author: Lowe, J.,

text:
    CLINTON EDWARD VAN METER v. STATE OF MARYLAND
    [No. 539,
    September Term, 1975.]

      Decided March 1, 1976.

      The cause was argued before Moylan, Davidson and Lowe, JJ.

      EarlE. Manges, Assigned Public Defender, for appellant.

      John A. Austin, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Lawrence V. Kelly, State’s Attorney for Allegany County and Robert W. Hamilton, Assistant State’s Attorney for Allegany County on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Clinton Edward Van Meter was convicted by a jury in the Circuit Court for Allegany County of murder, unlawful use of a handgun, assault, and unauthorized use of a motor vehicle. Upon appeal he raises 13 questions, 4 of which we decline to consider. Under Md. Rule 1031 c 5, appellant is required to provide argument in his brief to support his position. In questions VI and VIII issues are raised but are not supported by argument. Questions IV and V are each followed by two sentences which are in no sense argument. The Court of Appeals has held that issues can be waived for failure to comply with the procedural requirements to preserve the right of appellate review. Harmon v. State Roads Comm., 242 Md. 24, 29-32; Hyde v. State, 228 Md. 209, 218; see also Comptroller v. Aerial Products, 210 Md. ..627, 644-645.

“Surely it is not incumbent upon this Court, merely because a point is mentioned as being objectionable at some point in a party’s brief, to scan the entire record and ascertain if there be any ground, or grounds, to sustain the objectionable feature suggested.” State Roads Comm. v. Halle, 228 Md. 24, 32.

While we have strained in order to find that that which follows several other questions is “argument,” we will not consider questions IV, V, VI and VIII. GAI Audio of N. Y. v. C.B.S., 27 Md. App. 172, 183; Kimbrough v. Giant Food, Inc., 26 Md. App. 640, 654. We cannot be expected to delve through the record to unearth factual support favorable to appellant and then seek out law to sustain his position. Cf. Clarke v. State, 238 Md. 11. We have perhaps gone too far in that direction by considering other questions with skeletal argument and referential legal support, e.g., questions VII and XIII.

The Facts

“O, beware, my lord, of jealousy; It is the green-eyed monster, which doth mock The meat it feeds on; that cuckold lives in bliss Who, certain of his fate, loves not his wronger; But, O, what damned minutes tells he o’er Who dotes, yet doubts, suspects, yet strongly loves!”

Appellant’s conviction of murder rested heavily upon the testimony of his paramour Debra Turner, who used appellant’s jealousies to bring about his own misfortune, in much the same manner as did Othello, the Moor of Venice. She was present when the victim was killed and testified that it was her accusation, later retracted, that the victim had sexual relations with her which so infuriated appellant that he shot him. The sufficiency of the evidence to convict appellant of any of the charges upon which the jury found him guilty is not contested. The errors alleged are primarily procedural.

I

“Whether or not the Court erred in overruling the Suggestion for Removal?”

The major argument set forth by appellant is that, because his Suggestion of Removal was sworn to be true and notarized, and “[i]nasmuch as there was no demur or traverse of the allegations of fact by the State, the facts averred must be taken as true.” Appellant cites Jones v. State, 185 Md. 481, 487 and Kemp v. State, 6 Md. App. 463 to support his argument. We do not find support for appellant in these cases. In Kemp, interpreting Jones, we gave recognition to the argument put forth here by appellant:

“A reading of Jones shows that pertinent facts, related in the affidavit, were not denied by the State, and therefore accepted as true.” Kemp v. State, 6 Md. App. at 466.

However, we distinguished that holding in the very next sentence:

“The principle has no application where the affidavit states only the conclusions without stating the underlying facts.” Id. at 466.

Van Meter’s affidavit contains three allegations of prejudice and no underlying facts. The first claims prejudice from extensive coverage by the media, the second and third assert, without factual support, prejudicial statements publicly made by the prosecuting witness and her family; however, appellant failed to show that the extensive coverage alleged resulted in prejudice. Piracci v. State, 207 Md. 499; Grammer v. State, 203 Md. 200, 211. No evidence to support the allegations and conclusions of prejudice were offered to sustain appellant’s burden of persuasion. See Seidman v. State, 230 Md. 305, 324. In Sizemore v. State, 5 Md. App. 507, 511, we reviewed prior Maryland cases and stated the rule to be that the burden is on an accused to show that he has been “prejudiced by adverse publicity and that the voir dire examination of prospective jurors .. . would not be adequate to assure him a fair and impartial jury.” See also Laws and Dorman v. State, 7 Md. App. 84, 86-87. For reasons unexplained, the transcript of the voir dire examination and jury selection are not in the record. The burden to provide such transcript is also appellant’s if he intends to rely thereon. Md. Rule 1026 a 2 places the burden upon appellant to provide “a transcript of all the testimony.” Thus, in the absence of any jury selection testimony in the transcript, he may not argue for reversal based thereon. Cf. Harris v. State, 11 Md. App. 658, 664.

The Court of Appeals in Downs v. State, 111 Md. 241, 251, citing 4 Ency. P. & P. 434, said that:

“ ‘Facts must be shown from which the Court can deduce the conclusion that the ground relied on for the change actually exists; and, as a rule, mere belief, opinions or conclusions will not be sufficient to warrant the Court in exercising its power, unless the information upon which the belief is founded, or the grounds upon which the opinions or conclusions are based, are sufficiently shown.’ ” (Emphasis added).

Md. Rule 738 b places the burden on the moving party “to make it satisfactorily appear to the court that such suggestion [of removal] is true, or that there is reasonable ground for the same.” Quite obviously it did not “satisfactorily appear to the court” that appellant had reasonable grounds for removal.

“If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day.” Holt v. United States, 218 U. S. 245, 251.

In the absence of evidence to show that the court below acted arbitrarily and thereby abused its discretion in refusing the right of removal under the Maryland Constitution, we canncft say that the removal should, or should not, have been granted, and we thus affirm the action of the lower court. Larch v. State, 201 Md. 52, 55-56; Auchincloss v. State, 200 Md. 310, 314; Allers v. State, 144 Md. 75, 78-79.

II

“Whether or not the Court erred in Denying the Motion of the Defendant to summon Dr. Sauer, Psychiatrist from Clifton T. Perkins State Hospital?”

Appellant complains that he had entered a plea of insanity and that this issue should not have been withdrawn from the jury. Presumably the judge decided the question based on a report from Clifton T. Perkins Hospital, signed by the Superintendent, Dr. Sauer. However, once again, the record is deficient in that it does not contain the report, but only allusion thereto in the trial judge’s opinion. We repeat our admonition of appellant that he is responsible for the record upon which he requests appellate review. Any material not included in the record will not be presumed to be unfavorable to the State.

In Strawderman v. State, 4 Md. App. 689, 697, we pointed out that:

“(1) a man is presumed to have been responsible for criminal conduct and sane at the time of such conduct until, after the filing of a proper plea, there is adduced proof that he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.. . .” (Emphasis added).

This rule clearly places the burden upon appellant to adduce such evidence. We went on to say that, procedurally, the court should determine preliminarily:

"... whether the proof adduced in support thereof is sufficient to raise a doubt as to the sanity of the accused, as defined, in the minds of reasonable men .’’Id. at 698. (Footnote omitted).

We noted in Greenleaf v. State, 7 Md. App. 575, 578 that any such determination should be predicated upon reasonable medical certainty and that evidence of some undefined mental disorder or instability is insufficient to overcome the presumption of sanity, citing Jenkins v. State, 238 Md. 451; Bradford v. State, 234 Md. 505.

Here the appellant produced no evidence of insanity. The doctor’s report submitted to the court was not introduced into evidence because the doctor was not present and counsel could not agree to stipulate to its admission. Appellant complains that at the hearing on the preliminary question of sanity, the court declined to defer its opinion so as to enable appellant to subpoena Dr. Sauer.

Considering the fact that appellant waited until the day of the trial to request the subpoena of Dr. Sauer, the court did not abuse its discretion in declining that request. Furthermore, it was appellant’s burden to produce sufficient proof to surmount the presumption of sanity and the fact that the State had subpoenaed, but not called, Dr. Sauer cannot be relied upon to meet that burden. In the absence of any evidence of insanity produced by appellant, he must be presumed sane and no issue as to his sanity should have been submitted to the triers of fact.

Ill

“Whether or not the Court erred in Denying the Motion of the Defendant to withdraw a Juror and declare a mistrial on the grounds that the State’s Attorney in his opening statement made specific reference of sexual relations with the witness and perverted or unnatural sex acts which could have no bearing on the charges involved in the case?”

We decline to respond to this question because a transcription of the opening statement is not included in the record on appeal. Harris v. State, 11 Md. App. 658, 664.

VII

“Whether or not the Court erred with respect to all testimony as to Debbie Turner’s statement about the blackouts?”

Questions IV, V and VI, which we have declined to answer for lack of argument, all relate to the questions of appellant’s mental condition and history of “blackouts,” presumably resulting from an accident in which he had been involved. The short answer to the scattergun contention contained in question VII is that the mental condition of appellant cannot be made a jury question indirectly when he has failed to overcome the presumption of sanity as discussed above. The fact that appellant suffered from “blackouts” prior to the incident giving rise to his conviction, had no bearing on his guilt or innocence apart from the issue of insanity. Moreover, the testimony appellant’s trial counsel sought to elicit, relating to conversations about appellant blacking out at the time the crime was committed, was clearly hearsay.

IX

“Whether or not the Court erred in admitting the report of Russell Wilhelm with respect to the firing of the gun?”

The ballistics expert, Russell Wilhelm, testified positively that the weapon offered by the State as the murder weapon had fired the cartridges from which casings were found at the scene. Appellant’s argument seems to be that the report of the expert should not have been admitted into evidence because the chain of custody of the gun offered as the murder weapon was not so complete as conclusively to preclude any possibility of tampering with the weapon. The Court of Appeals has held that the chain of custody must be such as to show with:

“ . . . reasonable probability that no tampering occurred.” Breeding v. State, 220 Md. 193, 199.

We have followed that guideline consistently,., e.g., Avey v. State, 1 Md. App. 178, 187; Plumley v. State, 4 Md. App. 671, 680; Smith and Nelson v. State, 12 Md. App. 130, 134, and do so once again. It should be pointed out that a reasonable probability that no tampering occurred does not require a foreclosing of every possibility as a prerequisite to admissibility of evidence. If that were the rule, trial time would be unnecessarily prolonged without purposeful results.

In the case under consideration, a State trooper testified that he went to Memphis, Tennessee, with Debra Turner and recovered the pistol from a store where Turner had seen appellant sell it. After recovering the pistol, along with its gun belt and holster, he explained:

“I brought them back to the State Police Barrack, where they were placed in the evidence locker for a period of time. And they were later transported to Mr. Wilhelm in Pikesville at the Ballistics Laboratory.”

Thereafter, Mr. Wilhelm testified that those items were secured while awaiting the ballistics tests and examination which he later conducted.

“Q Okay, sir. Now, Doctor, after — or Mr. Wilhelm, after you received the items, you kept them in your custody is that correct?

A They have been secured in the back of the State Police Lab where we have a property room connected to a burglar alarm, only my assistant and I have keys except for a master key retained by the captain of the police academy, who keeps his master key in a safe.

Q And what did you do with those items ultimately then, sir?

A They were all turned over to the State’s Attorney yesterday morning.”

We agree with the ruling of the trial judge, that the testimony showed that there was no reasonable probability that tampering occurred.

Furthermore, it is highly improbable that tampering could create ballistics markings which would cause the weapon to score identically the cartridge cases so as to correspond with the markings of those cartridges found at the scene. Such tampering would be more likely to provide distinguishing characteristics than identical ones, since the tamperer would have to precisely recreate within the weapon’s chamber, scores or metal chips which would, upon firing the test weapon, create markings on the test cartridge cases identical to those on the cartridge cases found at the scene. Such precise “tampering” is itself most improbable if not impossible.

We find no error in the admission of the pistol or of the testimony of the expert.

X

“Whether or not the Court erred in admitting the unsigned statement of the Defendant, read by William F. Baker, County Investigator for Allegany County?”

Appellant’s sole complaint is that he did not sign a statement made by him to an investigator. The investigator was permitted to read the question and answer statement as reflecting his recollection of “the sum and substance” of appellant’s answers. We know of no rule of law that precludes an oral confession, admission, or statement of an accused from being introduced because it was not signed. Any variation between that which the investigator claimed appellant said, and that which appellant claimed he said, is to be reconciled by the jury. No question of voluntariness is raised. Appellant only argues that he did not say what the investigator claimed he said. We find no error.

XI

“Whether or not the Court erred in not allowing the Defense Witness to testify with respect to a statement made by Debbie Turner concerning her relations with the Deceased?”

The sole purpose for which appellant sought to introduce this testimony was to impeach the testimony of Debra Turner. The question at issue was directed to appellant’s uncle, Lawrence E. Rice, who was called as appellant’s first witness.

“Now did there come a time when there was any discussion with respect to her [Debra Turner’s] relationship with Coy Huffman, the deceased in this case?”

The court sustained the State’s objection to this question based upon the holding in Smith v. State, 273 Md. 152, 158-159, that extrinsic evidence which is collateral and irrelevant may not be used to impeach a witness. The trial judge was correct. On cross-examination, Debra Turner had denied hearing any discussion between Rice and appellant relative to her sexual relations with anyone.

“Q I believe that you testified on direct examination that you did not hear any discussion between the Defendant and his Uncle Lawrence when you came back from the south and met with Uncle Lawrence outside of Baltimore?

A That is correct.

Q Now as a matter of fact isn’t it true that you and Eddie, Uncle Lawrence and his aunt sat in the house and discussed this?

A No.

Q It is not?

A No.

Q Isn’t it true that Eddie said to his Uncle Lawrence in your presence that you had told him that your brother, the decedent, and several other men had been having sexual relations with you at the trailer in Flintstone and that’s why you left?

A No.

Q That was not said in your presence?

A No. Because I was in the bathtub at the time.

Q What’s that?

A I was in the bathtub at the time they was talking about it.

Q Let me see if I can refresh your recollection. Wasn’t that conversation in fact at their dining room table in the back of the house, in the rear of that home?

A No. Eddie was talking to his uncle. I was in the bathtub.

Q And such a conversation never took place?

A It might have took place behind my back, but I never heard it.

Q In your presence?

A No.

Q Well you said that you heard no conversation between the Uncle and Eddie. How long were you in the house?

A Overnight.”

Appellant’s question to Rice was intended to contradict her denial that she had heard such a discussion.

“Now is your purpose in the line of questioning that you are following to have this witness testify to something that would contradict the Turner girl’s testimony as to the — what conversation transpired in the house in Sykesville or outside of Baltimore?

MR. BERRY: Yes, Your Honor. It would be in direct contradiction of what she said on the stand when put on the stand by the State.”

It is well established that a witness may not be impeached by extrinsic evidence on a collateral matter. Harris v. State, 237 Md. 299; Kantor v. Ash, 215 Md. 285. For the purposes of this rule,

“ . . . the test of collateralness — whether the fact as to which the error is predicated could have been independently shown in evidence — actually means whether that fact could have been shown in evidence from the standpoint of relevancy.” Smith v. State, 273 Md. at 162. Thus, the issue we must decide is, whether, in addition to contradicting previous testimony, the fact sought to be elicited by the question is relevant. “Evidence is relevant when it tends to show that a fact in controversy did or did not exist.” 1 Wharton’s Criminal Evidence, § 151 at 272. The fact appellant sought to elicit from Rice was whether Debra had heard a discussion between him and appellant. Her response to the question posed could not tend to prove or disprove the fact in controversy, i.e., the guilt or innocence of appellant. It could do no more than establish or diminish the believability of a prosecuting witness by contradicting her assertion that she had not heard any discussion. Smith, supra, 273 Md. at 162, states that the test “ ... is whether the fact as to which the error is predicated is relevant independently of the contradiction;. . . ’’(Emphasis added).

Having been ruled against on the use of such testimony for impeachment, the appellant sought an alternative route:

“MR. BERRY: Well, of course, Your Honor is saying that it isn’t admissible on the issue of credibility. We believe it’s material on the issue of whether or not Debbie Turner was in fact an accomplice who counseled, aided or abetted the homicide within the meaning of the statute, and that that is a material issue in the case. And whether or not her testimony is corroborated in a case in which the Jury at this point with respect to the evidence might or might not find that her testimony is correct as to who actually fired the shots in this case, there being no dispute whatever that a man was shot.”

The judge dismissed this last effort on the ground that there was no evidence or assertion whatever at that point in the case that Turner was an accomplice. Moreover, we find that whether or not she heard a conversation between Rice and appellant at a time and place remote from the murder is not relevant to the issue of whether or not she was an accomplice to the murder.

XII

“Whether or not the Court erred in overruling the objection as to a witness seeing a gun in the trunk of the Defendant’s automobile?”

Appellant complains that testimony that a service station mechanic had observed a pistol in the trunk of appellant’s car should not have been admitted. Appellant contends that the testimony was irrelevant and improperly prejudicial. We do not agree.

The testimony showed appellant to have been in possession of a handgun similar to the murder weapon on the day of the murder. It further corroborated Debra Turner’s testimony that appellant had taken the murder weapon from the trunk of his car shortly after he abducted her and before the murder. The testimony made the inference of guilt more probable than it otherwise would have been and was therefore relevant and admissible. C. McCormick, Evidence, § 185 at 437.

XIII

“Whether or not the Court erred in overruling the objection to a line of questions to Debbie Turner with respect to an application for an assault warrant against the Defendant?”

On cross-examination, appellant attacked the credibility of Debra Turner by questions calculated to show that she was not really afraid of appellant as she had contended. He sought to characterize their relationship as a loving one and to contradict her testimony that she had been abducted and had stayed with appellant out of fear.

“MR. KELLY: Perhaps I missed something, but it seems to me you were asking her constantly you were afraid of him why didn’t you leave him.

“MR. BERRY: I have that right. She’s under cross-examination.”

The State contended that on re-direct:

“MR. KELLY: And I have the right to rehabilitate her. That would be the proffer, Your Honor. The State would proffer to show by an application for a summons signed by Debbie Turner on September 11th, 1974, that he had assaulted her, that she was afraid of him, that he accused her of running around.”

Although the court did not permit the introduction of that application, it did permit questions regarding it which tended to prove justification for the fear of appellant to which Turner testified:

“Q You’ve indicated that there were several occasions when you left Mr. Van Meter and returned to him. Directing your attention to September 11th, 1974, did you have occasion to go to the District Court of Maryland and on that time apply for an application for a summons against Clinton Van Meter for assault?

A Yes.

MR. BERRY: We object, Your Honor.

BY THE COURT: Objection will be overruled.

Q At that time did you indicate that you were afraid of Mr. Van Meter?

MR. BERRY: This is a leading question, Your Honor.

BY THE COURT: Sustained.

Q Debbie, do you recall what you told the District Court Commissioner at the time you applied for a warrant for a summons?

A Told him he had been. . . .

MR. BERRY: That would be answered yes or no, Your Honor.

A Yes.

Q And what did you tell him?

A I told him he kept on slapping me.”

Numerous attempts to elicit testimony relating to prior statements of her fear and causes therefor were thwarted by objections which were sustained as to the form of the questions. The State was then permitted to refresh her recollection with the application. The State proceeded:

“Q Okay. Then my question to you is, In addition to indicating that Mr. Van Meter had struck you, did you tell him anything else with regard to Mr. Van Meter?

A Yes.

Q And what else did you tell him?

A That I was afraid of him.”

The only claim of error by appellant here is that such “line of questions” on redirect examination exceeded the scope of the cross-examination and was inadmissible for that reason. As indicated above, we do not agree and find that the redirect examination was directly aimed at rehabilitating the witness from appellant’s assault on cross-examination.

Judgments affirmed.

      . William Shakespeare, The Tragedy of Othello, The Moor of Venice, Act III, Sc. III.

      . At argument appellant advised the Court that the Suggestion of Removal was not in the record. We find him to be in error. It was found as pages 10 through 12 of the record and so indexed.

      . Appellant is not charged with a crime to which such a physical condition might be a defense as is the case in the crime of manslaughter where the charge may be reduced to involuntary manslaughter by introducing testimony of a history of dizziness and blackouts. Carter v. State, 376 P. 2d 351.

      . The expert explained the procedure for identifying the cartridge casings by their markings:
      “The stria that exists on either a bullet or a cartridge case are created by the action of the weapon at the time of discharge. The bullet turns over in a .22 at a little over fifty thousand revolutions per minute. This is caused or created by lands and grooves, raising indented positions within the barrel. The barrel is first bored out and then a broach is run through and it creates the twist. So the bullet in effect becomes a small gyroscope as it travels through the air. Now in the creation of these lands and grooves there will be minute chips of steel that will be removed from the barrel that leave individual stria, just as individual as the stria that exists from a person’s fingerprints, on the bullet having passed through the barrel that takes on the signature. The same thing exists with cartridge cases in the finishing of the breech block of a weapon machine processes such as filing take place that create very fine striations on the breech block, that at the time of recoil the cartridge case is forced back against the block, and the case in effect acts as a small piston that pushes the breech block rearward and then extracts and ejects from the action in the cartridge case. The next loaded cartridges — cartridge lies on a magazine, and as the block starts to home or forward itself it strips from the magazine the next loaded cartridges, inserts it into the chamber preparatory to the next firing.
      Examination of the three cartridge cases reveals stria that was matched against the stria of the test cartridge cases fired in the weapon. So that I could say these three cases had been fired in this gun.”

      . Had appellant raised a hearsay argument, the resolution would have been less apparent. Suffice to say that the out-of-court statement was admissible, not having been offered for the truth of the thing asserted, but rather to show that what was asserted then is the same as what is being asserted now. Borza v. State, 25 Md. App. 391, 410, cert. den., 275 Md. 746.


source: Caselaw Access Project

author: Gilbert, J.,

license: Public Domain

text:
    WALLACE EVANS v. STATE OF MARYLAND
    [No. 564,
    September Term, 1975.]

      Decided March 1, 1976.

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

      Raymond, M. Faby, Assigned Public Defender, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Francis Sauer, Assistant State’s Attorney for Baltimore City on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

The Supreme Court, in Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972), articulated four factors to be employed by the courts in determining whether an accused had been denied his Sixth Amendment right to a speedy trial. The four elements that Barker, requires us to weigh are: (1) the delay, (2) the reason for the delay, (3) prejudice, and (4) waiver. The Court of Appeals in Epps v. State, 276 Md. 96, 345 A. 2d 62 (1975); Smith v. State, 276 Md. 521, 350 A. 2d 628 (1976); and Erbe v. State, 276 Md. 541, 350 A. 2d 640 (1976), has indicated the direction we are to follow in performing the delicate balancing mandated by Barker.

Applying Barker, Epps, Erbe, and Smith to the facts presented to us in the case at bar, we are led to conclude that we must reverse the judgment of the Criminal Court of Baltimore. We hereafter state our reasons.

According to the State’s evidence, Wallace Evans sold three bags of heroin to an undercover police officer, Detective John Hailey, on March 23, 1973. The total price was purportedly $32.50. Because he was working undercover and there was an ongoing investigation, no arrest was made of the appellant, Evans, until a few days after a warrant was issued on July 30, 1973. It is important to keep that date, July 30, 1973, firmly in mind as it is the date from which we must calculate in order to determine whether the defendant has been denied his right to a speedy trial. United States v. Marion, 404 U. S. 307, 92 S. Ct. 455, 30 L.Ed.2d 468 (1971); State v. Jones, 18 Md. App. 11, 305 A. 2d 177 (1973); State v. Hunter, 16 Md. App. 306, 295 A. 2d 779 (1972); State v. Hamilton, 14 Md. App. 582, 287 A. 2d 791 (1972). We must, as we said in Hunter, 16 Md. App. at 311, “ . . . look back to the date of the commencement of a prosecution by way of arrest, warrant, information or indictment, whichever shall first occur, and then forward to the date of the trial or hearing.” Appellant Evans is one of three brothers, triplets, and that multiple birth phenomenon produced some unusual circumstances in the case, not, however, directed toward the speedy trial question. On August 9, 1973, appellant appeared in the Federal Building and asked if there was a warrant for his arrest. He was identified by Hailey and arrested by other detectives. The case was set for hearing in the District Court of Maryland on August 24, 1973. No police officer was present. The case was reset for September 24, 1973, and again no officer was present so that the matter was postponed a second time. Again, on October 25, 1973, the case was postponed for the same reason as previous postponements. On December 6, 1973, the case was postponed because neither defense counsel nor a police officer was present. One month later, January 7,1974, the police officer was again not present. The case was postponed for the fifth time. Finally, on January 17, 1974, the officer not being present for the sixth time, the District Court judge dismissed the matter, we infer, for lack of prosecution. Thus 5V2 months were expended in awaiting a preliminary hearing. The State, however, took the matter to the grand jury by whom the appellant was indicted on January 24, 1974, for distribution of heroin.

No reason is stated in the record or the briefs for the failure of the police to appear at any of the six scheduled preliminary hearings. We are unable to fathom the seeming cavalier attitude of the prosecuting police officers, unless they believed their appearance and testimony would in some way either weaken the State’s case or strengthen that of the accused.

Although the docket entries of the Criminal Court do not reflect a postponement of trial on May 8, 1974, we are informed that the case was so postponed. On June 14, 1974, the appellant, who receives a pension for a service connected physical disability, requested a pre-trial medical examination. The trial, rescheduled for June 20, 1974, was postponed on that date. We glean the reason to be that the pre-trial medical report had not, as of that time, been filed. On the June 20, 1974 date, the case was specifically set for trial on “18 September, 1974 in Part VI.” The medical report was filed July 5, 1974. No docket entry reflects that the case was called to trial on September 18,1974, but it does indicate that it was called on September 11, 1974, and postponed. We are advised that it was postponed by the State. On October 29, 1974, it was again postponed with the notation, “Could not be reached.” On January 22, 1975, it was continued until the next day, January 23, 1975, when trial was finally commenced, seven days short of eighteen months after the issuance of the warrant.

It appears that when the pre-trial medical report was requested appellant was required by the judge to waive, specifically, his speedy trial right. We interpret that waiver as being limited to the time between the request for the report, June 14, 1974, and the receipt by the court of the report, July 5, 1974. In any event, we do not believe appellant, in exchange for the pre-trial medical examination and report, was engaged in trading his Sixth Amendment right to a speedy trial for all purposes of this case.

The Delay

As we have seen, the delay between the issuance of the warrant and the commencement of the trial was but seven days less than eighteen months. We think such a delay to be of constitutional proportion. Smith v. State, supra. Having crossed the threshold of constitutional proportion, we now advance to the completion of the Barker balancing equation.

The Reasons for the Delay

We have set forth, above, the reasons for the delay as we are able to deduce them from the record or as they have been explained by counsel in briefs and on oral argument. We have set forth below a table depicting the delay involved in this case and indicating whom we think chargeable with that delay.

Date Nature of Proceeding Reason for Delay Delay Period Party Chargeable

July 30,1973 to Aug. 9,1973 Issuance of warrant and arrest Administrative 10 days State

Aug. 10,1973 to Aug. 24,1973 Arrest to preliminary hearing Procedural 15 days State

Aug. 25,1973 to Sept. 24,1973 Preliminary hearing postponed No police officer present 1 month State

Sept. 25,1973 to Oct. 25,1973 Preliminary hearing postponed No police officer present 1 month State

Oct. 26,1973 to Dec. 6,1973 Preliminary hearing postponed No police officer present l'A months State

Dec. 7,1973 to Jan. 7,1973 Preliminary hearing postponed Neither police officer nor defense counsel present 1 month Neutral

Date Nature of Proceeding Reason for Delay Delay Period Party Chargeable

Jan. 8,1974 to Jan. 17,1974 Preliminary hearing postponed to Preliminary hearing. Dismissed — lack of prosecution No police officer present 10 days State

Jan. 17,1974 to May 8,1974 Dismissal to indictment and trial scheduled Administrative 3A months State

May 9,1974 to July 5,1974 Trial date postponed to pre-trial medical report Part of the reason not shown in the record — Med. Exam, report filed 2 months Appellant

July 6,1974 to Sept. 11,1974 Medical Report to trial Administrative date postponed .2 months State

Sept. 12,1974 to Oct. 29,1974 Trial date postponed to trial date postponed Imnlicitly no court available l'A months State

Oct. 30,1974 to Jan. 22,1975 Trial date postponed to trial date “Not reached” Administrative 3 months State

Recapitulation

Total elapsed time: Approximately 18 months.

Total time chargeable to appellant: Approximately 2 months.

Total time chargeable to State: Approximately 15 months.

Neutral time chargeable to neither party: 1 month.

Weighing the cause and duration of the delay on the scale of Barker, it is readily apparent that the State is chargeable with delay in a ratio seven and a half times that chargeable to the appellant.

Prejudice to the Accused

Moore v. Arizona, 414 U. S. 25, 94 S. Ct. 188, 38 L.Ed.2d 183 (1973) laid to rest any belief that an accused must affirmatively demonstrate prejudice in order to avail himself of Barker’s third factor. The Court said:

“. . . [Prejudice to a defendant caused by delay in bringing him to trial is not confined to the possible prejudice to his defense in those proceedings. Inordinate delay,
‘wholly aside from possible prejudice to a defense on the merits, may “seriously interfere with the defendant’s liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family, and his friends.” United States v. Marion, 404 U. S. 307, 320[, 92 S. Ct. 455, 30 L.Ed.2d 468] (1971). These factors are more serious for some than for others, but they are inevitably present in every case to some extent, for every defendant will either be incarcerated pending trial or on bail subject to substantial restrictions on his liberty.’ Barker v. Wingo, supra, at 537 (White, J., concurring).” 414 U. S. at 26-27 (footnote omitted).

See also Epps v. State, supra.

A defendant’s being released on bail, as was the appellant in the case now before us, Epps points out, is “ a significant consideration in determining a lack of prejudice and in holding that there has been no denial of a speedy trial.” 276 Md. at 119.

Except for approximately 60 days, appellant was free on bail. With respect, however, to prejudice, the appellant asserted “ . . . emotional pressure, mental stress and strain and anguish and things of that nature which have taxed his mind to a point where he has been burdened. . . .”

The Court of Appeals, in Smith v. State, supra, notes that, “The speedy trial right was also intended to minimize the anxiety of the accused, his family and friends, and to protect the accused from public scorn, financial ruin and having to curtail his speech and associations.” 276 Md. at 533. It is, of course, not necessary that an accused be incarcerated in order to be denied his right to a speedy trial. Incarceration, conceivably, might hinder the preparation of the defense more than it would damage the defense if the accused were released on bail or on his own recognizance while awaiting trial, but that is only an element for the courts to weigh in their “ad hoc” approach to each case. Barker v. Wingo, supra.

Waiver

Appellant made no demand for a speedy trial until the date of trial, January 23, 1975, when he filed two motions: (1) a demand for a speedy trial and (2) a motion to dismiss for lack of a speedy trial. After hearing a recitation of the facts to which we have heretofore alluded above, the trial judge denied the motion to dismiss for lack of a speedy trial, commenting briefly that he was “ . . . convinced there is no ground on which . . . [he could] grant the [m]otion. . . .”

Barker, as Judge Moylan wrote for this Court in State v. Jones, supra, established that the failure to demand a speedy trial does not, ipso facto, amount to a waiver of that fundamental right. Instead, failure to demand is relegated to the status of another “ . . . factor to be considered in interaction with the three others. . . 18 Md. App. at 18. Judge Moylan pointed out, 18 Md. App. at 18, that Mr. Justice Powell penned, in Barker, that the "... failure to assert the right [demand for a speedy trial] will make it difficult for a defendant to prove that he was denied a speedy trial.” 407 U. S. at 532. Difficult, however, is not synonymous with impossible. Moreover, “[a] defendant has no duty to bring himself to trial; the State has that duty. . . Epps, 276 Md. at 105.

At the outset, we indicated that appellant was denied his Sixth Amendment right to a speedy trial. We have explained the factors constituting the “in-put” upon which we rest that conclusion. On balance, in this case, the appellant’s failure to demand a speedy trial prior to the date of trial, while weighing against him, does not outweigh what appears to be an air of indifference with respect to the prosecution of this case from its inception.

While we recognize that in large metropolitan areas practical problems arise with respect to the expeditious trial of criminal cases, the constitutional right to a speedy trial may not be shelved because of court congestion.

We think the ends of justice are best served, not only for this accused, but for the general public, by our insistence upon the State’s observance of the speedy trial right of a defendant, which right has been guaranteed by both the United States Constitution and the Maryland Declaration of Rights, article 21. The failure of the State, in the case sub judice, to afford the appellant that right requires us to impose the only sanction available when a speedy trial has been denied, reversal.

Judgment reversed.

Costs to be paid, by Mayor and City Council of Baltimore.

      . A similar right is found in the Maryland Constitution, Declaration of Rights article 21.

      . The Sixth Amendment was held to be applicable to state trials through the vehicle of the Fourteenth Amendment: Klopfer v. North Carolina, 386 U. S. 213, 87 S. Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. State, 276 Md. 521, 350 A. 2d 628 (1976).

      . An issue was made at trial over the alleged price. The appellant contended that the supposed price was absurd because sellers of heroin or other proscribed drugs do not engage in giving discount prices for small quantity purchases. He implied that a unit price of $10.83 or $10.84 is completely unbelievable.

      . Another detective was assigned to undercover work along with Hailey. The second detective occupied a different motor vehicle from Hailey, but he kept Hailey under constant observation. He testified that he recognized appellant, in the courtroom, from his observation of appellant in the car with Hailey. A few days after the warrant was issued for appellant’s arrest, the detective executed the warrant. He arrested one of the appellant’s brothers over the strenuous protest of the brother. The detective was under the impression that he was arresting the appellant. The brother was subsequently released when Hailey advised the detective that the wrong man had been arrested.


text:
    JERRY WAYNE DANIELS v. STATE OF MARYLAND
    [No. 571,
    September Term, 1975.]

      Decided March 2, 1976.

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

      John W. Same, Jr., District Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Donaldson C. Cole, Jr., State’s Attorney for Cecil County and Paul S. Podolak, Assistant State’s Attorney for Cecil County on the brief, for appellee.

      Note: Certiorari denied, Court of Appeals of Maryland, June 3,1976.

   Lowe, J.,

delivered the opinion of the Court.

Appellant was convicted, of possession and distribution of narcotics, by a jury in the Circuit Court for Cecil County. Immediately before his trial on February 11, 1975, he moved to dismiss the indictments on the ground that he had been denied a speedy trial. The judge deferred ruling on the motion until after the trial.

Soon after the jury’s verdict was returned, a hearing was held on the motion. After substantial evidence was presented on the speedy trial issue, the judge denied appellant’s motion in a written opinion expressly setting forth his findings of fact. 234567Because our review of the record has revealed sufficient evidence to support his factual conclusions, our opinion will be based upon the facts as he found them.

The essence of the complaint was that although appellant had been charged with a crime he was not arrested, notified or tried for over sixteen months. The significant dates are as follows:

1. Narcotics sold to undercover officer June 9, 1973 June 15, 1973

2. Warrant taken out by officer (appellant first becomes an “accused”) September 27, 1973

3. Appellant indicted January 16, 1974

4. Appellant arrested (and received his first knowledge of the pending charge) January 8,1975

5. Appellant arraigned January 13, 1975

6. Appellant tried and convicted. February 11,1975

The Length of Delay

Appellant first became an accused by the execution of a warrant for his arrest on September 27, 1973. Thus, the length of the delay before trial was sixteen and one-half months. That length of time is of sufficient “constitutional dimension” to require that we analyze the delay by utilizing the “balancing test” mandated by Barker v. Wingo, 407 U. S. 514, 530; Epps v. State, 276 Md. 96, 111; State v. Jones, 18 Md. App. 11, 22-23.

Reasons for Delay

The appellant contends that the State should be charged with the full period of delay between warrant and arrest because insufficient effort was expended in the search for and arrest of appellant. The search conducted by the police was certainly something less than a “manhunt.” However, according to the testimony of a police officer, customary interdepartmental procedures were followed and physical efforts were made as time permitted. Little was known of appellant’s customary hangouts and efforts to find him were limited because, according to one officer’s testimony, the search for appellant was not of high priority. The police efforts to apprehend appellant were casual at best and clumsy at worst. Appellant’s arrest on January 8, 1975 was almost inadvertent. The State’s Attorney described the circumstances:

“During approximately the last week of December of ’74 I went on vacation right around Christmas/time for a 2 week period. When I was home I got a hold of the Cecil Whig and I saw a marriage license between a Jerry Daniels. I didn’t do anything about it. Then when I came back into my office sometime after the first of the year there was also a copy of a disorderly conduct warrant, if I remember correctly, with a Jerry Wayne Daniels. I called Trooper Macken as a result of these discoveries and I said ‘This may or may not be your boy’. That may not be the exact words I used, but in essence that is what I was saying. Trooper Macken came up and he got the new address. If I remember correctly, there was an address — if there was an address on the warrant — and I don’t recall whether there was a complete address in the newspaper or not, but I believe he went downstairs and got a complete address off the marriage application.”

The trial judge attempted to identify the periods of time when the police “did all that could be expected and was reasonably needed to attempt to apprehend” the accused. He also tried to determine how much of the police department’s neglect was excusable. We think it beyond the scope of our judicial vision to judge the adequacy of the time and effort expended by the police in quest of appellant. That appellant was not intentionally eluding the police is obvious since he did not know he was being sought. On the other hand, his nomadic life style (eight jobs at different geographic locations and five residences during the period of delay) helps to explain, if not excuse, their failure to apprehend him.

It would be impossible for us to prescribe a minimum standard of diligence for the police in seeking out an accused. Too many intangible factors affect the amount of effort which can and should be expended, e.g., the degree of crime, the danger the fugitive poses to society, work load of the law enforcement agency, etc. Furthermore, any attempt to do so may undermine police investigations (as well as equivocate an accused’s rights) by putting pressure on the State to arrest a suspect while his whereabouts are known, rather than after their investigation is thoroughly completed, for fear that post indictment efforts to apprehend him may fall short of some judicially mandated standard. The language of the Supreme Court in Hoffa v. U.S., 385 U. S. 293, 310 is particularly pertinent:

“There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a. halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.”

The Sixth Amendment guidelines are those Judge Moylar discussed in State v. Jones, supra, 18 Md. App. at 24:

“There was in the case at bar clearly no ‘purposeful or oppressive’ delay, motivated by ‘bad faith’ or representing ‘a deliberate choice for a supposed advantage.’ In terms of assessing ‘fault,’ the behavior of the State clearly did not fall under the interdict of ‘purposefulness’ or ‘oppressiveness’.
Nor was there any persistent refusal to move forward in the face of repeated demands, requests and efforts by an accused to bring the case on for trial. The situation at bar was not such that the attitude of the State could be described as ‘capricious,’ ‘arbitrary’ or ‘unreasonable’ — the sort of motivational attitude we deplored in Caesar v. State, 10 Md. App. 40, 49-50, 267 A. 2d 750.
The case at bar presents us not with an instance of deliberate, knovring inaction but rather with an instance of what might, at the very worst, be characterized as ‘inadvertent inaction’or as ‘halting and less-than-diligent action’. Lawless, at 237-241. Fault, if any, was minimal or for what Barker referred to as a ‘more neutral reason’.” (Emphasis added).

In the case before us it is by no means certain that the lack of a more vigorous search by police caused the full period of delay. The court below assessed five months against the State after analyzing their efforts to apprehend appellant. We eschew such analysis because of the aforementioned precedential danger inherent in deciding what degree of diligence is necessary to avoid blame. Moreover, for purposes of this appeal, we need not do so, for even if we assumed the entire period to have been a “more neutral reason,” the total lack of any prejudice to appellant caused by the delay precludes a dismissal for lack of a speedy trial.

Assertion of the Right

“This factor, in the equation at bar, is zero. The [appellant] did not know of the charges against him and was, therefore, in no position to make demand. His silence, under the circumstances, cannot redound to his detriment. Conversely, the State cannot be charged with indifference or inaction in the face of repeated demands for action, since such demands, understandably, were never made. The demand factor is neither a plus nor a minus for either party.” State v. Jones, 18 Md. App. at 26-27.

Prejudice

Obviously, if an accused did not know that he was an accused, two of the three “interests of defendants which the speedy trial was sought to protect,” Barker v. Wingo, 407 U. S. at 532, are not adversely affected. As pointed out in Smith v. State, 276 Md. 521, one such interest is to avoid oppressive pretrial incarceration. Since appellant was not arrested until thirty-four days before he was tried, that “interest” does not pertain to the facts of this case.

Secondly:

“The speedy trial right was also intended to minimize the anxiety of the accused, his family and friends, and to protect the accused from public scorn, financial ruin and having to curtail his speech and associations.” Smith v. State, 276 Md. at 533.

Considerations of this nature were described in Moore v. Arizona, 414 U. S. 25, 26-27:

“ . . . [Prejudice to a defendant caused by delay in bringing him to trial is not confined to the possible prejudice to his defense in those proceedings. Inordinate delay,
‘wholly aside from possible prejudice to a defense on the merits, may ‘seriously interfere with the defendant’s liberty, whether he is free on bail or not, and . . . may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.’ United States v. Marion, 404 U. S. 307, 320, [30 L.Ed.2d 468, 92 S. Ct. 455] (1971). These factors are more serious for some than for others, but they are inevitably present in every case to some extent, for every defendant will either be incarcerated pending trial or on bail subject to substantial restrictions on his liberty.’ Barker v. Wingo, supra, at 537, 33 L. Ed. 2d 101 (White J., concurring).” (footnote omitted).

No prejudice of this nature occurred, obviously because what appellant didn’t know could hardly have hurt him. None of appellant’s family members who testified knew of the outstanding charge and appellant himself admitted he did not:

“Q And at no time up until January 8 of ’75 were you ever notified by the authorities concerning these charges that stem from the incidents that occurred in June of ’73?

A No, sir. I wasn’t.

BY THE COURT:

Q The first arrest you talked about was May of 73, am I correct?

A Yes, sir.”

The final “interest” to be protected is the one appellant hopes to utilize:

“Lastly, the Barker Court said that the speedy trial right was intended ‘to limit the possibility that the defense will be impaired [by delay],’ which interest the Court termed ‘the most serious . . . because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’ ” Smith v. State, 276 Md. at 533, citing 407 U. S. at 532.

Appellant contends that, due to the lapse of time, employers, associates and friends whom he “hung around with” and who might have been able to prove that he was not at the “White Horse Inn” when the two sales of narcotics took place, had either disappeared or could not recall the events of those two days.

“Q Mr. Cole referred to your defense in this case as that you didn’t sell anything, you are positive that you didn’t sell anything. But you have no way of proving whether or not you were there on that night, do you?

A No, sir. I can't.

Q I mean if you could have proven with Mr. Langhorne if he was around there is a possibility that you might have been able to prove — or Mr. Arsh — that you weren’t even in the White Horse on the 9th and the 15th.

A Yes, sir.

Q You didn’t always go to the White Horse every Friday and Saturday night, did you?

A No, sir. I did not.”

Appellant admitted to having frequented the “White Horse Inn”, but was not certain if he was present on the two days in question. Appellant does not claim that he had an alibi which could not be proven because of a lost witness, as in Epps v. State, 276 Md. 96. Rather he argues that he can’t remember if he might have had an alibi, but even if he did he couldn’t prove it at his trial because he had lost contact with his acquaintances. This bootstrap argument does not convince us that the claim of a lost defense is anything more than the assertion of the possibility of dimmed memories. In the factually analogous case of State v. Jones, supra, 18 Md. App. at 30, Judge Moylan discussed a similar assertion of prejudice:

“The unusual posture of the [appellant] at bar, in not having known that a case had been instituted against him, makes his predicament more akin to that of those who claim due process violations where long delays are involved before the initial institution of prosecution, rather than to those in more typical speedy trial situations. United States v. Marion addressed itself to the claim of faded memory!] and gave it short shrift, so long as the applicable statute of limitations was not offended. . . .”

Because appellant has raised due process as an alternative issue, we find it appropriate to repeat the Supreme Court’s response to that question in full here. Marion meets this very issue and points out that each case must be decided on its own circumstances:

“Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. Cf. Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); Napue v. Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959). However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from preaccusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances in each case. It would be unwise at this juncture to attempt to forecast our decision in such cases.” (Footnotes omitted). United States v. Marion, 404 U. S. at 324-325.

Result

While it is lamentable, and indeed frightening, that law enforcement in this instance was unable or unwilling to exercise greater diligence, we find, after balancing the Barker v. Wingo factors, as set forth above, that appellant was not denied a speedy trial. “We are to keep the balance true,” and the only purpose to be served by holding otherwise would be to chastise the law officers for ineptitude. Appellant has not been harmed by the delay of his trial. To dismiss with prejudice when there is no prejudice is an unwarranted denial of society’s right to bring an accused transgressor before the bar of justice.

We hasten to note that our holding is not so rigid as to preclude an accused from ever showing actual prejudice from delay sufficient to warrant dismissal. It would seem, however, that any delay between formal accusation and apprehension, arrest or notification of the charge, must be accompanied by a showing of actual prejudice to compel a dismissal. The presumption of prejudice following even a period of “substantial delay,” e.g., Jones, 18 Md. App. at 27-29, will not suffice.

Judgments affirmed.

      . That portion setting forth the findings of fact is as follows:
      “FINDINGS OF FACT
      From the evidence, the Court makes the following findings of fact.
      1. The alleged crimes were completed June 15, 1973. The defendant was indicted January 16, 1974. From indictment until July 1, 1974 and from December 1, 1974 until January 8, 1975 the police did all that could be expected and was reasonably needed to attempt to apprehend the defendant. Escalation of the search process by alerting the F.B.I. or the M.I.L.E.S. computer was not needed and would have served no purpose in this case because the defendant admits, save for ten days, he never left the two county, Cecil-Harford, area. State Police Barracks in both Counties, the Cecil County Sheriff, and possibly other local police agencies including, we know. Perryville, Port Deposit and Bainbridge, were alerted. The defendant was arrested January 8, 1975, arraigned January 13, 1975 and tried February 11,1975.
      2. The police recorded no activity by way of efforts to locate the defendant for the five month period from July 1,1974 to December 1,1974.
      3. The police did not know that the defendant’s mother lived at 40 Robin Hood Road, Havre de Grace, Maryland until Macken went there on January 8,1975 as a result of examining the marriage license.
      4. The police did not know the location of the defendant.
      5. In the nineteen month period during which he was sought the defendant lived in five different places and held eight different jobs.
      6. The existence of two law violating Jerry Daniels of strikingly similar physical characteristics did not make any easier the policemen’s task of locating the right Jerry Daniels.
      7. The defendant possessed and distributed to Trooper Macken crystal methamphetamine at the White Horse Tavern on June 9, 1973 and June 15, 1973. Macken’s identification was positive and a challenge thereto at the trial was withdrawn by the defendant.
      8. The defendant made no effort to locate Langhorne and a minimal effort to locate Arsh, the two witnesses he would depend upon for alibi.
      9. There has been no proffer that these potential alibi witnesses would give any evidence whatever relevant to the case.
      10. There has been no proffer that any records lost in the ransacking of the apartment would have been of any help to the defendant. He testified affirmatively that there would not have been any records of dates or hours worked or pay slips because none were kept.”

      . The trial judge held that the beginning of the period of delay was appellant’s indictment. The State concedes that the beginning point was when appellant was subject to arrest by virtue of the warrant, which was the first charging document, executed by the trooper on September 27, 1973.
      In State v. Hunter, 16 Md. App. 306, 311 we have held that speedy trial rights are calculated from
      “ . . . the date of the commencement of a prosecution by way of arrest, warrant, information or indictment, whichever shall first occur, and then forward to the date of the trial or hearing.”
      In State v. Hamilton, 14 Md. App. 582, we noted that our analysis in State v. Lawless, 13 Md. App. 220, 229-230 of the point at which the right to a speedy trial attaches had preceded the Supreme Court’s later decision in United States v. Marion, 404 U. S. 307. Hunter followed, making it clear that however other states may read Marión,, our position is unequivocal.

      . A bench warrant was served on another person with the same name held by the police on another offense. Appellant himself was once arrested for suspicion of another offense and released without being served or notified of the narcotics’ charge.

      . Footnote 10 in Jones points out that the delay in Marion was 38 months.

      . Snyder v. Massachusetts, 291 U. S. 97.


text:
    RONALD A. WILLONER and BARBARA G. DAVIS, Personal Representatives of the Estate of Albert H. Davis et al. v. JUDITH B. DAVIS et al.
    [No. 604,
    September Term, 1975.]

      Decided March 2, 1976.

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

      Benjamin Lipsitz, with whom were Reuben Shiling and Eleanor J. Lipsitz on the brief, for appellants.

      George A. Brugger, with whom were Beatty & McNamee on the brief, for appellees.

       Note: Certiorari granted, Court of Appeals of Maryland, June 3, 1976.

   Gilbert, J.,

delivered the opinion of the Court.

Albert H. Davis, late of Montgomery County, departed this life on January 19, 1973. Mr. Davis left a widow, three natural children by a prior marriage, an adopted son who is the natural child of Mr. Davis’s widow, an estate valued in excess of $400,000, and a will executed thirty-two months prior to his death and prior to the adoption decree. Interpretation of the will by the Circuit Court for Montgomery County sitting as an Orphans’ Court, in the light of then Md. Ann. Code art. 93, § 3-301 * has given rise to the instant appeal.

The record shows that the decedent’s personal representatives determined that the adopted son, Jeffrey, was a pretermitted child, within the meaning of former art. 93, § 3-301, and they proposed to distribute the estate accordingly. Two of the natural daughters of the late Mr. Davis, disagree with interpretation of the will as made by the personal representatives.

A petition for a declaratory decree was filed by the two daughters (appellees in this Court) in the Circuit Court for Montgomery County, “Sitting as the Orphans’ Court.” The petition sought to have the Orphans’ Court declare that Jeffrey was not entitled to share as a pretermitted child in the proceeds of the estate of Albert H. Davis because Jeffrey had been provided for in the Davis will, albeit, admittedly, as a contingent legatee. The personal representatives and Jeffrey individually (appellants here) responded that while the will did make a contingent bequest to “ . . . Jeffery Saraga also known as Jeffery Davis . . .” there was no proviso for Jeffrey in his after acquired capacity of “son” of the late Mr. Davis.

When the matter was called for a hearing, the judge sua sponte inquired into his jurisdiction, sitting as an Orphans’ Court, to render a declaratory decree. The judge subsequently ruled that an Orphans’ Court may grant declaratory relief and construe a will. In this Court the question of jurisdiction of the Orphans’ Court was not raised by any party. We, however, must take cognizance of the question of jurisdiction.

The hearing judge arrived at his conclusion that the Orphans’ Court could render declaratory decrees on the strength of Md. Ann. Code, Courts and Judicial Proceedings Article § 3-403 (a) which provides in pertinent part:

“ . . . Except for the District Court, a court of records within its jurisdiction may declare rights, status, and other legal relations whether or not further relief is or could be claimed.”

The judge, believing that an Orphans’ Court is a court of record, Maryland Constitution article IV, § 1 held that by virtue of the authority contained in Courts Art. § 3-403 (a), an Orphans’ Court is empowered to render declaratory decrees. We, however, have a different view.

Courts Art. § 3-403 (a) does not confer upon Orphans’ Courts the right to render declaratory decrees. In fact, Courts Art. § 3-403 (a) is not at all applicable to Orphans’ Courts. This is so because Courts Art. § 1-101 (c) provides that the proper noun “Court” as used in the Courts and Judicial Proceedings Article means “. . . the Court of Appeals, Court of Special Appeals, circuit court, and District Court of Maryland, or any of them, unless the context clearly requires a contrary meaning. It does not include an orphans' court, or the Maryland Tax Court.” (Emphasis supplied).

Maryland Constitution article IV, § 20, was by referendum, held November 3, 1964, amended so as to provide that in Montgomery County, the “ . . . judges of the Circuit Court ... shall each, alternately and in rotation and on schedules to be established by the said judges, sit as an Orphan’s Court for said County, and shall have and exercise all the power, authority and jurisdiction which the present Orphans’ Courts now have and exercise, or which may hereafter be prescribed by law.” The jurisdiction of an Orphans’ Court is spelled out clearly in Md. Ann. Code, Estates and Trusts Article § 2-102. Pursuant to that section of the code an Orphans’ Court “. . . may conduct judicial probate, direct the conduct of a personal representative, and pass orders which may be required in the course of the administration of an estate of a decedent”, and the court is authorized to summons witnesses. The Legislature chose to limit the Orphans’ Courts’ powers by incorporating within Estates Art. § 2-102 the prohibition that “ . . . [t]he court shall not, under pretext of incidental power or constructive authority, exercise any jurisdiction not expressly conferred.” As we have seen, not only did the General Assembly not grant to Orphans’ Courts the right to enter declaratory decrees or judgments, but, on the contrary, by Courts Art. § 1-101 (c) and § 3-403 (a), the Legislature expressly rendered such courts impuissant to entertain petitions for declaratory relief under any pretext. That a judge of the Circuit Court for Montgomery County, who ordinarily exercises the power to decide declaratory actions, may also sit as a judge of the Orphans’ Court for Montgomery County does not mean that when a circuit judge sits as the judge of the Orphans’ Court he may exercise his authority and power as a circuit court judge. The law is that when a circuit judge presides in an Orphans’ Court proceeding he has no more authority in that case than an Orphans’ Court judge, unless additional authority is lawfully conferred by the Legislature. No such authority has, at this point in time, been so conferred. The circuit court judge sitting as an Orphans’ Court, in the case now before us, was without jurisdiction to adjudicate and declare the respective rights of the parties.

Not content, however, to rest upon the supposed, but incorrect, belief that the Orphans’ Court could enter declaratory decrees, Judge Philip M. Fairbanks advanced a second reason why, sitting as the Orphans’ Court, he could exercise jurisdiction in this matter. The judge opined that “ . . . the precedents in Maryland sustain the power of the Orphans’ Court to determine who shall take and what assets shall be included in a given bequest even though these determinations may of necessity involve will construction or statutory construction.” We agree.

It is well settled that Orphans’ Courts have the power to construe a will or statute if it is necessary to do so when exercising the normal functions within its jurisdiction, as for example, when it is incident to the Orphans’ Court determination of who shall take under a will or in the distribution of estate assets. Childs v. Hoagland, 181 Md. 550, 30 A. 2d 766 (1943); Longerbeam, v. Iser, 159 Md. 244, 150 A. 793 (1930); Redwood v. Howison, 129 Md. 577, 99 A. 863 (1917); Roane v. Hollingshead, 76 Md. 369, 25 A. 307 (1892); Pole v. Simmons, 45 Md. 246 (1876); Hokamp v. Hagaman, 36 Md. 511 (1872); Blackburn v. Craufurd, 22 Md. 447 (1864).

We shall hereinafter treat this case not as a petition for declaratory relief filed in the wrong court, but rather as a petition addressed to the Orphans’ Court for a determination as to who shall take under the late Mr. Davis’s will, a determination that the Orphans’ Court had a right to make incident to its power to distribute. Childs v. Hoagland, supra.

Mr, Davis’s will, dated May 12, 1970, approximately thirty-two months prior to his death, made two specific legacies totaling eleven hundred dollars ($1100). His wife, Barbara, was bequeathed the household effects, including such things as silver, china, objects of art, and jewelry, if she survived her husband by thirty (30) days. Mrs. Davis, subject to the same thirty-day survival proviso, was granted a one-third interest in the residuary estate. A one-fourth interest in the residuary estate was to go to each of two daughters, Judith and Stephanie. Three sisters were granted a one-sixth interest in the estate’s residue to be divided equally among them. Mrs. Davis, as we have observed, did survive her husband by more than thirty days so that the bequests to her became effective.

The will contained further provisions that were concerned with the distribution of the residuary estate only in the event Mrs. Davis did not survive the testator for the thirty-day period. If she had not survived, fractional distribution was to be jettisoned in favor of percentages. Each of two named daughters would have recieved thirty percent (30%). Five percent (5%) would have gone to a stepson, Steven Saraga; twenty percent (20%) would have been given to the testator’s three sisters, “ ... to be divided equally .. .” among them; and the remaining fifteen percent (15%) would have passed to “ . . . Jeffery Saraga, also known as Jeffery Davis. . . .” It is this latter contingent bequest that has led to the instant litigation.

Prior to the execution of his will, Mr. Davis had undergone a kidney removal because of a malignancy. In January, 1972, and August of the same year, Mr. Davis was subjected to further major surgical procedure seemingly with concomitant radiation therapy. Except for the periods of hospitalization, Mr. Davis “ . . . was able to carry on his active business pursuits and was in full possession of his mental and physical faculties up until immediately before his death....”

On December 7, 1972, the testator “ . . . appeared in the Circuit Court for Montgomery County to testify in the proceeding for his adoption of Jeffery Saraga, and that Jeffery Saraga was adopted by the decedent on December 7, 1972, and that Jeffery Saraga survived the decedent.”

The question posed to us is whether the contingent bequest to Jeffrey, made prior to the adoption of Jeffrey by the decedent, places Jeffrey without the scope of the exceptions provided in former Md. Ann. Code art. 93, § 3-301. That section provided:

“No will shall be revoked by the subsequent birth, adoption or legitimation of a child by the testator except under the circumstances referred to in § 4-105 (c) Such child, or the issue (if any, who survive the testator) of any such child who does not survive the testator, shall, however, be entitled to a share in the estate to be determined and paid in accordance with §§ 3-302 and 3-303 if:
(a) The will contains a legacy for a child of the testator but makes no provision for a person who becomes a child of the testator subsequent to the execution of the will;
(b) Such child was born, adopted or legitimated subsequent to the execution of the will;
(c) Such child, or his issue, survives the testator; and
(d) The will does not expressly state that such child, or issue, should be omitted.”

With respect to Jeffrey, the will provided:

“In case I and my . . . wife shall die or meet death as a result of a common disaster or if my wife fails to survive me for a period of thirty (30) days, I give, devise and bequeath all the rest, residue and remainder of my estate, both real and personal, of whatever kind or nature, as follows:
D. I give, devise and bequeath unto Jeffery Saraga, also known as Jeffery Davis, a fifteen percent (15%) interest if he survives me and has reached the age of twenty-one (21) years.”

The will contained provisions relative to a disposition if Jeffrey did not survive the testator and for the creation of a trust if Jeffrey survived the testator, subject to the contingency, and had not attained age twenty-one. If Jeffrey survived the testator but were to die before attaining age twenty-one, the trust remainder was to be paid over to Jeffrey’s brother, Steven, when Steven attained age twenty-one or forthwith if Steven had already attained that age.

The ancestor to both the current Maryland statute and its immediate predecessor came into being as a direct result of the opinion of the Court of Appeals in Karr v. Robinson, 167 Md. 375, 173 A. 584 (1934). In that case Alphonso Robinson, a widower with two daughters, married Madeline Boyer. Two years thereafter he executed a will. Three years later a daughter was born to Alphonso and his wife. Seven months after that event, Alphonso died. His widow filed a caveat to her late husband’s will, asserting that as a result of the birth of a daughter subsequent to the making of- the will and the failure of the decedent to provide in the paper writing for the new-born daughter, the “will” was, by operation of law, revoked. The Orphans’ Court of Harford County refused to admit the paper writing to probate. On appeal the Court, at length, traced the judicial history of pretermitted children and the effect of their omission upon a will made prior to the birth of the child. The Court noted that originally two elements, (1) subsequent marriage and (2) subsequent birth, were required to be shown before the judicial rule of implicit revocation of a will could be invoked.

The Ecclesiastical Court of England, in Johnston v. Johnston, 1 Phillim [Eng. Ecclesiastical Rep.] 447, 161 Eng. Rep. 1039 (1817), held that “subsequent marriage” was not an essential part because the law made strong provision for a widow by way of dower, or as is currently the case, statutory rights. The Court of Appeals, in Karr, seemingly followed the reasoning of the Ecclesiastical Court in Johnston and held that where no provision is made in a will for an afterborn child, the will “ . . . was impliedly revoked,” notwithstanding the absence of the “subsequent marriage” element.167 Md. at 383.

Responding to Karr v. Robinson, supra, the Legislature enacted Laws 1937, ch. 303, which codified the pre-Karr rule that revocation of a will required a subsequent marriage followed by a subsequent birth.

Former Md. Ann. Code art. 93, § 3-301, which was in effect at the time of Mr. Davis’s death, provided, as we have stated, that a will was not revoked by subsequent birth, adoption, or legitimation unless “[t]he will contains a legacy for a child of the testator but makes no provision for a person who becomes a child of the testator subsequent to the execution of the will.”

The appellants are of the view that former § 3-301 (a) should be interpreted as meaning that if a testator makes no provision for a person as- a child of the testator and that person subsequently becomes a child of the testator, the will is a nullity with respect to that person, and he or she should receive the lesser of an intestate share or the value of all the shares of the children who are legatees under the will divided by the total number of children, or their issue, surviving the testator.

We do not, however, read former art. 93, § 3-301 (a) as necessitating that a person who becomes a child of the testator subsequent to the execution of a will must receive a bequest, specifically as a child, in order for the statute to be satisfied. As we see it, a contingent bequest to such person fully meets the legislative intent, inasmuch as mention, in the will, of the person who subsequently becomes a child, patently demonstrates that the person who became a child of the testator was not omitted from the will through negligence or carelessness.

Other states are divided on the resolution of the question here put to us, and it does not appear that Maryland appellate courts have heretofore come to grips with the issue. Each case in those jurisdictions is, however, determined on its own facts and state statute so that all bear some similarity, on one hand, and, yet, because of the peculiar working of the divers statutes, each case is different from the other. We do not rely upon those divided foreign cases because we believe our statute to be clear and unambiguous. We need not seek guidance from other jurisdictions to interpret our statute inasmuch as Maryland’s statute employs certainty of language and relies on a clear purpose. 2A C. Sands, Sutherland Statutory Construction § 46.04 (4th ed. 1973). When the statute was originally enacted, as we have already noted, it was designed to overeóme the impact of Karr v. Robinson, supra. Subsequent legislatures have altered the 1937 Act to the extent that even though a subsequent marriage and subsequent birth will still revoke a will, a child, born, adopted, or legitimated after a will has been executed, may, if he or she meets the criteria of § 3-301, share in his or her parent’s estate, without the devastating result occasioned by total will revocation.

In the instant case, the testator specifically provided that his widow would receive a one-third (1/3) interest in his estate. He limited the widow to the one-third, as he stated in his will, because he recognized “ . . . that . . . [their] jointly held property . . . [would] pass outside this Will and as an only child of a wealthy family, she will inherit considerable property.” The testator, with respect to a third natural daughter, bequeathed to her, the sum of “One Hundred Dollars ($100.00) and my love and affection.” The testator explained his seemingly niggardly gift by stating that “I give to my daughter . . . only One Hundred Dollars ($100.00) because she has been well provided for.”

When we consider the apparent desire of the testator to provide for his children, both natural and adopted, from the testator’s viewpoint of his children’s respective needs, we believe Judge Fairbanks correctly found the true intent of the testator.

Knowing of his wife’s apparent prospective sizable inheritance, the probability of Jeffrey’s eventual sharing to some extent in that inheritance, the improbability of his natural children so sharing, one can readily infer, as the trial judge did, from the testator’s will and course of conduct that Jeffrey’s contingent bequest was exactly what the testator had in mind. It was only in the event that the testator’s widow did not survive the testator by thirty days that Jeffrey was to participate in his adoptive father’s estate, and even then not to the extent of the two natural daughters who are the principal beneficiaries under the will.

We hold that a judge of the Circuit Court for Montgomery County, sitting as an Orphans’ Court, correctly construed the will of Albert H. Davis. He did so as a necessary exercise of hie jurisdiction and authority to determine who should share under that will and to what extent. Wre further hold that an Orphans’ Court has no authority to render declaratory decrees. Wc, therefore, treat the order of the Orphans’ Court not as a declaratory decree, but rather as an order of distribution according to the testamentary scheme and, as so treated, we affirm.

Order affirmed.

Costs to be paid by the estate of A Ibert H. Davis.

      . By Laws 1974. ch. 11, § 1, effective July 1, 1974, Md. Ann. Code art. 93 was repealed in its entirety. Substantially the same language that appeared in former art. 93, § 3-301 is now embodied in Estates and Trusts Article § 3-301, enacted by Laws 1974, ch. 11, § 2, effective July 1,1974.

      . Id.

      . “Saraga” was Jeffrey’s proper surname until the adoption decree. We observe that Jeffrey signed his name on a return receipt postcard “Jeffrey” but in the will his name is spelled “Jeffery.”

      . Maryland Constitution art. IV, § 1, provides:
      “The Judicial power of this State shall be vested in a Court of Appeals, and such intermediate courts of appeal, as shall be provided by law by the General Assembly, Circuit Courts, Orphans’ Courts, such Courts for the City of Baltimore, as are hereinafter provided for, and a District Court; all said Courts shall be Courts of Record, and each shall have a seal to be used in the authentication of all process issuing therefrom.”

      5. Circuit court, as defined in Courts Art. § 1-101 (b), means “ .. . the circuit court for a county, the Superior Court of Baltimore City, Court of Common Pleas, Baltimore City Court, Circuit Court of Baltimore City, Circuit Court No. 2 of Baltimore City, and the Criminal Court of Baltimore . . . unless the context clearly requires a contrary meaning.”

      6. Courts Art. § 3-403 (a) especially excludes the District Court from its ambit.

      . A similar proviso was adopted for Harford County, by the voters of Maryland at the General Election of November 7,1972.

      . Quoted from paragraph 10 of a stipulation filed a month and a half after the April 8, 1975, hearing. The stipulation was filed in accordance with Judge Fairbanks’s instructions that the parties prepare and file a stipulation as to the facts in the case.

      . Id. at paragraph 11.

      . See note 1 supra.

      11. Former art. 93, § 4-105 (c) was addressed to situations involving “subsequent marriage” followed by birth, adoption or legitimation. It is not applicable to this case.

      12. Former art. 93, §§ 3-302 and 3-303 provided respectively for calculation of the amount of the share and the payment thereof.

      . The Trustee was directed to “ ... use .and apply- so much of the net income and of the principal of the Trust as he [the Trustee] may deem necessary for Jeffery’s proper education, maintenance and support. . . .”

      . Steven Saraga was not adopted. He is not a party to this case.

      . The will provided that if Jeffrey predeceased the testator, then Jeffrey’s share was to be divided equally between two of the testator’s natural daughters. The will did not, however, make any disposition with respect to the share of Jeffrey and of Steven if both survived the testator but died before attaining age twenty-one.

      . See also note 1 supra.

      . Id. It is this predecessor, Md. Ann. Code art. 93, § 3-301, which we apply in this case.

      . See note 7 supra.

      . Dower was abolished in Maryland. See Estates Art. § 3-202.

      . The surviving spouse may elect to take the share he or she might take in intestacy. Estates Art. § 3-203.

      . See Lentz, “Revocation of a Will by Birth of a Child”, 1 Md. L. Rev. 32 (1936) for a thorough discussion of Karr and prior case law.

      . An excellent commentary on Estates Art. § 3-301 appears in the Code immediately following that section. Estates Art. § 4-105 (c) similarly provides that a will is revoked “[b]y the subsequent marriage of the testator followed by the birth, adoption, or legitimation of a child by him. . . .”

      . At the time of the testator’s death, distribution in such a case was specified in then Md. Ann. Code art. 93, § 3-302, now codified as Estates Art. § 3-302.

      . Under the circumstances where a will mentions a person who later is adopted by the testator, thereby becoming a child of the testator, certain courts have interpreted their pretermitted child statutes as requiring revocation of the will if the will treated the person like a non-adopted person rather than like the testator’s child. The most recent of these cases is In Re Will of Stier, 74 Misc. 2d 634, 345 N.Y.S.2d 913 (Sur. Ct. 1973), where the testator mentioned the after-adopted child as “stepdaughter” and used her natural father’s surname. The court relied on these facts to determine that the will was drafted without contemplation of her future adoption and, thus, voided the will. See Fried, “Decedents’ Estates, 1974 Survey of N. Y. Law,” 26 Syracuse L. Rev. 311, 329 (1975). In Re Guilmartin’s Estate, 250 App. Div. 762, 293 N.Y.S. 665 (1937), aff'd, 277 N. Y. 689, 14 N.E.2d 627 (1938), reached the same conclusion because the after-adopted child was referred to in the testator’s will as “ ... ‘my friend, Helen Nierychlewski, daughter of Teodor Nierychlewski’....” In Re Quartararo, 139 So. 2d 277 (La. 1962), applied the precedent of In Re Carbajal, 154 La. 1060, 98 So. 666 (1923), to the facts that the testator’s will provided for the after-adopted person but not in the capacity as the testator’s child or even in contemplation of eventual adoption. Consequently, the Louisiana Court invalidated the will so that the after-adopted child would take an intestate share.
      Courts in other jurisdictions have voided testators’ wills when the mention of a person who was later adopted indicated that the testator had not contemplated adoption at the time the will was executed. In Re Reed’s Estate, 19 N. J. Super. 387, 88 A. 2d 690 (1952) (will reference was “the boy whom I have raised”); Fulton Trust Co. v. Trowbridge, 126 Conn. 369, 11 A. 2d 393 (1940) (will provided for “Peter Trowbridge, a member of my household”).
      We think all the above cases are inapposite because in each there is specific reference to the after-adopted person by the testator in language that clearly negates the testator’s intent to treat that person as the testator’s child and, instead, indicates intentional treatment of that person as a non-member of the testator’s family.
      Contrary conclusions have been reached by some courts even though they relied upon the similar reasoning of examining the language of the will. A New York court, in In Re Kelly’s Estate, 182 Misc. 481, 44 N.Y.S.2d 438 (Sur. Ct. 1943), determined that the testator’s will, executed prior to adoption of the testator’s son, mentioned “my son Richard” and, therefore, prevented the son from obtaining relief as a pretermitted child under the New York statute. In a case closely akin to the facts before us, Bowdlear v. Bowdlear, 112 Mass. 184 (1873), the testator’s will included an inheritance for “Fanny Lincoln” who was adopted by the decedent, Bowdlear, a year after the will’s execution. The court concluded that since the will made a provision for the testator’s after-adopted child and it was not changed in the eleven years until the testator’s death, the pretermitted child statute did not permit interference with the terms of the will.
      Other courts have examined factual postures where natural children, born after the testator executed a will, have sought revocation by applying the pretermitted child statute. Although these situations differ from that of after-adopted children, the reasoning of those cases is instructive.
      In Provident Sav. Bank & Trust Co. v. Nash, 75 Ohio App. 493, 62 N.E.2d 736 (1945), the testator’s will provided for her “children.” Subsequent to executing the will, four more children were born to the testator. These afterborn children claimed that they were pretermitted. The court concluded that the pretermitted child statute was inapplicable to this situation because the afterborn offspring were part of the class of “children” and, as such, took equally with the testator’s other children. A similar conclusion was reached in McLean v. McLean, 207 N. Y. 365, 101 N. E. 178 (1913), where, after the testator’s will was executed, a child was born to the testator. The will made a contingent bequest to the testator’s “children” if the testator’s husband did not survive her. The afterborn child predeceased the testator and the testator’s husband. In rejecting the argument that the afterborn child was omitted from the testator’s will, the court said that the afterborn child was a member of the class of “children” and the contingent bequest to the testator’s “children” was sufficient mention of the afterborn child so that he was not pretermitted.
      Finally, two recent cases have interpreted pretermitted child statutes to determine their legislative intents. In Re Estate of Markowitz, 126 N. J. Super. 140, 312 A. 2d 901 (1973), construed the testator’s words “to all my children, me surviving” in a contingency provision to embrace within its ambit natural children of the decedent’s widow who were adopted-after the will was made and that as a result, the after-adopted children were not inadvertently omitted from the will. Since the statute was intended to guard against inadvertent omission of children, the statute cannot be employed in this case to void the will. Similarly, in Nicholson v. Sorensen, 517 P. 2d 766 (Alaska 1973), the testator died without mentioning in his will his son or grandchildren. The son predeceased the testator and the grandchildren claimed that they were entitled to share, as pretermitted heirs, in the testator’s estate according to the pretermitted heir statute. The court examined the evidence indicating that the testator’s son and grandchildren were intentionally omitted from the will and determined that the legislature meant to prevent inadvertent omissions. Consequently, relief under the pretermitted heir statute was denied.

      . It is an established rule of statutory construction that “ . . . when the meaning of the statutory text itself is ‘plain’ or ‘clear and unambiguous’ ” no interpretive guides other than the statute are necessary. 2A C. Sands, Sutherland Statutory Construction § 46.04, at 54 (4th ed. 1973). See Maryland Nat’l Bank v. Comptroller of the Treasury, 264 Md. 536, 287 A. 2d 291 (1972); Falcone v. Palmer Ford, Inc., 242 Md. 487, 219 A. 2d 808 (1966); 2A C. Sands, Sutherland Statutory Construction § 45.02 (4th ed. 1973).