author:
Mason, J.,
      Moylan, J.,

text:
    MELVIN BRUCE WRIGHT v. STATE OF MARYLAND
    [No. 398,
    September Term, 1975.]

      Decided June 16, 1976.

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

      Frank Cannizzaro, Jr., Assigned Public Defender, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Bernard

      Kole, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court. Moylan, J., dissents and filed a dissenting opinion at page 65 infra.

The appellant, Melvin Bruce Wright, was convicted by a jury in the Criminal Court of Baltimore of murder in the first degree. He was sentenced to a term of life imprisonment. Neither the corpus delicti nor the criminal agency of the appellant is in dispute. Both are amply supported by the evidence. The appellant’s principal assignment of error is that the trial court did not comply with Maryland Rule 719c.

The record discloses that the appellant was represented by counsel from the Office of the Public Defender for three days during pre-trial motions and two days during the trial. After the State had completed its case in chief and the appellant’s motion for a judgment of acquittal was denied, the appellant requested a change of counsel. When questioned regarding the reason for the requested change, the appellant responded “that things is happening that I should know about”, apparently referring to the bench conference where his motion for a judgment of acquittal was denied.

After adequately exploring the appellant’s source of dissatisfaction with assigned counsel, the trial court determined the appellant did not have sufficient cause for substitution of counsel. The request for change of counsel was denied and the appellant was given the option of proceeding with assigned counsel or representing himself. The court advised the appellant that if he elected to represent himself, assigned counsel would sit at the trial table and assist in his defense, if requested.

The appellant immediately asked for a postponement and stated, “I am going to represent myself and I want to study that which I have not had time to study until this time.” His request was denied and the appellant was directed to call his witnesses. Several witnesses who had already testified and had been excused were called by the appellant, but none responded. The appellant’s motion to continue the trial until these witnesses could be called was also denied. Whereupon the appellant, with some assistance from assigned counsel, proceeded to represent himself for the remainder of the trial by conducting the examination of two defense witnesses and making the closing argument to the jury.

The issue in this case is not whether the trial court was correct, as urged by the State, in denying the appellant’s request for a continuance to obtain different counsel. As we see it, the narrow issue is whether the appellant waived his constitutional right to assistance of counsel.

It is fundamental that in the absence of a specific and substantial reason for substitution of counsel, the question of whether to permit a change in counsel is a matter committed to the sound discretion of the trial court. McDonald v. Arkansas, 501 F. 2d 385 (8th Cir. 1974), cert. denied, 419 U. S. 1004, 95 S. Ct. 325, 42 L.Ed.2d 280 (1974); United States v. Young, 482 F. 2d 993 (5th Cir. 1973). cf. Conway v. State, 15 Md. App. 198, 289 A. 2d 862 (1972), cert. denied, 413 U. S. 920 (1973); English v. State, 8 Md. App. 330, 259 A. 2d 822 (1969). Here, the appellant’s eleventh hour request for different counsel for a vague and insubstantial reason was properly denied.

In State v. Renshaw, 276 Md. 259, 347 A. 2d 219 (1975), the Court of Appeals held that a request for different counsel is not a waiver of the constitutional right to assistance of counsel. In that case, prior to commencement of trial, the accused requested appointment of different counsel, which was denied. The trial court then instructed the accused regarding the procedure of selecting a jury, to which the accused replied:

I want to remain silent from here on out. As far as I am concerned, I do not feel that I am being helped by Mr. Bathon here ... as my counsel, and since I do not know the court procedure on anything about selection of jury, I am going to remain silent for whatever happens from here on out.

The defendant’s request for change of counsel and his silence were treated by the trial court as a waiver of the right to counsel and an election to proceed in proper person. This court in Renshaw v. State, 25 Md. App. 270, 333 A. 2d 363 (1975) held that the appellant’s rejection of assigned counsel indicated an inclination to waive representation, and reversed on the basis that the trial judge failed to comply with the requirements of Maryland Rule 719c before permitting the appellant to represent himself. The Court of Appeals, although affirming, said:

We shall affirm the decision of the Court of Special Appeals, not because we think the trial court erred by allowing appellee to waive his right to counsel without first observing the requirements of Rule 719c, but because in our opinion he had not waived and was instead denied his constitutional right to counsel. State v. Renshaw, supra, 276 Md. at 264 (Emphasis supplied).

In the present case when the appellant requested a change of counsel he was given the option of proceeding pro se or with assigned counsel. At no time prior to being given this option did the appellant indicate a desire or inclination to waive counsel or to represent himself. His sole request was for a change of counsel. When this request was denied the appellant reluctantly proceeded in proper person. Therefore, under these circumstances, the appellant’s choice to represent himself cannot be construed as a voluntary, intelligent and competent waiver of his right to counsel within the ambit of Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Something more than a Hobson’s choice is required before the appellant can be said to have voluntarily relinquished his right to counsel. Therefore, we reverse.

Although this appellant may well have intended to exploit the constitutional right to counsel in order to thwart the fair administration of justice, what we said in Brown v. State, 27 Md. App. 233, 340 A. 2d 409 (1975) is applicable here:

We are not unmindful of the fact that many defendants, for surface or hidden reasons, use every artifice or stratagem to unduly delay going to trial. Nevertheless, the orderly and efficient administration of the court system, and the praiseworthy purpose of prompt and expeditious trials of criminal cases, cannot outweigh the constitutional right of the appellant to be represented by counsel. Id. at 238.

The fair administration of justice and the appellant’s constitutional right to counsel are not incompatible goals; both could have been accomplished in the present case if the trial court, after denying the appellant different counsel, had (1) “ordered counsel to continue to render the fullest possible legal representation under the circumstances, with or without the cooperation of the defendant....” State v. Renshaw, supra, 276 Md. at 270, or (2) conducted an inquiry to determine whether the appellant, after indicating he would represent himself, fully comprehended the factors set forth in Maryland Rule 719c. Hamilton v. State, 30 Md. App. 202, 351 A. 2d 153 (1976); Callahan v. State, 30 Md. App. 628, 354 A. 2d 191 (1975). After such an inquiry, if the Court were convinced the appellant was aware of the advantages and disadvantages of self-representation and that he knowingly and intelligently waived his right to counsel, the court could have properly permitted the appellant to proceed pro se. Faretta v. California, 422 U. S. 806, 45 L.Ed.2d 562, 95 S. Ct. 2525 (1975).

In State v. Renshaw, supra, the Court of Appeals held, in. effect, that the accused was denied assistance of counsel not because the court failed to observe the requirements of Maryland Rule 719c, but because the appellant never indicated a desire to represent himself and remained silent throughout the trial. Here, the appellant did not remain silent; he expressed a desire to represent himself and did, in fact, conduct his own defense.

Therefore, in view of this factual difference, we conclude that the trial court also erred by allowing the appellant to represent himself without first complying with the procedural safeguards mandated by Maryland Rule 719c.

Upon our independent review of the record, we conclude that the extra-judicial photographic identification procedures used by the police in this case were not so impermissibly suggestive as to lead to a substantial likelihood of irreparable misidentification. Neil v. Biggers, 409 U. S. 188, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972); Dobson v. State, 24 Md. App. 644, 335 A. 2d 124 (1975).

Judgment reversed.

Case remanded for a new trial.

Moylan, J.,

dissenting:

Respectfully, I dissent. I am afraid that the Sixth Amendment right to counsel, particularly as improved upon by Maryland Rule 719c, has run amok. The historic protection of permitting a man without counsel to be represented was a milestone in the march forward of human liberty. The extension, by virtue of the equal protection clause of the Fourteenth Amendment, of that right to counsel to deserving and needy indigents was also a great leap forward. To permit obstructionist defendants, who have already been provided assistance at public expense, to pervert these guarantees of liberty is to allow a salutary process to pass the point of diminishing returns. Exercising my own independent constitutional judgment, I conclude that the appellant here exercised a voluntary and intelligent waiver under the rigid waiver standards of Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). That strict waiver standard should be enough. If Maryland Rule 719c has imposed a rigid Miranda v. Arizona or Boykin v. Alabama type of catechism above and beyond Johnson v. Zerbst waiver, we will be permitting clever defendants to disrupt the process to no good end. I do not quarrel with the syllogism of the majority opinion in this case. I simply maintain, as one small voice of protest, that if Maryland Rule 719c compels this result, Maryland Rule 719c is an absurdity.

      . Maryland Rule 719c provides:
      If, at any stage of the proceeding, an accused indicates a desire or inclination to waive representation, the court shall not permit such a waiver unless it determines, after appropriate questioning in open court, that the accused fully comprehends: (i) the nature of the charges and any lesser-included offenses, the range of allowable punishments, and that counsel may be of assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof; (ii) that the right to counsel includes the right to the prompt assignment of an attorney, without charge to the accused, if he is financially unable to obtain private counsel; (iii) that even if the accused intends to plead guilty, counsel may be of substantial value in developing and presenting material which could affect the sentence; and (iv) that among the accused’s rights at trial are the right to call witnesses in his behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of the charges beyond a reasonable doubt.

      , Hobson’s choice — An apparent freedom of choice with no real alternative. [After Thomas Hobson (died 1631), English liveryman who required his customers to take the next available horse rather than give them a choice.] American Heritage Dictionary (1973).


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    EDWARD ARNOLD MOSS v. DIRECTOR, PATUXENT INSTITUTION
    [No. 291,
    September Term, 1975.]

      Decided June 25, 1976.

      The cause was argued before Morton, Powers and Melvin, JJ.

      JohnH. Harman, Assigned Public Defender, for appellant.

      Donald R. Stutman, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Judith R. Catterton, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

This proceeding grew out of a series of indictments in Montgomery County against Edward Arnold Moss. He pleaded guilty to two separate offenses of armed robbery and to one offense of escape. On 31 October 1973 the court imposed consecutive sentences of 10 years, three years, and two years. On 6 November 1973 the court entered an order that Moss be delivered to the Patuxent Institution for examination “to determine whether he is a defective delinquent”. Art. 31B, § 6.

The appeal now before us is from a finding and order of the Circuit Court for Montgomery County that Moss “be returned to the Patuxent Institution for confinement as a defective delinquent for an indeterminate period without either maximum or minimum limits.” The order was entered by the court after a hearing before a jury which found, by its verdict, that Moss was a defective delinquent. Code, Art. 31B, §§ 8 (c) and 9 (b).

Moss then filed an application in this Court for leave to appeal. Art. 31B, § 11. We granted leave to appeal, and the case was transferred to our regular appeal docket. Briefs were filed on behalf of Moss as appellant and on behalf of the Director, Patuxent Institution as appellee. The appeal was heard on oral argument.

The questions presented in this appeal are:

1. Whether the delay between the Staff Report and the initial hearing was a violation of due process and Article 31B, Section 8 (a) and/or such as to prejudice the rights of the Appellant.
2. Whether the delay between Appellant’s commitment to Patuxent and his trial was so great that it denied the Appellant due process of law.
3. Whether the Court erred and abused its discretion in refusing to instruct the jury as requested in Appellant’s Instruction No. 9 that if the Appellant were found not to be a defective delinquent he would be transferred to the Department of Correction to serve out the remainder of his sentence.
4. Whether the Court erred and abused its discretion in the refusal of the Judge to disqualify himself from the case.

Lapse of Time and Due Process

We shall combine our consideration of Questions 1 and 2, and discuss the intervals of time on a step by step basis.

A written report addressed to the court, sent on 21 March 1974, stated the findings and opinion of the Diagnostic Staff of Patuxent Institution that Moss met the criteria for being a defective delinquent. Art. 31B, § 7 (a). The report shows that Moss was received at Patuxent for examination on 26 December 1973, so it is clear that the report was made in less, than one half the six months which § 7 (a) allows for the report.

The delay following Patuxent’s report raises the principal issue in this appeal. Art. 31B, § 8 (a) provides:

“If the institution for defective delinquents in its report on any person shall state that he is a defective delinquent, the court shall forthwith summon the person before it and advise him of the substance of the report and of the pendency of the hearing hereinafter provided; the court shall further advise him of his right to be represented at said hearing by counsel of his choice, or if he has no choice, by competent counsel appointed by the court.”

When the Patuxent report was received by the administrative judge of the Circuit Court for Montgomery County on 22 March 1974, he sent it to the Clerk of the Court with a memorandum showing the case numbers of the three criminal indictments and the notation: “Please file this report of Patuxent Institution in the above cases”. The docket records that the report was filed on 28 March 1974. The next activity shown by the docket was a petition filed by the State’s Attorney on 26 July 1974 for a Writ of Habeas Corpus ad Prosequendum, commanding the Sheriff of Montgomery County to bring Edward Arnold Moss before the court on 29 July 1974 for the purpose of a “Rights Hearing”. On the same date the court ordered the issuance of the writ as prayed. Also on the same date the appearance of an attorney for Moss, assigned on 23 July 1974 by the office of the Public Defender, was entered. The docket shows that on 29 July 1974 Moss appeared before the court with his counsel and was advised of his rights. He asked for a jury. On that date the case was set for hearing before a jury on 19 September 1974. Appellant’s brief tells us that he waived his right to a hearing within thirty days, as required by Art. 31B, § 8 (c), and requested hearing after 15 September 1974 so that he could arrange for an examination of the appellant by a psychiatrist of his own choice.

On 6 August 1974 the appellant filed a “Motion to Dismiss Petition”, alleging that he had been denied due process of law because he was not brought before the court “forthwith” as required by the statute. He alleged that he “was greatly prejudiced”, but the motion identified no prejudice. The motion was heard and denied at the outset of the hearing on 10 April 1975.

On 10 September 1974 appellant filed a motion for a continuance of the hearing then set for 19 September, on the ground that the psychiatrist who had been retained to examine Moss had been unable to make his examination and prepare his report.

On 17 September 1974 the court, upon consideration of the motion for continuance, ordered “that the trial in this matter be, and it hereby is, continued until the 10th day of April, 1975, by consent of the State’s Attorney and Defense Counsel.”

The hearing was commenced on 10 April 1975 and concluded on 14 April 1975, with the jury’s finding that the defendant was a defective delinquent. The order appealed from was entered on the same day.

Appellant argues, with considerable persuasive force, that the requirement of Art. 31B, § 8 (a) that “the court shall forthwith summon the person before it and advise him” of the report, the pendency of the hearing, and his right to counsel, is not merely directory, but is and must be construed and applied as mandatory. He argues further that the failure of the court to obey the mandate of the statute amounts to a denial of due process, and that the circumstances here do not demonstrate a lack of prejudice.

Our attention is called to the ruling of this Court in Marsh v. State, 22 Md. App. 173, 322 A. 2d 247 (1974), at 181, that:

“It is clear that the section [§ 8 (a)] mandates arraignment, appointment of counsel and hearing upon receipt by the court of a report from Patuxent that an inmate is a defective delinquent.”

We also said in Marsh, at 182:

“We hold that § 8 becomes effective whenever Patuxent’s written report commanded by § 7(a) declares that a patient is a defective delinquent. Upon the filing of such a report the patient named therein forthwith is entitled to the rights granted by subsections (b) and (c) of § 8. Under such circumstances, those rights may not be deferred because of an alleged failure of the inmate to submit to personal examinations.”

The appeal in Marsh was from an order holding appellant in contempt for his refusal to submit to a subsequent examination after Patuxent had already filed its report of the opinion and finding of its staff.

Appellant also cites Lawless v. Director, 27 Md. App. 453, 340 A. 2d 756 (1975), in which we quoted from the opinion of the Court of Appeals in Weeder v. State, 274 Md. 626, 337 A. 2d 67 (1975), referring to the examination at Patuxent as being “mandated” by Art. 31B, § 7 (a).

The State argues that it is directory, and cites Director v. Cash, 269 Md. 331, 305 A. 2d 833 (1973), cert. den. sub nom. Vucci v. Boslow, 414 U. S. 1136 (1974). In that case the Court of Appeals held that the specific time requirements of § 7 (a) were directory rather than mandatory. It noted that the statute provided no penalty for any failure to act within the time prescribed.

We see little to be gained by attempting to classify § 8 (a) either as “mandatory” or as “directory”. We are not dealing here with a specific time or period of time specified by statute, nor with any prescribed penalty or sanction. Due process of law is always required. The purpose of due process, in this particular context, was discussed by the United States Court of Appeals for the Fourth Circuit in Sas v. State of Maryland, 334 F. 2d 506 (1964), which was quoted by Judge Hammond in his opinion for the Court of Appeals in Director v. Daniels, 243 Md. 16, 221 A. 2d 397 (1966). The Court of Appeals commented, at 25:

“The Sas appellate court thereupon had a further caveat, in spite of the facially adequate procedural safeguards of the Act which it had recognized, whether ‘in application these safeguards result in basic fairness of procedure imposed upon the state by the fourteenth amendment.’ ”

There can be no doubt that § 8 (a) contains an absolute requirement that a person reported by Patuxent Institution to be a defective delinquent must be brought before the court and advised as the statute requires. That was done in the present case. Only the word “forthwith” is significant to the asserted denial of due process.

In Ervin v. Beland, 251 Md. 612, 617, 248 A. 2d 336 (1968), the Court of Appeals had occasion to interpret the word “forthwith” as used in what was then § 115 of the Motor Vehicle Law providing for service upon a non-resident defendant. Section 115 required the plaintiff to send registered mail notice to the defendant forthwith. In Ervin the notice was not sent until nine months after suit was filed. The Court held the notice “failed by far to meet the statutory requirement” and that the delay “amounted to an irregularity in the proceedings which went to the jurisdiction of the court. As a result, the court lacked power to proceed to judgment, [citations omitted]”. The Court, at 617, cited Black’s Law Dictionary (3d. ed. 1933) definition of “forthwith”:

“As soon as, by reasonable exertion, ... a thing may be done. Thus, when a defendant is ordered to plead forthwith, he must plead within twenty-four hours. When a statute enacts that an act is to be done ‘forthwith’ it means that the act is to be done within a reasonable time”.

The Court went on to state:

“Our predecessors, in considering the meaning of the term ‘forthwith’, as used in the notice requirement of an insurance policy, have held it to mean ‘ * * * with due diligence, or without unnecessary procrastination or delay, under all the circumstances of the case.’ Edwards v. Balto. Fire Ins. Co., 3 Gill 176 at 188 (1845). In the context of service under non-resident automobilist statutes, ‘forthwith’ does not mean instantaneously, but ‘with all reasonable dispatch consistent with the circumstances or with due diligence under all the circumstances.’ Hatch v. Hooper, 101 N. H. 214, 138 A. 2d 671, 673 (1958). Consequently, a delay of three days has been held to be permissible, Devier v. George Cole Motor Co., 27 F. Supp. 978 (D. Va. 1939), but delays of 25 days, Weir v. Devine, 48 Del. (9 Terry) 102, 98 A. 2d 778 (Super. Ct. Del. 1953) and of three months, McLean Trucking Co. v. Stover, 47 Del. (8 Terry) 110, 87 A. 2d 879 (Super. Ct. Del. 1951) have been held to invalidate the service. We conclude that Ervin’s notice, even had it been good in other respects, failed by far to meet the statutory requirement.”

We hold that in the context of Art. 31B, § 8 (a), “forthwith” does not mean instantaneous, but it does mean with all reasonable dispatch consistent with the circumstances. The State offered no explanation, to the hearing judge below, or in this Court, for the lapse of four months between the receipt of Patuxent’s report and the initiation of steps to comply with § 8 (a). Under the circumstances, the court did not act forthwith. When the statute says what “the court” shall do, we do not take it to mean specifically a judge, any more than it means the State’s Attorney, or the clerk. The responsibility is shared by all.

The report was sent by the judge to the clerk. Copies of the report were sent by Patuxent to the State’s Attorney at the same time it was sent to the judge. Someone should have acted forthwith. Nobody did. It is imperative that there be an established procedure to assure prompt compliance with § 8 (a). When there is a procedure, it is imperative that it be followed. Failure to follow it could result in a denial of due process of law.

Due process is not, however, evaluated in a vacuum. Its purpose is to assure basic fairness of procedure. If a departure from procedure results in unfairness, it may be said to deny due process. If no unfairness results, there is no denial of due process.

There is not in this case even the slightest indication of unfairness or prejudice to Moss because the “rights hearing” was not held sooner. The hearing was held less than nine months after Moss was sentenced to serve 15 years. He requested additional time before the determination hearing. He later requested and was granted a further continuance. There was no denial of due process of law.

The Requested Instruction Was Properly Denied

At the hearing appellant asked the court to instruct the jury that

“If you should find that the Defendant is not a defective delinquent, he will be transferred to the Department of Correction to serve out the remainder of his sentence.”

Exception was taken to the court’s refusal to give the instruction.

The requested instruction was irrelevant. The sole issue to be determined by the jury was whether Moss was a defective delinquent, as defined by the statute. Hammond v. Director, 229 Md. 643, 184 A. 2d 628 (1962); Cannady v. Director, 23 Md. App. 432, 327 A. 2d 785 (1974); Bush v. Director, 22 Md. App. 353, 324 A. 2d 162 (1974).

Request to Judge to Disqualify Himself

At the beginning of the determination hearing appellant reminded the judge that he had been a member of the sentence review panel which had considered an application by Moss for review of his sentences in the criminal cases. The judge’s refusal to disqualify himself from presiding over the jury hearing was a proper exercise of his discretion, and did not constitute error. Napier v. Director, 232 Md. 654, 194 A. 2d 277 (1963).

Order affirmed.

      . Section 8 (c) does not require that the hearing be held imthin thirty days. On the contrary, it requires that the hearing “shall be held no less than thirty days following designation of counsel, unless acceleration of the time is requested by the person or his counsel.” (Emphasis added).

      . The phrase in the order referring to consent, following the date, is handwritten, apparently added after the typewritten form of order was prepared. In appellant’s brief, his counsel says that the order was modified without his consent or approval. He also says that he “submitted to the April 10,1975, date in order to establish a date certain for trial”. No effort was made below to correct any “error” in the order. Consent, whether enthusiastic or reluctant, is nevertheless consent. We take the order as it appears in the record.

      . Examples of a clear statutory sanction are found in Art. 27, §§ 616D and 616S, under which certain untried indictments must be dismissed with prejudice when the prescribed time requirements are not met.


author: Orth, C. J.,

text:
    LAURA AGNUS HOWARD v. STATE OF MARYLAND RICHARD ALDEN HOWARD, SR. v. STATE OF MARYLAND
    [No. 546,
    September Term, 1975.]
    [No. 547,
    September Term, 1975.]

      Decided June 25, 1976.

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

      Reginald W. Bours, III, Assigned Public Defender, and John M. King for appellants.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L.

      Sonner, State’s Attorney for Montgomery County, and Thomas L. Heeney, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

Laura Agnus Howard , 900 Neal Drive, Rockville, Maryland, was arrested on 24 March 1974. Officer William F. Green of the Montgomery County Police Department promptly executed a statement of charges, No. 195999, signed by a judicial officer as returned on the day of the arrest. The charging document gave 24 March 1974 as the offense date, the time as 12:10 A.M. and the location as Mrs. Howard’s address. It alleged that she “did unlawfully violate Art. 27, Sect. 121 of the State of Md. to wit did make a disturbance of the Public Peace by wilfully disturbing the public peace by making loud and unseemly noises, profanity, swear & curse, against the peace government and dignity of the state.” She was released upon posting an unsecured personal bond in the amount of $500.

Richard Alden Howard, Sr., the husband of Laura Agnus Howard, was also arrested on 24 March 1974. Four statements of charges emanated from his arrest. Three of them, Nos. 198408, 198404, and 195996, were executed by Sergeant Jack W. Hall and the other one, No. 195998, was executed by Corporal J. E. Eekenrode, both members of the Montgomery County Police Department. All four charging documents were signed by a judicial officer as returned on 24 March 1974, and all pertained to arrest no. 37376 and report no. RD412510. In the statement executed by Eekenrode the time of the offense was given as 12:10 A.M. and the place as Lynn Court and Neal Drive. It alleged that Mr. Howard “did unlawfully commit the crime of Disturbance of the peace (Public) art. 27, Sec. 121 of the annotated Code of Maryland by willfully disturbing the public peace by making loud and unseemly noises, profanity, swear and curse against the peace, government, and dignity of the State.” Statement of Charges no. 195996 executed by Hall alleged that Mr. Howard “did unlawfully commit the crime of Disturbance of the Public Peace Art. 27 section 121 Annotated Code of Maryland by willfully disturbing the public peace by making loud and unseemly noises, profanity curse and swear and use obscene language against the peace, government and dignity of the state.” Statement of Charges no. 198403 executed by Hall alleged that Mr. Howard “did unlawfully make an assault upon Jack W. Hall and did then and there beat, bruise and ill treat the said Jack W. Hall, against the peace, government, and dignity of the state. Commonlaw of the state of Maryland against the peace, government, and dignity of the state.” Statement of Charges no. 198404 executed by Hall alleged that Mr. Howard “did unlawfully hinder and prevent Jack W. Hall, a public police officer in the lawful execution of his duty, knowing him to be such officer Common laws of the state of Md. against the peace, government, and dignity of the state.” Mr. Howard was released upon posting a “personal” bond in the amount of $500.

Although on each Statement of Charges the judicial officer set the trial date as 16 May 1974, it seems that the cases came for trial as to both accused on 24 September 1974. Mr. Howard and Mrs. Howard demanded a jury trial, Courts Art. § 4-302 (d) (1), and the presiding District Court judge ordered that the “original papers” be transferred to the Circuit Court for Montgomery County. Bond was continued as to each accused. The five Statements of Charges were filed in the Circuit Court for Montgomery County and docketed on 30 September 1974. According to the docket entries in each case under date of 1 November 1974, a motion by Mr. and Mrs. Howard to consolidate the cases was granted. It appears from the docket entries that at a preliminary inquiry hearing on 1 November Mr. Howard and Mrs. Howard stood “mute on plea” and demanded a jury trial. The court entered a plea of not guilty. Bond was continued as to each accused. On 24 January 1975 the State filed a “Motion for Appropriate Relief.” The relief sought was that (1) the case in which Mrs. Howard was charged be severed from the four cases in which Mr. Howard was charged and remanded to the District Court for Montgomery County for trial, and that (2) with respect to the four cases in which Mr. Howard was charged, Criminal 15234 and Criminal 15235, each alleging a disturbance of the peace in violation of Code, art. 27, § 121, be severed and remanded to the District Court for Montgomery County for trial. Mr. and Mrs. Howard answered, opposing the motion. The State requested a hearing and the matter was heard on argument of counsel on 12 March 1975. The court issued an order dated 7 May 1975 and filed 8 May 1975:

“ORDERED that Criminal Numbers 15234 and 15235 charging Richard A. Howard, Jr. with disturbing the peace on two different occasions under Article 27, Section 121, be and they are hereby severed from Criminal Numbers 15232 and 15233 and 15230 and remanded for disposition to the District Court for Montgomery County; and it is. further
ORDERED that Criminal Number 15230 charging Laura A. Howard with disturbing the peace under Article 27, Section 121, is hereby severed from Criminal Numbers 15232 and 15233 and remanded to the District Court of Montgomery County for disposition.”

In each case against them, Mr. and Mrs. Howard, on 5 June 1975, filed a request with the Clerk of the trial court that he “enter an appeal to the Court of Special Appeals of Maryland .. . from the opinion, order and judgment of the Circuit Court for Montgomery County ... of May 7,1975.”

I

The State included a motion to dismiss the appeal in its brief as authorized by Maryland Rule 1036, § d. The argument in support of the motion was that the order appealed from was a proper exercise of the lower court’s discretion granted by Rule 735. Neal v. State, 272 Md. 323 (1974) is cited as indicating that a “rightful exercise” of the court’s discretion is not immediately appealable. Mr. and Mrs. Howard oppose the motion in their reply brief. Rule 1036 § d. They claim that the order of 7 May 1975 was not merely an exercise of judicial discretion resulting in a severance of offenses and defendants authorized by Rule 735. They assert that the order finally terminated the proceedings in the Circuit Court for Montgomery County as to three cases, criminal 15230 against Mrs. Howard and criminals 15234 and 15235 against Mr. Howard, and that it finally adjudicated both their right to a jury trial in those cases and the jurisdiction of the Circuit Court for Montgomery County to try them. We agree that it was a final judgment going to the jurisdiction of the court. The motion to dismiss the appeal is denied. See State v. McCray, 267 Md. 111, 126 (1972).

II

Statement of Charges no. 195999 (Criminal 15230) as to Mrs. Howard and Statements of Charges no. 195998 (Criminal 15235) and no. 195996 (Criminal 15234) as to Mr. Howard alleged a commission of the crime proscribed by Code, art. 27, § 121. The offense created by the statute is a misdemeanor. Any person convicted thereof shall “be sentenced to a fine of not less than one dollar and not more than one hundred dollars or shall be subject to imprisonment for not more than thirty days, or shall be subject to both such fine and imprisonment, in the discretion of the court and shall pay costs of the prosecution.” Statement of Charges no. 198403 (Criminal 15232) alleged that Mr. Howard committed the crime of assault and battery, and Statement of Charges no. 198404 (Criminal 15233) alleged that he committed the crime of hindering a police officer in the execution of the officer’s duty. These crimes are common law misdemeanors without statutory designation of punishment. Thus, punishment is within the discretion of the trial court with the limitation that it be not cruel or unusual. Roddy v. Finnegan, 43 Md. 490, 500-506 (1876); Wilkins v. State, 5 Md. App. 8, 22 (1968); Coleman v. State, 4 Md. App. 386, 390-391 (1968), cert. den., 252 Md. 730 (1969); Perkins on Criminal Law (2d ed.) 494-498; 3 Wharton’s Criminal Law (Anderson), § 1283. See Matter of Nawrocki, 15 Md. App. 252, 263 (1972), cert. den., 266 Md. 741 (1972).

The criminal and civil jurisdiction of the District Court is bestowed by statute. Its criminal jurisdiction is designated by Courts Art. §§ 4-301 through 4-303, which specify the criminal cases in which it has exclusive original jurisdiction, concurrent jurisdiction and no jurisdiction.

A. Exclusive Original Jurisdiction Cases, § 4-301

The District Court has exclusive original jurisdiction in cases in which the charge is:

1) a violation of the vehicle laws or the State Boat Act;
2) the commission of a common law or statutory misdemeanor;
3) a violation of certain sections of Code, art. 27, whether a felony or misdemeanor, if the value of money or the thing taken, stolen, received, converted, or shoplifted does not exceed $500;
4) if not a felony,
a) a violation of a county, municipal, or other ordinance;
b) a criminal violation of a state, county, or municipal rule or regulation;
c) doing or omitting to do any act made punishable by a fine, imprisonment, or other penalty as provided by a particular law, ordinance, rule, or regulation defining the violation.

B. Concurrent Jurisdiction Cases, § 4-302 (c)

The jurisdiction of the District Court is concurrent with that of the circuit court in a criminal case in which the penalty may be confinement for three years or more or a fine of $2,500 or more.

C. No Jurisdiction Cases, § 4-302 (a) and (b)

The District Court does not have jurisdiction to try a case:

D charging the commission of a felony, except those specified violations of art. 27, see A 3) above, which are felonies;
2) in which a juvenile court has exclusive original jurisdiction, except as provided by § 4-303.

Thus, the case against Mrs. Howard and the two cases against Mr. Howard, charging violations of art. 27, § 121, disturbing the peace, were within the exclusive original jurisdiction of the District Court because the offense charged was a statutory misdemeanor as to which the maximum penalty authorized for confinement was less than three years. As for the two remaining cases against Mr. Howard, charging assault and battery, and obstructing a police officer, however, the jurisdiction of the District Court, arising because each offense was a common law misdemeanor, was concurrent with the jurisdiction of the circuit court inasmuch as to each offense the penalty may be confinement for three years or more.

The District Court may be deprived of its jurisdiction of a criminal case, be it exclusive original or concurrent with that of the Circuit Court, by the proper demand of a defendant for a jury trial. The demand is proper when the defendant is entitled to a jury trial and claims it at any time prior to trial in the District Court. Courts Art. § 4-302 (d) (1). He is entitled to it “if theJpenalty for the offense with which he is charged permits imprisonment for a period in excess of three months;...” Courts Art. § 4-302 (d) (2). Thus, considering the cases separately, Mr. Howard and Mrs. Howard were not entitled to a jury trial in the cases charging a violation of art. 27, § 121, disturbing the peace, and could not deprive the District Court of its exclusive original jurisdiction over those cases by demanding a jury trial. Mr. Howard, however, could deprive the District Court of its jurisdiction to try the two cases in which he was charged with assault and obstructing a police officer by demanding the jury trial to which he was entitled because the charges permitted imprisonment for a period in excess of three months. As he made timely demand for a jury trial in those two cases, the District Court was deprived of its jurisdiction over them which it had concurrently with the circuit court, and jurisdiction as to them vested in the circuit court. The question is: Did the demand for a jury trial by Mr. Howard as to the offenses of assault and obstructing an officer not only deprive the District Court of its jurisdiction over those two offenses and bestow exclusive original jurisdiction over them on the circuit court, but also deprive the District Court of its exclusive original jurisdiction over the disturbing the peace offenses against Mr. Howard, or against both Mr. and Mrs. Howard, and bestow exclusive original jurisdiction over them on the circuit court?

Courts Art. § 4-302 (e) declares:

“Except as provided in Subtitle 5, the District Court does not have jurisdiction of an offense or offenses otherwise within the District Court’s jurisdiction if a person is charged with an offense or offenses arising from the same circumstances but not within the District Court’s jurisdiction. In this case, the circuit court for the county has exclusive original jurisdiction over all the offenses.”

This appeal requires a construction of § 4-302 (e) and specifically of the phrase “not within the District Court’s jurisdiction.”

On 17 June 1976 the Court of Appeals filed its opinion in Thompson v. State, 278 Md. 41 (1975). Thompson was charged with three violations of the motor vehicle laws arising out of the same circumstances. Only one of the offenses carried such a maximum penalty as would entitle him to demand a jury trial prior to trial in the District Court. He demanded a jury trial and the entire case was transferred to the Criminal Court of Baltimore for trial. When the case came on for trial, the State entered a nolle prosequi with respect to the offense which met the penalty requirements for entitlement to a jury trial under Courts Art. § 4-302 (d) (2). Thompson demanded a jury trial on the two remaining offenses or, in the alternative, that they be remanded to the District Court for trial. The trial judge rejected the demand for a jury trial. It was his opinion that there was no right to a jury trial at the circuit court level on those “petty” offenses. He also refused to return them to the District Court for trial on the ground that jurisdiction once obtained by a circuit court remained in that court. Thompson, convicted at a bench trial of one of the charges and acquitted of the other, appealed. This Court affirmed the judgment. Thompson v. State, 26 Md. App. 442 (1975) and the Court of Appeals granted certiorari. It reversed the judgment of the Court of Special Appeals and remanded with direction that we reverse the judgment of the Criminal Court of Baltimore and remand the case to that court for a new trial. The Court of Appeals held:

(1) Upon Thompson’s timely demand in the District Court for a jury trial, exclusive original jurisdiction over all three offenses became vested in the Criminal Court of Baltimore.
(2) The jurisdiction of the Criminal Court of Baltimore over the two “petty” offenses did not depend on the prosecution of Thompson on the offense punishable by more than three months imprisonment. Therefore, the entry of the nolle prosequi on the charge which entitled Thompson in the District Court to demand a jury trial did not divest the Criminal Court of jurisdiction over the two remaining offenses. “Section 4-302”, the Court of Appeals said, at 47-48, “deals only with circumstances whereby jurisdiction attaches in the circuit courts over offenses ‘otherwise within the District Court’s jurisdiction.’ Nothing in the provisions of that section or of any other statute or Rule of this Court supports Thompson’s contention that the Criminal Court’s jurisdiction may be subsequently ousted by dropping the [charge punishable by a sentence of more than three months].”
(3) Thompson was entitled to a jury trial in the Criminal Court of Baltimore on the two remaining charges. The Court of Appeals construed Courts Art. § 4-302 (d) as concerning “only, the right to make a demand, in the District Court, for a jury trial. It has no application to the right to a jury trial for charges pending in the Criminal Court.” 277 Md. at 48. It opined that “the right to a jury trial in criminal cases in the circuit court and Criminal Court of Baltimore, as opposed to the District Court, has not been limited by statute. In such circumstances, where a defendant is charged with a crime in a court of general common law jurisdiction, and where no legislative enactment restricts his right to a jury trial, we believe he is entitled to the common law mode of trial, i.e., trial by jury. ... No Maryland statute denies a defendant, charged in the Criminal Court with a so-called ‘petty’ crime, the right to a jury trial. While it may be constitutional to do so, [citations omitted], the statutory provisions do not reflect 'such an intent on the Legislature’s part. . . . Absent legislative action taking the right away (in those instances where it would be constitutional to do so), the common law right to a jury trial remains applicable .... Moreover, nothing in the Maryland Rules purports to remove the common law right of a defendant to a jury trial in the Criminal Court.” 277 Md. at 49, 52-53.

It is manifest that under the Thompson rulings, the trial court erred with respect to Mr. Howard in its order issued 7 May 1975 at the instance of the Motion for Appropriate Relief by the State. Upon Mr. Howard’s demand for a jury trial in the District Court, the Circuit Court properly ácquired jurisdiction over all of the offenses with which Mr. Howard was charged. He was entitled to have all those offenses tried in the Circuit Court, and by a jury upon proper demand. Therefore, we vacate that part of the order of the Circuit Court which severed Criminal Numbers 15234 and 15235, charging Richard A. Howard, Sr. with disturbing the peace, and remanded them for disposition to the District Court for Montgomery County.

The part of the order of 7 May 1975 which remanded the charge against Mrs. Howard to the District Court for disposition is in a different posture. As we have indicated, the penalty for that offense did not permit imprisonment for a period in excess of three months, so she was not entitled to demand a jury trial prior to trial in the District Court. Courts Art. § 4-302 (d). Apparently, the charge against her was transferred to the Circuit Court upon demand for a jury trial by Mr. and Mrs. Howard because it had been consolidated with the charges against Mr. Howard, but the record before us does not show a consolidation in the District Court. See note 8 supra. In any event, even if the charge against Mrs. Howard were consolidated in the District Court with the charge against Mr. Howard, and even if such consolidation were proper for the purpose of trial in the District Court, it could not serve to divest the District Court of its exclusive original jurisdiction over the case against Mrs." Howard. Courts Art. § 4-302 (d) plainly states “The District Court is deprived of jurisdiction if a defendant is entitled to and demands a jury trial at any time prior to trial in the District Court.” (Emphasis added). Section 4-302 (e) speaks in terms of “a person” charged with an offense or offenses arising from the same circumstances but not within the District Court’s jurisdiction. We see no intendment in statute or Rule to permit the divesting of the exclusive original jurisdiction of the District Court in the circumstances here. The jurisdiction to try the criminal case against Mrs. Howard remained in the District Court and the Circuit Court was without jurisdiction to try it. That part of the order of 7 May 1975 which remanded Criminal No. 15230, charging Laura A. Howard with disturbing the peace, to the District Court for disposition is affirmed.

We have several final observations prompted by appellant’s arguments. Even if the point had been preserved for review, we do not believe that the statutes and Rules as applied to decide this appeal deny due process of law or are otherwise constitutionally offensive. Mrs. Howard has no absolute right, constitutional or otherwise, to be. tried jointly with her husband, whose voluntary action divested the court, having exclusive original jurisdiction over both, of its jurisdiction over him. And we point out that jurisdiction cannot be conferred upon a court by the parties by way of agreement or acquiescence. State v. McCray, supra, at 126.

Those parts of the order of 7 May 1975 of the Circuit Court for Montgomery County as to Richard A. Howard, Sr., severing Criminal Numbers 15234 and 15235 from Criminal Numbers 15232 and 15233 and remanding Criminal Numbers 15234 and 15235 to the District Court for disposition vacated; those parts of said order as to Laura A. Howard, severing Criminal Number 15230 from Criminal Numbers 15232, 15233, 15234 and 15235 and remanding Criminal Number 15230 to the District Court for disposition affirmed.

      . Mrs. Howard’s middle name is sometimes given as “Agnes” in the record before us.

      . M.D.R. 706, § c 3 provides: “Whenever a defendant is arrested without a warrant, the officer in whose custody the defendant is placed for charging shall promptly prepare, or shall supervise the prompt preparation of, a statement of charges against the defendant.”

      . Officer Green set out the following in the statement of charges as the “factual information or observations (probable cause)” on which the charge was based: “On - 03 - 24 - 74 at approx 0010 hrs. Mrs. Laura Agnus Howard did yell, curse and generally act in a disorderly manor by being extremely loud and boisterous and disturbing the public peace at 900 Neal Dr. Rockville, Md.”

      . Eckenrode gave as “factual information or observations (probable cause)” that he and another officer “did observe Mr. Richard Alden Howard Sr. using loud and obscene language within walking distance of persons on the street.”

      . The charge was based on the following “factual information and observations”: “I Jack W. Hall did observe Laura Agnes Howard standing in front of 900 Neal Dr. Rockville, Md. Montgomery County, Md. using obscene language, and making loud noises within hearing of persons passing by on a public street. I placed Laura Agnes Howard under arrest.”

      . This charge was based on the following “factual information and observations”: “I, Jack W. Hall was trying to arrest Laura Agnes Howard, when Richard Alden Howard Sr., did strike me in the face several times with his fist, he bloodied my nose, and raise a large swelling area under my left eye.”

      . The basis of this charge was stated to be that “I, Jack W. Hall was trying to apprehend and arrest Laura Agnes Howard, when Richard Alden Howard Sr., did punch and strike me with his fist and hinder and prevent me from arresting Laura Agnes Howard, by pulling and striking me.”

      . According to the State, “one continuance was obtained by [Mr. and Mrs. Howard] and a second continuance was obtained, but the record does not disclose at whose behest.” State’s Brief at 4. Mr. and Mrs. Howard state in their brief that before the cases came on for trial in the District Court, the State moved to consolidate the charges for trial to which Mr. and Mrs. Howard consented. Appellants’ Brief at 1-2. In its brief the State declares that “All cases were consolidated for purposes of trial in the District Court....” State’s Brief at 4.

      . Statement no. 195999, charging Mrs. Howard was docketed as Criminal No. 15230. Statements nos. 198403, 198404, 195996, and 195998, charging Mr. Howard were docketed as Criminal Nos. 15232, 15233, 15234, and 15235, respectively.

      . The motion and order granting it do not appear in the record before us.

      . In the interim Mr. and Mrs. Howard had filed a demand for particulars which ultimately resulted in a hearing on 18 December 1974 at which the Motion for Bill of Particulars was “overruled in part and sustained in part.”

      . The record in each case was received by this Court on 30 July 1975. On 17 October 1975 appellants filed a motion to supplement the records by including therein a stipulation of facts signed by the Assistant State’s Attorney prosecuting the cases. We denied the motion by our order of 29 October on the ground that only that which had been before the trial court was properly to be included in the record before us.

      . Rule 735 provides:
      “If it appears that an accused or the State will be prejudiced by a joinder of offenses or of defendants in an indictment, or by joinder for trial together, the court may order an election or separate trials of counts, grant separate trials of defendants or provide such other relief justice requires. A motion under this Rule may be made only before the jury is sworn, or, where trial by jury is waived, before any evidence is received.”

      . In the context of the allegations against Mr. and Mrs. Howard, § 121 of art. 27 makes it a crime for any person to wilfully disturb any neighborhood in any city, town or county of this State by loud and unseemly noises and to profanely curse or swear or use obscene language upon or near to any public street or highway in any such city, town or county within the hearing of persons passing by or along such highway. See Matter of Nawrocki, 15 Md. App. 252 (1972), cert. den., 266 Md. 741 (1972).

      . When the charge is against a person at least 16 years of age or a corporation.

      . By ch. 307, Acts 1975, effective 1 July 1975, the words “regardless of the amount of money or value of the property involved” were added.

      . Prior to 1 July 1975 the designated sections of art. 27 were § 140 (False Pretenses), § 142 (False Pretenses), § 144 (False Pretenses), § 340 (Larceny), § 353 (Larceny After Trust), § 466 (Receiving Stolen Goods), § 551A (Shoplifting). By ch. 307, Acts 1975, references to §§ 140, 142 and 144 were deleted.

      . As to 2, 3, and 4, when the charge is against a person at least 18 years old or a corporation.

      . We note that the circuit court does not have original jurisdiction to try a case charging a violation of the vehicle laws or the State Boat Act unless the District Court is first divested of its exclusive original jurisdiction by proper demand for a jury trial as discussed infra.

      . Section 4-303 provides:
      “The District Court has jurisdiction over a person who is brought before a court sitting as a juvenile court if:

        (1) The juvenile court waives jurisdiction or the person elects to be tried according to the regular criminal procedure; and
      (2) The offense charged is within the jurisdiction conferred by § 4-301.” See A above.

      . On the Statement of Charges against Mrs. Howard, her date of birth was given as 31 October 1924. On the Statements of Charges against Mr. Howard, his date of birth was given as 7 December 1925.

      . The State may not demand a jury trial. Courts Art. § 4-302 (d) (2).

      . According to the Revisor’s Note, the exception pertaining to Subtitle 5 was intended to cover unusual situations involving juvenile causes in Montgomery County. Subtitle 5 was repealed by Acts 1975, ch. 554, § 2, effective 1 July 1975.

      . “Circuit court” includes the Criminal Court of Baltimore. Courts Art. § 4-101 (b).

      . Although there were two separate charges of disturbing the peace against Mr. Howard, it is clear that they arose from the same circumstances.

      . Maryland Rule 734 applicable to the circuit courts, permits “two or more indictments to be tried together if the offenses and the defendants, if there be more than one, could have been joined in a single indictment.” There is no comparable Maryland District Rule. But see Maryland District Rules 1 a 1 and 2,343, 501 and 716.


author: Morton, J.,

text:
    ZACHARIAH B. RODGERS v. STATE OF MARYLAND
    [No. 640,
    September Term, 1975.]

      Decided June 25, 1976.

    The cause was argued before Morton, Davidson, Moore and Melvin, JJ-

      George E. Burns, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Geraldine Kenney Sweeney, Assistant Public Defender, on the brief, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Sviisher, State’s Attorney for Baltimore City, and Leonard Eiswert, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant, Zachariah B. Rodgers, was charged with possession of a deadly weapon, resisting arrest and assault. The assault charge was apparently nolle prossed. At the conclusion of the trial in the Criminal Court of Baltimore (Karwacki, J., presiding), a jury found the appellant not guilty of possessing a deadly weapon but guilty of resisting arrest. He received a three-year sentence.

The appellant contends in this appeal that the trial judge committed reversible error by refusing to grant his motion for judgment of acquittal and by improperly instructing the jury.

The record indicates that on July 7, 1974, at about 1 p.m., Officers Fred Morgan and Carl Coates, while on routine uniformed patrol, received a call requesting that they assist another police unit in serving an arrest warrant. They were told that the warrant had been verified and that the suspect’s name was Zachariah Rodgers. Shortly after their arrival at the location to which they had been summoned, the officers encountered the appellant, who matched the description which had been given them of the person named in the warrant. Officer Coates testified that he told the appellant that an arrest warrant had been issued for a Zachariah Rodgers. When asked if his name was Zachariah Rodgers, the appellant answered that his name was Barry. He was asked to accompany the officers while they investigated this discrepancy. When he willingly complied, they neither searched nor handcuffed him. As the officers were walking toward the police car with the appellant between them and Officer Coates holding appellant’s elbow with his hand, the appellant turned and grabbed Officer Coates. They struggled briefly until Officer Morgan intervened by striking the appellant with his night stick. The appellant was then handcuffed and placed in the police car.

In the course of the struggle, Officer Coates was cut with a straight-edged razor which was introduced into evidence. As a result, Officer Coates was treated for superficial lacerations. The appellant received nine stitches for a head wound. Although the appellant’s version of the incident differed substantially from that of the police officers, he admitted that he knew he was under arrest before the altercation occurred.

The arrest warrant which led to the appellant’s apprehension charged that the appellant:

“Unlawfully did assault one Lillie Clark, via telephone, by threatening then and there to do bodily harm unto her, in Balto. City, Md. on 5 July 74.”

The appellant argues that since “assault by telephone” is ' not a crime, the arrest warrant was defective; that an arrest pursuant to a defective warrant is illegal; and that appellant, therefore, had a right to use reasonable force in resisting the arrest. He contends, accordingly, that it was error to deny his motion for judgment of acquittal.

In addressing the issue, we assume, without deciding, that (1) the arrest warrant was, in fact, defective and (2) the force used in resisting the arrest was not unreasonable.

This Court stated in Jordan v. State, 17 Md. App. 201, 206-07 (1973):

“Maryland always has adhered to the common law rule that one who is illegally arrested may use reasonable force to effect his escape. Sugarman v. State, 173 Md. 52, 57, 195 A. 324 (1937). See Soles v. State, 16 Md. App. 656. We note, however, that in recent years the ancient common law rule observed in Maryland and in a majority of American jurisdictions has been criticized by some commentators, has been changed by adoption of the Uniform Arrest Act in four States, and has been altered by judicial decision in one jurisdiction. State v. Koonce, 89 N.J. Super. Ct. 169, 214 A. 2d 428 (1965). In the Koonce case, the New Jersey court concluded that police officers attempting, in good faith, although mistakenly, to perform their duties in effecting an arrest ‘should be relieved of the threat of physical harm at the hands of the arrestee.’ Id. at 436.
We will not join the debate over whether the rule that a person has a right to use reasonable force in resisting an illegal arrest still has a place in today’s heavily urban society.” [Footnotes omitted.]

See Jenkins v. State, 232 Md. 529 (1963); Kraft v. State, 18 Md. App. 169 (1973); Matter of Nawrocki, 15 Md. App. 252 (1972).

The decisions of the Court of Appeals which place Maryland squarely within the common law rule that one may use reasonable force to resist an illegal arrest appear to have involved warrantless arrests. See, e.g., Sharpe v. State, 231 Md. 401 (1963); Sugarman v. State, 173 Md. 52 (1937). Whether the common law rule prevails in this state where the arrest is made upon a warrant which later turns out to be defective is an issue apparently not heretofore presented to the Court of Appeals. It would seem, therefore, that this Court may take a fresh view of the law with respect to the right of an individual to resist an arrest with reasonable force where the arrest is upon a warrant even though it is found later to be defective.

We think the difference between an arrest pursuant to a warrant and a warrantless arrest is substantial. In the latter case, the decision to effectuate an arrest involves a judgment by the police based upon the facts within their knowledge. On many occasions the decision to arrest must be arrived at hurriedly, sometimes almost intuitively, and rarely is there an opportunity to make a studied appraisal of the quality and quantity of the factors supporting the judgment. On the other hand, where a warrant is the basis of the arrest, it presumably has been issued in the quiet atmosphere surrounding the issuing judicial officer where he has had an opportunity to reflect upon and measure the facts presented to him before reaching his decision to issue the arrest warrant. Once it is issued, the police have no alternative than to perform the ministerial duty of executing the judicial officer’s order.

In making what we think is a valid distinction between the two types of arrest, we recognize that it necessarily involves an evaluation of highly esteemed, competing social values. On the one hand, a person who is provoked into resisting an arrest because it is illegal should not be punished with a conviction for such an affront to his right to be free from unlawful police conduct. At the same time, a fundamental purpose of our legal system is the promotion of orderly conduct and the discouragement of violence. The resolution of the confrontation of these values was well articulated in State v. Koonce, 89 N.J. Super. Ct. 169, 214 A. 2d 428, 435-36 (1965):

“But it seems to us that an appropriate accommodation of society’s interests in securing the right of individual liberty, maintenance of law enforcement, and prevention of death or serious injury not only of the participants in an arrest fracas but of innocent third persons ■ precludes tolerance of any formulation which validates an arrestee’s resistance of a police officer with force merely because the arrest is ultimately adjudged to have been illegal. Force begets force, and escalation into bloodshed is a frequent probability. The right or wrong of an arrest is often a matter of close debate as to which even lawyers and judges may differ. In this era of constantly expanding legal protections of the rights of the accused in criminal proceedings, one deeming himself illegally arrested can reasonably be asked to submit peaceably to arrest by a police officer, and to take recourse in his legal remedies for regaining his liberty and defending the ensuing prosecution against him. At the same time, police officers attempting in good faith, although mistakenly, to perform their duties in effecting an arrest should be relieved of the threat of physical harm at the hands of the arrestee.”

The Koonce court then announced, at 436:

“* * * we declare it to be the law of this State that a private citizen may not use force to resist arrest by one he knows or has good reason to believe is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances obtaining.”

In Koonce, no distinction was made between a warrantless arrest and one based upon a warrant. This Court, of course, is not free to make this all-inclusive decision in view of the state of the law as heretofore enunciated by the Court of Appeals. We do believe, however, we are free to make the distinction and to formulate a different rule with respect to arrests upon warrants, without doing violence to the controlling prior decisions of the Court of Appeals.

In formulating a rule of law applicable to situations involving resistance to an arrest sought to be accomplished by a warrant later found to be defective, we think the language of the Supreme Court of the United States in Walker v. City of Birmingham, 388 U. S. 307 (1967) is pertinent and instructive. There, a group of citizens were enjoined from participating in a civil rights march. Since the participants believed the injunction and ordinance upon which it was based were unconstitutional, they ignored the injunction and demonstrated. The Supreme Court held that even if the injunction and underlying ordinance were unconstitutional, the participants had to test its legality in the courts, not in the streets. The Court reasoned, at 320-21:

“The rule of law that Alabama followed in this case reflects a belief that in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion. This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.” [Footnote omitted.]

The Uniform Arrest Act and the Model Penal Code recommend abolition of the common law rule in its entirety. Section 5 of the Uniform Arrest Act provides:

“If a person has reasonable ground to believe that he is being arrested by a peace officer, it is his duty to refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for the arrest.”

While Maryland has not adopted the Uniform Arrest Act, the quoted statement does, in our opinion, suggest some of the essential ingredients that should be found in the law of arrest as it operates in our current society.

In the case at bar, neither the appellant nor the police ■officers saw the warrant before the arrest. Clearly, the -appellant did not resist the arrest because he believed the Warrant was defective. To permit his conviction to turn upon whether in hindsight the warrant is adjudicated defective, a highly complex procedure in itself, when he could not have known it was defective is to permit an uninformed street! decision by an accused to take the place of a decision by the appointed and informed adjudicative officers of the law. Such a procedure cannot be sanctioned at the cost of violent injury to police officers fulfilling the command of a warrant, j

Without assaying here to articulate a hard, fast, all encompassing rule, we are of the opinion that the appellant was not justified in resisting the arrest after the police! officers advised him that there was a warrant for his arrest and requested him to accompany them for the purpose of establishing his identity as the individual named in the warrant. The officers were in uniform and sought to accomplish the arrest without force.

The evidence showed that appellant was walking between the officers, with Officer Coates holding his elbow, when appellant initiated the attack upon Officer Coates. Thus, we have a factual situation where the arrestee knew he was being accosted by authorized police officers; he had been advised by them that a duly authorized warrant had been issued for his arrest; and as a reasonable man, he should have known that it was their duty, pursuant to the warrant, to arrest him even though the warrant might thereafter be determined by a judicial officer to be legally defective. The arrestee, here the appellant, has no legal right in these circumstances to resist the arrest with force. Otherwise stated, an individual may not lawfully use force to resist an arrest where he has been advised by authorized police officers that a warrant for his arrest has been duly issued and that, pursuant to the command of the warrant, the officers are endeavoring to effect his arrest, even though it is later determined at a judicial hearing the warrant was defective. We find no error in the trial judge’s refusal to grant the appellant’s motion for judgment of acquittal.

The appellant also argues that the trial judge’s instructions “precluded the jury from considering the only defense available to the Appellant.” In view of our holding that the appellant was not entitled to assert the illegality of the arrest warrant as a defense in the factual circumstances here, we find that the judge’s instructions to the jury were not prejudicial to the appellant’s rights.

Judgment affirmed.

      . The appellant’s full name is Zachariah Barry Rodgers. The name on the warrant was Barry Rodgers, although the name given to the police officers over the police radio was Zachariah Rodgers.

      . The appellant denied possession of the razor and suggested at the trial that Officer Coates’ wounds resulted from the debris lying on the ground. The appellant also stated that he first saw the razor when he was placed in the police car after the altercation.

      . At the present time the common law rule has been abolished by the legislature in at least six States: California, Delaware, Illinois, New Hampshire, New York and Rhode Island. See Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128, 1182, n.30 (1969). The common law rule has been abolished by judicial fiat in at least three States: Alaska (Miller v. State, 462 P. 2d 421 (1969)); Florida (Daniel v. State, 182, So. 2d 312 (1961) (bv implication)); and New Jersey (State v. Koonce, 214 A. 2d 428 (I960)).

      . The arrest warrant here involved contained the following admonition to the police: “You are, therefore, commanded to arrest the person charged and to bring him before me or some other judicial officer as required by law. Hereof fail not or leave you then and there the warrant."

       Indeed, several states have made such a distinction. See Annot., 44 A.L.R.3d 1078 (1972); Annot., 10 A.L.R.Sd 1146 (1966).


text:
    PETER C. ANDRESEN et al. v. YOUNG CONTRACTING CO., INC.
    [No. 732,
    September Term, 1975.]

      Decided June 25, 1976.

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

      Peter C. Andresen, with whom was Carl E. Zentz on the brief, for appellant Kensington Associates Realty, Inc.

      Arthur B. Brisker for appellee.
   Powers, J.,

delivered the opinion of the Court.

This case originated on the equity side of the Circuit Court for Montgomery County with the filing, on 29 June 1973, by Young Contracting Co., Inc., through its attorneys, of a pleading entitled “Bill To Declare Indebtedness Secured By Deed Of Trust Paid And Satisfied”. Further proceedings in the case, which include an earlier appeal to and remand by this Court, are replete with unfortunate examples of ineptness, poor judgment, stubbornness, and a regrettable absence of open-minded willingness to accomplish justice.

We propose to note, in chronological order, the various steps in the case from its beginning down to the present time, and shall comment as necessary to express our view of the legal effect, or lack of effect, of the proceedings.

The Bill named Peter C. Andresen, Trustee, Lori J. Hall, Trustee, and Mt. Vernon Development Corp. as defendants. It alleged that Young Contracting had been the maker of a promissory note, payable to Mt. Vernon in the amount of $5,000.00, dated 17 July 1972, and that the note was secured by a deed of trust to Andresen and Hall on certain described real estate in Montgomery County. The note, a copy of which was attached, showed that it was payable-one year after date, that it bore interest at 8% until paid, and that the interest was payable quarterly, with each installment of interest to bear interest at the same rate if not then paid. The Bill further alleged that the property had been sold, and settlement held, and that the maker desired to pay off the note but had been unable to communicate with the holder or a possible assignee of the note. The Bill prayed for an order permitting payment into court of the principal amount of the debt and for an order declaring the indebtedness paid and the lien extinguished. The Bill was not under oath, nor was it accompanied by any affidavit. No summons or process of any kind was asked or issued for service upon any defendant.

On the same day the Bill was filed, the court signed an order that Young Contracting pay into the Registry of the Court the principal amount of $5,000.00, together with interest thereon [the amount was not specified in the order], and that upon payment of said sum, the lien of the deed of trust shall be released and the property shall be deemed to be free and clear of the lien.

A docket entry on the same date records that a check in the amount of $5,382.00 was deposited in the Registry of the Court.

On 5 September 1973 Kensington Associates Realty, Inc., by its attorney, Peter C. Andresen, filed a Motion for Leave to Intervene, asserting that it was the holder by endorsement of the note secured by the deed of trust which was the subject of the proceeding. Also on 5 September 1973 there was filed in the case a motion signed by Peter C. Andresen, as attorney for movants, who were listed in the motion as Peter C. Andresen, Trustee, Lori J. Hall, Trustee, and Kensington Associates. The movants stated that none of them was given notice of the Bill, and moved to vacate the order of 29 June 1973. The motion alleged numerous other facts not necessary for us to consider.

Counsel for Young Contracting on 24 September 1973 filed its Opposition to the Motion to Vacate and Set Aside the Order of 29 June 1973.

On 5 October 1973 Andresen, as attorney for the movants, filed a Motion Ne Recipiatur to Young Contracting’s opposition. On 11 October 1973 counsel for Young Contracting filed Opposition to Andresen’s Motion Ne Recipiatur.

The docket shows that on 21 December 1973, the court held a hearing. It granted the motion of Kensington Associates to intervene, and reserved ruling on the motion to vacate and set aside the order of 29 June 1973.

The next entry on the docket is dated 6 February 1974, and records an order of court bearing the date of 5 February 1974 denying the Motion Ne Recipiatur and denying the Motion to Vacate and Set Aside the Order of 29 June 1973.

Thereafter a motion was filed by Andresen, Hall, and Kensington Associates to set aside the order of 6 February 1974. That motion was denied by an order of court entered on 20 June 1974.

Andresen, Hall, and Kensington Associates appealed to this Court. The docket shows that the record was transmitted by the Clerk of the circuit court on 20 August 1974. While the appeal was pending here, the attorneys of record for Y oung Contracting moved in the circuit court for leave to withdraw their appearance. Leave was granted and the appearance was stricken by the circuit court.

In an opinion filed on 28 February 1975, noting that “generally a court has no jurisdiction to take any action affecting the rights of parties prior to the time the parties are properly brought into court”, and that a judgment entered in such a situation would be “invalid and without significance”, we struck out the order of 29 June 1973 and remanded the case for further proceedings. We noted in that opinion that one area in which action by a court is allowed before parties are brought into court is that of an ex parte injunction. The mandate of this Court putting into effect the order accompanying our opinion was issued on 31 March 1975, and was docketed as having been received in the Circuit Court for Montgomery County on 2 April 1975.

Prior to the issuance of our mandate, but obviously after the parties involved had received copies of our opinion, there was filed in this equity case, on 27 March 1975, in the Circuit Court for Montgomery County, a “Petition to Intervene and for Injunctive Relief’ by Ferman E. Stubblefield and Louise M. Stubblefield, his wife, through their attorney. This petition by the Stubblefields alleged that they had bought the encumbered property and had fully settled on it, including payment of the sum necessary to pay the existing lien. It referred to the payment into the Registry of the Court pursuant to the Order entered 29 June 1973, and to the result of the subsequent appeal. It recited also that Peter C. Andresen had advised them by letter of his intention to foreclose upon and sell their home and that he had sent to them a copy of the advertisement showing that the foreclosure sale was to be held on 31 March 1975 at 11:00 A.M. They attached a copy of the letter and of the advertisement. They alleged that they would suffer irreparable harm and damage if the Trustees were permitted to sell the property at foreclosure. They prayed for leave to intervene in the case and for an injunction against the sale. An affidavit, in which Mr. and Mrs. Stubblefield made oath to the facts set forth in their petition, was attached.

On the same date the court entered two separate orders. One order granted leave to Ferman E. Stubblefield and Louise M. Stubblefield to intervene as parties plaintiff in the case. The other order enjoined and restrained Peter C. Andresen, Lori J. Hall, Mt. Vernon Development Corp., and Kensington Associates Realty, Inc., ex parte, from proceeding to sell the property at foreclosure on 31 March 1975.

On 2 June 1975 there was filed and docketed in the circuit court a Motion Raising Preliminary Objection, signed by Peter C. Andresen, attorney for defendants, moving, pursuant to Maryland Rule 323, to dismiss the cause of action. The first ground asserted in the motion was that there was a lack of jurisdiction over the persons of the defendants in that there never had been an attempt to obtain service of process. The second ground asserted in the motion was that there was a complete lack of legal capacity to sue on the part of the plaintiffs. As to the original plaintiff, Young Contracting Co., Inc., the motion asserted that Young’s corporate charter had been annulled, and asserted also that since the attorneys for Young had withdrawn their appearance — and a corporation may appear only by attorney — it lacked the capacity to sue on its own behalf. As to the intervening plaintiffs, the Stubblefields, the motion asserted that they already had obtained all of the relief prayed for by them and had not attempted to obtain jurisdiction over the defendants. In a third ground stated in the motion, it was asserted that the prior appearances of the defendants were only for the limited purposes prayed.

On 9 June 1975, the Stubblefields filed opposition to the motion of the defendants to dismiss the case. The pending matters in the case were set for hearing before the court on 19 June 1975. Mr. Andresen, whose right to practice law had been suspended a few days earlier, appeared and participated in proper person. Counsel for the Stubblefields participated. The other parties, Young Contracting Co., Inc., the original plaintiff, Lori J. Hall, Trustee, an original defendant, Mt. Vernon Development Corp., an original defendant, and Kensington Associates Realty, Inc., the intervening defendant, were not represented at the hearing. The record contains a written order of court on that day denying the Motion Raising Preliminary Objection. The docket contains an entry to the same effect. Also on the same date, the docket contains an entry that defendant Peter C. Andresen’s Motion for Continuance was denied, that defendant Peter C. Andresen’s Motion for Court to Disqualify Himself was denied, and contains the following additional entry: “Hearing on Bill of Complaint (Mathias, J.) Court orders plaintiff Intervenors to tender to Kensington Associates Realty, Inc. the sum of $5,394.00 as full payment of note, payment to be accomplished by the deposit of $12.00 in the Registry of the Court in addition to money already deposited and payment of court costs order to be submitted.”

On 27 June 1975 there was filed an order of court, signed on the same date, in which the court made a finding that the sum of $5,382.00 deposited in the Registry of the Court on 29 June 1973, was $12.00 too little because of a mistake in the computation of interest, and ordered that upon the deposit by the intervenors, Mr. and Mrs. Stubblefield, of an additional $12.00 in the Registry of the Court, and upon payment by them of all costs in the circuit court, the deed of trust shall be deemed to have been satisfied and the property deemed to be free and clear of the lien of the deed of trust, and further ordered that upon application of Kensington Associates Realty, Inc., by Peter C. Andresen, President and sole stockholder, the Clerk of the Court is authorized and directed to release unto Kensington Associates Realty, Inc. the money paid into the Registry of the Court, together with the accrued interest thereon, if any.

On 17 July 1975 Peter C. Andresen, Trustee, Defendant, Lori J. Hall, Trustee, Defendant, and the defendant Kensington Associates Realty, Inc., by Carl E. Zentz, its attorney, filed an order for appeal from the orders entered in the case on 27 March 1975,19 June 1975, and 27 June 1975.

The appellants’ brief presents three questions on appeal. They are:

“I. Should the Court have denied the Motion Raising Preliminary Objection?
“II. Did the Court err in denying Appellants a continuance, granting injunctive relief exparte, its refusal to disqualify itself and confiscating the original deed of trust note?
“HI. Did the Court err in determining the amount necessary to fully satisfy the deed of trust note and in its release of the deed of trust from the land records?”

As we have noted, the order of 29 June 1973, purporting to authorize the payment of money into court and the release of the lien of the deed of trust, was vacated by this Court on appeal. This meant that there was nothing pending in the circuit court but the original Bill. It also meant that the clerk’s custody of the sum of $5,382.00 paid by the plaintiff had no legal significance. It also meant that the deed of trust continued to be a lien on the property.

When the motion of Kensington Associates filed on 5 September 1973 for leave to intervene was later granted Kensington Associates became, at its own request, a party in the case. No summons or other form of notice to it was required.

The other motions filed on 5 September 1973, the further documentary sparring they generated, the court order of 6 February 1974 following the hearing of 21 December 1973, and the court order of 20 June 1974 refusing to set aside the order of 6 February 1974, had no further significance after our mandate on appeal vacated the order of 29 June 1973.

When the Stubblefields sought relief from what they conceived to be an improper foreclosure sale of their property, threatened to take place in four days, they did so by asking leave to intervene in the pending case. That leave was granted. Maryland Rule 208. There is no contention that their proceeding in that manner was irregular. Upon that sworn petition, making a prima facie showing of immediate and irreparable harm, it was entirely proper for the judge to enjoin the impending sale, ex parte. The record shows that the judge communicated with Andresen by telephone before signing the order. Maryland Rule BB72. That the order did not fully conform to the requirements of Rule BB72, § b. is now plainly moot.

The Motion Raising Preliminary Objection filed by all defendants was devoted in part to the limited contention that the court had not acquired jurisdiction over them in this case, and in part to an attack upon the legal capacity of the plaintiffs to maintain the proceeding. The Motion Raising Preliminary Objection came too late. All of the defendants had previously submitted themselves generally to the jurisdiction of the court, when they attacked the propriety of the court’s original order. Rule 323; Eastham v. Young, 250 Md. 516, 243 A. 2d 559 (1968); McCormick v. Church, 219 Md. 422, 149 A. 2d 768 (1959).

The order from which the present appeal was taken, entered by the circuit court on 27 June 1975, was an exercise of jurisdiction then properly vested in the court.

To address specifically the questions posed in appellants’ brief:

I. As we have indicated, the court properly denied the Motion Raising Preliminary Objection. The previous pleadings filed by the defendants constituted a general appearance on their part. The original corporate plaintiff was still in the case. Only its counsel, not the party, had withdrawn. It is fallacious to argue that because a corporation may appear only by counsel, it may be a party only so long as it has counsel.

II. In denying a request for a continuance, and in refusing to disqualify himself, the trial judge was acting in an area of broad discretion. We do not find an abuse of that discretion. We have already said that the ex parte order enjoining the foreclosure sale was proper, and in any event, moot. The court did not “confiscate” the original deed of trust note. It merely required that it be placed in evidence. It remains in the custody of the clerk, and is available for any proper use. Maryland Rule 1217.

III. The court did err in determining the amount necessary to satisfy the deed of trust note. The deposit of money with the clerk, was not a payment into court as contemplated by Maryland Rule 325. No matter how it is viewed, the amount deposited was less than the amount due on the note. The original order left the calculation of interest to the plaintiff, and its calculation was not correct. A noteholder is under no obligation to accept as full payment less than the amount due. The noteholder was not informed of the payment until more than 30 days after the court’s order. We must confess to a certain amount of judicial annoyance at the apparently stubborn failure of the parties to work out together the simple calculations involved. Whatever blame there is must be shared by both sides.

The result is that the noteholder is entitled to interest according to the terms of the note until paid. Another result is that we agree with the trial judge’s disallowance of all discretionary claims.

The note was for one year. There was no right of prepayment. To pay it required principal of $5,000.00, plus four interest payments of $100.00 each, plus interest at 8% on each interest installment from the time it was due until it was paid. The same terms still apply. The amount necessary to pay the note now appears to approach $6,900.00, but we leave that calculation to the parties.

We shall reverse the order appealed from and remand the case for further proceedings. Upon remand the parties shall, with the intervention of the court if necessary, fix the amount and date of payment to the noteholder. The court may direct the clerk to pay to the noteholder the funds held in the Registry of the Court, including any interest which has accrued on the fund, in discharge pro tanto of the amount due the noteholder. The parties interested in the release of the lien shall pay the necessary additional amount to the noteholder. The court may then declare the lien satisfied, and that the property shall be deemed to be free and clear of the lien. The court may assess costs below in its discretion.

Order of 27 June 1975 reversed.

Case remanded for further proceedings in accordance with this opinion.

Costs in this Court to be paid one half by Kensington Associates Realty, Inc., and one half by Ferman E. Stubblefield and LouiseM. Stubblefield.