author: Couch, J.,

text:
    MARTIN V. B. BOSTETTER, JR. and GLADYS VIRGINIA TAYLOR, Executors of the Estate of Martin V. B. Bostetter, Sr. v. FREESTATE LAND CORPORATION et al.
    [Nos. 669 and 670,
    September Term, 1980.]

      Decided March 5, 1981.

      The cause was argued before Thompson, Lowe and Couch, JJ.

      Kenneth J. Mackley, with whom were Mackley & Gilbert on the brief, for appellants.

      Kent N. Oliver, with whom were Donald E. Beachley and Richard W. Lauricella on the brief, for appellees.
   Couch, J.,

delivered the opinion of the Court.

In 1971 and 1972, Martin V. B. Bostetter, Jr. (Bostetter, Jr.) and Gladys V. Taylor, the appellants and executors of the estate of Martin V. B. Bostetter, Sr. (Bostetter, Sr.), deceased, filed a petition and an amended petition in the Circuit Court for Washington County against the appellees, Freestate Land Corporation (Freestate), Julian L. Oliver, Sr., and Irene R. Burris. By these petitions the court was requested to declare null and void certain acts of the appellees, and to require the appellees to transfer to the appellants certain papers, books, checking accounts, instruments and records. An accounting of monies received and distributed also was sought.

Freestate, Oliver, and Burris filed a bill of complaint in 1976 in the same court, against Bostetter, Jr., Joanne R. Bostetter, wife of Bostetter, Jr., and James C. Rice, individually, against Gladys V. Taylor as executor of the Bostetter estate, and against Bostetter, Jr. as trustee in and executor of the Bostetter estate. This bill of complaint alleged fraud and the commission of a fraudulent conveyance by the appellants and sought injunctive relief, an accounting and damages.

The two actions were consolidated and heard by the court. By an order dated March 10, 1980, the court dismissed the appellants’ petition and granted the relief sought by the appellees. From this action Bostetter, Jr. and Taylor, as executors, and Joanne R. Bostetter, James C. Rice, and Bostetter, Jr., individually, appeal and raise several issues.

In summary the appellants contend that the chancellor erred in determining that the appellees own Freestate and its asset, a farm located in Washington County. We agree with the appellants, and for the reasons set forth in this opinion we find that the appellants own Freestate, and title to the subject farm is properly vested in the appellants as executors.

When lawyers involve themselves in corporate affairs, we hope that they follow the model cited by Chief Judge Gilbert in Dixon v. Process Corp., 38 Md. App. 644, 651, 382 A.2d 893 (1978):

"The role of the lawyer and his relationship to a business corporation is colorfully stated by Roy A. Redfield in Factors of Growth in a Law Practice 30 (1962):
When the business corporation is born, the lawyer is the midwife who brings it into existence; while it functions he is its philosopher, guide and friend; in trouble he is its champion, and when the end comes and the last sad rites must be performed, the lawyer becomes the undertaker who disincorporates it and makes final report to the Director of Internal Revenue.’ ”

The present case disappoints our hopes because the Freestate Land Corporation was deliberately used to create confusion, and the lawyers who should have befriended the corporation neglected it.

The record shows that Bostetter, Sr. practiced law for many years in Washington County. During 1965, as part of his practice, Bostetter, Sr. served as an assignee for the purpose of foreclosing the mortgage on a farm of some 102 acres in Washington County. This farm, containing all or part of tracts known as "Much Grumbling” and "Wolfs Chance,” lies adjacent to the Bostetter family tract, referred to as "The Home Place.” Desiring to expand his family holdings, Bostetter, Sr. sought to purchase the 102 acre farm.

In the foreclosure action, however, Bostetter, Sr. already represented the mortgagee and the estate of the mortgagor. Apparently attempting to avoid further appearance of conflict, Mr. Bostetter arranged to have the subject farm purchased for him through an agent. Bostetter, Sr. asked his friend and business associate, Julian L. Oliver, Sr., to locate someone who could bid for the farm at its public sale.

When Bostetter, Sr. conducted the public sale on February 16, 1965, the property was seemingly sold to Edward S. Routon of Arlington, Virginia. Routon, the brother-in-law of Julian Oliver, merely served as nominee for Bostetter, Sr.

At or about the time of the farm’s purchase, Bostetter, Sr. contacted his son, Bostetter, Jr., a lawyer in Virginia, and asked him to prepare the articles of incorporation for Freestate. Bostetter, Jr. drafted the document. The three incorporators and original directors were James C. Rice, Bostetter, Jr.’s law partner and half-brother; Betty L. Mattos, Rice’s legal secretary; and Edward S. Routon. A Bethesda attorney was named as the corporation’s resident agent.

On April 12,1965 the articles of incorporation were signed by the incorporators, notarized, and mailed to the Maryland Department of Assessments and Taxation. This agency approved the articles and issued a charter to Freestate on May 3, 1965.

Several weeks later, Bostetter, Sr. asked Oliver to act as president of Freestate for the purpose of signing a demand note payable to Bostetter, Sr. Oliver signed the $32,715.00 demand note, prepared by Bostetter, Sr. and dated June 21, 1965. Later that day, Bostetter, Sr., as assignee for foreclosure, transferred the 102 acre farm to Freestate. The consideration recited in the deed was $36,350.00. The deed was recorded among the Washington County land records on July 9, 1965. I

Thereafter, Bostetter, Sf. acquired a standard corporate outfit for Freestate, and he assumed control of the corporation’s assets. His secretary, Irene Burris, collected the rent paid by the farm’s tenants, including rent paid before Bostetter, Sr. deeded the property to Freestate. Rather than open a separate bank account for the rent money, Bostetter, Sr. had the money deposited into his attorney/client trust account. From this account, Burris paid Freestate’s. bills with checks signed by Bostetter, Sr.

At the direction of Bostetter, Sr., Burris prepared Freestate’s annual franchise tax reports for the years 1965, 1966, and 1967. These reports list Oliver as president, treasurer and director, Routon as vice president and director, and Rice as secretary and director. The reports also designate Bethesda as Freestatje’s principal place of business.

Freestate’s Maryland corporation income tax returns for these years, however, list the corporation’s principal place of business as Bostetter, Sr.’s office in Hagerstown. These tax returns for 1965 through 1968 were filed in December, 1968 by an accountant who prepared the returns using a summary of Freestate’s records drafted by Burris in July, 1968. These records, together with Freestate’s corporate books were taken by Bostetter, Sr., sometime in July or August of 1968, and relocated in the nearby office of Oliver.

Bostetter, Sr. also designated Burris as secretary and director of Freestate, and had her prepare a check for $4,641.85 drawn on his attorney/client trust account, and dated July 29, 1968. This check was signed by Bostetter, Sr. and made payable to Freestate. With this check, endorsed by Burris, a bank account was opened for Freestate on August 23,1968. Only Burris and Oliver were authorized to draw on these funds which apparently represented the net surplus realized by Freestate’s rentals.

Bostetter, Sr. died on November 16, 1968 leaving a will which, among other' things, gave a monetary bequest to Bostetter, Jr., made his son an executor of the estate, and appointed him trustee of the remainder of the estate for the benefit of Bostetter, Jr.’s children. Bostetter, Jr. and Taylor, the other executor, opened Bostetter, Sr.’s estate on November 29, 1968. Among the decedent’s belongings, the executors found the demand note dated June 24, 1965. They had judgment by confession entered on this note on May 11, 1972, in the amount of $49,072.50. This judgment against Freestate has not been satisfied.

During the management of his father’s estate, and in the course of litigation against Freestate, Bostetter, Jr. found no evidence of a valid organizational meeting for the corporation. Believing that in the absence of a valid meeting Burris and Oliver never legally became corporate directors, Bostetter, Jr. requested that the original incorporators and directors hold the requisite meeting.

On July 28, 1972, James Rice met with Betty Mattos McFadden in Alexandria, Virginia. The third incorporator, Edward Routon, had died in 1971. Rice and McFadden signed, and had notarized, a document designated their waiver of notice of the first meeting of incorporators of Freestate. The minutes of this meeting record the incorporators’ acceptance of the charter issued to Freestate, and the election of Rice, Bostetter, Jr., and Joanne Bostetter as succeeding directors. The directors authorized the issuance of stock and the purchase of property by the corporation.

Later that same day, Bostetter, Jr. chaired an organizational meeting of the new Board of Directors. Having waived their right to notice of the meeting, the directors adopted corporate by-laws and elected officers. The directors also designated a depository for Freestate’s funds, and adopted a corporate seal and stock format. Bostetter, Jr., as president and treasurer of Freestate, received authority to resolve the conflict concerning the 102 acre farm and demand note. By deed dated December 18, 1972, Freestate, by Bostetter, Jr., conveyed the farm to Bostetter, Jr. for the sum of $10.00 and other valuable consideration. This deed was recorded among the land records of Washington County on January 4, 1973.

The above-stated facts precipitated the equity actions which were consolidated and heard in February of 1980. The chancellor characterized the circumstances surrounding Freestate as "strange,” "unorthodox,” and "highly irregular if not even more suspect.” We agree with this description of the factual background. Nevertheless, we find that the chancellor clearly erred in concluding from the facts that (1) Freestate was properly organized prior to July 28,1972, that (2) Bostetter, Sr. divested himself of any interest in Freestate, and that (3) Oliver and Burris obtained ownership of Freestate.

I. Organization of Freestate

In his memorandum opinion of March 10, 1980, the chancellor found that Bostetter, Sr. "assumed complete control of Freestate” following the June 21, 1965 meeting of Bostetter, Sr. and Oliver. Responding to appellants’ contention that Bostetter, Sr. and Oliver never validly organized Freestate, appellees claim that the activity of June 21, 1965 constituted Freestate’s organizational meeting. Conceding that "Bostetter, Sr. was lax or negligent in properly conducting and documenting the affairs of Freestate,” the appellees contend that such negligent conduct effectively prepared Freestate for the operation of its business. Neither the chancellor’s memorandum, nor the appellees’ brief cites authority for this contention.

The appellees, however, refer us to Maryland case law and the applicable provisions of the Maryland Code. By virtue of Md. Ann. Code Art. 23, § 131 (b) (1957) in effect in 1965, Freestate became a body corporate when its articles of incorporation were accepted by the Department of Assessments and Taxation on May 3, 1965. Thus we find no challenge to Freestate’s existence per se; the questions concern who can run the corporation.

The legislature has provided the rules by which corporations are to be organized and operated. Md. Ann. Code Art. 23, § 4 (1957) requires the filing of articles of incorporation which identify the incorporators and state the number of directors, which shall not be less than three. Moreover, the articles must identify those persons who shall act as directors until the first annual meeting or until their successors are duly chosen and qualify. Subsection (b) (7).

Freestate’s articles of incorporation satisfy this statutory requirement by stating:

"The number of directors of the corporation shall be three (3), which number may be increased or decreased pursuant to the By-laws of the Corporation, but shall never be less than three (3); and the names of the directors who shall sit until the first annual meeting, or until their successors are duly chosen and qualified, are James C. Rice, Edward S. Routon, and Betty L. Mattos.”

Section 52 provides that the business and affairs of the corporation shall be managed by a board of directors which, until the first annual meeting of stockholders or until successors are duly elected and qualify, shall consist of the persons named as such in the charter. Section 55 provides:

"After the acceptance for record of this articles of incorporation, an organization meeting of the board of directors named in the charter shall be held, at the call of a majority thereof, for the purpose of adopting bylaws, electing officers and for the transaction of such other business as may come before- the meeting. The directors calling the meeting shall give not less than three days’ notice thereof in writing to each director. Such notice shall state the time and place of the meeting.”

In case of a failure to hold an election of new directors, the authority of the directors holding over continues until their successors are duly chosen and qualify. Section 57.

These statutory provisions grant to the original directors alone the authority to call the required organizational meeting. Additionally, the statutes impose on these directors the responsibility to give proper notice of the meeting. No Maryland decision holds that a corporation may conduct lawful business when the requirements have been totally ignored, absent effective waivers by the parties. Rather, the complete organization of a Maryland corporation requires a meeting of the directors named as such in the charter, who exercise the powers of the corporation to issue stock and thus create the stockholders. H. Bruñe, Maryland Corporation Law and Practice § 151 (Rev. ed. 1953).

A properly convened first organizational meeting of the directors named in the charter, where the charter may be accepted, is necessary to endow the corporation with the capacity to transact the legitimate business for which it was created. Davey v. Masser, 204 Md. 612, 621, 106 A.2d 92 (1954); see Smith v. Silver Valley Mining Co., 64 Md. 85, 90-91, 20 A. 1032 (1885), in which the Court of Appeals refused to dispense with the required organization of a corporation, by its incorporators, under its charter.

We see no reason to abandon the statutory requirements, and in examining the record we find no evidence that Bostetter, Sr. and Oliver complied with those requirements. The directors named in the charter did not receive notice or waive their right to notice, of any meeting prior to 1972. Absent such notice or waiver, the actions taken by Bostetter, Sr. and Oliver must be held void, as lacking corporate authority. Roland Park Shopping Center v. Hendler, 206 Md. 10, 24, 109 A.2d 753 (1954); Stevens v. Emergency Hospital, 142 Md. 526, 121 A. 475 (1923).

The charter of Freestate conferred corporate authority upon Rice, Routon, and Mattos, and that authority could not be transferred until Freestate was completely organized. Taggart v. Western Md. R.R. Co., 24 Md. 563, 594 (1866). Thus, even if Bostetter, Sr. and Oliver assumed the titles of corporate directors, their lack of authority precluded them from acting alone to bind Freestate. Their transactions in the name of Freestate were nullities. Jackson v. County Trust Co., 176 Md. 505, 509, 6 A.2d 380 (1939); see also Miller v. Berman, 95 S.E.2d 319 (Ga. App. 1956), in which a Georgia appellate court held that the purported president of a chartered corporation could not validly contract because of the failure to organize, create stock, and elect officers.

Contrasting against Bostetter, Sr.’s failure to organize Freestate, and Oliver’s invalid attempt to act as corporate president, the incorporators’ meeting on July 28,1972 effectively organized Freestate.

Formal organization of a corporation can be completed at the incorporators’ meeting. H. Oleck, Modern Corporation Law § 521 (1958). This meeting usually occurs within a "scintilla of time after filing” of the articles of incorporation. Shapiro, "Statutory Incorporation Flexibility in Maryland,” 6 U. Balt. L. Rev. 1, 4 (1976). The corporation statutes do not indicate that a delay between the issuance of the charter and the organizational meeting affects the validity of that meeting. The case law as well permits reasonable delays between the time a corporation has been created and when it begins business under its charter. Bonaparte v. Lake Roland R.R. Co., 75 Md. 340, 348, 23 A. 784 (1892). Thus, the incorporators retained control of Freestate until the meeting of 1972 at which the new board of directors was lawfully elected.

II. Bostetter, Sr.’s Interest in Freestate

At the hearing on February 26, 1980, Oliver testified that he obtained custody of Freestate’s records in July or August of 1968. He stated that Bostetter, Sr. brought the documents, in a cardboard box, into Oliver’s office. Oliver also said that he had no further contact with Bostetter, Sr. concerning Freestate, and that Freestate was subsequently operated by Oliver and Burris. Trying to explain this casual transfer of the corporate documents, Oliver and Burris stated in their pleadings that Bostetter, Sr. wished to divest himself of all ownership of Freestate during an investigation by the Internal Revenue Service. No evidence was presented concerning such an investigation.

Thus, the hearing transcripts shed little light upon Bostetter, Sr.’s motives for the relocation of Freestate’s records. We agree with the chancellor’s statement that,

"One might speculate as to his reasons for doing so, but whatever they were, they died with him.”

We disagree, however, with the lower court’s conclusion that the change in location of the records signified a change in the corporation’s ownership. Nothing so important as the transfer of corporate ownership can be inferred from the evidence presented at the hearings. See Schilling v. Waller, 243 Md. 271, 276-279, 220 A.2d 580 (1966), in which the Court of Appeals held that evidence of a decedent’s previous inter vivos gift must be clear and unmistakable.

Moreover, Bostetter, Sr. acting alone may have lacked the legal authority to dispose of Freestate, absent consent of the incorporators and directors. Jackson v. County Trust Co., supra. See Gontrum v. Union Liberty Life Ins. Co., 177 Md. 624, 632, 633, 11 A.2d 625 (1940), in which the Court of Appeals discussed the legislature’s control over the transfer of corporate franchises.

Therefore we find that Bostetter, Sr. retained ownership of Freestate’s assets and records.

III. Ownership of Freestate

Having found that Bostetter, Sr. retained an interest in Freestate during his life, we also find that his interest became a part of the Bostetter, Sr. estate. Neither the $500.00 contributions made by Oliver and Burris to Freestate in 1969, nor their subsequent withdrawals of $2,500.00 each, affected the interest of the Bostetter, Sr. estate. Likewise their claim of a "continuous thread of involvement” with Freestate is not an indicia of legal ownership. See Mabry Corp. v. Dobry, 141 So. 2d 335 (Fla. App. 1962), cited in Annotation, 8 ALR3d 1122, 1137, in which an equity court redistributed land improperly claimed by an unorganized realty corporation.

Our conclusion does not require a court order for the transfer of Freestate’s records from Oliver and Burris to Bostetter, Sr.’s executors. Rather, the proper recipients of these records are the directors of Freestate. The lower court should frame an appropriate order to place complete control of Freestate, and its records, in the hands of the duly authorized board of directors as determined at the 1972 organizational meeting.

Order reversed; case remanded for entry of appropriate'order consistent with the views expressed herein.

Costs to be paid by appellees.

      . The parties offer no explanation for the delay in trying this case.

      . In light of this holding, favorable to the appellants, we need not address their questions concerning the application of the Dead Man Statute.

      . Bostetter, Jr. testified that he holds the farm as executor of his father’s estate and as trustee for his father’s heirs, declaring the farm’s income on fiduciary returns.

      . This provision now appears at Md. Ann. Code, Corp. & Ass’ns § 2-102 (b) (1) (1975).

      . With minor stylistic changes, this language now appears at Md. Ann. Code, Corp. & Ass’ns § 2-109 (a) (1.975), a provision which has not been the subject of any previous decision.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    DOROTHY M. GOLDIN v. MILTON GOLDIN
    [No. 879,
    September Term, 1980.]

      Decided March 5, 1981.

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

      Bryan Renehan, with whom were Brodsky, Greenblatt & Renehan on the brief, for appellant.
    . William Bogen, with whom were Bogen, Yavener & Berman on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

"Marriages,” John Lyly penned, "are made in Heaven and consummated on earth.” No problem exists in the matter before us as to the consummation of the "marriage.” What we are concerned with is whether Pennsylvania is part of Heaven.

The Circuit Court for Montgomery County (Shearin, J.) found that no marriage existed between Dorothy M. Goldin, appellant, and Milton Goldin, appellee. Accordingly, Judge Shearin dismissed Mrs. Goldin’s bill of complaint for a divorce a mensa et thoro. Understandably perturbed by the ruling of the chancellor, Mrs. Goldin has carried her cause to this Court. Here, she asserts the circuit court erred in holding that she had "not proven a common-law marriage” to the appellee.

THE FACTS —

This domestic drama began in Buffalo, New York, in 1954 or 1955 when the parties met at "some of the bowling functions.” Each of the two litigants was married at the time, but not to each other. They "entered into a relationship.”

In 1956 Mrs. Goldin obtained an annulment of her marriage to Mr. Williams. Legally, she was free to remarry, but satisfying legal niceties did not solve the religious problems confronting her. Mr. Goldin obtained a divorce from his former spouse. At that time he had converted his faith from Judaism to Catholicism. He testified that inasmuch as he had entered into a marital status with his former wife prior to his conversion, the divorce from her left him "free to marry in the Catholic theology.”

The Goldins moved to Falls Church, Virginia, in 1958. They were advised that Mrs. Goldin "was not free to be married” in the eyes of the Catholic Church. Mrs. Goldin told Judge Shearin that a priest "suggested that if we were going to live in the same house, we would have the choice of two options: [(1)] we could either enter [into] a civil marriage, leave the Catholic faith, and hope and pray that we could — conditions would change and we could re-enter the faith or [(2)] we could attempt to live as brother and sister, which meant living in the same house avoiding the appearance of scandal, which meant assuming the Mr. and Mrs. name, [] but having no intimate relationship.”

The parties opted for the latter choice. Apparently, they were unsuccessful in their attempt because two children were born to them.

Mr. Goldin related that when their son was born, a discussion was had over "whether or not we should leave the church, enter into a marriage condition, and at that time Dorothy [Mrs. Goldin] was not willing to do that.”

Mrs. Goldin testified that while she considered herself "married” to Mr. Goldin, she did not enter into a civil marriage ceremony with him because of her religious beliefs. Moreover, whenever Mr. Goldin proposed marriage she would respond that they "were married.”

The parties lived together in Virginia for seven years and then moved to Maryland where they have resided for approximately fifteen years. At all times Mrs. Goldin continued to use that name. The parties bought a house as tenants by the entireties, executed a mortgage, seemingly as husband and wife, filed joint tax returns, both federal and State, in the same capacity, maintained joint bank accounts, and, inferentially, conducted themselves as husband and wife.

During the period 1964 through 1969, the parties were "into skiing.” They, accompanied by the two children, who were very young, journeyed "almost every weekend,” and some holidays, to Seven Springs, Pennsylvania. They usually stayed at a motel where they registered as Mr. & Mrs. Goldin. All four slept in the same room. The exact sleeping arrangements were disputed. Whether Mr. & Mrs. Goldin shared the-same bed is purely a matter for the fact-finder to resolve. Mrs. Goldin testified that she and Mr. Goldin engaged in sexual relations after the children had gone to sleep. Mr. Goldin flatly denies any sexual contact because the children were in the same room.

It is clear that Judge Shearin, while finding the testimony from both sides to be credible, manifestly attached more weight to that of Mr. Goldin. In any event the judge felt that Mrs. Goldin had not met the burden of proof.

THE LAW —

Maryland has continuously held that a common-law marriage, valid where contracted, is recognized in this State. Absent a showing that the "marriage” was valid where performed, no amount of holding out as husband and wife, reputation as being husband and wife, number of children, or any other factor will transpose the living together of a man and woman into a legal marriage in this State. Marriage does not take place simply because a man and woman cohabit for a protracted period of time. We do not recognize "marriage by estoppel.”

Whenever a party asserts that he or she and another were united in marriage by common law in a jurisdiction that sanctions such marriages, the burden of proof is upon the party asserting the common-law marriage.

Marriages in Maryland are controlled and regulated by Md. Ann. Code art. 62. Prior to Laws 1963, ch. 406, no valid marriage could be performed in this State without some sort of religious ceremony. Denison v. Denison, 35 Md. 361 (1872) . By the 1963 act, clerks or deputy clerks, designated by the resident circuit court judges were permitted to perform marriages.

Since neither Virginia nor Maryland allows the contracting of a common-law marriage within their respective geographical confines, the marriage between the parties, if there is one, must have occurred in Pennsylvania.

Pennsylvania authorizes the contracting of common-law marriages. See, e.g., Sullivan v. American Bridge Co., 115 Pa. Super. 536, 176 A. 24 (1935); Brown v. Nolen & Sons, 298 Pa. 384, 148 A. 498 (1930); Estate of Nelson Stine, 98 Pa. Super. 7 (1930); In re Ward’s Estate, 296 Pa. 20, 145 A. 676 (1929); Richard v. Brehm, 73 Pa. 140, 13 Am. Rep. 733 (1873) ; Guardians of the Poor v. Nathans, 2 Brewster (Pa.) 149 (1845).

What we need to decide is what are the necessary elements of such a marital undertaking. Does the fact that a man and woman, free to marry, register in a hotel, motel or other temporary shelter, ipso facto make them husband and wife under the law of Pennsylvania, or is something more required? Suppose, as in the case now before us, the couple spent a number of winter weekends in Pennsylvania where they registered as husband and wife, does that fact convert them into a married couple? Given the background of the instant case where the couple lived together for a prolonged time in States that do not permit the contracting of common-law marriages, and adding to those facts the weekends in Pennsylvania, is the relationship changed by judicial chemistry into a valid common-law marriage?

All the above questions have the same answer, and this is, maybe, it all depends upon the facts of each particular case.

In Sullivan v. American Bridge Co., supra, a couple attempted to get married in New Jersey, but did not because they were unwilling to wait the necessary time between licensing and marriage. They traveled to Maryland in an effort to be married but were again frustrated because of a lack of a witness. Notwithstanding that, they exchanged vows without the benefit of clergy. Obviously, the exchange of promises in Maryland had no legal effect. Denison v. Denison, 35 Md. at 380. "To constitute lawful marriage here there must be superadded to the civil contract some religious ceremony.” Id.

The parties then cohabited in New Jersey and Pennsylvania. The court apparently applied Pennsylvania law to effectuate the exchange of vows in Maryland, stating that the fact that a marriage cannot be contracted because of legal or religious impediments does not mean citizens shall not be married abroad. The court held that the exchange of vows in Maryland considered with the residency in New Jersey and Pennsylvania established the common-law marriage. See also Travers v. Reinhardt, supra.

A New York court, in McCullon v. McCullon, 96 Misc. 2d 962, 410 N.Y.S.2d 226 (1978), held that visitations to the Pennsylvania home of the alleged husband’s parents for a two to four week period each year, together with the New York cohabitation and reputation, was sufficient to establish a common-law marriage under Pennsylvania law.

A number of other jurisdictions have arrived at a different conclusion. In State ex rel. Smith v. Superior Court for King County, 23 Wash. 2d 357, 161 P.2d 188 (1945), the facts were that a couple, in the fall of 1937, went to San Francisco where "they lived together as man and wife. They returned to Oregon and resided in ... fa] house .. . near La Grande.” The woman represented to her family that she and Judd Smith were married in Crescent City, California. Two children were born to the couple. In 1944 the woman died as a result of injuries sustained in an automobile accident. While she was "in the hospital she dictated to her sister a statement which she subsequently read and signed....” That statement was witnessed by four persons. The content of the statement was that she and Smith were not married. A custody fight ensued between Smith and the aunt of the deceased mother of the two children.

At trial Smith testified that for the purpose of intermarrying the couple drove to Idaho, a common-law marriage State, in 1938. They "registered at an auto camp as Judd Smith and wife and on each of two succeeding nights they registered as husband and wife.”

The court quoted from 2 Schouler, Marriage, Divorce, Separation (6th ed.) p. 1438 § 1181:

"A union once originating between man and woman, purely illicit in its character, and voluntarily so, there must appear some formal and explicit agreement between the parties thereto, or a marriage ceremony, or some open and visible change in their habits and relations, pointing to honest intentions, before their alliance can be regarded as converted into either a formal or an informal marriage, as although the relations between them were illicit in the beginning still a common-law marriage may later occur between them.”

The Supreme Court of Washington underscored the finding of the trial judge that where parties cohabit illicitly in the State of their residence and happen to sojourn into another State that permits common-law marriage, the temporary stay in the latter, "by that conduct alone” does not confer the status of man and wife upon them.

"Parties who live for years in an illicit relationship in a state in which they were domiciled will not find themselves married to each other if they happen to sojourn for a short time and hold themselves out as man and wife in a state where common law marriage is recognized.” 23 Wash. 2d at 366, 161 P.2d at 192.

See also Walker v. Yarbrough, 257 Ak. 300, 516 S.W.2d 390 (1974); Kennedy v. Damron, 268 S.W.2d 22 (Ky. 1954); Carroll v. Carroll, 251 S.W.2d 989 (Ky. 1952); Norcross v. Norcross, 155 Mass. 425, 29 N.E. 506 (1892); Cruickshank v. Cruickshank, 193 Misc. 366, 82 N.Y.S.2d 522 (1948); Walker v. Hildenbrand, 243 Or. 117, 410 P.2d 244 (1966); Kelly v. Consolidated Underwriters, 300 S.W. 981 (Tex. Civ. App. 1927), aff'd, 15 S.W.2d 229 (App. Comm’n 1929).

Similarly, in the case of In re Binger’s Estate, 158 Neb. 444, 63 N.W.2d 784 (1954), a man and woman who lived together in Nebraska made a number of temporary sojourns into Colorado where common-law marriage is recognized. The appellate court said that the pleasure trips into Colorado, lasting three or four days each, where "they either registered at a named hotel as husband and wife or stayed with relatives” and were known to their relatives "as husband and wife” and then returned to Nebraska was insufficient to turn the relationship into a common-law marriage. The court noted that the couple did not change their domicile from Nebraska to Colorado, nor did they contract or agree to contract a common-law marriage while they were in Colorado.

Whenever cohabitation between a man and a woman is commenced, at a point in time when either or both of them is under a disability with respect to the contracting of a valid marriage, strong affirmative evidence is required to show that a marriage was consummated after the impediment was removed. More simply stated, if the relationship is illicit in the beginning, strong evidence is required to demonstrate a change in the status. Clark v. Clark, 123 Colo. 285, 229 P.2d 142 (1951); People v. Shaw, 259 Ill. 544, 102 N.E. 1031 (1913); In re Binger’s Estate, supra; Schaffer v. Krestovnikow, 89 N.J. Eq. 549, 105 A. 239 (1918); Henry v. Taylor, 16 S.D. 424, 93 N.W. 641 (1903); State ex rel. Smith v. Superior Court for King County, supra; Williams v. Williams, 46 Wis. 464, 1 N.W. 98, 32 Am. Rep. 722 (1879).

A common thread running through the cases is that of the intent of the parties. It is the same intent that must be found whenever the existence of a contract is alleged, because, marriage, irrespective of whatever other adventurous undertaking it may be, is also a contract. If one of the parties to an alleged contract has no intent to enter into the agreement, there is no meeting of the minds and no valid contract exists.

The evidence in the instant case showed that Mr. Goldin on several occasions expressed a desire to enter into a civil marriage ceremony, but that Mrs. Goldin spurned his effort by asserting, "we are already married.” Those proposals and rejections occurred prior to the Pennsylvania ski-trip weekends. They are, however, quite illustrative of the fact that neither party had the intent to become married under Pennsylvania common-law — Mr. Goldin, because he expressly testified he had no such intent, and Mrs. Goldin, because, if, as she said, "we were already married,” then obviously she would not have had the intent to do in Pennsylvania what she already considered as a fait accompli.

We are unwilling to hold that a man and woman who travel from this State into a State that recognizes common-law marriages and cohabit for a few days are thereby deemed, in the eyes of the law, to be man and wife, unless there is shown a clear intent to enter into that status.

The Supreme Court of Oregon hit the nail on the head when it said, in Walker v. Hildenbrand, supra:

"Common sense would indicate that something as serious and vital to the welfare of society as a determination of the marriage relation should not rest on something as insubstantial as a holiday visit to a common-law marriage state with a person of the opposite sex during which the participants held themselves out as husband and wife. This is particularly so where there is no evidence that the parties were aware that any change in their marital status would result or that the visit was made for the purpose of consummating a marriage.” 243 Or. at 122-23, 410 P.2d at 246.

We agree with Judge Shearin that the appellant did not meet the burden of proof. Under the evidence adduced it was not shown that the parties intended their weekend or holiday ski trips to be construed as entry into a common-law marriage. We further hold that for purposes of this case, at least, Pennsylvania is not part of Heaven.

Decree affirmed.

Costs to be paid by appellant.

      . C 1554-1606.

      . Mother Bombie [1590] Act IV, sc. i.

      . Morris Dictionary of Words and Phrase Origins, p. 369, defines "married name” as follows:
      "Most women take their husband’s surnames at the time of marriage, although there have been exceptions. It all goes back to Roman times, when there were fewer names to go around and as a result, much confusion between the Octavias and Lauras. So when Octavia married Cicero, for example, she became Octavia Ciceronis (Octavia of Cicero). Before long the possessive case ending — nis dropped off, and she became simply Octavia Cicero — and that’s the way it is today.”

      . The Commonwealth of Virginia does not permit the contracting of common-law marriages within its borders.

      . A method of titling of property that is reserved exclusively to husband and wife.

      . Laccetti v. Laccetti, 245 Md. 97, 225 A.2d 266 (1967); Henderson v. Henderson, 199 Md. 449, 87 A.2d 403 (1952); Bannister v. Bannister, 181 Md. 177, 29 A.2d 287 (1942); Marshall v. Stefanides, 17 Md. App. 364, 302 A.2d 682 (1973).

      . See Justice Holmes, dissenting, Travers v. Reinhardt, 205 U.S. 423, 442, 27 S. Ct. 563, 51 L. Ed. 865 (1907).

      . See J. W. Madden, Handbook on the Law of Persons and Domestic Relations (1931) ch. 1, p. 68 and cases therein cited.


author: Weant, J.,

text:
    JOHN EDWARD SACRA, Individually and Personal Representative of the Estate of John Edward Sacra, Jr. v. HENRY C. SACRA et ux.
    [No. 698,
    September Term, 1980.]

      Decided March 6, 1981.

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

      Harry J. Trainor, Jr., with whom were Greenan, Walker & Kupferberg on the brief, for appellant.

      Paul V. McCormick, with whom were Mary E. McCormick and Mclnerney, Layne, McCormick, Sullivan & Rice on the brief, for appellees.
   Weant, J.,

delivered the opinion of the Court.

This appeal is from the action of the Circuit Court for Montgomery County sustaining without leave to amend the appellees’ demurrer to the appellant John Edward Sacra’s two count declaration alleging a wrongful death action as well as a survival action.

The actions complained of arose out of an accident that occurred on or about 16 September 1979, at which time Henry C. Sacra was driving a camper truck, which was owned by him and his wife Hazel, the appellees herein, on Delaware Route 12 just north of the Maryland-Delaware State line. Tragically Mr. Sacra failed to stop the camper at a Delaware stop sign and consequently it was struck by another vehicle, which was traversing the intersecting Delaware highway. This impact caused the Sacra vehicle to be pushed across the Maryland State line where it struck a Maryland utility pole, overturned, and then exploded into flames. As a result, John Edward Sacra Jr., the appellant’s decedent, died of thermal burns, as did the decedent’s cousin, Norman C. Sacra Jr. Subsequently, John Edward Sacra, individually and as personal representative of the estate of John Edward Sacra Jr. filed suit against Henry C. Sacra and Hazel Sacra, seeking expenses and damages as a result of the appellees’ negligence. As was noted above, the trial court disposed of the wrongful death and survival actions by granting the appellees’ demurrer without leave to amend.

On appeal the following questions are presented by the appellant:

1. Did the lower court commit error in sustaining Defendants’ Demurrer to Count I (Wrongful Death) on the ground that Delaware substantive law applies to this cause of action, because the statutory choice-of-law rule in wrongful death actions directs application of the substantive law of the jurisdiction where the wrongful act occurred, and Plaintiffs Amended Declaration clearly alleges that the wrongful act occurred in Maryland?
2. Did the lower court commit error in sustaining Defendants’ Demurrer to Count II (Survival Action) on the ground that Delaware substantive law applies to this cause of action, because the common law lex loci delicti rule directs the courts, on tort questions, to apply the substantive law of the place of injury, and Plaintiffs Amended Declaration clearly alleges that the injury causing death occurred in Maryland?
3. Even if the lower court was correct in ruling that Delaware law controls the substantive issues of this case, did the lower court commit error in sustaining Defendants’ Demurrer to Plaintiffs Amended Declaration, because a critical question of fact (whether Plaintiffs decedent was or was not a guest passenger within the meaning of the applicable Delaware statute?) remains in dispute?
4. Even if the lower court was correct in ruling that Delaware law controls the substantive issues of this case, did the lower court commit error in applying a Delaware statute of debatable constitutionality that is contrary to strong public policy of the state of Maryland?

1. and 2.

Both of these inquiries raise the issue whether the substantive law of Maryland or that of Delaware should be applied in the instant case. It is theorized by the appellant that because the place of injury, i.e., death, was in Maryland, the choice-of-law rule and the lex loci delecti rules should be interpreted so as to result in the application of Maryland substantive law. On the other hand, the appellees maintain that the substantive law of the State of Delaware should govern because the controlling law should be that of the place where the force was set in motion or that of the place of the impact.

Neither party has cited a case directly on point, nor have we been able to find one involving the facts as they exist here, i.e., where the impact to a vehicle occurs in one state and it is forced across the state line by the impetus of said impact, causing the death in another state.

The appellant seems to suggest that there are two separate and distinct elements of the accident in question. He speaks of Delaware as being the place where the alleged wrongful act or omission took place and Maryland as being the place where the injury or death was inflicted. However, it is our opinion that there was a single, integrated accident, which occurred in Delaware and caused the death of the appellant’s decedent. The fact that the state line intervened between the impact and death was merely a fortuitous situation. Although we are not told exactly how close to the state line the accident occurred, we gather that the Sacra vehicle traveled less than fifty-seven feet after the impact with the other vehicle and before the impact with the Maryland utility pole. Thus, there was no substantial lapse of time or distance between the original impact and the resultant death of the victim. Moreover, it was only because of the harm in Delaware that the appellant has any claim. While the death could have occurred without the impact with the telephone pole, e.g., by spontaneous fire or crushing, no such damage could have transpired without the original collision. It is this happening that is the fons et origo of the unfortunate death of John Edward Sacra Jr., which in turn must be imputed to the locus of Delaware.

It follows then that the substantive law of Delaware should govern in this case. In the opinion of White v. King, 244 Md. 348, 352, 223 A.2d 763, 765 (1966) (citations omitted), Judge Oppenheimer, in speaking for the Court of Appeals, said: "This Court has consistently followed the rule that when an accident occurs in another state substantive rights of the parties, even though they are domiciled in Maryland, are to be determined by the law of the state in which the alleged tort took place.” The White case involved the successful effort of a defendant to use the guest statute of the State of Michigan in a Maryland court.

We therefore conclude that the answers to questions 1 and 2 should be in the negative.

3.

While our answers to questions 1 and 2 make available to the appellees the guest statute of the State of Delaware, nowhere in the amended declaration do we find any pleaded facts that show that John Edward Sacra Jr. was a guest when he became involved in the accident in question. Because of this, we think that the trial court erred in sustaining defendants-appellees’ demurrer to the plaintiff-appellant’s amended declaration. For this reason we shall reverse the trial court and remand for a determination of whether or not the decedent was a guest passenger within the meaning of the applicable Delaware statute.

4.

This question urges upon us the proposition that the trial court erred in applying the Delaware statute because of its alleged debatable constitutionality and because it is contrary to the strong public policy of the State of Maryland. As to whether the statute in question is constitutional, it appears that it has been upheld by the Delaware Supreme Court in Loper v. Street, 412 A.2d 316 (Del. Supr. 1980), with the comment that any change should be made by the General Assembly. Moreover, in White, supra, the Maryland Court of Appeals had no difficulty approving .the use in our courts of a similarly designed Michigan guest statute. Therefore, the public policy referred to by the appellant is not as strong as he suggests.

Accordingly, we find no merit in the suggested propositions of question 4.

Reversed and remanded for further proceedings in accordance with the opinion of this court.

Costs to abide result.

      . In the proceedings in the circuit court, the appellees filed a notice of intent to rely upon foreign law, specifically Del. Code tit. 21, § 6101 (a), the Delaware Automobile Guest Statute, which provides in part that “[n]o person transported by the owner or operator of a motor vehicle ... as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident was intentional on the part of such owner or operator or was caused by his wilful or wanton disregard of the rights of others.”


author: MacDaniel, J.,

text:
    DARRELL EDWIN BRISCOE and THOMAS BLUE JOWERS v. STATE OF MARYLAND
    [No. 704,
    September Term, 1980.]

      Decided March 6, 1981.

    The cause was submitted on briefs to Moylan, Moore and MacDaniel, JJ.
    Submitted by Claudia A. Córtese, Assistant Public Defender, and Alan H. Murrell, Public Defender, for appellants.
    Submitted by Stephen Rosenbaum, Assistant Attorney General, Stephen H. Sachs, Attorney General, and John R. Salvatore, State’s Attorney for Washington County, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

On February 15, 1980, in the Circuit Court for Washington County, appellants Darrell Edwin Briscoe and Thomas Blue Jowers pled guilty to first degree murder. They were convicted, and on May 12,1980, Briscoe was sentenced, to life in prison, while Jowers received a sentence of fifteen years’ imprisonment. On appeal both appellants contend the court erred in failing to establish that they understood the nature of the offense to which they pled guilty, as required by Maryland Rule 731 c. Additionally, appellant Jowers contends that his guilty plea was entered involuntarily, and that the charges against him should have been dismissed because of a violation of Maryland Rule 746 a.

The victim, Jerry Bullitt, was shot in the back of the head with a shotgun sometime on Tuesday, June 26,1979. Appellants had induced Bullitt to drive them from Mercersberg, Pennsylvania, to Hagerstown, Maryland; they planned to rob the victim en route. In statements given to the police following their arrest, both appellants admitted their participation in the offense, except that each claimed the other had fired the fatal shot.

I.

Appellants first argue that the record fails to disclose that each defendant entered his plea "voluntarily, with understanding of the nature of the charge and the consequences of the plea,” as required by Maryland Rule 731 c.

We note that before the court accepted appellant Briscoe’s plea it questioned him as follows:

"Q. Mr. Briscoe, have you received a copy of the charging document, have you read it, discussed it with your lawyer and do you understand all the charges against you?
A. Ido.
Q. Mr. Hovermale [Briscoe’s trial counsel], have you advised your client of the nature of the charges against him and the consequences of a guilty plea to the First Count of First Degree Murder?
MR. HOVERMALE: Yes, I have, your Honor.
Q. Mr. Briscoe, do you understand the charge to which you are pleading guilty, that is First Degree Murder on June 26, 1979 of a Jerry Irwin Bullitt?
A. Yes sir.”

And prior to accepting appellant Jower’s plea the court questioned him in like manner:

"Q. Have you received a copy of the charging document, have you read it, discussed it with your lawyer and do you understand the charges against you?
A. Yes sir.
Q. Mr. Padula [Jower’s trial counsel], have you advised your client of the nature of the charges against [him] and the consequences of a guilty plea?
MR. PADULA: Yes, your Honor.
Q. Mr. Jowers, do you understand the charge to which you are pleading guilty, that is First Degree Murder on June 26, 1979 of Jerry Irwin Bullitt?
A. Yes sir.”

Lately there has been some confusion as to exactly what Rule 731 c requires, but now that confusion is at an end. State v. Priet, Md. (1981) [No. 17, Sept. Term, 1980, filed January 14, 1981], has established that "[t]he test [in reviewing guilty pleas] ... is whether, considering the record as a whole, the trial judge could fairly determine that the defendant understood the nature of the charge to which he pleaded guilty.” (Slip Opinion, State v. Priet, supra, at 34.)

Elsewhere the Court stated:

"Consistent. . . with the rationale underlying our decision in Davis [v. State, 278 Md. 103 (1976)], Rule 731 c does not impose any ritualistic or fixed procedure to guide the trial judge in determining whether a guilty plea is voluntarily and intelligently entered. The rule does not require that the precise legal elements comprising the offense be communicated to the defendant as a prerequisite to the valid acceptance of his guilty plea. Rather, by its express terms, the rule mandates that a guilty plea not be accepted unless it is determined by the court, after questioning of the defendant on the record that the accused understands the 'nature of the charge. This, of course, is an essential requirement of the rule and must be applied in a practical and realistic manner. It simply contemplates that the court will explain to the accused, in understandable terms, the nature of the offense to afford him a basic understanding of its essential substance, rather than of the specific legal components of the offense to which the plea is tendered. The nature of some crimes is readily understandable from the crime itself. Necessarily, the required determination can only be made on a case-by-case basis, taking into account the relevant circumstances in their totality as disclosed by the record, including, among other factors, the complexity of the charge, the personal characteristics of the accused, and the factual basis proffered to support the court’s acceptance of the plea. See, e.g., Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970), holding that the voluntariness of a guilty plea 'can be determined only by considering all of the relevant circumstances surrounding it.’ Id. at 749.”
(State v. Priet, supra, Slip Opinion at 29-30.)

In our view, considering the record as a whole, the trial judge could fairly determine that both appellants understood the nature of the charge to which they pled guilty. Since this is appellant Briscoe’s only allegation of error, we shall affirm his conviction, and proceed to consider appellant Jower’s other allegations of error.

II.

Appellant Jowers also contends that his plea was involuntarily entered, and that the charges against him should have been dismissed for violation of Maryland Rule 746, § a of which provides:

"a. General Provision.
Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), á trial date shall be set which shall be not later than 180 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel).”

Appellant asserts he was brought to trial beyond the 180-day deadline set by the rule.

Our review of the record discloses the following facts. Appellant’s counsel entered his appearance on August 22, 1979. On September 21, 1979, appellant filed a Motion for Removal, contending he could not receive a fair trial in Washington County. On November 9, 1979, the State filed notice of its intention to seek the death penalty. The trial judge had been aware that the parties had been engaged in plea negotiations and that they desired him to delay ruling on appellant’s Motion for Removal.

On January 16, 1980, (still within the 180-day period prescribed by Rule 746 a) the trial judge held a conference in chambers to determine the status of the case. The parties advised the court that a plea bargain had been struck: the State agreed not to seek the death penalty and to drop all other charges against appellant provided that he plead guilty to first degree murder. The parties further advised the court that in view of their agreement appellant’s Motion for Removal should be considered moot, not requiring a ruling.

There is nothing in the record to indicate how or when a date for hearing on the guilty plea was set. It appears that, having reached agreement on a plea, the parties simply went along, oblivious to the fact that the 180-day rule might apply to their case. Appellant Jowers was incarcerated and it was obvious, or at least it should have been, that he would receive a substantial sentence, and that he would receive credit for time served. At any rate, trial was set for February 25, 1980 — seven days beyond the 180-day deadline.

Against this background we can at least understand — if not condone — the trial court’s reaction upon being advised on the day of trial that appellant had filed a Motion to Dismiss, pursuant to Rule 746. We find it necessary to quote the entire colloquy between the court and counsel regarding the motion.

"THE COURT: Mr. Padula, you represent Mr. Jowers?
MR. PADULA: I do, your Honor.
THE COURT: You have something preliminarily, Mr. Padula?
MR. PADULA: Yes, your Honor. With your permission I would like to file this written Motion to Dismiss.
THE COURT: Mr. Padula, I have your Motion to Dismiss and quite frankly I am shocked and surprised that you would file it. It’s my recollection, Mr. Padula, that in a conversation that I had with you that you advised this Court that your client wished to enter a plea in this case, is that correct?
MR. PADULA: This is correct, your Honor.
THE COURT: Are you advising me at this time that since a hundred and eighty days is now passed that you no longer wish to enter a plea in this case?
MR. PADULA: No, your Honor, for the Motion...
THE COURT: Wait a minute. Just yes or no?
MR. PADULA: No.
THE COURT: This case was never scheduled for trial because of your representation that there was going to be a plea, and of course, any incarceration that your client had he would be given credit for that, for any sentence which he incurred and, as a result, other cases were scheduled for trial and not your case. As a matter of fact, there’s a Motion in this to remove this case to Garrett County, is there not?
MR. PADULA: Yes, there is.
THE COURT: And there was a Motion to remove filed in another case that was recently removed to Garrett County which was scheduled to start for trial in two weeks, isn’t that correct?
MR. PADULA: That’s correct, your Honor.
THE COURT: And didn’t I advise you that I was going to act on the Motion unless I heard from you or your client whether or not there was to be a plea?
MR. PADULA: Yes, your Honor, you did.
THE COURT: And didn’t I in fact tell you that if this case was going to be removed, it was going to go to trial?
MR. PADULA: Yes, your Honor, you did.
THE COURT: So now you are telling me that since 180 days have now passed that you are now coming in here telling me that you are not going to enter a plea?
MR. PADULA: I didn’t say that, your Honor. I’m fíling a Motion to Dismiss under the Hicks Rule which I fell [sic] duty bound to do.
THE COURT: Is your client representing to you at this time that he is no longer going to honor his representation to you and to this Court that he intends to enter a plea in this case?
MR. PADULA: No, your Honor.
THE COURT: He is or is not?
MR. PADULA: He is, depending your determination of the Motion.
THE COURT: Mr. Padula, I am shocked. I am absolutely shocked. Now, we don’t play these games around here, Mr. Padula. When somebody comes as an officer of this Court and represents to this Court that their client intends to enter a plea, this Court, as far as it’s concerned, takes that as being an officer of this Court speaking to the Court and being bound by it and not that they are offering that so that the case won’t get removed or the case won’t get scheduled for trial so we can wait for another 180 days to pass. Now, if your client is saying that he does not want to enter a plea to this case, then I will entertain the Motion and I will rule upon that Motion and I will act on the other Motions in this case. But the last action that was taken in this case was the representation by you on behalf of your client that your client desired to enter a plea, and that is the thing that is before this Court right now as far as this Court is concerned. Now, if your client is representing to you that he does not want to plea, it is certainly his right. He may do so, and I would advise you, Mr. Padula, that I would think then him having then changed his mind with regard to you that you would no longer be in a position to represent him. I’m not going to accept this Motion. I’m going to let the Judge in the other County take care of it. In fact you can take Mr. Jowers back to jail. I told you before that [if] this case got removed, there wasn’t going to be any plea bargain in this case; that the State filed an intent to seek the death penalty and if this case was going to be removed, then it was going to be removed. If it wasn’t going to be removed, then I wanted to know whether you were going to plead or not. You advised me that you were going to plead. You did not at that time advise me that you were going to plead provided that you got to plead within two days or three days. You did not advise this Court nor to my knowledge anyone else that it was your intent to wait until 180 days passed and then file a Motion for a dismissal because the State’s Attorney scheduled other cases ahead of yours.
MR. PADULA: Your Honor, may I be heard?
THE COURT: Alright, Mr. Padula.
MR. PADULA: What you said, your Honor, is exactly correct. You indicated to me and co-counsel I’m sure that you wanted to act on our Motion for Removal to some other County for trial on this case. Before removing the case you wanted to know whether or not a certain plea negotiation enter[ed] into between the State and defense would be accepted or rejected, and co-counsel and I did meet with our clients in January, January 14th or 15th.
THE COURT: Well within 180 days.
MR. PADULA: Well within 180 days.
THE COURT: Right.
MR. PADULA: And advised the Court on January the 16th that the case need not be removed, we would take the plea bargaining.
THE COURT: Well within 180 days.
MR. PADULA: Well within 180 days. But I do not know and somewhat hesitant to make a determination as to what my obligation is with respect to this rule.
THE COURT: Your obligation as an officer of this Court is to honor your commitments. If your client doesn’t want to honor the commitment, then I suggest to you that you no longer have a position in this case. I will get Mr. Jowers another lawyer. If you want to continue as Mr. Jowers’ lawyer, that’s okay too.
MR. PADULA: May I have your permission to discuss this with my client, your Honor?
THE COURT: Well, Mr. Padula, you filed a Motion to Dismiss for 180 days and I assume that 180 days are now passed and I assume that Mr. Salvatore will stipulate to that. Is that right?
MR. SALVATORE: That’s correct, your Honor.
THE COURT: And I’m going to deny your Motion for the very reason I have stated, that this case would have gone to trial well within 180 days except for you represented to this Court that your client wished to plead guilty, and quite frankly, I think any waiting until the passage of 180 days rule and then filing such a Motion is a deliberate attempt to sandbag the State’s Attorney and to mislead this Court and I’m just not going to have it. Your Motion is denied.
MR. PADULA: Your Honor, the Motion isn’t filed to mislead the Court or to sandbag the State’s Attorney I can assure you.
THE COURT: Most certainly is. Cannot be taken for any other thing. You’re an officer of this Court and you tell this Court your client is going to plead guilty, I expect your client to plead guilty. If your client advises you he no longer wants to plead, I expect you to advise this Court of that also. I don’t expect you to come in here and tell me that on the one hand you intend to honor your commitment if in fact this case is not dismissed because it hadn’t been brought within 180 days. This case has only been delayed because of your representation to this Court that there would be a plea. I can assure you that this case would have been tried in the month of February had it not been for your representation.
MR. PADULA: I’m sure it would have been, your Honor.
THE COURT: That’s right.
MR. PADULA: I wouldn’t dispute that one bit, but when it wasn’t the State had a month to set it in and they set it in within three hours ...
THE COURT: What possible difference does it make, Mr. Padula, if your client is going to plead guilty and get credit for time served? Now, we have a lot of other cases that have got 180 day rule running against them. Are you telling me that as soon as you represent to this Court that your client intends to plead guilty, that we’re supposed to march him in here ahead of everybody else?
MR. PADULA: Well, your Honor, I must confess that I don’t know that a plea bargaining arrangement tolls 180 days. If it does, I stand in error.
THE COURT: That’s not what’s got me upset, Mr. Padula. What’s got me upset is you told this Court there was going to be a plea.
MR. PADULA: Yes sir.
THE COURT: And you didn’t say anything about — well, it’s the 179th day, Judge, we’re going to plead in this case — and then we let it go for a week and you come back a week later and say — gee, Judge, it’s 186 days, now we want it dismissed. It just doesn’t work that way, Mr. Padula. And I’m sorry. Now, your Motion is denied.
MR. PADULA: Well, are you going to file it and mark it denied?
THE COURT: It’s filed.
MR. PADULA: Now, may I reask my question? May I have a moment to speak to my client?
THE COURT: You can speak to your client anytime you want to; he’s going back up to jail and I’m removing the case to Garrett County where I assume the State’s going to prosecute on the First Count, unless your client wants to change his mind right here and now.
MR. PADULA: That’s why I wanted a moment to speak with him, your Honor.
THE COURT: Alright, sit down. You can speak to him while we’re doing Mr. Briscoe.” (Emphasis added.)

In questions concerning application of Maryland Rule 746, the Court of Appeals’ decision in State v. Hicks, 285 Md. 310 (1979), is dispositive. In that case the Court held that the Rule’s 180-day requirement is mandatory, and that the appropriate sanction for its violation is dismissal of the charges against a defendant. The Court admitted two specific exceptions to the Rule: first, where "extraordinary cause” exists and, second, where the defendant "seeks or expressly consents” to a trial date beyond the 180-day period. Hicks, supra, at 335. The Court expressed its view, as a general proposition, that "it would... be entirely inappropriate for the defendant to gain advantage from a violation of the Rule when he was a party to that violation.” Id.

The Court of Appeals took particular care to discuss the purpose which the Rule was designed to serve, and to demonstrate that its holding comported with the Maryland Legislature’s clearly expressed intention to eliminate excessive scheduling delays and unjustifiable postponements, and so to obtain prompt disposition of criminal charges. Id. pp. 315-318. This recourse to "first principles” by the Court of Appeals is mirrored in our own opinion construing Hicks, supra, and applying Maryland Rule 746 a. In State v. Lattisaw and Keeling, Md. App. (1981) [No. 883, September Term, 1980, filed March , 1981], defense counsel had inadvertently consented to a trial date beyond the 180-day period. Upon discovering his error, he moved for dismissal under the Rule and the motion was granted. The State appealed and we reversed, holding that dismissal of the indictment was inappropriate under the facts of the case. Judge Wilner expressed the opinion of this Court as follows:

"We think that the court, in all good faith, gave too limited a reading to what the Court of Appeals said in State v. Hicks; and, as a result, it gave an interpretation to Rule 746 a that is unnecessary and incorrect.
"Although the dissent in Hicks viewed the requirements of Rule 746 a primarily from the perspective of the defendant — as an extension of his Constitutional right to a speedy trial — the majority looked upon it more from a societal point of view, as a device to alleviate the problems caused to the criminal justice system by delays in initially scheduling cases for trial and by the inappropriate postponing of scheduled trial dates. See the discussion at pp. 316-318 of 285 Md. Both aspects are, of course, important; the point we make is that the Rule was not intended solely to confer new rights upon defendants, but also to hold their feet to the fire. As the Constitutional balancing test under Barker v. Wingo, 407 U.S. 514 (1972), implies, and as this very case so clearly indicates, delays in trial are not always and exclusively attributable to prosecutorial laxity.” (Slip Opinion, at pp. 7-8.)

And, in Henry Joseph Goins v. State, Md. App. (1981) [No. 849, September Term, 1980, filed March 4,1981], appellant argued for dismissal of the charges against him for violation of the Rule, notwithstanding the fact that the delay was directly attributable to lengthy psychiatric testing following his belated entry of a plea of not guilty by reason of insanity. We affirmed the conviction. Judge Moylan reviewed the Court of Appeals’ decision in Hicks, supra, and stated the view of this Court that,

"If we were to apply that portion of the Rule perversely and mindlessly, as the appellant urges, it would frustrate rather than serve the very purpose that gave birth to it. It is never sufficient to ask, 'What does the Rule say?’ without making the more significant inquiry, 'What was the Rule designed to accomplish?’ Fortunately, ample guidance has been provided in that regard. As Chief Judge Murphy carefully pointed out in State v. Hicks, at 285 Md. 318:
'The provisions of Rule 746 are. . . binding upon the prosecution and defense alike....’
The majority of the Court of Appeals in Hicks made it very clear that Rule 746, implementing Article ■ 27, Section 591, is a two-way street. In discerning the legislative intent behind Section 591, the Court of Appeals observed that the vexatious problem the General Assembly sought to remedy was the general problem of trial delay, civil as well as criminal, and operating to the detriment of society and the State just as surely as it sometimes operated to the detriment of criminal defendants.” (Slip Opinion, at pp. 5-6.)

We find the approach taken in Hicks, supra, and in our own cases particularly instructive, and appropriate to a resolution of the issue raised here. We first observe that had appellant insisted upon a ruling on its Motion for Removal on January 16, 1980, it would have been practically impossible to have rescheduled trial in another county before expiration of the 180-day deadline. Had the motion been granted, and a violation of Maryland Rule 746 a subsequently alleged, we have no doubt the removal would have been held to constitute "extraordinary cause” and the sanction of dismissal refused. As it was, however, the court only stayed its ruling on the motion upon advice that the parties had concluded plea negotiations, that appellant had agreed to enter a guilty plea and that his motion could therefore be considered "moot.” Under these circumstances — where appellant first sought removal of the case and then sought to obviate the need for trial altogether by entering a guilty plea, all within the 180-day period — we think appellant must be deemed to have waived the sanction for failure to comply with Maryland Rule 746 a. We think that to hold otherwise would be precisely to permit appellant "to gain advantage from a violation of the Rule when he was a party to that violation,” contrary to the view which the Court of Appeals expressed in Hicks, supra, at 335. Such a holding in this case could not possibly preserve or advance the interest which the Rule was designed to protect. No one’s legitimate speedy trial interests — either the defendant’s, the State’s or society’s in general — can be said to have suffered, for the simple reason that the parties here as much as agreed that there would be no trial. We do not mean to suggest that, once appellant agreed to enter his guilty plea, he was irrevocably bound to honor it. We merely hold that, having so agreed, within the period prescribed by Maryland Rule 746 a, he may not now complain of a violation of the Rule merely because his plea was not entered and accepted until after that period had expired.

As an alternate ground for affirmance as to this issue in the case, we note that, having entered his guilty plea, appellant must be deemed to have waived the right to object to a violation of Maryland Rule 746, for it is well-settled that "a plea of guilty, effectively accepted, waives all procedural objections, constitutional or otherwise, and all non-jurisdictional defects... .” English v. State, 16 Md. App. 439, 443 (1973). And see Stevenson v. State, 37 Md. App. 635 (1977).

As for appellant’s contention that his guilty plea was involuntarily entered, he argues that the trial court’s remarks, supra, coerced him into entering his plea. Having carefully reviewed these remarks, we think that appellant’s present assertion amounts to little more than a calculated attempt to capitalize upon the trial court’s impatience. At the outset, we wish to emphasize that our holding here should by no means be construed to condone the trial court’s unfortunate remarks — even though we may sympathize with its irritation. But, in the first place, the record clearly reflects that the trial court’s remarks were not directed to appellant in any way, but rather to appellant’s counsel, in response to the court’s misperception that counsel had in some sense deceived the court. Furthermore, appellant’s counsel indicated from the outset of the conference — before the trial court uttered its remarks — that appellant intended to plead guilty should his Motion to Dismiss be denied. Finally, appellant can hardly have been unaware of the consequences had he decided not to enter a guilty plea: the State would have reinstated all the charges against him which were originally lodged, and it would have sought the death penalty once again. Under these circumstances, we hardly think appellant needed any "persuasion” from the trial court in order to enter his guilty plea. We think his present assertions are without merit and hold that his guilty plea was entered voluntarily.

Judgment affirmed; appellants to pay the costs.

      . Once again, there is nothing in the record to indicate how this date came to be set. Did appellant agree to set the trial for February 25th? Or did the State merely notify appellant of the date, and if so, when?

      . On November 16,1979, subsequent to its decision in Hicks, the Court of Appeals amended Maryland Rule 746 a, with immediate effect, to change the required trial date to not later than 180 days. Formerly, the Rule prescribed a 120-day period. Although, to be precise, Hick’s holding referred to the 120-day Rule, the holding has been applied with equal force to the Rule as amended. See Hughes v. State, 288 Md. 216 (1980).

        . See State v. Mines a/k/a Stephenson, Md. App. (1981) [No. 949, September Term, 1980, filed March 3, 1981], Judge Orth’s opinion for this Court contains an excellent discussion of the origins of Rule 746, and the purposes it was designed to serve.

      . We refer to the italicized portion of the colloquy reproduced supra, at pp. 5 and 6.


text:
    THERESA AREMENTA WRIGHT v. STATE OF MARYLAND
    [No. 720,
    September Term, 1980.]

      Decided March 6, 1981.

    The cause was argued before Liss, MacDaniel and Weant, JJ.

      llene Cohen, Assigned Public Defender, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Robert C. Bonsib, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

In March and April, 1980, appellant Theresa Arementa Wright was tried by a jury in the Circuit Court for Prince George’s County and convicted of assault and battery and use of a handgun in the commission of a felony or crime of violence. Appellant was sentenced to five years’ imprisonment for each offense, the sentences to be served concurrently. On appeal she presents the following questions:

1. Did the court below err in joining for trial two separate cases where, in one case, the mandatory requirements of Maryland Rule 723 had not been complied with?
2. Is appellant’s conviction of use of a handgun in the commission of a felony or crime of violence illogical and unduly harsh in light of her acquittal of any felony or crime of violence?

The facts may be briefly stated. On August 24, 1977, appellant’s estranged husband arrived at appellant’s apartment to pick up their children for a scheduled visit. The couple began to quarrel. Appellant brandished a pistol, the gun was fired and a bullet grazed the visitor’s head. Appellant maintained that she fired the gun accidentally.

On September 19,1979, appellant was indicted for assault with intent to murder, unlawful shooting and assault and battery. Appellant first appeared before the court on September 24,1979, for a preliminary hearing in accordance with Maryland Rule of Procedure 723 (Appearance — Provision for or Waiver of Counsel.). At appellant’s request she was referred to the Office of the Public Defender, where she obtained counsel. Appellant’s attorney filed his appearance on her behalf on October 8, 1979, and preparation for trial began.

Through the State’s inadvertence or neglect, appellant’s indictment failed to contain a count charging the use of a handgun in the commission of a felony or crime of violence.

The State discovered the omission sometime in February, 1980, whereupon the Assistant State’s Attorney assigned to the case called appellant’s counsel to notify him of the error and to advise him that a handgun charge would be lodged against his client. Subsequently, appellant was charged with the handgun offense in Criminal Information No. 80-245; it was filed March 19, 1980, one week before trial. Appellant was also notified to appear before the court on April 4, 1980, for a preliminary hearing in accordance with Maryland Rule 723.

Trial of the charges contained in the indictment came on before the court on March 26, 1980, at which time the State made a motion to consolidate them with the charge contained in the criminal information. Appellant’s counsel objected vigorously. He admitted that he had been aware of the State’s error long before the State itself discovered the mistake, but explained that "naturally [he] did not bring that oversight to the State’s attention.” He also conceded that he was not claiming surprise, or that he was unprepared to mount a defense to the handgun charge. Counsel’s only ground for objection to the consolidation was that, respecting the criminal information, appellant had yet to be provided an initial appearance pursuant to Maryland Rule 723. Counsel argued that compliance with the rule is mandatory, and that the appellant would be prejudiced by having to proceed to trial "on a case that really [was] not before the court.” Appellant’s objection was overruled, the motion to consolidate was granted and the case proceeded to trial. Although appellant was convicted of assault and battery and use of a handgun in the commission of a felony or crime of violence, she was acquitted of assault with intent to murder and unlawful shooting.

Appellant here renews the objections to the court’s ruling which she made at trial. She has not objected to the consolidation of the charges against her per se. She merely argues that consolidation was precluded here because, respecting the charge contained in the criminal information, "she had no opportunity to be advised by a judicial officer of her right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, to retain an attorney or to decide to defend pro se. ” She also argues that the trial court incorrectly presumed that, since she had earlier elected to retain counsel, she would do so again in defense against the handgun charge.

As presently codified, Rule 723 prescribes the initial appearance of the criminal defendant before the court, and governs provision for or waiver of counsel. Section a of the rule requires a criminal defendant to "appear in person at the time and place specified in the summons or writ issued pursuant to Rule 720 (Original Summons, Warrant and Notice to Appear), unless his counsel enters an appearance for him in writing on or before that time.” Section b of the rule applies whenever a defendant appears in court pursuant to § a unaccompanied by counsel. Under such circumstances, the rule states that the court shall:

"1. Make certain that the defendant has received or receives a copy of the charging document;
2. Advise the defendant that he has a right to be represented by counsel at every stage of the proceedings;
3. Advise the defendant of the matters required by subsections 1, 2 and 3 of section c of this Rule;
4. Advise the defendant who desires counsel that he must retain the services of counsel and have counsel enter an appearance for him within 15 days;
5. Advise the defendant that if he finds he is financially unable to retain the service of private counsel, he should apply to the Public Defender as soon as possible for a determination of his eligibility to have counsel provided for him by the Public Defender;
6. Advise the defendant that if the Public Defender declines to provide representation, the defendant should immediately notify the clerk of the court so that the court can determine whether it should appoint counsel pursuant to Article 27A, section 6 (f), of the Maryland Code;
7. Advise the defendant that if counsel does not enter an appearance within 15 days, a plea of not guilty will be entered pursuant to section b 3 of Rule 731 (Pleas), and the defendant’s case will be scheduled for trial. The court shall also advise the defendant that if he appears for trial without counsel, the court could determine that he has waived his right to counsel by neglecting or refusing to retain counsel or to make timely application to the Public Defender for counsel, and in that event, the case would proceed with defendant unrepresented by counsel.”

And § c of the rule prescribes the inquiry to be made when a defendant indicates that he does not want representation:

"When a defendant indicates a desire or inclination to waive counsel, the court may not accept the waiver until it determines, after appropriate questioning on the record in open court, that the defendant possesses the intelligence and capacity to appreciate the consequences of his decision, and fully comprehends:
1. The nature of the charges against him, any lesser included offenses, and the range of allowable penalties, including mandatory and minimum penalties, if any;
2. That counsel can render important assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof, and in preparing for and representing him at trial;
3. That even if the defendant intends to plead guilty, counsel may be of substantial assistance in developing and presenting information which could affect the sentence or other disposition;
4. That if the defendant is found to be financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him.”

We believe we have been asked to construe Rule 723 under circumstances so unusual as to be described as sui generis. It is true, as appellant points out, that the Court of Appeals has consistently held that the rule implements the Sixth Amendment constitutional mandates, and that its provisions are mandatory. Snead v. State, 286 Md. 122 (1979); Thompson v. State, 284 Md. 113 (1978); State v. Bryan, 284 Md. 152 (1978). So has this Court. Berry v. State, 41 Md. App. 563 (1979); Bryan v. State, 39 Md. App. 250 (1979), aff'd, State v. Bryan, supra. But having reviewed these and other cases construing the current rule and its predecessors, we find them inapposite. An inquiry in accordance with the rule has been held mandatory whenever a defendant appears before the court without counsel. Thompson v. State, supra. See also State v. Bryan, supra; Taylor v. State, supra; Williams v. State, supra; Hill v. State, supra; Brown v. State, 27 Md. App. 233 (1975). And an inquiry has also been held mandatory whenever an accused expresses dissatisfaction with counsel and requests time to obtain new counsel, State v. Renshaw, 276 Md. 259 (1975), see Snead, supra, or when an accused requests permission to conduct his own defense, Snead, supra, State v. Bryan, supra, Berry v. State, 41 Md. App. 563 (1979).

But in this case appellant was represented by counsel. A hearing in accordance with Maryland Rule 723 had been conducted soon after appellant’s indictment. As a direct result, appellant was referred to the Offices of the Public Defender, where she obtained the services of counsel who represented her continuously thereafter. At no time did appellant ever express dissatisfaction with her appointed counsel. At no time did appellant ever request the appointment of different counsel. At no time did appellant ever request permission to conduct her own defense. Under these circumstances, we think appellant’s insistence upon the right to a hearing in accordance with Maryland Rule 723, merely because one of the counts against her was contained in a separate charging document, is without merit. We think that were we to adopt such a holding in this case, it would not amount to a vindication of the rule, but rather to a perversion of the rule.

The facts in this case, and their relation to the question raised here, are indeed peculiar. Although this Court and the Court of Appeals have often said that the Maryland Rules of Procedure are "precise rubrics” which are to be read and followed, State v. Diggs, 24 Md. App. 681, 682 (1975), Brown v. Fraley, 222 Md. 480 (1960), this case reminds us that the vicissitudes of practice are inexhaustible. So, "it must also be remembered that the Maryland Rules were, after all, established to promote — not to impede — the orderly and efficient administration of justice. Robinson v. Bd. of County Comm’rs, 262 Md. 342 (1971).” Darby v. State, 47 Md. App. 1, 8 (1980).

We cannot permit ourselves to forget the reason Maryland Rule 723 was adopted in the first place, and the end which it serves today. The rule provides an orderly procedure to insure that each criminal defendant appearing before the court be represented by counsel or, if he is not, that he be advised of his Sixth Amendment constitutional right to the assistance of counsel, as well as his correlative constitutional right to self-representation. In short, and as our Courts have said many times, the rule "implements the constitutional mandates”; but it does neither more nor less than that. Under the circumstances of this case a further proceeding in accordance with Maryland Rule 723 could not possibly have further advanced or better preserved any Sixth Amendment constitutional right. Appellant was represented by counsel, who was prepared to defend her against all the charges contained in the charging documents. Nor is there anything in the record to suggest that appellant ever expressed a desire to retain new counsel, or to conduct her own defense, sufficient to have required an inquiry under the rule. That being so, the rule had no application whatever to the proceedings at the time in question. Accordingly, we hold that the trial court was correct to overrule appellant’s objection to the State’s Motion to Consolidate the charges against her, and to proceed to trial.

Appellant also urges us to reverse her conviction for use of a handgun in the commission of a felony or crime of violence, arguing that the conviction is "illogical and unduly harsh” in light of her acquittal of assault with intent to murder and unlawful shooting. Appellant recognizes that the Court of Appeals has found no fatal inconsistency in a jury verdict containing a conviction under Article 27, § 36B (d), and an acquittal of any specific felony or crime of violence itself. Ford v. State, 274 Md. 546 (1975); Raley v. State, 32 Md. App. 515 (1976), cert. denied, 431 U.S. 965 (1976). Nevertheless, she urges us "to reexamine this approach in light of the exceedingly harsh results of the acceptance of this illogical principle.” We find neither the principle illogical nor the results exceedingly harsh. Ford, supra, is dispositive here.

Judgments affirmed. Appellant to pay the costs.

      . Article 27, § 36B (d), of the Annotated Code of Maryland (1957, 1976 Repl. Vol.).

      . Maryland Rule 723 was approved and adopted by Order of the Court of Appeals dated January 31, 1977, effective July 1, 1977, as part of the revision of Chapter 700 of the Maryland Rules of Procedure. The former rule, 719, and its predecessor, the original rule 723, contained less elaborate provisions for the appointment and waiver of counsel.

      . With respect to the former rule, see Manning v. State, 237 Md. 349 (1965); Taylor v. State, 230 Md. 1 (1962); Williams v. State, 220 Md. 180 (1959); Hill v. State, 218 Md. 120 (1958).

      . We re-emphasize that appellant did not object to consolidation of the charges against her per se. Rather, she merely argued that consolidation could not proceed until such time as a Rule 723 hearing had been held with respect to the charge contained in the criminal information. For our part, we think it clear beyond doubt that all the offenses charged included substantially the same facts, and that they occurred at the same time and place. Therefore, consolidation of the charging documents in this case was proper. Mason v. State, 12 Md. App. 655 (1971). See Maryland Rule 745.


text:
    JOHN BERNARD FITZSIMMONS and 400 E. BALTIMORE ST., INC. v. STATE OF MARYLAND
    [No. 805,
    September Term, 1980.]

      Decided March 6, 1981.

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

      Burton W. Sandler, with whom was Jerre S. Diener on the brief, for appellants.

      Michael A. Anselmi, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Prevas, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.

       Note: Certiorari denied, Court of Appeals of Maryland, September 15, 1981.

   Gilbert, C. J.,

delivered the opinion of the Court.

Md. Ann. Code Art. 27, § 418, provides:

"Any person who knowingly sends or causes to be sent, or brings or causes to be brought, into this State for sale or distribution, or in this State prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.” (Emphasis supplied.)

The appellants in this case, John Bernard Fitzsimmons and 400 East Baltimore St. Inc., were convicted in the Criminal Court of Baltimore, at a non-jury trial, for selling an allegedly obscene publication. Fitzsimmons was fined $750. The corporate appellant was fined $250.

Aggrieved at the trial judge’s refusal to grant their motion for judgment of acquittal on the ground that they were being tried for non-existent offenses, both appellants have carried their cause to this Court.

From the record, we learn that on September 20, 1978, Officer Danny Brown of the Baltimore City Police Department, in plain clothes, entered 400 E. Baltimore Street. There, he purchased a magazine entitled Swedish Erotica Number 11. The magazine, we are told, contained 30 to 35 pages. Officer Brown testified that "[t]he contents in the magazine ... [were] female subjects with a few males through out the magazine. It show[ed] various sexual actions that they ... [were] involved in.” He further commented that there was "a little bit of writing” which accompanied the pictures.

After he had purchased the magazine from Fitzsimmons, Officer Brown proceeded to the District Court judge’s chambers and obtained an arrest warrant for Fitzsimmons. The appellant, Fitzsimmons, was arrested shortly thereafter. The corporate appellant was served with a criminal summons by service on its resident agent.

Each case proceeded to trial in the Criminal Court of Baltimore on a separate "Charging Document.” The charging document with respect to Fitzsimmons read in pertinent part:

"[T]hat John Bernard Fitzsimmons ... on or about 20 — Sept, 1978 at 400 E. Baltimore St unlawfully did sell a [sic] obscene magazine to wit: Swedish Erotica # 11 on or about 20 — Sept. 78 in Baltimore City ... in violation of... S Ann. Code of Md. Art. 27 Sec. 418.”

The "Charging Document” with respect to the corporate appellant averred:

"[T]hat 400 E. Baltimore St. Inc. ... on or about 20 Sept, 1978 at 400 E. Baltimore St 400 E Baltimore St Inc a corporation licensed to do business in Maryland located at 400 E Baltimore St did distribute to Detective Danny Brown an obscene publication to wit 'Swedish Erotica # 11’ on 20 Sept 78 in violation of Art. 27 Sec. 418 of the ... [3 Ann. Code of Md. Art. 27 § 418.”

Both appellants moved to dismiss the charges brought against them by the State because of the State’s failure to allege scienter. The motions were denied.

The gravamen of the offense committed by violating Md. Ann. Code Art. 27, § 418 is that the accused shall have "knowingly” done so. Patently, if the accused were to unknowingly violate the statute, he is not guilty of the offense irrespective of the violation. Significantly, the charging documents omit entirely any averment that the appellants "knowingly” sold the magazine in contravention of the law.

Scienter or knowledge that the law is being violated by the seller is a fundamental ingredient of the offense. It must be alleged and proven by the State. Of course, no one can look into the mind of another so as to ascertain the other’s thought process. If that were required, there could be no conviction of offenses that require proof of scienter. The law, however, is not so myopic.

It has been, as Justice Brennan observed in Smith v. California, 361 U.S. 147, 154, 80 S. Ct. 215, 219, 4 L. Ed. 2d 205 (1959), "some time ... since the law viewed itself as impotent to explore the actual state of a man’s mind.” The demonstrated circumstances may permit the fact-finder to draw a rational inference that the seller was aware of the contents of the magazine, irrespective of his denial. Id. See also Commonwealth v. Corey, 351 Mass. 331, 221 N.E.2d 222 (1966), wherein the Commonwealth conceded that it produced no evidence that an accused obscene book seller possessed any knowledge of the content or character of the book.

A closely analogous case to that now before us is State v. Oman, 265 Minn. 277, 121 N.W.2d 616 (1963). There, Oman was charged with "unlawfully” selling "certain obscene ... magazines ... in violation of Sec. 617.24 M.S.A.....” Id. at 278, 121 N.W.2d at 618. The Supreme Court of Minnesota noted that they were, as are we, dealing with a criminal prosecution with underlying issues involving the constitutionally protected freedoms of speech and press, equal protection of laws, and due process.

Notwithstanding that the prosecution had alluded to the particular criminal statute involved, the Court said:

"It is well established that the charge must fully, directly, and expressly, without uncertainty or ambiguity, set forth all of the elements necessary to constitute the offense intended to be punished. Evans v. United States, 153 U.S. 584, 14 S.Ct. 934, 38 L.Ed. 830 [(1894)]. Although the statute in question, read in the light of common law and of other statutes on like matter, may enable the court to infer intent of the legislature, this fact does not dispense with the necessity of alleging all of the facts necessary to bring the case within that intent. A statement of the essential facts constituting the offense charged is indispensable to the validity of. the indictments.” (Emphasis supplied.)

In sum, the charging document must contain the elements intended to be charged. Those elements must be stated in language that " 'sufficiently apprises the .. . [accused] of what he must be prepared to ... [defend].’ ” Russell v. United States, 369 U.S. 749, 763, 82 S. Ct. 1038, 1047, 8 L. Ed. 2d 240, 250 (1962). See Pearlman v. State, 232 Md. 251, 192 A.2d 767 (1962), cert. denied, 376 U.S. 943 (1963); Seidman v. State, 230 Md. 305, 187 A.2d 109, cert. denied, 374 U.S. 807 (1962); Lynch v. State, 2 Md. App. 546, 236 A.2d 45 (1967), cert. denied, 393 U.S. 915 (1968). See also Cohen v. State, 125 So. 2d 560, 564 (Fla. 1960), wherein the Supreme Court of Florida held that an "information under which the appellant was charged was fatally defective for want of an averment that the appellant had sold and distributed the publication involved, knowing it to be obscene, lewd, etc. in character.”

It is axiomatic that a charging document is sufficient if it follows the wording of the statute, but that is not what happened in the instant case. Neither of the two "Charging Documents” copied the statute. Indeed, they are not even copies of each other.

The trial judge relied upon certain wording in Mason v. State, 12 Md. App. 655, 677, 280 A.2d 753, 767 (1971) wherein we said:

"It is well-settled that an indictment is sufficient if it informs the person charged of the accusation against him as required by Article 21 of the Maryland Declaration of Rights, and if the charge is made with sufficient definiteness to enable him to prepare his defense and to prevent the accused from being charged again with the same offense in a future prosecution. Lynch v. State, 2 Md. App. 546, certiorari denied in Lynch v. State, 89 S.Ct. 236; Reagan v. State, 4 Md. App. 590; Presley v. State, 6 Md. App. 419; Boddie & Brooks v. State, 6 Md. App. 523; and Ward v. State, 9 Md. App. 583. Both counts of the indictment informed the appellant with reasonable certainty of the charges against him, and actually specified the pertinent section of Article 27, which he allegedly violated. The drug was described as an hallucinogenic drug, and it is clear from a cursory reading of the indictment and the statute which is referred to in the indictment that the appellant is charged with a violation of Section 313B(b) of Article 27.”

The trial court said that it "[did] not believe it is unreasonable in requiring the defendant to refer to the actual text of the Code in this case. Such an approach was sanctioned ... in Mason v. State ... when ... [this Court] found an indictment sufficient in that a reading of the indictment and the statute cited by the indictment together adequately informed the defendant of the nature of the crime he was charged with. . . .” (Emphasis supplied.)

In Mason we restated the well-settled principle required by Art. 21 of the Declaration of Rights relative to the certainty of charges. We opined that not only was the wording of the indictment in Mason sufficient when viewed by the Article 21 standard, but that the State had gratuitously specified the statute allegedly violated. We did not intend that Mason should be interpreted as meaning that a faulty, defective, or ambiguous charging document would be cured or made unambiguous by citing the accused to the statute. Any belief that Mason departed from the requirements of Article 21 of the Declaration of Rights of the Maryland Constitution is error.

We hold that the charging documents in the matter now before us are defective in that they fail to allege that the appellants "knowingly” violated Md. Ann. Code art. 27, § 418. Because of the defects we reverse.

Judgments reversed.

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

      . The publication that was introduced into evidence by the State has apparently disappeared. The Deputy Clerk of the Criminal Court of Baltimore has affixed a memorandum to the record which states in pertinent part: "I have no idea where the exhibit is located or who may be in possession of the exhibit which should be in the appeal record.....”

      . Md. Rule 712 (b) provides:
      "Two or more defendants, whether principals or accessories, may be charged in the same charging document if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. The defendants may be charged in one or more counts together or separately and it is not necessary to charge all the defendants in each count.”