores in the shopping center until they reached the street which separated the 7-Eleven store from the shopping center. At this point, McLaughlan made a hand signal to the appellants and proceeded across the street into the 7-Eleven store. The appellants then drove to the same alley where they had entered previously and disappeared from view.

Within moments after McLaughlan entered, alarms were actuated. The police, who had the area “staked out” and who had observed the entire incident, arrested McLaughlan as he walked away from the store. McLaughlan had in his possession a pistol and a wad of currency. He subsequently pleaded guilty to the offense of robbery with a deadly weapon.

After McLaughlan was arrested, the police proceeded into the alley and arrested the appellants, who were sitting in Appellant Bland’s automobile, approximately fifty feet into the alley in a position completely out of sight of the 7-Eleven store. The automobile’s engine was running and its headlights were on.

Maryland recognizes the common law distinction between principals and accessories before the fact. Huff v. State, 23 Md. App. 211, 326 A. 2d 198 (1974); Agresti v. State, 2 Md. App. 278, 234 A. 2d 284 (1967). We have defined accessories before the fact as “.. . those persons who procure, counsel, or command the deed perpetrated, but who are not present, actively or constructively, at such perpetration.” Agresti, 280. Under common law, persons who are present, either actually or constructively, and who aid and abet the commission of a crime, but do not themselves commit it, are principals in the second degree, provided there is a guilty principal in the first degree. Id. We have noted that a principal differs from an accessory only in the requirement of presence. Huff, 214. Thus, the critical difference between an accessory before the fact and a principal is his presence or absence during the commission of the crime.

In order to sustain the appellants’ convictions, the State was required to present evidence which proved each of the two elements of the definition of an accessory before the fact, namely: (1) that the appellants aided and abetted the commission of a crime; and (2) that the appellants were not present, either actually or constructively during the commission of the crime.

A review of the record reveals that the appellants and McLaughlan stopped first at the 7-Eleven store and then drove into the alley where McLaughlan got out. The appellants next circled around the shopping center until they received a hand signal from McLaughlan, whereupon they drove again into the alley where they waited with the car engine running and the headlights on while McLaughlan perpetrated the robbery. Based on this evidence, it is clear that the appellants aided and abetted the commission of the crime and were constructively present during the commission of the crime.

A person is constructively present, hence guilty as a principal, if he is acting with the person who actually commits the deed in pursuance of a common design, and is aiding his associate, either by keeping watch or otherwise or is so situated as to be able to aid him, with a view, known to the other, to insure success in the accomplishment of the common enterprise. Clark and Marshall, Law of Crimes (7th ed. 1967) p. 509.

The State argues that because the appellants’ automobile was parked, out of sight of the 7-Eleven store, the appellants were not constructively present. This reads the definition of constructive presence too narrowly. The test is not whether the appellants could see the 7-Eleven store, but whether they were acting in concert with McLaughlan in furtherance of a common scheme and were so situated as to aid McLaughlan in his escape.

Under the facts and circumstances in the present case, we conclude that the appellants were constructively present at the commission of the crime and therefore were principals in the second degree and not accessories before the fact. This is consistent with other Maryland cases which hold that persons waiting in a getaway ear during the commission of a felony, such as appellants here, are principals in the second degree. Vincent v. State, 220 Md. 232, 151 A. 2d 898 (1958); Farmer v. State, 5 Md. App. 546, 248 A. 2d 809 (1968).

In Agresti v. State, supra, we held that one who is an accessory before the fact cannot be convicted on an indictment charging him as a principal. In the present case, the indictment charged the appellants as accessories before the fact, but the evidence showed they were principals.

At common law, an indictment must charge a person correctly as principal or accessory according to the facts and on an indictment charging a person as principal there could be no conviction on evidence showing that he was merely an accessory and vice versa. Id., 281 (Citations omitted.)

“The case may be lost in advance either by carelessness in the pleading or by a mistaken notion as to whether the particular defendant was or was not present at the time the crime was committed.

One charged with felony as a principal cannot be convicted if the evidence established assessorial guilt, and one charged as an accessory cannot be convicted if the evidence shows him to have been a principal. One may be charged as a principal and as an accessory in separate counts of the same indictment, but the prosecution can be required to elect upon which count it will rely before the case is finally submitted to the jury.” Perkins on Criminal Law (1957), ch. 6, § 8, D, 1 b, p. 583. Quoted in Agresti, 281.

Because the evidence adduced below and the inferences drawable therefrom clearly establish that the appellants were present during the commission of the crime, the jury could not find the appellants guilty of being accessories before the fact beyond a reasonable doubt. Accordingly, we hold that the trial court erred in denying the appellants’ motion for judgment of acquittal.

Judgments reversed.