text:
    GENE A. MURRAY v. FREDERICK STEINMANN
    [No. 333,
    September Term, 1975.]

      Decided December 31, 1975.

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

      Stanley R. Jacobs for appellant.

      James W. Himes, with whom were Edward H. Hammond, Jr., Joseph G. Harrison, Jr., and Williams, Hammond, Moore & Shockley on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

By agreement signed the 14th day of May, 1973 Frederick Steinmann agreed to convey unto Gene A. Murray, “all his right, title, interest and estate in and to the Motel known as Seascape Motel, located on Baltimore Street, in Ocean City, Worcester County, Maryland, and a Five Percent (5%) Interest in Harbor Joint Venture, be the same Stock, Partnership Interest or any other interest whatsoever, that the said FREDERICK STEINMANN might have at the time of signing this Agreement.” Payment of the $100,000 purchase price by Murray was to be $20,000 cash at execution of the agreement and the balance by three notes totaling $80,000, which were subsequently (Apr-il 16, 1974) consolidated into a single confessed judgment note for that sum. An additional $20,000 was paid on that note. Upon default on the balance, judgment by confession was entered pursuant to Md. Rule 645 a. Within the 30 days required by Md. Rule 645 c, Murray filed a motion to vacate confessed judgment pursuant to Rule 645 d, assigning as his reasons that he had entered the contract

“ . . . based on certain false and misleading statements and representations . . .”,

made by Steinmann to Murray and that he had incurred substantial damages

“ ... as a direct result of [Steinmann’s] false, fraudulent and misleading statements. . . .”

Appellant Murray thus assumed the burden of supporting the facts alleged, Cropper v. Graves, 216 Md. 229, if, indeed, those allegations could be viewed as facts. His burden of proof is not a heavy one:

“In such cases, if the evidence adduced in support of the motion is sufficient to persuade the fair and reasoned judgment of an ordinary man that there are substantial and sufficient grounds for an actual controversy as to the merits of the case, the defendant should be deemed to have met the burden of showing that he has a meritorious defense. In other words, if the evidence is such that persons of ordinary judgment and prudence could honestly and fairly draw different inferences from it, one favoring the plaintiff and the other the defendant, the court should not itself decide that conflict, but should submit it to a jury.” Keiner v. Commerce Trust Co., 154 Md. 366, 371.

This liberal power to vacate judgments entered by confession, permitting a trial upon the merits of a case after application of a defendant who prima facie shows such defense, has been sanctioned repeatedly by the Court of Appeals. Williams v. Johnson, 261 Md. 463, 467; Stankovich v. Lehman, 230 Md. 426, 432; Cropper v. Graves, 216 Md. 229, 234; Keiner, supra, 154 Md. at 371; Remsburg v. Baker, 212 Md. 465, 470; Bolotin v. Selis, 212 Md. 239, 242.

Having these principles in mind, we will now consider the evidence supporting the grounds upon which appellant bases his motion to strike out the judgment. Since the allegations are that appellant was induced to contract to his detriment because of certain false, fraudulent and misleading statements, we turn again to Keiner, supra, for guidance. Here, as in Keiner, the “case finally turns on whether the appellant showed, in accordance with the rule stated above,” that his agreement to sign the note as consideration for the purchase “was procured by fraudulent misrepresentations of material facts” made to him by Steinmann, “which were false and known by [Steinmann] to be false, but which [appellant] believed to be true, and upon which [he] relied.” Id. at 372.

False Representations Known to be False

The false representations which appellant holds out are three in number. First, he says that Steinmann claimed that he had a $90,000 cumulative investment in the twenty percent share in the Seascape Motel he sold to Murray, when in fact he only had $89,000 invested, of which $18,000 had been supplied by Steinmann’s law partner. Secondly, but coincident with the first, he complains that he did not know of Steinmann’s law partner’s participation and because of it may not have received all he bargained for because the partner did not join in the conveyance. He testified, however, that he had bargained for 20% of the motel and does not deny that he received 20% of the motel. Steinmann explained that he conveyed any and all interest which he had directly or through his partner’s contribution. The agreement called for a quit claim of all interest by Steinmann and there is no evidence that anything was withheld directly or indirectly. Appellant’s complaint that the agreement was devoid of any suggestion that the partner’s interest was being sold is without substance. The evidence shows only that Steinmann’s law partner “agreed to put in $18,000 of the money.” Although he was characterized as a “silent partner” of Steinmann’s, the evidence of his involvement does not reach a point indicating corporate ownership of the motel — only an understanding with Steinmann who paid him interest from the motel income in return for use of the $18,000. Even if there had been some indicia of ownership by the law partner, appellant failed to show that he received less than that for which he bargained. In fact, Steinmann clearly stated that he was fully authorized to convey his interest and that of his partner — in whatever form the latter may have taken — and he did so.

Next appellant complains that he thought he was buying a partnership interest as opposed to corporate stock. Appellant’s contention is that the corporate structure precluded him from procuring certain tax advantages which he expressly sought.

At the hearing on his motion to vacate in the Circuit Court for Worcester County, Murray’s testimony as to his reliance on the existence of a partnership was contradictory. Twice he denied that Steinmann claimed his investment was in a partnership rather than in a corporation:

“Q. At the time you bought it, did you understand that it was already a partnership?
A. No, we didn’t get into that. But that is why I was buying it, for a tax loss, so it would have had to have been a tax loss.
Q. And did Mr. Steinmann indicate that within a reasonable time that this would be converted to a partnership?
A. No, we never got in it, that as far as I knew it was a partnership.”;

however, he also said:

“Q. Did Mr. Steinmann ever represent to you that it was a partnership at the time that you bought his interest? .
A. Yes, it was supposed to have been a partnership agreement, and I was taking over a partnership, and I was paying — I was paying him a profit on the $90,000.00 that he had invested.”

Steinmann stated that he explained to Murray that he was selling a stock interest but explained the reason for not transferring stock certificates — he had never received such certificates himself.

Had the testimony of Murray and Steinmann been completely contradictory, there may have been a sufficient question raised as to whether a false representation had been made. However, Murray himself twice denied that Steinmann and he had even “gotten into” the question of whether the corporation would be converted into a partnership. His subsequent contradictory answer on cross-examination to the effect that Steinmann had represented that he was investing in a partnership, does not satisfy even the minimal burden necessary to vacate a confessed judgment.

Of the three allegedly false representations, Murray’s proof has failed by his own admissions as to the partnership structure. As to whether Steinmann misrepresented the amount he invested, there remains at best a naked possibility of misrepresentation although Murray again admitted the $90,000 figure given him was a cumulative one. The cumulative total fell short of the representation by approximately $1,000. That issue then becomes one of reliance and materiality.

The “question whether [Steinmann] could in fact sell the interest belonging to his law partner, Mr. Hall,” raised by Murray from facts first known to him as a result of the hearing, is not a justiciable issue. There was no evidence at the hearing that any interest of Hall or Steinmann was retained by either, or not lawfully conveyed by Steinmann to Murray. This possibility was raised only speculatively by Murray’s brief.

Materiality and Reliance

“In a business transaction, reliance upon a misrepresentation of fact, intentionally misrepresented or otherwise, is justifiable only if the fact misrepresented is material. A fact is material if its existence or nonexistence is a matter to which a reasonable man would attach importance in determining his choice of action in the transaction, or the maker of the misrepresentation knows that its recipient is likely to regard the fact as important although a reasonable man would not so regard it. Brodsky v. Hull, [196 Md. 509].” Carozza v. Peacock Land Corp., 231 Md. 112, 121.

Even assuming proof of all three of appellant’s asserted false representations, we find the last mentioned without materiality. If Murray received the interest in the motel for which he bargained, it is of no material consequence to him from whom it was derived. Likewise, appellant has not shown that, had he known that Steinmann’s investment was $89,000 rather than $90,000, he would not have entered into the transaction. The discrepancy of $1,000 is clearly not material.

The representation of a partnership structure as opposed to the motel’s corporate structure which failed for want of proof of the representation, would again fail for want of proof of appellant’s reliance thereon. Appellant testified that although he and Steinmann didn’t get into the question of whether the business structure was a partnership, his interest in the purchase centered around a tax loss.

“But that is why I was buying it, for a tax loss, so it would have had to have been a tax loss.”

However, appellant produced no evidence that a partnership would have provided him a “tax loss” and that the corporate structure would not. Nor did he prove how a tax loss would benefit him. The purchase of a “tax loss” is so peculiar a business transaction that some evidence of its procedure and purpose should have been provided to the court in order for it to determine the procedural application to the facts here. Certainly it is not so common an event in the day to day business world that a court might take judicial notice of its pecuniary niceties.

Burden of Proof

Appellant’s primary legal (as opposed to factual) contention is that the trial judge erroneously required him to prove fraudulent misrepresentations in order to prevail in vacating the confessed judgment. He argues that his burden was merely to show that he had a meritorious defense. Md. Rule 645 c; Williams v. Johnson, 261 Md. 463. However, appellant overlooks the fact that the meritorious defense he must show is required to accord with the allegations of his motion to vacate. Indeed the rule he cites to support his meritorious defense argument, Md. Rule 645 c, states that the motion

“ . . . shall set forth fully the facts relied on for such defense.” (Emphasis added).

Appellant’s bald allegations of fraud and false representation clearly failed to comply as a matter of pleading. However, assuming that the trial judge could overlook the dearth of facts set forth by appellant’s pleadings, clearly appellant’s evidence should have been limited to the subject matter alleged as his defense.

The burden of proof to vacate a confessed judgment is not fulfilled by the mere assertion of a defense. There must be sufficient evidence to persuade the fair and reasoned judgment of an ordinary man

“ . . . that there are substantial and sufficient grounds for actual controversy as to the merits of the case.. . .” Md. Rule 645 d; Williams v. Johnson, 261 Md. at 466. (Emphasis added).

We agree with the trial judge that there was no “substantial and sufficient grounds for actual controversy as to the merits of the case. . . Md. Rule 645 d.

Judgment affirmed.

Costs to be paid by appellant.

      . Md. Rule 645 c requires that the motion to vacate “ . . . shall set forth fully the facts . . .” relied upon for the meritorious defense alleged. Murray’s motion, which set forth no facts, was obviously deficient under the rule.

      . If the latter is true, perhaps Steinmann was referring to the partnership interest jointly held by him and his law partner, the relationship of which he testified was conveyed to Murray by telephone.

      . Appellant also complains that the judge relied on testimony
      “ . . . that a letter was sent to the Appellee ... by Appellant which the Court concluded was an admission by Appellant that he owed [the balance of] $60,000.00, albeit that Appellant is deprived of a full hearing to present all the facts.”
      Unless appellant is arguing implicitly .that the judge should not consider any evidence adverse to appellant, this contention is lost upon us. Appellant had every right to again take the stand to explain his letter.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    MORRIS JOSEPH WARREN v. STATE OF MARYLAND
    [No. 334,
    September Term, 1975.]

      Decided January 2, 1976.

      The cause was argued before Powers, Moore and Lowe, JJ.

      George E. Bums, Jr., and Harriette Cohen, Assistant Public Defenders, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County,

      Naji P. Maloof State’s Attorney for Calvert County, and Joseph Sauerwein, Assistant State’s Attorney for Calvert County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

In the Chinese tradition, the legal aftermath of the Supreme Court’s ruling in Mullaney v. Wilbur, 421 U. S. 684, 44 L.Ed.2d 508 (1975) would have entitled this year of our Lord to the epithet “The Year of the Mullaney” — at least in Maryland. Even after the all encompassing effort of Judge Moylan in Evans v. State, 28 Md. App. 640, to meet all questions, prospectively and retrospectively, Evans itself has given birth already to legitimate issue, e.g., Burko v. State, 28 Md. App. 732; and issue of strained legitimacy, Horn v. State, 29 Md. App. 23, and Dinkins v. State, 29 Md. App. 577. From the progeny, Mary Washington Brown v. State, 29 Md. App. 1, of such young parentage as Edward Evans, supra, all of whom were the issue of Garrell S. Mullaney, supra, we now have Morris Joseph Warren who invokes the message of his great grandsire, Mullaney v. Wilbur, to whom he traces a direct legal relation. We foresee Mullaney as rivalling Abraham or Isaac as a “begetter” of issue at least by claim, if not of right.

Appellant Warren was convicted by a jury in the Circuit Court for Calvert County of first degree murder, assault with intent to murder, attempted robbery with a deadly weapon, and use of a handgun during the commission of a crime of violence. The events giving rise to his convictions occurred on the night of September 9, 1973, when one person was killed and two others wounded as a result of shots fired during an attempted robbery at a 7-Eleven store in Cheverly, Maryland.

On September 20, police officers searched appellant’s apartment and found a .38 caliber pistol which expert testimony at trial established could have fired the bullets found at the scene of the crime. At the time of the search, appellant was arrested for armed robbery. On November 6, 1973, he signed a confession of his participation in the attempted robbery, which statement was admitted into evidence at his trial.

I

At the conclusion of the trial, the judge instructed the jury with all the customary and compulsory rights of a defendant at trial including the presumption of innocence:

“and that presumption continued with him at every stage of the proceedings until it is overcome by legal and competent evidence which satisfies you ladies and gentlemen beyond a reasonable doubt of the guilt of the accused.... [I]t is the State’s responsibility to bring before you a sufficient amount of legal and competent evidence to satisfy you beyond a reasonable doubt of the guilt of the accused.”

After a full discussion of reasonable doubt and the need to find proof of every element of each crime charged, he then commenced his more specific instructions on the murder count, containing the language to which appellant objects. He said:

“Each of these offenses has certain elements and each element must be proven or the defendant must be acquitted as to that offense. The 1st Count in this Indictment charges the defendant with the murder of a man named Stevens. You will understand ladies and gentlemen that the law presumes all unlawful killing to be murder. Once the State has established an unlawful homicide, it is presumed to be murder.
You are advised that the elements of Murder are the unlawful killing of another human being with malice. Malice is an essential ingredient in Murder and it is inferred by you you ladies and gentlemen may infer malice from the proof of an unlawful killing. ’’(Emphasis added).

The judge went on to instruct substantially upon the elements of felony murder. Never again did he allude to the general presumption that “an unlawful homicide ... is presumed to be murder,” traditionally (although we now know erroneously) given, with its misleading statutory foundation in Md. Code, Art. 27, § 411. The entire emphasis of his remaining murder instructions centered upon felony murder and the felony murder presumption. Commendably, he intentionally refused to give the canned murder instructions opening up possibilities of verdicts for which there was insufficient supporting evidence. He explained to counsel at the bench after instructing the jury:

“That’s why I didn’t instruct them on Manslaughter. As I indicated to you in Chambers when we discussed these instructions, I see the evidence in this case as supporting only instruction on Felony Murder[, i]f the robbery was found to be in progress or murder, if it was not[.] I see no line of evidence which would support an instruction for Manslaughter nor for the other kind of First Degree Murder. So I have instructed them deliberately and intentionally based on my view of the evidence that they may find him guilty of Felony Murder, if he was the criminal agent while the robbery was in progress or failing that they may find Murder. I did not give the instruction to Manslaughter. There is no evidence to support it.”

The trial judge is under no duty to instruct the jury as to the various lower grades or degrees unless there is some evidence tending to reduce the crime to one of the lower grades or degrees. Evans, supra, (IF) at 667.

Appellant’s argument is brief but encompassing. Seemingly anticipating our holding in Brown, supra, that the Mullaney error might be cured by a first degree verdict, all that he contends is set forth in two sentences:

“When the judge instructed the jury that malice could be presumed and that the defendant had ‘the responsibility of going forward with the evidence/ he committed patent error. Since the jury necessarily had to find malice before § 410 could be applied, the error was not harmless.”

The reference to § 410 is intended to direct us to the felony-murder section of Md. Code, Art. 27:

“All murder which shall be committed in the perpetration of, or attempt to perpetrate, any . . . robbery... shall be murder in the first degree.”

Primarily because the statute begins “All murder”, rather than “All homicide”, appellant seems to say that before § 410 may be invoked, the killing must be raised to the murder level and that the jury could only do so through the instruction of which he now complains, i.e., “. .. that the law presumes all unlawful killing to be murder,” and “You . . . may infer malice from the proof of an unlawful killing.” Because appellant provides us with none of his reasoning, we presume he bases this upon that which Mullaney decried: that a necessary element of murder (malice) may not be presumed, thereby relieving the State from its burden of proof of every element of the crime, beyond a reasonable doubt. Re Winship, 397 U. S. 358.

Initially we remind appellant that while the statutory rule in § 410 speaks of all “murder” committed in the perpetration of a felony as being murder in the first degree, the common law felony-murder rule is that homicide, a killing, resulting from the perpetration (or attempted perpetration) of a felony is murder. Perkins on Criminal Law, Ch. 2 at 37, et seq. (2nd ed.). The enactment of the statute did not abrogate the common law rule but supplemented it by graduating the punishment according to the circumstances of the crime:

“At common law, a killing in the perpetration of a robbery was murder, regardless of intent. See Clark and Marshall, Crimes (4th ed.), sec. 245. As used in the statute, the ‘common law sense is left unimpaired; the measure of punishment only is sought to be graduated according to the circumstances under which it was committed.’ Davis v. State, supra [39 Md. 355, 374].” Stansbury v. State, 218 Md. 255, 260.

In Evans, supra, at 686, n. 21B, Judge Moylan explained succinctly that:

“It is sometimes falsely asserted that § § 408-410 constitute the felony-murder doctrine in Maryland. That is not true. The felony-murder doctrine (see Part HE 3 infra) is the common law rule — defining one of the at-least three varieties of ‘implied malice’ — which raises a homicide resulting from the perpetration or attempted perpetration of a felony to the murder level generally. It is only at that point, after the felony-murder rule has already operated, that § § 408-410 come into play to provide further that in the case of certain designated felonies, the already established murder shall be punished as murder in the first degree.
Only one state, incidentally — Ohio — fails to recognize the felony-murder doctrine. Moreland, Law of Homicide (1952), at 49. For good Maryland discussions of felony-murder, see Stansbury v. State, 218 Md. 255, 146 A. 2d 17, and Wood v. State, 191 Md. 658, 62 A. 2d 576.”

It follows that since the State was required to prove beyond a reasonable doubt the underlying felony (or attempt thereat), it was not relieved of its constitutional burden under Mullaney v. Wilbur and Winship of proving every element of the crime beyond a reasonable doubt. The intent to perpetrate the robbery, which element the jury of necessity found in returning its verdict of attempted robbery, supplied the intent aspect of malice necessary to establish a felony-murder. See Evans v. State, supra, (Part HE 3 c), at 697.

The common law felony-murder rule does not substitute or transfer the elements of malice, Evans, (HE 2) at 686, nor does it permit malice to be “implied,” Evans, (HE 3 c) at 695.

“A jury may not be told that if it finds an intent to rape, rob, burglarize, etc., it may, but need not, find a resulting homicide to have been with malice. It is not the case that these mental states imply malice; it is rather the case that they are malice by definition.
Since these mental states are today unequivocally a part of our substantive law on the mens rea of murder, they are unaffected by anything in Mullaney v. Wilbur.

In Thomas v. State, 206 Md. 575, 581, the Court of Appeals explained that it is unnecessary for the jury to consider further the question of malice when the killing occurs in the course of a robbery. The reason for this is that the necessary “implied malice” has already been established. Thus, if the jury finds that combination of circumstances, (a robbery or attempted robbery from which a death ensued) there is no need to find any additional malice, nor is there need to rely on the erroneous presumption thereof. Furthermore, in so far as that instruction might have related to appellant’s burden to reduce the murder to manslaughter, it was academically in error but harmless beyond a reasonable doubt since there was no evidence to generate an issue of mitigation. Brown v. State, supra, at 19. Nor was there evidence of justification or excuse. “Erroneous instructions on non-issues are self-evidently immaterial.” Evans v. State, supra, (IF) at 665-69.

There is also inferentially underlying our answer to appellant’s complaint the further question whether the statutory felony-murder rule is constitutionally affected by Mullaney. The instructions in that regard were in part as follows:

“By Statute in this state, that is by a law enacted by the Legislature, any killing which occurs in the course of the perpetration of a felony is Murder in the First Degree. You will hear this type of murder referred to as Felony Murder.
Now, you are advised that Robbery is a Felony in this State so that if you find from the evidence before you that a robbery was in progress or being perpetrated when the victim Stevens in this case was killed, whoever killed Stevens which would be equal to whoever participated in that robbery in which he was killed, all the parties involved in that robbery are guilty of Murder in the First Degree.
Now, if you were to find from the facts in this case that no robbery was going on, then that rule does not apply and the elements of Murder would be left.”

In Evans, supra, (HE 1) at 686, Judge Moylan concluded, after extensive reasoning, that the felony-murder statutes “are, therefore, not remotely affected by anything in Mullaney v. Wilbur. ” He reasoned that it is the mens rea, the malicious intent, which Mullaney forbids to be supplied by a burden-shifting presumption, rather than the actus reus, “the dreaded modality or means of the murder, which we have singled out for our gravest criminal sanction . ..” in our felony-murder statutes.

That reasoning was equally applicable to the common law felony-murder rule which requires no intent to kill or injure.

“Even without an intent to kill or injure, or an act done in wanton and wilful disregard of the obvious likelihood of causing such harm, homicide is murder if it falls within the scope of the felony-murder rule. The robber who kills the one he is attempting to rob is guilty of murder whether he intended any personal harm or not.” Perkins on Criminal Law, Ch. 2 at 37 (2nd ed.).

The erroneous portions of the instruction were harmless beyond a reasonable doubt under Harrington v. California, 395 U. S. 250, 254; Chapman v. California, 386 U. S. 18, and substantive felony-murder rules are not affected by Mullaney v. Wilbur.

II

Appellant also questions the validity of the search warrant on the ground that is was procured “on the basis of information supplied to a detective by an unidentified informant [and] no proffer as to the reliability of this informant was made at trial.” The affidavit upon which the search of Warren’s apartment was based contains the following allegations:

1) That witnesses to a robbery and shooting at another 7-Eleven Store in the Washington area identified appellant as having fired the shots from a revolver, one of which struck a customer. An arrest warrant had been issued for appellant’s arrest in connection with this crime.
2) A recitation of the events leading up to appellant’s prosecution in the instant case, showed a similarity to the previous robbery.
3) Bullets recovered from both crime scenes were submitted to the F.B.I. for analysis and that “Mr. Seibert of the FBI lab reports that the bullets from the two offen[sic] were fired from a 38 caliber weapon of identical manufacture, with both samples having five lands and groves [sic] with right hand twists, and that the rifling on both samples is the same.”
4) Mr. Warren was present in the Washington area during the time of both offenses.

We believe that these allegations supplied by citizens, none of which were from the criminal milieu and thus beyond proscription inherent in the hackneyed phrase “information supplied by an unidentified informant,” are sufficient to provide a basis for a finding of probable cause that “the same weapon was used in both offenses and that weapon is still in the possession of the suspect.” The magistrate need not be absolutely convinced that evidence of a crime is present át the premises for which the search warrant is sought. As stated on several occasions by this Court:

“Probable cause is less than certainty or demonstration but more than suspicion or possibility. It is to be determined by the judge to whom application for the warrant is made. If a prudent and cautious man would be justified from the facts presented in the affidavit in believing that fhe offense has been or is being committed, the warrant properly may be issued.” Hudson v. State, 16 Md. App. 49, 57; Moore v. State, 13 Md. App. 711, 714; Buckner v. State, 11 Md. App. 55, 61.

Ill

Appellant’s next contention is that his confession should not have been admitted into evidence because there was no “prima facie evidence of its authenticity.” No objection is made in this appeal on the basis of the prosecution’s failure to give the required warnings pursuant to Miranda v. Arizona, 384 U. S. 436, before obtaining appellant’s statement. Rather, appellant denies that he ever signed the statement proffered by the prosecution at his trial and contends that the judge’s finding that appellant had signed the confession “had no evidentiary support.”

Where the voluntariness of a confession is questioned:

“ ‘The practice in this State, approved in many cases, is that the court first hears evidence without the jury to determine whether a confession is voluntary and should be admitted. If it decides to admit it, the same evidence is then given to the jury, as it has the final determination, irrespective of the court’s preliminary decision, whether or not the confession is voluntary, and whether it should be believed. In so doing the jury is entitled to have before it all of the evidence which affects the voluntary character of the document, and which the court passed upon in admitting it.’Day v. State, 196 Md. 384, 399.” Barnhart v. State, 5 Md. App. 222, 223.

In this case, the court employed that same procedure to determine not only voluntariness but also authenticity. A hearing was had out of the presence of the jury as to whether the confession was admissible. The police officer, who claimed to have obtained the statement from appellant, was cross-examined by appellant’s trial counsel as to the circumstances surrounding the taking of the statement. Appellant then testified for the limited purpose of determining the admissibility of the confession. He testified that the signature appearing on the statement was not his. The judge then had the appellant sign his name several times and compared these signatures with those on the statement. At the conclusion of hearing, the judge stated:

“. .. [W]e don’t have here a question of was it voluntary, was it induced by promise or was it taken without prior warning to the defendant of his constitutional rights as the Federal Constitution .. . requirefs] .... This boils down to the simple question of did Warren in fact make this statement or did he not.
When you get to that question it becomes a preliminary matter for the Court to decide whether it’s admissible. The Jury will have to be the final arbitor of whether or not Officer Hall is telling the truth or the defendant Warren is telling the truth .... [0]n balance and while we think it’s a matter for the jury ultimately to decide, we do not think there is sufficient basis on the motion in the out of Court hearing for the Court to suppress this statement. .. .”

The record shows that there was sufficient evidence proffered by the prosecution for the court to find that the statement in question was prima fade authentic. It is apparent that the judge believed the officer who testified that appellant had read the confession and signed it. The signature exemplar was used by the judge to further confirm his belief of the officer’s testimony as opposed to appellant’s denial. It was not error for the court to allow the confession to be admitted as evidence.

IV

Appellant’s contention that there was insufficient evidence of an attempted robbery to support a conviction under the felony-murder rule is also without merit. The essence of his argument is that “nothing was taken and nothing was even demanded.” As has been shown above, the statutory felony-murder rule in § 410 applies not only to the crimes specified but to the attempts to perpetrate these crimes as well. This Court has had numerous occasions to define the elements of an attempted crime. In Wiggins v. State, 8 Md. App. 598, 604, we summarized our holdings:

“An attempt to commit a crime is an act done in pursuance of a criminal intent falling short of the actual commission of the crime, coupled, at least, with the apparent ability to commit the crime intended. Reed v. State, 7 Md. App. 200; Makins v. State, 6 Md. App. 466; Boone v. State, 2 Md. App. 80. So attempted robbery may be predicated upon a finding of intent to steal goods from the person of another by violence but without the consummation of the larceny. See Thompson v. State, 5 Md. App. 191.”

Appellant’s confession, even without the testimony of the other witnesses, clearly provides sufficient evidence for the jury to find that he intended to commit a robbery:

“ ‘On September 9, 1973, at approximately 8:00 o’clock, p.m., Paul Fletcher and Leonard Matthews came by my apartment and told me they found an easy hit at a 7 Eleven Store and they asked me to go along. I decided to go with them and we went out to Matthews car and rode out to the 7 Eleven Store. When we got to the place I told them I would [go] inside and look the place over. I went inside and saw two guys talking at the counter and another man putting stuff in the refridgerator [sic]. I walked over to the canned goods section and looked around. I went back to the car and told them there weren’t but three or four people in the store. Matthews asked me if I wanted the gun and I told him no. Fletcher said he would take the gun and Matthews gave it to him. ... I went inside behind them....”

While a specific intent cannot be presumed in the absence of some proof, Bryant v. State, 4 Md. App. 572, 578, it is also true that:

“ . .. finding the requisite intent to steal is never a precise process, for intention is subjective and it must therefore be inferred from the circumstances of the case. . . .” Reed v. State, 7 Md. App. 200, 203.

There is sufficient proof in the record of appellant’s intent to commit robbery to sustain his conviction of attempted robbery.

V

After the court’s instructions to the jury as to the felony-murder count of the indictment, there followed:

“Now, in further discussion of this Felony Murder aspect it makes no difference, you are advised, to the law whether the killing was a planned and deliberate part of the robbery scheme or whether it was accidental, unintentional, unplanned and unforeseen by any participants in the robbery, the one who actually pulled the trigger or the one who did not pull the trigger. It doesn’t have to be a part of the plan nor intentional if a killing occurs during the course of a commission of a robbery or any other felony, it is Murder in the First Degree, and all who participate in the felony are guilty equally as the one who pulled the trigger.”

Appellant now argues that the instruction was erroneous in that it did not instruct the jury that the rule applied to an accessory, only if there was a “direct causal connection between the homicide and the felony,” citing Mumford v. State, 19 Md. App. 640, 644. Defense counsel’s exception to the instruction was not so explicit. He said only:

“MR. WOLMAN: We will take exception to the advice that if the robbery is in progress that whoever participated is guilty in the First Degree.
JUDGE BOWEN: I will give you an exception.”

The record shows that, after deliberating for several hours, the jury returned to the courtroom and the following discourse by the judge took place:

“JUDGE BOWEN: Madam Reporter, the record will show that these proceedings which follow were taken in the Courtroom in the presence of the defendant and counsel.
Madam Forelady and ladies and gentlemen of the Jury, the Court has received a written question signed by your Foreman which reads as follows: ‘Is murder in connection with an attempted robbery murder in the First Degree’. The answer to your question is yes. The Statute which makes murders committed in the course of felonies or attempted felonies, Murder in the First Degree specifically says that Robbery or Attempted Murder in the course of Robbery or Attempted Robbery shall be Murder in the First Degree. The only limitation being that the killing must occur during the time when the Robbery or the Attempted Robbery is in progress. All right, any further questions? You may retire and continue your deliberations.”

Maryland Rule 756 g provides for review of a trial court’s instructions to the jury:

“Upon appeal a party assigning error in the instructions may not assign as of right an error unless (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct was distinctly objected to before the jury retired to consider its verdict and (2) the grounds of objection were stated at that time. Ordinarily no other error will be considered by the Court of Appeals or the Court of Special Appeals, but the appellate court, either of its own motion or upon the suggestions of a party may take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to as provided by section f of this Rule.”

While appellant’s attorney did object to the court’s instruction, he did not state his grounds of objection clearly. Moreover, we do not find any “plain error in the instructions, material to the rights of the accused.” Here, there was no evidence that the homicide occurred independently of the attempted robbery. In Mumford, supra, cited by appellant, this Court overturned a conviction for murder in the first degree because the trial court had not included a requested instruction to the effect that, in order for the felony-murder rule to apply, there must be a “causal nexus between the underlying felony and the resultant homicide.” Mumford, 19 Md. App. at 644. There, the facts showed that the victim had died from injuries sustained from a rape, participated in by two of four burglars, which occurred out of the presence of Mumford. We concluded, in that case, that:

“The medical examiner’s report, in connection with other evidence, was sufficient for the jury to find the killing of the decedent resulted from the rape; consequently, . .. the jury could have chosen not to believe that death occurred pursuant to the burglary, but rather from rape, fresh and independent of the common design.” Mumford, supra, at 644.

Here, no evidence was introduced from which the jury could have concluded that the shooting was “independent of the common design” to rob the 7-Eleven store. Therefore, it was not error for the trial judge to instruct the jury as he did, Street v. State, 26 Md. App. 336. The appellant did not preserve his exception in accordance with Md. Rule 756 g, and if he had, there was no evidence in the case which would have entitled him to a “Mumford” instruction emphasizing the need for causal connection between the homicide and the felony.

It is also argued that there was not sufficient evidence to support the appellant’s conviction of assault with intent to murder Raymond Evinger because “he is responsible for the shooting only if it was a natural and probable consequence of his criminal activity.” A similar argument was dealt with in Jeter v. State, 9 Md. App. 575 where the Court stated:

“In the facts here it is important to note that appellant knew that his codefendant had a gun before either party entered the building. While it is possible to imagine hypothetical crimes in which guns are used for purposes other than shooting, specifically shooting at people, it would be to fly in the face of reality to ignore that guns in a criminal situation are usually used to effect the crime desired or to prevent interference.
It is apparent that the homicide in the instant case was natural and probable since Jeter had entered a plan to commit a felony, had gone with the other felons to the site of the crime, and knew that one of his codefendants had a gun. It was a natural and probable consequence that the gun was actually used to shoot and kill an interfering party. It would be unreal, if not fantastic, to believe that someone in Jeter’s position would believe his codefendant armed with a gun, being inside a warehouse would surrender meekly instead of using the weapon.” Jeter, supra, at 579-580.

Here, appellant also knew that one of his companions had a gun (it was, in fact, his gun). We hold, therefore, that there was sufficient evidence to find that appellant was criminally responsible for the assault with intent to murder.

Judgments affirmed.

      . Issues must be generated by evidence not argument. Newborn v. State, 29 Md. App. 85.

      . In determining whether there was sufficient probable cause for the issuance of a search warrant, a reviewing court may not look beyond the affidavit upon which the warrant is based, Moore v. State, 13 Md. App. 711, 715, unless it is alleged that the facts appearing in the affidavit were themselves come by illegally. See Everhart v. State, 274 Md. 459, 479.


author: Orth, C. J.,

text:
    JAMES THOMAS DINKINS v. STATE OF MARYLAND
    [No. 345,
    September Term, 1975.]

      Decided January 2, 1976.

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

      S. Michael Floam, Assigned Public Defender, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Dana Levitz, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

THE RULE AS TO THE UNEXPLAINED, EXCLUSIVE POSSESSION OF RECENTLY STOLEN GOODS

To be sufficient in law to justify a conviction in a criminal cause, the admissible evidence adduced must show directly, or circumstantially, or support a rational inference of, the facts to be proved from which the trier of fact may be convinced, beyond a reasonable doubt, of the accused’s guilt of the offense charged. Metz v. State, 9 Md. App. 15, 23 (1970); Williams v. State, 5 Md. App. 450, 458-460 (1968). We deal here with the aspect of this test for the sufficiency of the evidence which concerns an inference.

We observed in Evans v. State, 28 Md. App. 640, 349 A. 2d 640 (1975): “In a real sense, the whole decision-making process is the process of drawing inferences. From fact A we infer fact B. . . . The whole phenomenon of circumstantial evidence is the phenomenon of inferring facts in issue from facts established.” We pointed out that certain inferences, out of the infinite swarm of their fellows, have been singled out for legal analysis. One inference so singled out is that arising from the possession of stolen goods. The rule is that the unexplained, exclusive possession of recently stolen goods permits the inference that the possessor is the thief. Debinski v. State, 194 Md. 355, 360 (1950); Davis and Napier v. State, 7 Md. App. 667, 669 (1969). This is a traditional common law inference deeply rooted in our law. Barnes v. United States, 412 U. S. 837, 843 (1973). Maryland has long followed the rule. Anglin v. State, 244 Md. 652, 656 (1966), cert. den., 386 U. S. 947 (1967), and cases therein cited. The historical basis of the inference, however, does not guarantee its constitutionality. Common law inferences must satisfy due process standards in light of present day experience. Barnes, at 843-844. The Supreme Court of the United States considered the question of the validity of criminal law presumptions and inferences in several recent cases before Barnes Although the Supreme Court itself has found that the teaching of those cases was not altogether clear, Barnes, at 843, the cases established, at least, that if a statutory inference submitted to a jury as sufficient to support conviction satisfied the reasonable-doubt standard as well as the more-likely-than-not standard4 , then it clearly accorded with due process. We think it advisable, in the circumstances, to apply the more stringent reasonable-doubt standard. See Comment, The Constitutionality of the Common Law Presumption of Malice in Maine, 54 B.U.L.Rev. 973, 978-986 (1974).

We indicated in Evans that an inference comes to judicial attention in two situations. “When we are called upon to measure the legal sufficiency of evidence, we have to determine whether established facts A and B are legally sufficient to give rise to a fair inference of fact C, the ultimate fact in issue. We are similarly called upon to measure the efficacy of certain inferences when we are asked to instruct a jury that it may (although it need not) infer fact C from established facts A and B.” 28 Md. App., at 703. Thus, upon legally sufficient proof that certain goods were recently stolen, that they were in the exclusive possession of the accused, that the possession was not satisfactorily explained, and in the absence of other facts indicating that the accused was more likely to be the receiver than the thief, Jordan v. State, 219 Md. 36, 47 (1959), cert. den., 361 U. S. 849 (1959), the judge at a bench trial may infer, in his role as the trier of fact, that the accused was the thief. At a jury trial, the judge may, and at the request of a party, shall, Maryland Rule 756, § b, instruct the jury that it may infer that' the accused was the thief. The question is whether this permissible inference is in accord with constitutional standards.

Due Process of Law

Hammond, C. J., said in the opinion of the Court in Anglin v. State, supra, 244 Md., at 656-657:

“The reasonableness and legality of permitting an inference of fact that exclusive recent and unaccounted for possession is a guilty possession is explained by the rule that there may be drawn an inference of one fact from proof of another or others if there is some rational connection between the fact or facts proved and the ultimate fact inferred so that the inference drawn from the proof is not so far-fetched as to be arbitrary.”

This view is that of the Supreme Court. It is only the unexplained, exclusive possession of recently stolen goods which permits the inference that the possessor is the thief. The mere fact that there is some evidence tending to explain the possession consistent with innocence does not bar the judge in a bench trial from drawing the inference or in a jury trial from instructing the jury on the inference. The trier of fact must weigh the explanation to determine whether it is reasonable or “plausible”, or “satisfactory”. It is not bound to accept or believe any particular explanation any more than it is bound to accept the correctness of the inference. But the burden of proving beyond a reasonable doubt that the accused stole the property remains in the prosecution. Barnes, at 845, n. 9. “If the [State] proves possession and nothing more, this evidence remains unexplained unless the defendant introduces evidence, since ordinarily the [State’s] evidence will not provide an explanation of his possession consistent with innocence.” Id.

Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881 (1975), provides no basis to support a belief that the inference permitted from possession of stolen goods violates due process. We so indicated in Evans. We said, at 703, “Since an inference does not shift a burden either of persuasion or of going forward with evidence to a defendant, it does not come under the scrutiny of Mullaney v. Wilbur in that regard.” We applied that conclusion in Horn v. State, 29 Md. App. 23 (1975), and we expressly now affirm it.7

Self-incrimination

The Court of Appeals in Anglin v. State, supra, also considered the inference arising from possession of stolen goods in the frame of reference of the Fifth Amendment prohibition against a person being compelled in any criminal case to be a witness against himself. It said, 244 Md., at 657: “It is not unreasonable to require the possessor to cause the facts of his possession to be explained if he desires to overcome the prima facie case against him arising from the permissible inference of fact flowing from his possession, because the facts as to that possession are peculiarly within his knowledge and ordinarily are not known or available to the State.” It observed, at 658: “The Supreme Court, early and lately, has rejected the claims made here by appellant as to the impermissibility of allowing a trier of fact to infer from a proven fact which is not satisfactorily explained by the accused an ultimate fact which may be sufficient evidence of guilt.” The Supreme Court in Barnes v. United States, supra, made crystal clear that it stood by its position that the privilege against self-incrimination was not infringed by the inference. It said, 412 U. S., at 846-847: “This Court has twice rejected this argument [that the privilege was infringed], Turner v. United States, 396 U. S., at 417-418, 90 S. Ct., at 652; Yee Hem v. United States, 268 U. S. 178, 185, 45 S. Ct. 470, 472, 69 L. Ed. 904 (1925), and we find no reason to re-examine the issue at length. . . . Introduction of any evidence, direct or circumstantial, tending to implicate the defendant in the alleged crime increases the pressure on him to testify. The mere massing of evidence against a defendant cannot be regarded as a violation of his privilege against self-incrimination.” The Court noted, id., at 846, n. 12: “Nor can the instruction [stating the rule] ‘be fairly understood as a comment on the [defendant’s] failure to testify.’ United States v. Gainey, 380 U. S., at 70-71, 85 S. Ct., at 759.”

We find that the inference of criminal agency permitted from the unexplained, exclusive possession of recently stolen goods does not violate the constitutional guarantee against self-incrimination.

THE CASE SUB JUDICE

Statement of the Case

On 3 January 1975 in the Criminal Court of Baltimore, JAMES THOMAS DINKINS was found guilty by a jury of feloniously robbing James L. Brown with a deadly weapon on 22 March 1974, stealing from him $14,000, on which conviction a sentence of 20 years was imposed, of unlawfully using a handgun in a crime of violence, on which conviction a consecutive sentence of 5 years was imposed, and of unlawfully carrying a handgun upon his person, on which conviction a concurrent sentence of 3 years was imposed. A motion for a new trial was heard and denied. A timely appeal from “the judgment and sentence” was noted.

Issues for Decision

The two questions Dinkins presents on appeal center on the permissible inference arising from possession of stolen goods. The challenge to the inference is through the instructions given by the trial judge to the jury. The judge below explained that the jury were the judges of the law and that his instructions were advisory only. Rule 756 § b. He made clear that it was the jury’s function and responsibility to determine the facts. They were to do so “solely from the evidence and all of the evidence which you have seen and heard during the course of the trial, and any inferences which may reasonably be drawn from that evidence.” The jury were the sole judges of the credibility of the witnesses, and it was the duty of the jury to weigh the evidence. He discussed the burden of proof:

“You should not assume that the Defendant is guilty merely because he is being prosecuted and because charges have been brought against him. The burden of proof is on the State to prove every element of the crimes charged against the Defendant, and he is presumed innocent until proved guilty beyond a reasonable doubt. That presumption attends him throughout the trial and unless or until overcome by proof establishing his guilt beyond a reasonable doubt and to a moral certainty. While the burden is on the State of establishing every fact material to the guilt of the Defendant, including every circumstance that enters into the crime charged beyond a reasonable doubt, that does not mean that the State must prove the Defendant guilty to an absolute or mathematical certainty.”

He explained what the reasonable-doubt standard did mean. He discussed the inference:

“If one is in possession of property which has recently been stolen, unless there is a satisfactory explanation of that possession, may be inferred to be guilty of stealing the property. And if the property was stolen in a robbery with a dangerous or deadly weapon, then it may be inferred from the possession of the recently stolen property that he committed the crime of robbery with a dangerous or deadly weapon.
Once this inference arises, the burden is cast upon the possessor of the goods to give a reasonable explanation of how they came to his possession.”

He went on to discuss the nature of “possession”, pointing out that it must be exclusive but need not be sole and that it may be constructive as well as actual. He returned to the burden of proof:

“As I have already stated, in order to find the Defendant guilty of any of the crimes charged in these informations, he must be proven guilty beyond a reasonable doubt and to a moral certainty. Guilt beyond a reasonable doubt may be based on direct evidence of facts, or it may be based on circumstantial evidence. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. Circumstantial evidence alone is sufficient to support a verdict of guilt. The law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when it is direct, because in either case, the jury must be convinced beyond a reasonable doubt of the guilt of the Defendant. The Defendant is entitled to every inference in his favor which can reasonably be drawn from the evidence. And where two inferences may be drawn from the same facts, one consistent with guilt and one consistent with innocence, the Defendant is entitled to the inference which is consistent with innocence.”

The charge covered self-incrimination:

“It is the privilege of a Defendant in a criminal case not to testify. You may not entertain any inference against him because of his absence from the stand. You must base your verdict in this case solely on the evidence and all of the evidence which you have seen and heard during the trial, and the inferences which may be fairly drawn from the evidence.”

Dinkins now asks:

“I. Did the trial court’s charge deprive the appellant of his privilege against self-incrimination in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States.
II. Did the trial court’s charge violate the fundamental constitutional privilege that an accused is presumed innocent until he is proved guilty and that the State, before it can secure a conviction, must demonstrate to the jury beyond a reasonable doubt each essential element of the alleged offense.”

He argues, of course, that each question must be answered in the affirmative.

We first observe that the errors Dinkins now assigns in the instructions were not raised below. Rule 756 f provides that objection as to instructions shall be made before the jury retires to consider the verdict, “stating distinctly the portion, or omission, or failure to instruct.. . and the ground of objection.” Section g of the Rule provides: “Upon appeal a party assigning error in the instructions may not assign as of right an error unless (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct was distinctly objected to before the jury retired to consider its verdict and (2) the grounds of objection were stated at that time. Ordinarily no other error will be considered by the Court of Appeals or the Court of Special Appeals, but the appellate court, either of its own motion or upon the suggestions of a party may take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to as provided by section f of this Rule.” See Taylor v. State, 17 Md. App. 41 (1973). If Dinkins were correct in his contentions, there would be plain error, material to his rights, of which we would take cognizance and correct. We, therefore, shall consider the contentions on the merits.

I

We hold that the charge to the jury did not infringe Dinkins’s privilege against self-incrimination. There was direct evidence adduced at the trial sufficient in law to establish beyond a reasonable doubt that the crime of robbery with a deadly weapon was committed and that Dinkins was in exclusive possession of the $14,000 recently stolen. The possession was unexplained. That is, neither the evidence brought forward by the State, nor the evidence adduced by Dinkins, provided a plausible explanation of his possession of the money consistent with innocence. The possession of the stolen money provided evidence by rational inference that Dinkins was one of those who stole it. There was direct evidence legally sufficient to show that the money was stolen in a robbery with a deadly weapon. On the evidence, common sense and experience tell us that Dinkins must have been one of the robbers. Barnes, at 846, citing Turner, at 417 and Leary, at 46. Such evidence was clearly sufficient to enable the jury to find the criminal agency of Dinkins beyond a reasonable doubt. As the inference thus satisfied the reasonable doubt standard, it satisfied the requirement of due process. Since it was of constitutional validity in that respect, it did not, as we have seen, infringe the privilege against self-incrimination.

II

It is said that an accused is presumed innocent until proved guilty beyond a reasonable doubt. This is a mere statement of who has, and what is, the burden of persuasion. Generally termed the “presumption of innocence”, it is not, as we noted in Evans, at 676, n. 13, a presumption at all, nor, of course, is it an inference. We said:

“9 Wigmore on Evidence (3rd Ed. 1940), § 2511, points out at p. 407, ‘[T]he ‘presumption of innocence’ is in truth merely another form of expression for a part of the accepted rule for the burden of proof in criminal cases, i.e. the rule that it is for the prosecution to adduce evidence . . . and to produce persuasion beyond a reasonable doubt. . . .’ Thayer, Preliminary Treatise on Evidence (1898), is equally clear, at p. 551, ‘in the first place, the so-called presumption of innocence Is not, strictly speaking, a presumption in the sense of an inference deduced from a given premise. It is more accurately an assumption which has for its purpose the placing of the burden of proof upon anyone who asserts any deviation from the socially desirable ideal of good moral conduct.’ And see Morgan, Basic Problems of Evidence (1962), p. 44.
If the ‘presumption of innocence’ were a true presumption of law or permitted inference of fact, it would be flagrantly unconstitutional under Leary v. United States, supra, and other cases requiring that a presumption be based upon a mathematical probability that it be true. Quite the reverse likelihood, of course, applies to one arrested, indicted and brought to trial. As McCormick, The Law of Evidence (1954), astutely pointed out, at 647-648: ‘[W]hen it came to be employed, in argument and in instructing juries, in criminal trials under the common law, it became a source of mysticism and confusion. As applied to the accused, any assumption, or ‘presumption’ of innocence, in the popular sense of an inference based on probability, is absurd. The probability is the reverse. The assumption of innocence which is reasonable in the absence of contrary facts becomes quite unrealistic when we include in the picture the facts that the person has been officially charged with the crime and has been brought to trial. Nevertheless, the phrase ‘presumption of innocence’ has been adopted by judges as a convenient introduction to the statement of the burdens upon the prosecution, first of producing evidence of the guilt of the accused and, second, of finally persuading the jury or judge of his guilt beyond a reasonable doubt.’ ”

Dinkins claims that the inference regarding possession of stolen goods submitted to the jury violated his constitutional rights in two respects: “It allowed the jury to presume guilt without proof of each element of the offense beyond a reasonable doubt and it shifted to [him] the burden of proof and persuasion of his innocence of the crime of robbery.” Under the teachings of Mullaney, Barnes and Evans, and in light of the totality of the charge given the jury, we believe that the contention has no merit. We hold that the trial judge’s instruction did not violate “the fundamental due process requirement of presumed innocence.”

On 20 November 1975 there was submitted to this Court a document addressed by Dinkins to his counsel on appeal, dated 16 November 1975. The argument before us was on 18 November. The document seems to advance the point that there was a denial of a speedy trial. That issue was not presented in appellant’s brief and, ws do not consider it. Rule 1031 § c and Rule 1046 § f.

Judgments affirmed.

      . Henceforth in this opinion, when we refer to the rule concerning possession of stolen goods, we do so in the context that the goods were recently stolen and that the possession of them was unexplained and exclusive. For a discussion of “recently stolen” see Anglin v. State, 1 Md. App. 85, 92-93 (1967). “Joint possession” may be “exclusive possession.” Davis and Napier v. State, 7 Md. App. 667, 669 (1969), and cases therein cited.

      . The Court in Debinski fell into the trap of stating the rule in terms of “recent possession of stolen goods.” 194 Md., at 360.

      . It seems that in early times, being taken in possession of stolen goods involved immediate punishment. Later, such possession allowed a trial without formal accusation. Later still, the possession led to a presumption of guilt, which in the absence of contrary evidence, justified a verdict. J. Thayer, Preliminary Treatise on Evidence, 328 (1898) as set out in Barnes v. United States, supra, at 444, n. 5. For a discussion of the various meanings of “presumption”, see Evans v. State, supra, at 676-677. Today, possession of stolen goods does not result in a presumption but permits judicial recognition of a permissible inference. Hochheimer, Criminal Law § 716 (1897) recognized this: “The doctrine formerly held, that recent possession of stolen goods raised a presumption of guilt which must be overcome by proof on the part of the accused has been wholly repudiated by the best considered modern cases. The burden of proof never shifts in a criminal case, and guilt can not be presumed from any given state of facts. Recent possession of stolen property is merely a fact relevant to the question of guilt, to be considered by the jury, in connection with all the other evidence submitted to them, in determining the guilt or innocence of the accused. The presumption, if it arises in any case, is one wholly of fact, not of law. No legal significance attaches to the defendant’s failure or inability to explain his possession; and the safe and correct practice is not to charge as to its effect.” Some authorities, however, still use presumption and inference interchangeably in connection with the rule. See 1 Wharton’s Criminal Evidence § 139 (1972).

      . Turner v. United States, 396 U. S. 398 (1970); Leary v. United States, 395 U. S. 6 (1969); United States v. Romano, 382 U. S. 136 (1965); United States v. Gainey, 380 U. S. 63 (1965).

      . The reasonable-doubt standard is that the evidence is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt. Barnes, at 843. This is the most stringent standard the Court has applied in judging permissive criminal law inferences. Id., at 846. The more-likely-than-not standard requires that at least it can be said with substantial assurance that the inferred fact is more likely than not to flow from the proved fact. Id., at 842, quoting from Leary v. United States, supra, at 36. If the reasonable-doubt standard is satisfied, the less stringent more-likely-than-not standard is certainly satisfied.
      The Court said, id., at 843: ‘To the extent that the ‘rational connection,’ ‘more-likely-than-not,’ and ‘reasonable-doubt’ standards bear ambiguous relationships to one another, the ambiguity is traceable in large part to variations in language and focus rather than to differences of substance.”

      . The Court pointed out in Barnes, at 845, n. 8, that the reasoning of the statutory inference cases is applicable to analysis of common law inferences. It observed: “Common-law inferences, however, present fewer constitutional problems. Such inferences are invoked only in the discretion of the trial judge. While statutes creating criminal law inferences may be interpreted also to preserve the trial court’s traditional discretion in determining whether there is sufficient evidence to go to the jury and in charging the jury,... such discretion is inherent in the use of common-law inferences.” (citations omitted).

      . The Court cautioned: “We do not decide today whether a judge-formulated inference of less antiquity or authority may properly be emphasized by a jury instruction.” 412 U. S., at 846, n. 11.

      . We added a caveat in Evans, at 703-704: “Since an illogical or improbable ‘inference’ would, however, unfairly relieve the State of part of its burden of proving every element of a case beyond a reasonable doubt, the inference, even as a mere inference, must pass constitutional, muster under United States v. Gainey, 380 U. S. 63, 85 S. Ct. 754, 13 L.Ed.2d 658 (1965); United States v. Romano, 382 U. S. 136, 86 S. Ct. 279, 15 L.Ed.2d 210 (1965), and Leary v. United States, 395 U. S. 6, 89 S. Ct. 1532, 23 L.Ed.2d 57 (1969). It must, therefore, be based upon a rational connection between the facts established and the fact to be inferred.” This is, of course, in complete accord with the teaching of Barnes.

      . The Court in Anglin referred to and discussed, 244 Md., at 658-662, Wilson v. United States, 162 U. S. 613(1896); Yee Hem v. United States, 268 U. S. 178 (1925); Casey v. United States, 276 U. S. 413 (1928); United States v. Gainey, 380 U. S. 63 (1965). It cited, at 662, the following cases as supporting the conclusions to be drawn from the Supreme Court cases: People v. McFarland (Cal.), 376 P. 2d 449, 453; People v. Kulig (Ill.), 25 N.E.2d 73; State v. Todaro (N. J.), 37 A. 2d 73; Bray v. United States, 306 F. 2d 743.”

      . The robbery took place at 9:20 A.M. It was committed by two men wearing yellow hard-hats and armed with shotguns. Thirty minutes^ later the police apprehended three men, one of whom was Dinkins, in an automobile which the victim had observed during the robbery. Dinkins was seated in the right front seat and on the floor near him was a brown bag containing $14,000. A shotgun was between the driver’s legs, and other guns and hard-hats were found in the vehicle.

      . The trial judge gave the jury a definition of robbery in accord with Williams v. State, 7 Md. App. 683, 685 (1969). He also charged that possession of the stolen goods “must be personal and with a distinct assertion of the right to exercise complete control over the property and over the disposal of the property.” This was enough to advise the jury that a robber must have the intent to deprive the owner of his property permanently. See Gover v. State, 15 Md. App. 163 (1972), affirmed, 267 Md. 602 (1973).


text:
    MORTGAGE INVESTORS OF WASHINGTON v. CITIZENS BANK AND TRUST COMPANY OF MARYLAND
    [No. 350,
    September Term, 1975.]

      Decided January 2, 1976.

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

      Patrick F. J. Macrory, with whom were Arnold & Porter, Joseph Patrick Clancy, Susan E. Pfeifer, Allan A. Noble and Clancy & Pfeifer on the brief, for appellant.

      Ronald A. Baradel, with whom were Hartman & Crain on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

The issue for decision in this case is whether a stipulation in a promissory note for the payment by the debtor of a specified attorney’s fee for services in the collection of the debt upon default is valid and enforceable. We hold that such a provision is valid and that it is enforceable with the limitation that the fee may not exceed the amount which the creditor is obligated to pay his attorney for the services contemplated.

STATEMENT OF THE CASE

Mortgage Investors of Washington (MIW) executed two notes, promising to pay Citizens Bank and Trust Company of Maryland (Citizens) at a certain time “the total of payments stated hereon with interest until paid.” The notes contained this provision: “If, upon our default, suit is instituted, we agree to pay all court costs and an attorney’s fee of 15% of the outstanding balance at the time of suit.” The notes became overdue, and Citizens, its request for payment going unheeded, instituted suit through its counsel in the Circuit Court for Montgomery County on 13 November 1974, claiming the outstanding principal balance, interest, costs, and attorney’s fees. A motion raising preliminary objection, a motion ne reeipiatur and a motion to postpone depositions, all filed by MIW, were denied. On 11 April 1975, upon hearing, motions for summary judgment were granted. One judgment was entered for the outstanding balance of the debt with interest and costs and another judgment was entered for attorney’s fees with interest and costs. Thereafter, MIW paid the balance due on the principal debt, and on 11 April and 22 April Citizens entered credits totaling the full amount of the award on that debt. On 16 April MIW filed motions for a new trial, for reconsideration and rehearing on the motion for summary judgment, and to set aside the award of attorney’s fees. On 6 May the motions were heard and taken under advisement, but on 9 May, before they were determined, MIW noted an appeal. The appeal was taken both from the judgment on the principal debt and the judgment on the attorney’s fees. Because the full amount of the judgment awarded on the principal debt has been paid and credits duly entered by Citizens, the appeal as to that judgment is moot. The appeal from the judgment with respect to the attorney’s fees is all that remains for review and, in fact, is all that was briefed and argued before us.

Citizens made known that under an agreement between it and its attorney, entered into independently of the instant case, a contingent fee schedule for collection services had been established as “reasonably fair” to the bank and the attorney, “particularly in light of the removal of confession of judgment provisions from Bank forms.” Under this schedule, Citizens was obliged to pay the attorney for his services in collecting the balance due on the notes, an amount which was less than the judgment for those services awarded on the basis of the stipulation in the note. Citizens asserts that it “has only sought indemnification for the amounts which it has legitimately become obligated to pay by reason of that default [of the notes], and ‘nothing more’.”

THE LAW

“Parties have the right to make their contracts in what form they please, provided they consist with the law of the land; and it is the duty of the courts so to construe them, if possible, as to maintain them in their integrity and entirety.”

This language from Maryland Fertilizing and Manufacturing Company v. Newman, 60 Md. 584, 588 (1883) enunciated a precept now firmly established in Maryland. Webster v. People’s Loan, Savings & Deposit Bank, 160 Md. 57, 61 (1931); Gaither v. Tolson, 84 Md. 637, 639 (1897); Bowie v. Hall, 69 Md. 433, 435 (1888). It is the foundation for the consistent upholding by the Court of Appeals of Maryland of the validity of a provision in a promissory note requiring the debtor upon default to pay an attorney’s fee for services performed to collect the debt. The Court said in Webster, at 61: “That the parties to a contract have the right to agree for the payment of an attorney’s fee in the event of default in payment by the promisor has long been recognized in the decisions of this court.” As recently as Qualified Builders, Inc. v. Equitable Trust Co., 273 Md. 579, 584 (1975), the Court, quoting Brenner v. Plitt, 182 Md. 348, 366 (1943) recognized that “there is no question that a stipulation in a promissory note, in case of its non-payment at maturity, to pay the costs of collecting the same, including attorney’s fees, is valid and can be enforced,” adding “even though, in the absence of either statutory or contractual authority, expenditures for attorney’s fees ordinarily are not recoverable as damages by the successful litigant against his unsuccessful adversary.” The Court observed in Webster, at 61: “In a few of the courts of the country such provisions have been characterized as a cover to usury and declared void as against public policy. ... In the great majority of the states such provisions have been upheld, in some as a penalty for failure to pay promptly as agreed, but in most cases as a contract of indemnity to reimburse the plaintiff for the expense of enforcing his contract incurred by the defendant’s default. . . .” (citations omitted).

In Maryland it is settled that such provision is a contract of indemnity. Webster, at 62-63; Legum, at 360; Weiner, at 126. It cannot be “regarded as a cover to usury, for its effect is clearly not to put any money above the legal rate of interest into the pocket of the lender, but merely to enable him to get back his money with legal interest and nothing more.” Bowie, at 435-436; Gaither, at 639; Webster, at 61; Weiner, at 126. Consistent with the view that the fee provision is a contract of indemnity: “If the plaintiff pays less for the services of his attorney than the amount stipulated, or allowed by the court where the amount is not specified in the instrument..., then it is his duty to remit or credit the difference; if he pays more than the fees entered, then he is out the excess.” Webster, at 63. See Weiner, at 126-127; Qualified Builders, at 581, n. 2.

The fee “is not a gratuity to which the attorney is entitled upon the entry of his appearance for the plaintiff, but is payable for services rendered as the judgment is collected.” Webster, at 63; Brenner, at 366-367; American Nat. Bank, at 325; Qualified Builders, at 581, n. 2. The amount of the fee is payable to the extent stipulated, Webster, at 62, that is “at' the rate or in the proportions stated in the contract... .”, id., at 63. See Brenner, at 366-367. It is when the fee provision in the note is not explicit, but merely designates a “reasonable attorney’s fee”, that the court in which suit is filed has the right to determine what is a reasonable fee. In such case, the amount is not left “to the option or the conscience of the attorney.” The parties, by specifying only a “reasonable attorney’s fee” contemplated “a judicial proceeding by the court for the purpose of ascertaining the amount which may reasonably be charged up.” Johnson v. Phillips, 143 Md. 16, 26-27 (1923). We find it clear, however, that, in a valid note, when the amount of the fee is specified, as by a percentage of the outstanding balance, the fee is ordinarily payable in the amount so designated. The Maryland eases are not to the contrary. So in Johnson, at 27, the Court pointed out that the clerk is authorized to exercise the power of entering judgment as to a cognovit note, “when the amount due appears on the instrument or can be rendered certain by calculation from its face.” Or conversely, “the clerk had no power to include in the judgment or to name the amount of attorney’s fee in a case of this kind, where the note does not fix the amount... .” Id., at 28. The clear indication was that the clerk had such power when the note fixed the amount.

The provision in the note specifying the fee is enforceable as between the parties. It is only when other creditors are involved that, under certain circumstances, the amount of the fee may be questioned. “Such a provision rests upon a valid consideration, and is not fraudulent as to other creditors; unless the amount designated as attorney’s fees is grossly in excess of any reasonable amount, in which case the judgment, at least to the extent of such fees, is fraudulent and void as against the other creditors of the defendant” (emphasis added) Johnson, at 26, quoting 1 Black, Judgments, § 75. We find it manifest from Webster that the attorney’s fee in the note is payable by the defendant to the plaintiff “to the extent stipulated”, 160 Md., at 62. Moreover, by iterating, at 61, the Black quote from Johnson, the Court affirmed the view that the reasonableness of the fee is subject to inquiry only as to other creditors of the defendant. It is when other creditors are involved that the specified fee may be fraudulent and void as to such creditors if it is “grossly in excess of any reasonable amount.” In Legum the Court noted that the debtor agreed in his note to pay an attorney’s fee designated. 180 Md., at 360. “It is not to be presumed that the [creditor] will not pay this money, when collected by it, to its attorney. If it does not, the attorney is the one to complain. The [debtor] is not now in any position to raise a question about it.” (emphasis added) Id., at 361. In Brenner, 182 Md., at 366-367, the Court, quoting from Webster, at 63, observed that the attorney’s fee is payable for services rendered as the judgment is collected, “and at the rate or in the proportions stated in the contract” when the fee is designated, or at the amount stated in the court’s order when the note was not explicit as to the amount but called only for the payment of a “reasonable fee.” In Weiner, 217 Md., at 126, the Court again referred to Webster in stating that attorney’s fees in a confessed judgment note are payable “to the extent stipulated, for the expense of employing an attorney to collect by suit at law the principal debt.” This is, of course, subject to the proviso expressed in Webster, at 63, that “if the attorney’s fees exceeded an indemnity for actual out-of-pocket expenses, its entry would be beyond the authority of the attorney and that ‘For the appropriation by the plaintiff of any part of the fees, or the payment of them without corresponding services, or the failure to allow proper credits, the errors can be corrected on motion made in the case by the defendant. ...’” 217 Md., at 127-128. In American Nat. Bank, the Court said, 247 Md., at 323: “No allowance is made for attorney’s commissions unless services contemplated for such allowance and commensurate therewith are actually rendered.” Webster was given as authority for that statement. It is manifest that the phrase “unless services contemplated for such allowance and commensurate therewith actually rendered” refers not to the reasonableness, between the parties, of the fee stipulated in the note, but to the actual performance of the services contemplated. The statement is preceded by this declaration, at 323: “An attorney’s fee specified in a promissory note authorizing a judgment by confession for the amount due with interest and attorney’s fees can be collected only upon confession of judgment as specified in the note.” In other words, as Webster and the other cases make evident, the attorney’s fee is not payable until the judgment confessed in the cognovit note is obtained with the intention to collect the indebtedness, but when so obtained, as between the parties, the fee is payable in the amount stipulated in the note. As the Court said in Gaither, 84 Md., at 640: “Fees for collection are understood to mean fees to be paid when the debt is collected.” This is also the clear import of Qualified Builders, note 2, at 581-582 of 273 Md.

We have one more observation. In Webster, at 61-62, the Court noted: “There being no question of the validity of the provision for the attorney’s fee in this case, the only other question is as to the form the entry should take, and that is, whether the amount stipulated should be included in the judgment or entered as costs.” It found no uniformity of practice in other jurisdictions or in this jurisdiction. Id., at 62. It declared, at 62: “It is the better practice to enter the fees or commissions as a separate item and not to include the amount in the judgment for the principal obligation.”

Summary

1) A stipulation in a promissory note for payment by the debtor of a specified attorney’s fee for services in the collection of the debt upon default is valid.

2) The fee is payable upon performance of the services contemplated.

3) As between the parties to the note, payment of the attorney’s fee may ordinarily be enforced in the amount specified in the note.

a) the amount specified, however, may be diminished to the extent that the creditor is obligated to pay his attorney a lesser amount for the services contemplated.
b) if the creditor is obligated to pay his attorney for such services an amount greater than that specified in the note, the creditor is out the excess.
c) when the rights of other creditors of the debtor are involved, the attorney’s fee may be fraudulent and void as against such creditors if the amount specified is grossly in excess of any reasonable amount.

4) When the note is not explicit as to the amount of the fee but merely specifies the payment of a “reasonable attorney’s fee”, the court may determine what is a reasonable fee.

The validity of the notes here is not now questioned. They contained an explicit provision as to the amount of the attorney’s fee to be paid: “If, upon our default, suit is instituted, we agree to pay all court costs and an attorney’s fee of 15% of the outstanding balance at the time of suit.” The services contemplated by the attorney were performed; suit was instituted and the principal obligation was paid. There was an agreement between Citizens and its attorney spelling out the fee to be paid in collection cases Under that agreement the fee payable by Citizens to its attorney was less than the notes called for. There were no rights of other creditors involved. Therefore, the provision as to the payment of an attorney’s fee was enforceable as between Citizens and MIW as limited by the agreement between Citizens and its attorney. Thus, Citizens had the duty, which it recognized, to remit or credit the difference. It declared that it was prepared to do so.

To this point we have not mentioned the amounts involved. We have purposely refrained from setting out the figures to emphasize that the amounts have no bearing on the rights of the parties. What governs is the agreement in the notes and, when calling for an amount less than the amount stipulated in the notes, the agreement between Citizens and its attorney. The outstanding balance on the two notes, at the time suit was here instituted, was $1,004,268.40 The. attorney’s fee, at 15% as stipulated, was $150,640.26. By the fee agreement between Citizens and its attorney, Citizens was obligated to pay the attorney $105,750.58. This latter amount is what was due Citizens by MIW as the attorney’s fee. Whether that fee is $15 or $150,000 is of no moment. The crux of the matter is that MIW, by a valid and enforceable contract, agreed to pay Citizens a stipulated sum as a fee to Citizens’ attorney for his services upon institution of suit to collect the balance on MIW’s overdue indebtedness. MIW cannot now be heard to say that the fee it freely agreed to pay was not a reasonable one, or that it made a bad bargain. As far as MIW and Citizens are concerned, the stipulated fee may be diminished only to the extent that Citizens was obligated to pay the attorney a lesser amount. We note that MIW could have obviated the payment of any fee by paying its indebtedness as it promised to do. The full answer is in the precept declared by the Court of Appeals almost a century ago in Maryland Fertilizing, 60 Md., at 588. We quoted it at the beginning of this opinion, and we now repeat it:

“Parties have the right to make their contracts in what form they please, provided they consist with the law of the land, and it is the duty of the courts so to construe them, if possible, as to maintain them in their integrity and entirety.”

Appeal as to judgment in the amount of $815,714.30 dismissed as moot; judgment for attorney’s fee in the amount of $150,640.26 reduced to $105,750.58 by an allowance of $44,889.68 and as modified affirmed; costs to be paid by appellant.

      . MIW waived “all notice, demand and protest and the benefit of all exemption laws and all irregularity of errors in entering judgment or the execution thereon....” It further consented “to the immediate execution of said judgment.”

      . The Court had come to the same conclusion in Bowie v. Hall, supra. It noted, at 436: “We are not aware of any case in which such a contract has come before an English court, and this may result from what we believe to be the fact that the practice of remunerating attorneys and solicitors for their professional services, by a certain percentage on money collected by them for their clients by suits in court, has never prevailed in England. In this country, however, such a practice has been commonly adopted. Contracts, therefore, like the present are not unusual here, and have become numerous in recent times. In some cases their validity has been denied by the courts, but it seems they are sustained by a decided preponderance of authority.”

        Webster is the case most often cited by the Court of Appeals on the subject. For example, Legum v. Farmers Nat. Bank, 180 Md. 356, 360 (1942); Brenner v. Plitt, supra, at 366; Weiner v. Swales, 217 Md. 123, 126 (1958); American Nat. Bank v. Mackey, 247 Md. 319, 323 (1967); Qualified Builders, Inc. v. Equitable Trust Company, supra, at 581, n. 2, and 583. See Addressograph-Multigraph v. Zink, 273 Md. 277, 289 (1974); Taylor v. Wahby, 271 Md. 101, 115 (1974); Empire Realty Co. v. Fleisher, 269 Md. 278, 286 (1973).

      . We find apposite the rationale inherent in the discussion in Gaither, at 640, concerning attorney’s commissions agreed to be paid upon collection of the debt secured by the mortgage: “It is no answer to the justice of [the attorneys’] claim to say that in this case no difficulties were interposed in the path of their duty. They were required to be prepared to encounter any difficulties which should arise, and to overcome them if they could. And it ought never to be forgotten that very .often the tact, skill, diligence and judgment of an attorney will prevent difficulties which might otherwise arise, and will enable him to secure his client’s rights with facility and expedition. When he had accomplished whát he undertook to do, it would be very unjust to disparage the value of his services, for the reason that he was able to do it readily and promptly without litigation.”

      . The basis of the fee agreement between Citizens and its attorney was a letter from the attorney to Citizens dated 25 October 1974. It was an exhibit to an affidavit in support of the motion for summary judgment. The affidavit by the assistant to the President of Citizens verified the bank’s agreement with its attorney.

      . Principal payments made during the pendency of the suit reduced the balance to $815,714.30, for which judgment was entered.

      . MIW relies to significant extent on Chestertown Bank of Maryland v. Walker, 163 F. 510 (4th Cir. 1908). We do not construe it as does MIW. The Circuit Court of Appeals was reviewing a proceeding in the District Court in Bankruptcy. Patently, therefore, other creditors were involved, so that the trial court properly considered, as we have indicated it should, the reasonableness of the fee stipulated in the promissory note. Further, the appellate court found nothing in the record to show that the bank ever employed an attorney to collect the debt, that an attorney ever did anything to collect, or that if he did, whether the bank contracted to pay him for his services the amount stipulated or a smaller sum, or that the fee stipulated was, in the light of rights of other creditors, reasonable. We think that Chestertovm was fully in accord with the Maryland law as we have found it to be.