author: Thompson, J.,

text:
    PEARLIE (NMN) MILHOUSE v. STATE OF MARYLAND
    [No. 816,
    September Term, 1975.]

      Decided June 4, 1976.

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

      William H. Murphy, Jr., for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Richard P. Arnold, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Pearlie Milhouse, the appellant, was convicted of murder in the second degree and the use of a handgun in the commission of a crime of violence by a jury in the Circuit Court for Prince George’s County. Sentences of 11 years on the murder conviction and five years consecutive on the handgun conviction were imposed. The principal question on appeal concerns the admissibility of an out of court statement.

The victim, husband of the appellant, was killed by one shot from a .22 caliber pistol. The bullet entered the right side of his chest, causing death from internal bleeding. The body was found in the hall of his apartment immediately outside the bedroom occupied by the appellant and the victim. There was evidence to show that the appellant had threatened to kill the victim a few hours prior to the shooting because she was enraged at the attention he had paid to Juanita Moore. He had been living with Juanita Moore until approximately a week prior to his death, when he returned to live with his wife. The threats were made after a church meeting at which the victim was the master of ceremonies for a singing performance.

Officer George A. Van Duzer testified that he responded to a call from the apartment at approximately 40 minutes after 12 midnight in the early morning hours of August 12, 1974. A young, negro male sitting on the front steps directed him to the apartment. Upon the officer’s arrival at the apartment, he found the appellant between the dining and living rooms, appellant’s son, aged approximately 17 in the living room and in the hallway he found the victim. The officer asked the children what happened but they looked at their mother, then at the officer and refused to say anything. He found a .22 caliber pistol on the dresser in the bedroom. The officer took the appellant to the Bureau of Criminal Investigation and turned her over to Detective Mahlon Joseph Curran. Her two sons were brought to the bureau in two separate automobiles.

Detective Curran testified that he had a conversation with the appellant and that he advised her of her rights, reading from a standard form as to exactly what he had told her. When he asked, “Having been so advised, are you willing to make a statement?”, she replied, “No.” The officer testified that he immediately advised the appellant that they were “investigating the death of James Milhouse and that we needed to know how it occurred, that if it was intentional, accidental, suicide, exactly what the circumstances were so that we could investigate the case. She then stated that she would make a statement.” While arguing the objections out of the presence of the jury, the State’s Attorney in reply to a request by the court, proffered that “[s]he made a statement in which she said . . . they had a fight at the church, that she was driven home, the victim came home, came in the bedroom, there was an altercation, he went for the gun and the gun was discharged. That is a summary of what it would be. She indicated a number of other things, but those were the essential aspects.” The court ruled the statement was admissible saying, “It is not an admission. It is an explanation, what she says happened, so we are going to overrule the objection.” The officer was then permitted to testify as to her statement over oral objection:

“The Witness: She then stated that her and her husband, the deceased, had gone to a church in Washington, D.C., that while they were at the church he was to sing in the group singing there and that he had paid more attention to his girl friend than to her, that after this service was over that they had argued, that they had left the church and driven to their residence on Brighseat Road and transported two other persons in their vehicle; that once they got to the residence, Mrs. Milhouse got out of the vehicle and went inside, and Mr. Milhouse took the other two persons home; that he returned approximately 45 minutes later, at which time she was asleep in bed.
“I asked her where the gun came from and she wasn’t certain, but to the best of her knowledge it had been kept on the dresser in the bedroom where she was sleeping.
“I asked her if she shot her husband and she stated she did, but they were arguing, that she was standing approximately two feet from him. He reached for the gun, placed his hand on the gun and it went off accidentally and he fell to the floor.
“She stated she then took the gun, wiped it off with a handkerchief and placed it on the dresser; that she then — that her sons had then come into the area where the deceased was lying and she instructed them not to talk to the police and to call for an ambulance.
“One of the sons, which one I do not know, left and called an ambulance, and Mrs. Milhouse and the other son went into the living room and were met there by the Fire Department when they arrived.
“By Mr. Arnold:
“Q. Did you have any further conversation with regard to whether or not his hand was on the gun at the time the gun was discharged?
“A. Yes. I stated to Mrs. Milhouse that evidence would show whether or not the deceased’s hands were on or near the gun when it discharged, that the deceased’s hands could be swabbed for particles of gunpowder or traces of gunpowder. She at that time stated, ‘Well, I am not certain his hand was on the gun, but it was near the gun.’
“Q. Did she make any statement with regard to Juanita Moore?
“A. She stated that Juanita Moore was the girl friend’s name that they were arguing about. And that is all I can remember.
“Q. Was anything said with regard to a telephone number?
“A. In an attempt to find out more information on Juanita Moore, I asked for her address and her telephone number, and to the best of my knowledge she could not remember the address or may have stated she didn’t know the address, but she quoted me the 7-digit phone number without referring to anything.
“Q. As being who?
“A. Juanita Moore’s.
“Q. Do you recall whether she said what time it was that her husband arrived home that night?
“A. Somewhere in the vicinity of 12:30 a.m.”

On appeal appellant argues the trial court committed reversible error in admitting the appellant’s statement into evidence over objection. At the outset of our discussion, we initially point out the trial judge’s ruling that the statement was exculpatory and therefore admissible was in error. In Miranda v. Arizona, 384 U. S. 436, 477, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), the Court said, “no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution.” Also see Pratt v. State, 9 Md. App. 220, 223, 263 A. 2d 247 (1970).

Appellant argues the statement was not voluntary and therefore, inadmissible under the dictates of Miranda v. Arizona, supra, Law v. State, 21 Md. App. 13, 318 A. 2d 859 (1974) and Nasiriddin v. State, 16 Md. App. 479, 298 A. 2d 490 (1973). In the latter two cases we held that confessions were not admissible because the police officers did not honor the accused’s invocation of his constitutional rights to remain silent. Miranda v. Arizona, supra, at 473-474 stated that, “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” (footnote omitted).

The State contends, on the other hand, that whether or not there was a valid waiver of the appellant’s Fifth Amendment rights depends on the total circumstances and points out that in Conway v. State, 7 Md. App. 400, 256 A. 2d 178 (1969), we held that an individual’s right to remain silent once invoked may subsequently, under appropriate circumstances, be waived. We note, however, that in that case we were careful to point out:

“Under these circumstances, we think it entirely proper that the police, having discontinued questioning appellant in accordance 'with his direction, undertake a reasonable time thereafter to again interrogate him.” (Emphasis added) Id. at 410. -

The State also relies on the recent Supreme Court case, Michigan v. Mosley, 423 U. S. 96, 96 S. Ct. 321, 46 L.Ed.2d 313 (1975), wherein the Court held that it was not improper for the officers to question the accused as to another crime even though he had invoked his right to silence as to one crime. Again we point out, that in referring to Miranda v. Arizona, supra, the Court stated at 325:

“This passage states that ‘the interrogation must cease’ when the person in custody indicates that ‘he wishes to remain silent.’ It does not state under what circumstances, if any, a resumption of questioning is permissible. The passage could be literally read to mean that a person who has invoked his ‘right to silence’ can never again be subjected to custodial interrogation by any police officer at any time or place on any subject. Another possible construction of the passage would characterize ‘any statement taken after the person invokes his privilege’ as ‘the product of compulsion’ and would therefore mandate its exclusion from evidence, even if it were volunteered by the person in custody without any further interrogation whatever. Or the passage could be interpreted to require only the immediate cessation of questioning, and to permit a resumption of interrogation after a momentary respite.
“It is evident that any of these possible literal interpretations would lead to absurd and unintended results. To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent.” (Emphasis added l (footnotes omitted).

Once again, the Court was careful to point out that the continuation of interrogation immediately after the right to silence was invoked may not be proper, at least if repeated. At this time, we make no determination as to whether or not the appellant properly waived her rights under Miranda v. Arizona, supra, for the reason that it is evident from the trial judge’s language that he never faced the problem and never made a ruling as to whether or not there was a proper waiver by a preponderance of the evidence. Felde v. State, 26 Md. App. 15, 336 A. 2d 823 (1975). In Dempsey v. State, supra, at 143-145, the Court cites a long line of Maryland cases holding or indicating the duty of the trial judge to make a preliminary ruling as to the voluntariness of a confession and then submit the issue to the jury as to whether or not they can find the confession is voluntary beyond a reasonable doubt. In Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L.Ed.2d 908 (1964), the Supreme Court of the United States ruled as a matter of constitutional law that a state judge was required to make an initial ruling as to the voluntariness of an out of court statement. In Walker v. State, 12 Md. App. 684, 694, 280 A. 2d 260 (1971), we said:

“Where the resolution of a purely factual question is all that is involved, we, of necessity, give great weight to the finding of the hearing judge, and his decision will not; be disturbed on appeal unless we find a clear abuse of discretion. The preliminary decision on the admissibility of a confession, however, be that decision made at a pretrial suppression hearing or while the jury is excused during the course of trial, is ‘a mixed question of law and fact.’ Mulligan v. State, 10 Md. App. 429, 431, n. 1; Barnhart v. State, 5 Md. App. 222, 224. It is, therefore, a situation ‘where a conclusion of law as to a [constitutional] right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the [constitutional] question, to analyze the facts.’ Fiske v. Kansas, 274 U. S. 380, 385, 47 S. Ct. 655, 71 L. Ed. 1108. We accord ‘an appropriate and substantial effect to [the trial court’s] resolutions of conflicts in evidence as to the occurrence or non-occurrence of factual events and happenings.”

Additionally, we note in the record that after the trial judge had ruled that the confession was admissible because it was exculpatory, Detective Curran testified that at the time of the questioning the appellant was not under arrest and would have been free to go except for her incriminating statements in her confession. Assuming the trial judge, on retrial, accepts that testimony as an accurate reflection of the police officer’s subjective intent at the time, we note that under the facts of this case the appellant might well have believed she was in custody despite the subjective intentions of the police officer who was questioning her. An accused’s reasonable belief that he is in custody would, of course, be equally coercive for the purpose of waiver of rights in making a statement as if he were in actual custody. Cummings v. State, 27 Md. App. 361, 341 A. 2d 294 (1975); Shedrick and Beckwith v. State, 10 Md. App. 579, 271 A. 2d 773 (1970); Myers v. State, 3 Md. App. 534, 240 A. 2d 288 (1968). For further cases on this point see 31 A.L.R.3d 565, 581 (1970).

Finally, appellant contends that the trial judge’s instructions to the jury, “If you determine in this case that the gun which caused the death of Jimmie Milhouse discharged accidentally, then you may find the homicide to-be excusable and find the defendant not guilty” is a violation of Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), interpreted by Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), cert. granted, 2/13/76. While considering this instruction in context may not constitute a violation of the Mullaney rule that instructions may not place a burden of proof upon an accused, a revision of the instruction on retrial could preclude any question if there should be a subsequent conviction and a subsequent appeal.

Judgment reversed.

Case remanded for new trial.

Costs to be paid by Prince George’s County.

      . This testimony came in without objection, but immediately thereafter there was objection and the trial court eventually ruled that the evidence was admissible. We think the ruling was in error. It is impermissible for the prosecution to use at trial the fact that appellant invoked her right against self-incrimination in the face of an accusation. Younie v. State, 272 Md. 233, 322 A. 2d 211 (1974); Wright v. State, 26 Md. App. 60, 336 A. 2d 808 (1975) ; Sutton v. State, 25 Md. App. 309, 334 A. 2d 126 (1975). Of course, an accused may waive this privilege and offer evidence of the invocation of her rights in order to challenge the voluntariness of the confession. Thereafter the State’s Attorney requested the trial court to instruct the jury that they should disregard this initial statement. Upon refusal by the triai judge, the appellant’s counsel agreed saying, “I wouldn’t emphasize it.” The problem may well have been avoided if the testimony concerning the admissibility of the statement had been taken out of the presence of the jury. There was no request for this procedure by counsel and the trial court did not mention the problem sva sponte. See Dempsey v. State, 277 Md. 134, 355 A. 2d 455 (1976) , which reiterates the rule that evidence concerning the admissibility of a statement should initially be received out of the presence of the jury and the jury should not be advised that the trial judge has found the statement voluntary. In certain circumstances, failure to follow the correct procedure has been found not to be reversible error. Smith v. State, 189 Md. 596, 603-606, 56 A. 2d 818 (1948); Bernos v. State, 10 Md. App. 184, 268 A. 2d 568 (1970).


source: Caselaw Access Project

author: Orth, C. J.,

license: Public Domain

text:
    PHILLIP T. McQUAID v. UNITED WHOLESALE ALUMINUM SUPPLY CO., INC. et al.
    [No. 952,
    September Term, 1975.]

      Decided June 7, 1976.

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

      Harry Goldman, Jr., for appellant.

      Hyman Ginsberg, with whom were Ginsberg & Ginsberg on the brief, for appellees.
   Orth, C. J.,

delivered the opinion of the Court.

We hold in this case that a judgment of non pros rendered against a party asserting a claim at law because of his failure to comply with the requirements as to time allowed for pleading is not a bar to the filing of another suit based on the same cause of action.

STATEMENT OF THE CASE

On 20 December 1974 Phillip Tyson McQuaid, appellant, instituted an action at law in the Circuit Court for Baltimore •County by the filing of a declaration seeking damages from United Wholesale Aluminum Supply Co., Inc. and Sidney Pomer, appellees, for false imprisonment (count one) and malicious prosecution (count two). Appellees demanded particulars of count one and demurred to count two. Appellant excepted to the demand for particulars. On 24 March 1975 the court sustained both the demand for particulars and the demurrer with leave within twenty days to give particulars as to the first count and to amend as to the second count. Appellant did neither within the time granted. On 29 April 1975 appellees moved for a judgment of non pros on each count for failure of appellant to comply with the order of 24 March. The same day the court ordered that “Judgment of Non Pros be granted in favor of [appellees] on Counts One and Two of the Declaration and that court costs be paid by [appellant].”

On 7 May 1975 appellant again instituted the action by filing a declaration. The first count was the same as that in the original declaration. The second count, however, attempting to overcome the ground for the demurrer, contained additional allegations that the prosecution was without probable cause. On 10 June appellees filed a motion raising preliminary objection. The motion recounted the history of the prior action leading to the judgment of non pros and asserted:

“The basic rule of res judicata is that facts or questions which were in issue or might have been put in issue, but were not, and which could have been determined by a Court which had jurisdiction of the parties and the subject matter are conclusively settled by a final judgment in the first case and may not again be litigated in a subsequent action between the same parties though a subsequent suit takes a different form or is based on a different cause of action.”

It prayed for an order granting the motion and dismissing the declaration. Appellant answered. Although he admitted that his “failure to prosecute an earlier suit resulted in a Judgment Non Pros, which had the effect of terminating that action and allowing [appellees] a Judgment for costs,” he urged that the “Judgment Non Pros, was without prejudice and not based on the merits of the case. Therefore, there is no bar to another suit, based on the same cause of action.” Upon a hearing on the motion and answer on 27 August 1975, the motion was granted. Judgment was entered in favor of appellees and against appellant for costs. An appeal therefrom was noted on 25 September.

ISSUE FOR DECISION

Did the trial court err in granting the motion raising preliminary objection?

THE LAW

Res Judicata

The doctrine of res judicata is not applicable in the facts and circumstances of this case. The principle of the doctrine of direct estoppel by judgment and collateral estoppel by judgment was set forth by the Court of Appeals in Sterling v. Local 438, 207 Md. 132, 140 (1955), cert. denied, 350 U. S. 875 (1955):

“If the second suit is between the same parties and is upon the same cause of action, a judgment in the earlier case on the merits is an absolute bar, not only as to all matters which were litigated in the earlier case, but as to all matters which could have been litigated.” (Emphasis supplied)

See Frontier Van Lines v. Maryland National Bank and Trust Company, supra, at 624; Travelers Insurance Co. v. Godsey, 260 Md. 669, 676 (1971); A. B. Veirs, Inc. v. Whalen, 256 Md. 162, 166-167 (1969); Davis v. Frederick County, 25 Md. App. 68, 73-80 (1975) and cases cited therein. It is obvious that the judgment here was not on the merits. We observed in Davis, n. 4, at 73, “[I]t is well settled that the rules of res judicata do not apply unless there is a final judgment on the merits . ...”

Maryland Rule 310, Section a.

The issue for decision must be determined under Maryland Rule 310, entitled “Default.....Gen’l,” As adopted effective 1 January 1957 it is comprised of two sections. Section a concerns default by a party asserting a claim. It provides:

“If a party asserting a claim is in default, for failure to comply with the requirements as to time allowed for pleading, a judgment of non pros may be rendered against him at law, or his action may be dismissed in equity, on motion of the opposite party, or by the court without motion.”

Section b deals with default by a party against whom a claim is asserted. It states:

“If a party against whom a claim is asserted is in default for failure to comply with the requirements as to time allowed for pleading, unless the time be enlarged by the court for good cause shown, judgment may be entered against him in an action at law or the bill may be taken pro confesso in a proceeding in equity, on motion of the adverse party, and thereupon the case shall proceed ex parte as against such party.”

It is patent that under Rule 310, § a the rendering of the judgment of non pros as to the original declaration was proper, and appellant so concedes. The question is whether the intendment of the Rule is that further action be barred. To put it another way, does the Rule contemplate that the judgment of non pros be with prejudice. We conclude that it does not.

Section b of Rule 310 is characterized in the Editor’s note as “a combination of the former law and equity rules and statutory material cited in the source line.” The Editor added: “It would seem that no change was intended.” The Editor noted that § a is “new”. This latter statement is misleading. Rule 310 stemmed from former Rule 7 of the General Rules of Practice and Procedure, apparently adopted in 1949. It was entitled “Judgment by Default”, and provided:

“If a party is in default for failure to comply with the requirements as to time allowed for pleading, judgment may be entered against him on motion of the adverse party.”

Rule 310 broke down “party” into a party asserting a claim in § a and a party against whom a claim is asserted in § b. The substance of the provisions of § a were not only present in former Rule 7, but were established in the law prior to the adoption of Rule 7. Professor J. P. Poe in the second volume of his Pleading and Practice (5th ed.), Tiffany’s Edition, published in 1925, after discussing the voluntary dismissal of a suit by the plaintiff in § 234, declared in § 235: “The suit may also be ordered to be dismissed by the court without a trial, where the plaintiff ... is in default for not filing at the proper time the necessary pleading when under rule to do so, or for failing to comply with any other rule properly laid. Technically, this judgment is termed a non pros.” This was in accord with Marsh v. Johns, 49 Md. 569, 571 (1878), in which the Court said:

“[I]t is competent for either party to obtain a rule on the other party to declare, plead, reply, rejoin, etc., by a special day to be prescribed by the court other than either of the general rule days, and if the party so required neglect to declare, plead, reply, rejoin, etc., by the day prescribed, judgment of non pros., or by default, as the case may require, may be entered up against him, unless the court for good cause shown shall enlarge the rule.
The non pros, follows as a consequence by not having filed his pleading, as required by the rule of the court. Evans Pr. 314.
The plaintiff failing to prosecute his suit by filing proper pleading was liable to be non prossed, and the judgment of the Circuit Court so ordering was the necessary result of his default.”

It is apparent that in adopting Rule 310, § a the Court of Appeals was simply recognizing by Rule of Procedure the existing law of this State.

Section a of Rule 310 does not declare whether a judgment of non pros entered under its provisions is a bar to further action. We look, therefore, to the law as it was before the adoption of the Rule. 2 Poe, Pleading and Practice (5th ed.), referring to a judgment of non pros entered upon default of a plaintiff in pleading, said, § 235: “In these cases also, [as in a voluntary dismissal or a voluntary submission to a judgment of non pros], the costs are thrown upon the plaintiff; but, here too, he may renew the litigation by bringing a fresh suit, and for the purposes of this suit the former action will be entirely disregarded.” In § 362 Poe laid it out clearly:

“Where the plaintiff fails to prosecute his suit with effect, and a judgment of non pros, is entered up against him, it is a final judgment, and entitles the defendant to execution for his costs. Such judgment of non pros, may be entered up against the plaintiff for his default in filing a declaration or any oth^r pleading, according to the course of the court, when duly laid under rule to do so, or for failing to comply with any special rule of the court, by the time therein prescribed, as, for example, the rule security for costs, or the rule to file a bill of particulars, or it may be entered upon the voluntary abandonment by the plaintiff of his suit. While the judgment is final, in so far as it puts an end to that particular suit, it is not so far final as to preclude the plaintiff from instituting a new action, and in practice it is frequently submitted to, in order that such new action may be instituted.”

Language identical to §§ 235 and 362 of volume 2 of Tiffany’s Edition of Poe appears in 3 Poe’s Pleading and Practice (6th ed.) §§ 235 and 362, edited by H. M. Sachs, Jr., Esq., and published in 1975.

Poe’s statement of the law is in full accord with the appellate opinions of this State. The Court of Appeals said in Ferrall v. Farnen, 67 Md. 76, 83 (1887): “It is undoubtedly true as a general rule that the plaintiff may, at any stage of his case,[] suffer a non pros, and begin de novo, either the same or a different action.” In Rutledge v. McAfee, 72 Md. 28, 32 (1890), the Court asserted: “It was a judgment of non pros, which did not prevent the plaintiff from suing again on the same cause of action. . . .” Crawford v. Richards, 193 Md. 236, 243 (1949) stated, “A judgment of non pros, followed by a judgment for the defendant for costs, is generally held to be final and appealable, even though the plaintiff may have a right to bring another suit. 2 Poe, Practice (5th Ed.) § 362.”

DECISION

We conclude, therefore, that the rendition of a judgment of non pros under Rule 310, § a, is without prejudice to file another suit based on the same cause of action.

As we understand the reasoning of the trial judge in granting the motion to dismiss the declaration filed 7 May 1975, he determined that only a voluntary dismissal of an action was without prejudice and that an involuntary dismissal by way of judgment of non pros under Rule 310, § a was with prejudice. We have found otherwise.

The order of 27 August 1975 granting appellees’ motion raising preliminary objection is vacated and the judgment for the appellees and against appellant for costs is reversed.

Order of 27 August 1975 granting motion to dismiss the declaration vacated; judgment for costs reversed; costs to be paid by appellees.

“A judgment upon the merits recovered upon a confession of facts is obviously quite as binding by way of estoppel as a judgment founded upon a verdict where the facts were disputed and will sustain equally a plea of res adjudícala or former recovery; but it is to be observed that it is only where the judgment on demurrer is upon the merits that it will have such an effect.”

      . The “Clerk’s Memorandum” and the docket entries read “Demurrer to Count 2 Sustained — 20 days to amend. Exceptions to Demand for Particulars Sustained, 20 days to file particulars.” (emphasis supplied). It is patent that the court sustained the demand for particulars and overruled the exceptions thereto. Appellant recognizes this in his brief, p. 2, where he states: “Both defendants’ dilatory pleas were sustained and plaintiff was given 20 days leave to particularize and amend.”

      . Appellant presents the question: “Is a former judgment of non pros. for failure to amend and particularize within the time limited by rule of court, a bar to a second action at law? ”
      Appellees put it thus: “Was the order of the lower Court entering judgment of non pros, as to both counts of the suit originally filed after hearing in which exceptions to the demand for particulars of the first count were overruled and the demurrer sustained to the second count and the failure of the Plaintiff to comply with the Court’s order to file particulars and an amended declaration res judicata of the present suit? ”
      The trial judge, citing Frontier Van Lines v. Maryland Bank and Trust Company, 274 Md. 621 (1975), thought that “the motion properly raises the question of whether the previous suit between the parties in the case at bar serves as a final bar to this pending suit.” It is correct that in Frontier the Court of Appeals affirmed an order of the trial court dismissing a case upon a grant of a motion raising preliminary objection grounded upon res judicata. But, as we noted in Doug-Dun Corporation v. Simms, 31 Md. App. 350, n. 4 at 354 (1976), the appropriateness of the motion was not contested in Frontier, and the Court of Appeals decided the case without mention of the propriety of the procedure. We held in Doug-Dun that the defense of res judicata could not be raised by a motion ne recipiatur, and we intimated, n. 4 at 354, that a motion raising preliminary objection was not appropriate to assert the doctrine, observing that it was not one of the defenses enumerated under Maryland Rule 323, which lists defenses which may be made by motion at the option of the pleader. We suggested, at 354, that at law the better practice was to plead res judicata specially, although it may be set up under the general issue. We said that in equity the defense would be presented in the answer, and we indicated that at law and in equity, if appropriate to the allegations of the declaration or bill of complaint, it may be declared by demurrer, adding that “certainly it may be asserted at law or in equity by a motion for summary judgment under Maryland Rule 610.” In any event, no question of the propriety of asserting the defense of res judicata by a motion raising preliminary objection is presented to us on appeal, and as the Court of Appeals did in Frontier, we decide the case sub judice without consideration of that question.

      . The Court of Appeals declared in Frontier Van Lines v. Maryland Bank and Trust Company, supra, at 623, that it intended to observe the distinction between direct estoppel by judgment and collateral estoppel by judgment “notwithstanding what might be regarded as a contrary intimation in Missler v. Anne Arundel County, 271 Md. 70, 77 (1974).”

      . The source line cites “G. R. P. P. Pt. Three, IV, Rule 7, G. E. 15, G. E. 16; art. 75, §§ 156, 157; amended July 1, 1974.” The 1974 amendment deleted two commas.

      . As is obvious, we are not concerned here with the voluntary dismissal of an action. This is now covered by Maryland Rule 541. See 3 Poe’s Pleading and Practice (6th ed.) § 234.

      . Rule 541, on the other hand, spells out the effect of a voluntary dismissal of an action, which includes submission to a voluntary judgment of non pros, ij e. Section c provides:
      “Unless otherwise specified in the notice of dismissal, stipulation, or order of court, a dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a party who has previously dismissed in any court of any state or of the United States an action based on or including the same claim.”
      This was in accord with the former practice: “As, however, this voluntary dismissal of his suit settles no rights, it is thoroughly settled that [the plaintiff] is entirely at liberty to bring a new suit if he sees fit, which will be considered as a wholly new proceeding, without reference to the abandonment of the former action.” 2 Poe, Pleading and Practice (5th ed.) § 234. For a discussion and application of Rule 541 see Williams v. Snyder, 221 Md. 262, 266-267 (1959); Sargent v. Lady, 244 Md. 552, 553-555 (1966).

      . As to the time for filing a voluntary notice of dismissal, however, see Rule 541 a 1.

      . Of course, when another suit is filed, a defendant would be entitled to plead limitations if the plaintiffs right of action was barred by the statute of limitations. See Williams v. Snyder, supra, at 267.

      . We point out that the ruling sustaining the demurrer to the second count with leave to amend was not a final judgment on the merits. The final judgment of non pros was rendered for failure to amend within the time required. For the effect of a final judgment entered upon a demurrer see 1 Poe, Pleading and Practice (5th ed.) § 710 and 2 Poe’s Pleading and Practice (6th ed.) § 710. It is stated therein:


text:
    JOHN H. MAJOR, JR. v. STATE OF MARYLAND JAMES WILLIAM FLANAGAN v. STATE OF MARYLAND
    [No. 998,
    September Term, 1975.]
    [No. 1030,
    September Term, 1975.]

      Decided June 7, 1976.

      The causes were argued before Orth, C. J., and Moylan and Gilbert, JJ.
    In Appeal No. 998, George E. Burns, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Harriette Cohen, Assistant Public Defender, on the brief, for appellant.
    In Appeal No. 1030, George E. Bums, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Arnold M. Zerwitz, Assistant Public Defender, on the brief, for appellant.
    In both appeals, Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Sunsher, State’s Attorney for Baltimore City, and Neil Steinhom, Assistant State’s Attorney for Baltimore City, on the brief, for each appellee.

      . See Code, Art. 66V2, § 17-101 (a). Section 11-902 created two other misdemeanors. It shall be unlawful for any person to drive, or attempt to drive or to be in actual physical control of any vehicle within this State “while he is under the influence of any drug or combination of drugs or combination of alcohol and any drug or drugs to a degree which renders him incapable of safely driving a vehicle”, subsection (c), or “while he is under the influence of any controlled dangerous substance”, subsection (d).

   Orth, C. J.,

delivered the opinion of the Court.

The General Assembly, mindful of the safety of persons in this State and heedful of the general welfare, has acted to deter a person who has consumed alcohol from driving a vehicle on the highways of Maryland. There are criminal consequences and administrative consequences. In the two September Term, 1975 appeals which we decide in this opinion, John H. Major, Jr. v. State, No. 998, and James William Flanagan v. State, No. 1030, we are concerned with the criminal consequences of drunken driving. The appeals pose, in different factual postures, a common question: may a person be convicted of driving a vehicle while under the influence of alcohol in the absence of evidence showing the alcoholic content in his body according to chemical analysis made pursuant to tests prescribed by statute?

THE LAW

Code, Art. 66Vz, § 11-902 (a) and (b) created two misdemeanors h

“(a) It shall be unlawful for any person to drive or attempt to drive or to be in actual physical control of any vehicle within this State while he is in an intoxicated condition.
(b) It shall be unlawful for any person to drive or attempt to drive or to be in actual physical control of any vehicle within this State while his driving ability is impaired by the consumption of alcohol.”

Manifestly as an aid in the fact finding process, the Legislature has prescribed that “ [i]n a prosecution for a violation of a law concerning a person who is driving or attempting to drive a vehicle in violation of § 11-902 of Article 66V2 of the Code a chemical test of his breath, blood, urine, or other bodily substance may be administered to the person for the purpose of determining the alcoholic content in his body.” Courts Art. § 10-302. When such a test has been administered, the amount of alcohol in the person’s body as shown by the chemical analysis is admissible in evidence in the criminal proceedings. Courts Art. § 10-307 (a).

The vehicle laws attempt to insure that a chemical test be administered. An applicant for a license to operate a motor vehicle upon the highways of this State must, as a condition precedent to the issuance of such license, sign a statement under oath or affirmation consenting to take a chemical test should he be detained upon suspicion of operating or attempting to operate a motor vehicle while under the influence of intoxicating liquor or while his ability is impaired by the consumption of alcohol. Code, Art. 66V2, § 6-205.1, subsection (a). Consent of non-residents and unlicensed persons is implied, subsection (b). It is the “duty of any police officer who stops or detains any person who he has reasonable grounds to believe is or has been operating or attempting to operate a motor vehicle under the influence of alcohol, or who is or has been operating or attempting to operate a motor vehicle while his ability was impaired by the consumption of alcohol” to detain such person, request that he take a chemical test to determine the alcoholic content of his blood, breath or urine and to advise the person of the administrative penalties which may be imposed for refusing to take a test. Subsection (c). If a detained person refuses to take a test, subsection (d) spells out a procedure leading to the suspension of his operator’s license. None of this means, however, that with respect to a criminal prosecution, evidence of the alcoholic content in the body of the accused according to chemical analysis made pursuant to a prescribed test is a prerequisite of a conviction of the crimes proscribed by Code, Art. 66V2, § 11-902. That there be no chemical test administered may come about in several ways. “A person may not be compelled to submit to a chemical analysis. ... No inference or presumption concerning either guilt or innocence arises because of refusal to submit. The fact of refusal to submit is not admissible in evidence at the trial.” Courts Art. § 10-309 (a). These provisions make perfectly clear that a criminal charge under Art. 66V2, § 11-902 may come to trial with no chemical test having been administered because the accused refused to submit to it, and that the refusal to submit shall have no adverse effect on the accused in a criminal proceeding.

Courts Art. § 10- 305 gives a defendant the right to select the type of test administered. It mandates — “if facilities or equipment are not available for that test then none may be given.” Thus, there may have been no chemical test administered because there were no facilities or equipment for the test selected by an accused. As in the case of a refusal to take the test, this “does not create an inference or presumption concerning either [the defendant’s] guilt or innocence by reason of his inability to take the test. The fact of his inability to take a test is not admissible in evidence at his trial. . . .” Courts Art. § 10-305.

A test may not have been adminstered because no test was offered or requested by the police officer, despite the provisions of Code, Art. 66V2, § 6-205.1 (c). Courts Art. § 10-304 (d) contemplates such an event. Not only is the person tested permitted to have a physician of his own choosing administer a chemical test in addition to the one administered at the direction of the police officer, but “in the event no test is offered or requested by the police officer, the person may request, and the officer shall have administered, one of the chemical tests provided for in this section.” Thus, if the officer has not offered a test and the defendant has not requested a test, none will have been given.

Another circumstance which may preclude the administering of a chemical test is that the specimen was not timely taken. Courts Art. § 10-303 requires: “The specimen of breath, blood, or urine shall be taken within two hours after the person accused is apprehended.” It appears that if a chemical analysis is made from a specimen taken more than two hours after the person is apprehended, evidence thereof may be excluded at the criminal trial. Courts Art. § 10-309 (a) contains the provision: “Evidence of chemical analysis is not admissible if obtained contrary to [the provisions of subtitle 3, Title 10 of the Courts Art.].”

In the light of these provisions, we are convinced that the Legislature did not intend that evidence of the alcoholic content of a person’s body, obtained through the prescribed chemical tests for intoxication, be a prerequisite of conviction for violation of the crime created by Art. 66V2, § 11-902. Had we any doubt, it would be removed by Courts Art. § 10-308:

“The evidence of the chemical analysis does not limit the introduction of other evidence bearing upon whether the defendant was in an intoxicated condition, under the influence of intoxicating liquor, or his driving ability was impaired by the consumption of alcohol.”

If evidence of the chemical analysis does not limit the introduction of other evidence bearing upon whether the defendant was in an intoxicated condition, under the influence of intoxicating liquor, or his driving ability was impaired by the consumption of alcohol, patently, reasonably and logically, such other evidence may be introduced when there is no evidence of a chemical analysis. To adopt a contrary view would be unreasonable and inconsistent with common sense. See Height v. State, 225 Md. 251, 259 (1961); Nooe v. City of Baltimore, 28 Md. App. 348, 355 (1975). A person accused of committing the offenses proscribed by Code, Art. 66V2, § 11-902 could completely thwart any prosecution by refusing to submit to one of the prescribed tests.

We conclude that a person may be convicted of driving a vehicle while in an intoxicated condition or while his driving ability was impaired by the consumption of alcohol in the absence of evidence establishing the alcoholic content of his body according to chemical analysis made pursuant to tests prescribed by statute. To put it another way, the introduction of evidence with respect to the alcoholic content in the accused’s body, as shown upon chemical analysis through tests pursuant to Courts Art. §§ 10-302 through 10-309, is not a prerequisite to a conviction of the crimes proscribed by Art. 66V2, § 11-902 (a) and (b). Conviction may be had on any competent evidence legally sufficient to establish the corpus delicti of the crimes and the criminal agency of the accused.

THE CASES SUB JUDICE

Major v. State, No. 998, September Term, 1975

On 2 December 1974 John H. Major, Jr. was issued four summonses charging him respectively with operating a motor vehicle while intoxicated by the consumption of an alcoholic beverage, with operating a motor vehicle when his license was “refused, canceled, surrendered or revoked”, with “failing to stop after a property damage accident”, and with failure to use reasonable care to prevent an accident. In the District Court he demanded a jury trial. The cases were transferred to the Criminal Court of Baltimore where he was convicted of the first three offenses at a bench trial on 1 October 1975. He was sentenced to a total of two years and appealed. He attacks only the judgment rendered upon his conviction of operating a motor vehicle while intoxicated.

The State’s case consisted of a stipulation as to what certain witnesses would testify were they present and two exhibits admitted without objection — Major’s driving record and the arresting officer’s certification, on a form designated as DR 15, of Major’s refusal to submit to a chemical test. The officer, responding to an accident, saw Major in physical control of a motor vehicle which had been involved in an accident with another vehicle. Major had left the actual scene. According to the officer, Major had a strong odor of alcohol on his breath, his clothes were mussed, his attitude was indifferent and he staggered when he walked. He had no valid Maryland operator’s license. The officer requested that Major submit to a breathalyzer test. The DR 15 form gave as the reasonable grounds for the officer’s belief that Major was in violation of Art. 66V2, § 11-902 (a) or (b): “Odor of alcohol about his breath, staggering, involved in accident, left scene.” The form originally indicated that Major desired “to take a chemical test to determine the alcoholic content of [his] blood.” Under the heading, “If consent given, which test . was administered”, “urine” is denoted. The check mark indicating that Major consented to take the test, however, is crossed out and the word “refused” is written next to it. According to the stipulation, Major was taken to the breathalyzer room, where “the performance test” was administered by the chemist, “which would indicate the balance was wobbling, walk was stumbling, turning hesitant, finger to nose test he completely missed, on the ability to understand instructions it is indicated fair. He could have gotten good or poor. The officer who administered the test on remarks stated the subject refused to blow into the machine because T had been drinking all weekend and I don’t want to put all of that stuff in the machine’.”

Major testified in his own behalf. He said he had driven from his job in Washington about 10 or 10:30 a.m. in a vehicle which was in his name but which he did not own. About 1:30 p.m. he drove from “Smallwood to the east side” to get a hair cut. As he pulled away from the barber shop he struck another car. He tried to catch the other car but could not because the fender on his car was bent in. He pulled to the side and a police officer came up. He told the officer what happened. The officer asked if he had been drinking. The transcript reads:

“A. ... I told him no. He said, well, you have a drinking problem. I said yes. I said I am an alcoholic but my being an alcoholic doesn’t mean that I drink.
Q. Did he ask you to take a breathalyzer test?
A. He asked me to take a breathalyzer test.
Q. What did you tell him?
A. I refused.
Q. Did you tell him you would take any test at all?
A. I told him I would take a urine test or blood test.
Q. Did he agree to that?
A. He did. He told me, he say, I would have to pay $10.00 and he would have to take me to City Hospital.
Q. Did you do that?
A. I pulled out the money. I said, well, I will pay it.
Q. Did he ever take you to City Hospital?
A. No, he say he didn’t have time.
Q. Did he take you to where you blow into the balloon?
A. Yeah, that is where I was at first.
Q. Did you blow into the balloon?
A. No, I didn’t.
Q. Why didn’t you blow in the balloon?
A. Because I have been stopped several times and all of those times I have been drinking and every time I blow in the balloon the thing comes up and say I be drinking.
Q. Did you tell him, sir, that you had been drinking all weekend?
A. No, I didn’t.
Q. And you didn’t want to put that stuff in the balloon?
A. No, I didn’t.
Q. Had you been drinking when you were stopped?
A. I hadn’t been drinking. I was ordered by the court to attend the A.A. I completed that course Your Honor and on my own I joined another course in my neighborhood, 5600 block of the Alameda, the Church of Christ, where we have a meeting every Sunday night. I had a letter from my sponsor to bring to the court but at the time I was trying to pay this attorney, Mr. Goodman, off, I took the letter and gave it to him, during this time things got slacked and I didn’t have the money to finish paying him.”

Major admitted driving the car, and that he did not have a Maryland license. On cross-examination he denied that he had been drinking, that he staggered — “I limps at times. I don’t have all my toes” — and that he took any tests. He admitted that his Maryland license had been revoked twice and that he had been found guilty of driving while intoxicated “about three, four, five” times. He explained why he refused to take the breathalyzer test. It always showed he had been drinking because the odor of alcohol clung to his dentures — “some old plaster ... I got when I was in the Korean conflict.”

The court rendered its decision:

“The verdict is guilty of intoxicated driving, failing to stop after an accident, and guilty of driving with his license revoked or suspended. I will not consider the other charge. I will find him not guilty on that.”

In imposing sentence the court observed:

“Well, Mr. Major, I don’t know when I have ever seen a worse record. You really are a menace on the road. Honestly, it is a wonder you haven’t killed people and killed yourself. You have had your license revoked six times. You have been found guilty of driving while intoxicated four or five times.”

The only question Major presents on appeal is: “Did the trial judge err in finding [him] guilty of driving while intoxicated in the absence of the statutorily required scientific evidence?”

We have determined that the “scientific evidence” is not required. A person may be convicted of driving a vehicle while intoxicated in the absence of evidence as to the alcoholic content in his body. Here, the evidence before the court, as the trier of fact, was clearly sufficient in law to sustain the conviction. Williams v. State, 5 Md. App. 450, 459 (1968). Therefore, the court was not clearly erroneous in its judgment on the evidence, and we may not set it aside. Rule 1086.

Major’s point is that under the circumstances there should have been evidence with respect to the alcoholic content in his body. Although, he argues, when the officer requested he submit to a test as required by law, he refused to take the breathalyzer test, he agreed to submit to the blood or urine test. He had the right, as we have indicated, to select the test to be performed on him, but he was “transported to the breathalyzer room”, the officer saying, according to Major, that he did not have time to take Major to City Hospital. The statute provides that if facilities or equipment for the test selected by an accused are not available, then none may be given. We think it a reasonable inference from Major’s testimony that facilities and equipment to take the test Major selected were not available at the police station but were available at City Hospital, and that the assertion by the officer that he did not have time to go there was made in contemplation of the requirement that the required specimen be taken within two hours after the person accused is apprehended. In any event, no sanction is spelled out in the statute for failure to administer a test. Although we in no way condone an arbitrary refusal by a police officer to have a test selected by an accused administered, which may well be in derogation of due process of law,' whatever a proper sanction for such action in such event may be, we do not believe that the remedy here, where there was no demand by the defendant that a test be given, is the acquittal of the defendant when there was other evidence legally sufficient to establish the elements of the offense. The lack of the “scientific evidence” in such circumstance, may go to the weight of the other evidence offered and the credibility of the witnesses offering it.

The judgment against Major under the charge of driving while intoxicated is affirmed because the reasons advanced to reverse it afford no proper reason to do so. The other judgments against him are affirmed because they are not challenged on appeal.

Flanagan v. State, No. 1030, September Term, 1975

On 18 June 1975 James William Flanagan was issued a summons charging him with “driving [a motor vehicle] while influenced by alcohol.” Apparently on demand of a jury trial in the District Court, the case was transferred to the Criminal Court of Baltimore where he was found guilty at a bench trial of operating a motor vehicle while his driving ability was impaired by the consumption of alcohol. He was fined $500 and costs, and a sentence of one year was imposed and suspended. He was released on probation under the supervision of the Division of Parole and Probation for a period of two years. He appealed.

When the case came on for trial in the Criminal Court of Baltimore, Flanagan offered “a technical not guilty”, and waived a jury trial. The State called Officer Gary Beedmy. He testified that on 18 June 1975, about 3:00 p.m., while in a store “making a business check”, he was approached by Flanagan who informed the officer that he had been involved in an accident less than a block away. He told the officer that “he was stopped at the stop sign at O’Donnell and Potomac. The stop sign is on Potomac Street. There was another car making a left hand turn. He pulled out and was struck by the other vehicle.” There was “a strong odor of alcohol on [Flanagan’s] breath. ... He was staggering as he walked out of the door. He had a hard time. He tripped twice going out the door.” The officer and Flanagan went to the scene of the accident. The officer was asked what he observed about Flanagan. “[T]he breath of alcohol was strong, his clothes were disorderly, his attitude was talkative and cockey. He was profane with his language. . . . [His walk was] staggering and speech was confused. ... He would start saying one thing, talk about the accident, then he would go to a different thing, like the weather. ... He walked by himself, but, like I said, from the inside of the liquor store to the outside, he had tripped quite a few times going outside.” On cross-examination the officer said that Flanagan did not appear to be nervous or upset “until after I told him he was under arrest for driving while intoxicated.”

Flanagan testified in his own behalf. He gave his version of the accident and said that the woman who struck his car was “extremely upset.” He went to get the officer to calm her down. He denied using profanity, and said that he did not stagger. He did not recall his speech being confused or talking about one thing and then about another thing. He admitted to drinking four beers about forty-five minutes before the accident but denied being drunk. On cross-examination he said that he had been found guilty twice of driving while his ability was impaired. His operator’s license had been suspended three times and was currently suspended. He did not believe that he had a strong odor of alcohol on his breath, “but I work at a brewery [as a lab technician] so I am sure that there was the odor of alcohol on my clothing.”

The defense rested. Defense counsel, whose motion for judgment of acquittal made at the close of evidence offered by the State had been denied, said: “That being the defense, I would again renew my motion for judgment of acquittal if I may be heard first very briefly.” The transcript reads:

“THE COURT: I intend to find him guilty under B [Art. 66V2, § 11-902 (b)] if that is what you want to argue. The verdict is guilty under B which is driving an automobile while his ability is impaired.
MR. MARCUS [Daniel J. Marcus, Esq., Assistant Public Defender]: Ail right, Your Honor.”

Defense counsel then spoke in mitigation of sentence and Flanagan personally addressed the court. Sentence was imposed. Flanagan appealed.

Flanagan contends that the trial judge erred in finding him guilty of driving while impaired without a showing that he was provided with the statutorily required right to produce scientific evidence. We have determined that “scientific evidence” is not necessary to convict of such crime. The evidence that was adduced, however, was legally sufficient to sustain the conviction. Williams v. State, 5 Md. App. 450, 459 (1968). Therefore the court below was not clearly erroneous in its judgment on the evidence, and we may not set it aside. Maryland Rule 1086.

There was no evidence whatsoever adduced concerning a chemical test to determine the alcoholic content in Flanagan’s body. We do not know whether a test was in fact administered. If a test was administered, either side was entitled to offer the result in evidence. If Flanagan was offered a test by the officer, and refused to submit to it, the fact.of refusal would not have been admissible in evidence. If Flanagan was not offered a test by the officer, but requested one and the officer refused to administer it, Flanagan could have offered that fact in evidence. In short, the narrow issue here raised, decided below by the finding of guilt, is whether the lack of evidence of a chemical test for intoxication renders the evidence insufficient to convict an accused of driving a vehicle while his driving ability is impaired by the consumption of alcohol.

Flanagan also claims that the trial court erred in denying his attorney an opportunity to present argument in support of his motion for judgment of acquittal. We see no such denial. When the court indicated its disposition to find Flanagan guilty on the lesser offense rather than on the crime of driving while intoxicated, it is manifest that defense counsel was content. Further argument on the motion was clearly waived.

As to John H. Major, Jr. v. State, No. 998, September Term, 1975: Judgments Affirmed.

As to James William Flanagan v. State, No. 1030, September Term, 1975: Judgment affirmed.

      . The statute provides that the presence of alcohol by weight within designated percentages precludes or permits certain presumptions. Within certain percentages it shall be presumed that the person tested was not intoxicated or impaired by the consumption of alcohol, § 10-307 (b). Specified higher percentages may not give rise to any presumption that the person was or was not in an intoxicated condition or was or was not under the influence of intoxicating liquor, but the percentage of alcohol may be considered with other competent evidence in determining guilt or innocence, § 10-307 (c). Certain higher percentages, however, shall be prima facie evidence that the person’s driving ability was impaired by the consumption of alcohol, § 10-307 (d), and the fact of even higher percentages constitutes prima fade evidence that the person was in an intoxicated condition, § 10-307 (e).
      “Upon request, the results of the test shall be made available to the person tested before trial by an official certificate which is admissible in evidence.” Courts Art. § 10-306.

      . Courts Art. § 10-309 (b) declares that the subsection “does not limit the provisions of the vehicle laws regarding the consequences of refusal to submit to a chemical test or tests.”

      . Courts Art. § 10-304 (a), (b) and (c) designates the qualifications of those who may give the tests. The equipment used must be approved by the toxicologist of the office of the Chief Medical Examiner of the Department of Postmortem Examiners.

      . Such inability to take a test, however, “may not be considered a refusal to take a test under the vehicle laws.” Courts Art. § 10-305.

      . The penalties upon conviction of misdemeanors in violation of the vehicle laws are set out in Art. 66V2, § 17-101. See Wilson v. State, 21 Md. App. 557 (1974).

      . Of course, if the test selected by an accused is not administered, there can be no administrative penalty invoked for refusal to submit to a test.

      . Defense counsel told the court that “Mr. Flanagan would proceed under a statement of facts.” When this was explained to Flanagan and he was asked if he understood, he made no response. Whereupon defense counsel said: “I think rather than proceeding on a statement of facts, we would request a court trial.”


author: Gilbert, J.,

text:
    WILLIAM CARROLL ISAACS a/k/a Billie Carroll Isaacs v. STATE OF MARYLAND
    [No. 1015,
    September Term, 1975.]

      Decided June 7, 1976.

      The cause was argued before Gilbert, Menchine and Melvin, JJ.

      JohnM. Robb, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Lawrence V. Kelly, State’s Attorney for Allegany County, and Robert W. Hamilton, Assistant State’s Attorney for Allegany County, on the brief, for appellee.

       Note: Certiorari denied. Court of Appeals of Maryland, September 14,1976.

   Gilbert, J.,

delivered the opinion of the Court.

William Carroll Isaacs, a/k/a Billie Carroll Isaacs, appellant, was convicted by a jury in the Circuit Court for Allegany County, presided over by Judge James S. Getty, of murder in the second degree, kidnapping, and larceny of a motor vehicle. Appellant was sentenced to sixty years imprisonment.

On appeal to this Court, the appellant raises sixfold reasons why he believes the judgments of the circuit court should be reversed. He contends:

I. The indictment should have been dismissed because it was called to trial in violation of the Interstate Detainer Act, codified as Md. Ann. Code art. 27, §§ 616A-R;
II. He was denied his Sixth Amendment right to a speedy trial;
III. Maryland lacked jurisdiction over the kidnapping and larceny charges because the events underlying those charges occurred in Pennsylvania;
IV. Testimony relative to “ . . . unrelated offenses in Baltimore County” was erroneously admitted into evidence;
V. The verdict of murder in the second degree was illegal.
VI. The evidence was insufficient to sustain the convictions.

The record reveals that appellant, in the company of his brother, Carl Isaacs, his half-brother, Wayne Coleman, and another person named George Dungee, decided to go to Mexico. At that time, Coleman and Dungee were escapees from the Maryland correctional system. Prior to their supposed departure, they burglarized the home of a relative and other dwellings in Maryland and Pennsylvania. In addition to the burglaries, they engaged in stealing automobiles for their personal use. Two young girls, juveniles, accompanied the males on the crime spree although it does not appear that they were active participants in the commission of the criminal deeds. The two girls were abandoned by the four men in Pennsylvania. In McConnellsburg, Pennsylvania, on May 9 or 10, 1973, the men stole a white pick-up truck because the car they were using had motor trouble. The quartet had difficulty with the truck, and while they were endeavoring to fix it, Richard Wayne Miller, a McConnellsburg high school student, drove into view. Mr. Miller recognized the truck as belonging to someone he knew. Miller stopped his automobile and told the men to return the truck to the place from which it had been taken. The response was that Miller was held, at gun point, and forced into his own car, which the four culprits commandeered. They took an unspecified sum of money from Miller’s wallet. The vehicle containing the five persons, including Miller, was driven into Maryland. Miller was led from the vehicle and taken into a wooded area where he was slain. The four outlaws went to Florida. From there they journeyed to Georgia where a number of persons were murdered, and at least one woman was raped and then killed. Leaving Georgia, the culprits fled to West Virginia where they were eventually arrested. They were returned to Georgia for trial where Carl Isaacs, Coleman and Dungee were sentenced to be executed. Appellant, as we have stated in note 1 supra, was sentenced to a lengthy term of imprisonment in Georgia.

When the appellant was apprehended in West Virginia, he, after being advised of his Miranda rights, made an inculpatory statement in which he readily acknowledged his participation in the murder of Robert Wayne Miller. A similar statement, following renewed Miranda rights admonitions, was made to the Georgia authorities. Appellant, in his subsequent statement to the Maryland officials, recanted his West Virginia and Georgia statements. Specifically, he denied any prior knowledge of the plan to murder Miller and stated that he did not even know that Miller had been slain until the capture of himself and his companions in West Virginia. Appellant repeated the same version of the events when he was called upon to testify in his own defense at the trial in the instant case.

We shall discuss each contention posed to us by the appellant in the order in which he posits them.

I.

Maryland Ann. Code art. 27, § 616D, provides that whenever a person, serving a term of imprisonment in a State that is a signatory to the Interstate Detainer Act, invokes the statutory rights conferred by the Act, he shall be brought to trial within one hundred and eighty (180) days “ . . . after he shall have caused to be delivered to the prosecuting officer and the appropriate court...” a written notice of his imprisonment and the place wherein he is confined and makes a “ . . . request for a final disposition . . . of the [pending] indictment, information or complaint . . . . ”

§ 616D (a) provides further:

“. . . The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the [S]tate parole agency relating to the prisoner.”

An examination of the record now before us discloses that appellant, through the “University of Georgia, School of Law, Legal Aid and Defender Society, Prisoner Legal Counseling Project, Georgia Diagnostic Center, Department of Corrections, Jackson, Georgia,” under date of November 25, 1974, inquired whether there were “ . . . any indictments, charges, or detainers pending against ...” appellant in Allegany County. The inquiry stated that appellant “ . . . believes he was indicted on October 3, 1973 for Murder, Kidnapping, Armed Robbery and Auto Theft.” The State’s Attorney for Allegany County responded, in writing, that there were indeed indictments pending against appellant and that copies of the indictments had been served on the appellant.

A paper writing entitled “Demand by Accused for Trial,” dated December 9, 1974, and subscribed by appellant, was received by the Clerk of Court on December 16, 1974. The “Demand” reads as follows:

“Defendant. . . makes this his demand for trial and asks that the Court allow this demand and that the same be placed upon the minutes, and that he be tried at this term or at the next term of this Court, or in default of such trial that he be fully acquitted and discharged of said offense.”

The State’s Attorney replied to the appellant and the “Prisoner Legal Counseling Project” who had drafted the above quoted “Demand,” that “. . . Georgia and Maryland are both signatories of the Interstate Detainer Act and it would be my opinion that in order for the request [for trial] to be effective, that [the] statute must be complied with.” Compliance with the Act, art. 27, § 616D (a), was not accomplished until April 9, 1975.

On August 19, 1975, appellant filed a motion to dismiss based on his not being tried within one hundred and eighty (180) days. The State’s Attorney, Lawrence V. Kelly, testified at the hearing on the motion to dismiss. Mr. Kelly informed the hearing judge of the facts that we have heretofore recited concerning the Interstate Detainer Act, and, further, that he had traveled to Georgia in March, 1974, in an effort to prevail upon Georgia authorities to relinquish temporary custody of appellant so that he could be tried in Maryland on the pending charge's. The Georgia Attorney General told Kelly that, as the Attorney General, he would advise the Governor of that State that it would be in the best interests of Georgia not to let the appellant out of the jurisdiction of the State. It was not until May 1, 1975, that Georgia formally agreed to deliver temporary custody of the appellant to the State of Maryland for trial on the charges for which appellant had been indicted in October, 1973.

Md. Ann. Code art. 27, § 616J, mandates that the Interstate Detainer Act “ . . . shall be liberally construed so as to effectuate its purposes.” The purposes are, in turn, spelled out with clarity in § 616B:

“The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.”

The Court of Appeals, in State v. Barnes, 273 Md. 195, 328 A. 2d 737 (1974), aff'g Barnes v. State, 20 Md. App. 262, 315 A. 2d 117 (1974), speaking through the late Judge William J. O’Donnell, opined, 273 Md. at 208, that both the Interstate Act and the Intrastate provisions “ . . . were common in derivation and purpose, were remedial in nature, designed to correct existing law, to redress existing grievances and to introduce regulations conducive to the public good; as such they are to be liberally construed in order to advance the remedy and obviate the mischief.”

The phrase “liberally construed” does not, however, mean that courts are free to bend the legislation out of shape or to remold it to some other form. We think the provision of § 616D (a), that “[t]he request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner . . containing the information specified in the statute, is mandatory and not directory. We believe the Legislature so provided because the appropriate State’s Attorney would then be in a position to evaluate whether the nature of the charges pending against the accused was of such a severe degree as to merit further trial in this State in the light of the sentence then being served in the other state that was a party to the interstate agreement. If the State’s Attorney was of the opinion that the best interests of the .people of Maryland lay in pursuing the matter, he could request the production of the accused for trial. On the other hand, if the sentence the prisoner was serving in the other state were such that bringing the accused to trial in Maryland would serve no useful purpose, he could allow the one hundred and eighty (180) day period to lapse, thus, terminating the matter. From the record in the case now before us, it is manifest that the State’s Attorney held the belief that the indictments against appellant, when weighed against the Georgia sentence, necessitated appellant’s trial in Maryland.

It is apparent that appellant did not comply with the unambiguous terms of the Act. We reiterate what Judge Orth (now Chief Judge) wrote for this Court in King v. State, 5 Md. App. 652, 249 A. 2d 468 (1969):

“ . .. Even on an assumption that the letter of 15 September 1967 was such request [for trial], and that it was filed on time, it was not accompanied by a statement from the warden containing the information required by the Act. The Act was not available to the appellant for that reason. And even if the evidence before the court be considered as showing that the appellant was precluded, from filing the request as required because the warden, although he had knowledge, did not inform the appellant of the source and contents of the untried complaints and of the appellant’s right to request final disposition thereof, [footnote omitted] no relief was available to the appellant under the Act. And even had the evidence proved that the appellant made request as required but that the warden failed to deliver it, accompanied by the statement, to the appropriate State’s attorney and the court, no relief was available to the appellant under the Act. In short, for reasons we have herein before stated, since it was not established that the appellant and the prison officials did all that they were called upon to do by the provisions of the Act, the Act was not invoked, no matter where the fault lay. 5 Md. App. at 665-66. (Emphasis supplied).

While King was concerned with an intrastate detainer, the rationale is applicable to interstate detainers as well. The “Demand by Accused for Trial” did not comply with the Act. The information required by § 616D (a) was not supplied, and no certificate of the official having custody of the appellant accompanied the “Demand.” Even after the State’s Attorney invited appellant’s attention to the deficiency in the “Demand,” there was no compliance with the Act until approximately four months later. The one hundred and eighty (180) day period in which an accused out-of-state prisoner must be tried did not begin to run until there was full compliance with the Act. Davidson v. State, 18 Md. App. 61, 67, 305 A. 2d 474, 479 (1973). We think Wise v. State, 30 Md. App. 207, 351 A. 2d 160 (1976), and Davis v. State, 24 Md. App. 567, 332 A. 2d 733 (1975), relied upon by appellant, to be inapposite as both are concerned strictly with compliance with the notice provisions of the Intrastate Act, art. 27, § 616S. Furthermore, a State’s Attorney of Baltimore City or a Maryland county is able to learn quickly the status of a Maryland incarcerated inmate, but ascertaining information about an out-of-state prisoner is not always easily accomplished, moreover, Maryland is unable to proceed where, as here, the matter is delayed by the unwillingness of the State having custody of the prisoner to relinquish, even temporarily, that custody. In our view, Judge Getty correctly denied appellant’s motion to dismiss.

II.

Citing the Sixth Amendment to the Constitution of the United States and Article 21 of the Declaration of Rights, Maryland Constitution, appellant asserts that the indictment against him should have been dismissed on the ground that he was denied a speedy trial.

In Davidson v. State, 18 Md. App. at 70, Judge Carter stated:

“This Court has repeatedly held that only the portion of the total delay period which is fairly attributable to this State is to be considered in determining the ‘length of delay’ factor [under Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972)]. See State v. Dubose, 17 Md. App. 292, 295, 301 A. 2d 32 [,34 (1973)]; State v. Lawless, 13 Md. App. 220, 230, 283 A. 2d 160 [,]68-69 (1971)]; Smith v. State, 11 Md. App. 631, 634, 276 A. 2d 228 [, 230 (1971)]; King v. State, 5 Md. App. 652, 667, 249 A. 2d 468 [, 477 (1969)].”

We have previously observed that the appellant was indicted in Allegany County on October 3, 1973. The starting point for the consideration of the delay factor of Barker began at that time. See State v. Hunter, 16 Md. App. 306, 311, 295 A. 2d 779, 782 (1972), where we held:

“ . . . [I]n order to calculate a constitutionally proscribed delay in bringing a matter to trial, we must look back to the date of the commencement of a prosecution by way of arrest, warrant, information or indictment, whichever shall first occur, and then forward to the date of the trial or hearing.”

See also Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975).

The appellant, however, was dehors the jurisdiction of the State of Maryland. This State’s jurisdiction over him was not gained until he and the custodial State had complied with the Interstate Detainer Act, thereby waiving extradition and consenting “ . . . to the production of his body ...” in the Circuit Court for Allegany County. Md. Ann. Code art. 27, § 616D (e). Manifestly, appellant cannot avail himself of Barker and its progeny, when it is he, by his criminal acts in another State, or his wilful absence from Maryland, which prevented this State from proceeding with the trial. Under the rationale of Davidson, supra, the appellant is chargeable with any delay in the trial, accounting from October 3, 1973, the date of indictment, running to April 9, 1975, the date when there was compliance with the Interstate Detainer Act.

The appellant went to trial on September 15, 1975, a period of five months and six days subsequent to compliance with the Act. Such a delay, under the circumstances, in our view, is not of constitutional dimension and neither Barker nor Hunter dictate a reversal under the facts of this case. We further observe that the delay, even though occasioned by appellant’s own misdeeds and failure to follow the procedural law, apparently did not create any hardship on or prejudice the appellant. No diminution of memory was claimed, no loss of witnesses was alleged, and no averment of denial of parole or other disadvantage was asserted. We think appellant’s claim of a denial of a speedy trial to be devoid of merit.

III.

The testimony established that the initial taking of Miller’s car and the kidnapping commenced in Pennsylvania. The four kidnappers, forcibly accompanied by their victim, then drove in the stolen car into Maryland, where as we have already said, Robert Wayne Miller was killed.

Then Md. Ann. Code art. 27, § 337, provided:

“Every person, his counsellors, aiders or abettors, who shall be convicted of the crime of kidnapping and forcibly or fraudulently carrying or causing to be carried out of or within this State any person, except in the case of a minor[] , by a parent thereof, with intent to have such person carried out of or within this State, or with the intent to have such person concealed within the State or without the State, shall be guilty of a felony and shall be sentenced to death[] or to the penitentiary for not more than thirty years, in the discretion of the court.” (Emphasis supplied).

The Maryland statute makes clear that the asportation of a kidnapped person into or through the geographical confines of this State constitutes the violation of Md. Ann. Code art. 27, § 337. The prosecution need but show beyond a reasonable doubt that the victim was forcibly carried into Maryland. Once that is established, the statute is satisfied, and it matters not that the victim was asported but a short distance. Moore v. State, 23 Md. App. 540, 329 A. 2d 48 (1974); State v. Ayers, 198 Kan. 467, 426 P. 2d 21 (1967). See also R. Perkins, Criminal Law ch. 2, § 7, at 177 (2d ed. 1969). It is patent in the case at bar that the State met its burden and demonstrated that the appellant had violated then Md. Ann. Code art. 27, § 337.

Appellant’s argument that the larceny of Miller’s vehicle occurred in Pennsylvania so that Maryland lacked jurisdiction is devoid of merit. As far back as 1882, the Court of Appeals held, in Worthington v. State, 58 Md. 403 (1882):

“ . .. When a person steals goods in another State and brings them into this, the person stealing them cannot be indicted and punished here for the crime committed in the former State, for one State cannot enforce the criminal laws of another, hut the act of bringing such stolen goods into this State is ... a new larceny, for which the party may be indicted in the courts of this State and punished.” 58 Md. at 409. (Emphasis supplied).

This Court has consistently followed Worthington. See Hamilton v. State, 12 Md. App. 91, 277 A. 2d 460 (1971); Lehr v. State, 2 Md. App. 776, 237 A. 2d 529 (1968); Gamble v. State, 2 Md. App. 271, 234 A. 2d 158 (1967).

IV.

Appellant contends it was error for the trial judge to allow into evidence the testimony of a young girl who, prior to the kidnapping of Miller, had accompanied the Isaacs, Coleman, and Dungee during their unlawful escapades in Baltimore County and in Pennsylvania. Appellant raises the rhetorical question: “How could the offenses in Baltimore County show a pattern or intent to kidnap, rob and murder Richard Miller . .. ?”

Appellant’s argument overlooks the fact that he was also charged with automobile larceny, a crime for which he was convicted. There was testimony that appellant had acted as armed look-out and, on one occasion, sought permission to shoot a woman who interrupted the theft of some gasoline.

The rule with reference to the admission of evidence of other crimes, set out in Cothron v. State, 138 Md. 101, 110, 113 A. 620, 624 (1921), quoting with approval from State v. Hyde, 234 Mo. 200, 136 S. W. 316 (1911), is:

“ . . . [E]vidence of other crimes ... [is admissible) ‘to prove the specific crime charged when it tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, (5) the identity of the person charged with the commission of a crime on trial.’ ”

See also Wentz v. State, 159 Md. 161, 150 A. 278 (1930); Mollar v. State, 25 Md. App. 291, 333 A. 2d 625 (1975); Avery v. State, 15 Md. App. 520, 292 A. 2d 728 (1972); Gordon v. State, 5 Md. App. 291, 246 A. 2d 623 (1968).

It is not required that the offered evidence meet each of the five Hyde exceptions. We have permitted, in a number of cases, evidence to be introduced when based on one or more of the exceptions. See Mollar v. State, supra; Gordon v. State, supra; Jones v. State, 4 Md. App. 445, 243 A. 2d 44 (1968); Thomas v. State, 3 Md. App. 708, 240 A. 2d 646 (1968); Gilchrist v. State, 2 Md. App. 635, 236 A. 2d 299 (1967); Loker v. State, 2 Md. App. 1, 233 A. 2d 342 (1967); Gorski v. State, 1 Md. App. 200, 228 A. 2d 835 (1967).

We think the challenged testimony in the case sub judice, falls within the rule by establishing: (1) “intent,” (2) “absence of mistake or accident,” and (3) “a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other.”

V.

Appellant’s assertion is that the jury verdict is “illegal” •because the evidence manifested that he was guilty of first •degree murder, i.e., felony-murder, as a principal in the •second degree, or “... as an accomplice to felony-murder . ... ” In short, appellant argues the old adage of “all or nothing.” We do not, however, see it that way. The jury may have, in the words of Judge Moylan in Burko v. State, 28 Md. App. 732, 735, 349 A. 2d 355, 357 (1975), “ . . . returned a legally illogical verdict of guilty of murder in the second degree, although the undisputed evidence clearly established, if it established any crime at all, a case of first-degree murder based upon the combination of felony-murder doctrine and Article 27, § 410,” but that “legally illogical verdict” is not defective.

Under the Maryland Constitution article XV, § 5, a jury, in a criminal case, is the judge of the law as well as the fact. The constitutionality of the Article has been upheld in a series of cases. Giles v. State, 229 Md. 370, 183 A. 2d 359 (1962); Slansky v. State, 192 Md. 94, 63 A. 2d 599 (1949); Burko v. State, 19 Md. App. 645, 313 A. 2d 864 (1974); Wilkins v. State, 16 Md. App. 587, 300 A. 2d 411 (1973), vacated on other grounds, 422 U. S. 1003, 95 S. Ct. 2624, 45 L.Ed.2d 667 (1975); Avey v. State, 9 Md. App. 227, 263 A. 2d 609 (1970); Lewis v. State, 2 Md. App. 678, 237 A. 2d 73 (1968); Avey v. State,. 1 Md. App. 178, 228 A. 2d 614 (1967); Wyley v. Warden, 372 F. 2d 742, 744 (4th Cir. 1967). See also Jones v. State, 29 Md. App. 182, 348 A. 2d 55 (1975), cert. granted, 277 Md. 738 (Ct. App. March 4, 1976).

Whether the verdict represented a compromise on the part of the jurors because of some intangible factors, or the jurors extended some consideration to the appellant because of his youth, in view of their knowledge that he already had been sentenced to forty (40) years imprisonment in Georgia, we cannot say. We do note that the trial judge advised the jury of the possible punishments for the various offenses. To what extent, if any, that advice dictated the verdict, we cannot speculate.

As our law now stands, the jury, subject to the qualification mentioned in note 5 supra, is the judge of the law and fact. As such, they exercised their prerogative and rendered their verdict. We perceive no error.

VI.

Whenever a question of sufficiency of the evidence is raised, the function of an appellate court is to review the record and determine whether the evidence was sufficient to sustain the conviction. Iozzi v. State, 5 Md. App. 415, 247 A. 2d 758 (1968); Bever v. State, 4 Md. App. 436, 243 A. 2d 634 (1968). To be insufficient in law to sustain the conviction, the record must demonstrate that there was no legally sufficient evidence or inferences rationally drawable therefrom upon which a jury could conclude that the accused, beyond a reasonable doubt, did, in fact, commit the crime alleged. James v. State, 14 Md. App. 689, 288 A. 2d 644 (1972); King v. State, 14 Md. App. 385, 287 A. 2d 52 (1972).

In the instant case, the jury had before it the testimony of Grover T. Martin, a special agent of the Federal Bureau of Investigation. Mr. Martin related that May 18, 1973, after he had fully apprised appellant of the Miranda rights, the appellant indicated that he “ ... would like to make a statement.” Appellant told the agent that Richard Wayne Miller was ordered into Miller’s own vehicle and the car was driven “ . . . to the western part of Maryland” from somewhere in Pennsylvania. “ . . . Carl Isaacs held a gun on him . .. .” After “ ... an hour and a half [or] . . . two hours . . .” the car stopped. “ . . . Wayne Coleman and he, Billy Isaacs, got out of the car.” Appellant “ . . . indicated that he got a shirt that he was going to utilize to tie up Mr. Miller . ... ” Coleman, appellant, and Mr. Miller went into the woods. Coleman ordered Miller to lie “ . . . face down on the ground and that . .. Coleman told him [appellant] to leave the area.” Appellant narrated to the agent that “ . . . he turned around and he saw Wayne Coleman shoot the Miller man in the head one time.”

The appellant, while in the custody of the Georgia authorities made a second statement. It, too, was given after the full panoply of Miranda had been extended to appellant. According to Ronald E. Angel, an investigator for the Georgia Bureau of Investigation, appellant said:

“[H]e was in the company of George Elder Dungee, Carl Isaacs and Wayne Coleman; that they had left from the State of Maryland and had proceeded into McConnellsburg, Pennsylvania; that they were in the process of trying to correct some mechanical trouble that they were having with vehicles by hot wiring the truck; that the truck had additionally gave them mechanical troubles; and in the process of trying to correct these problems that a young white male in a ’68 Chevrolet automobile approached them about their fooling with this automobile or this truck as to why they were around that vehicle; and that they took this young male into their custody, placed all of the personal belongings that they had in his vehicle, and required him to get into the vehicle with them by force, with the show and display of weapons; and that they kept this young white male in their custody for at least an hour or longer; that they proceeded into the State of Maryland. He recalled going into the State of Maryland by seeing a road sign displayed saying, “Welcome to Maryland”. And shortly after entering the State of Maryland, that they pulled off onto a logging road, parked the vehicle; that he and Wayne Coleman took the Miller boy from the vehicle, again with the force and display of firearms; that Billy was carrying a .38 caliber pistol, and that Coleman was carrying what he referred to [as] a .45 caliber automatic pistol; that they took the young white male into the woods; they took a shirt that they were going to — according to Billy — were going to tie the man up with; they forced him to lie down in the woods face down, removed his wallet from him; and that Wayne Coleman shot him one time in the back of the head while he was lying on the ground face down.”

Appellant, both in his statement to the Maryland authorities and at the trial, denied that he knew Miller was to be murdered or that he was present at the time Miller was shot by Coleman. When queried by Maryland authorities as to why he had told the F.B.I. agent and the Georgia investigator substantially the same versions, both of which clashed with that given to the Maryland investigators and to the jury, appellant replied that he was scared when he talked to the special agent and the Georgia investigator.

A reading of the above quoted testimony of Mr. Martin and Mr. Angel would entitle a jury to infer that appellant was a knowing participant in the murder and kidnapping of Miller as well as a principal in the larceny of Miller’s motor vehicle.

Not only was the jury not required to believe the appellant’s exculpatory narration of supposed facts, but they could reasonably infer that his in-court recitation was calculated to evade responsibility, and that the first two statements were, in fact, correct.

We think Judge Getty properly denied the motion for judgment of acquittal.

Judgments affirmed.

      . We observe that appellant has also been sentenced in the State of Georgia to terms totaling forty years for crimes committed in that State. It is not clear whether the appellant is now confined in Maryland or Georgia.

      . By Laws 1973, ch. 651, § 13, deleted the adjective “minor” and substituted the phrase “person under eighteen years of age.”

      . We pointed out in McLaughlin v. Warden, 16 Md. App. 451, 298 A. 2d 201 (1973), that Furman v. Georgia, 408 U. S. 238, 92 S. Ct. 2726, 33 L.Ed.2d 346 (1972), and Bartholomey v. State, 267 Md. 175, 297 A. 2d 696 (1972), had effectively eliminated the death penalty except in those cases wherein capital punishment is the only penalty that may be prescribed. At the time of the commission of the kidnap-murder of Robert Wayne Miller, the death penalty was not viable in Maryland. By Laws 1975, ch. 252, § 1, the death penalty has been made mandatory whenever the kidnap victim is killed by the abductors. Ch. 252 was effective July 1, 1975, and applies prospectively.

      . Henrik Ibsen, Brand (1866).

      . The Supreme Court in Giles v. Maryland, 372 U. S. 767, 83 S. Ct. 1102, 10 L.Ed.2d 137 (1963), dismissed an appeal for want of a substantial federal issue that raised the constitutionality, by federal standards, of Article XV, § 5. In Brady v. Maryland, 373 U. S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963), affirming Brady v. State, 226 Md. 422, 174 A. 2d 167 (1961), the Court noted that “ ... ‘the Judges of Law’ does not mean precisely what it seems to say” pointing out that judges render advisory instructions and rule on the evidence. 373 U. S. at 89. Moreover, the trial judge may grant a judgment of acquittal on motion of counsel or on its own motion at the close of the State’s case or at the end of the evidence. Md. Rule 755b and c.