author: Menchine, J.,

text:
    LINDA SUE GLAZIER v. STATE OF MARYLAND
    [No. 497,
    September Term, 1975.]

      Decided March 26, 1976.

      The cause was argued before Powers, Menchine and Davidson, JJ.

      Harold Buchman, Assigned Public Defender, for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Robert D. Horsey, State’s Attorney for Somerset County, William B. Yates, II, State’s Attorney for Dorchester County, and Maurice C. Lewis, Assistant State’s Attorney for Dorchester County, on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Linda Sue Glazier (appellant) was convicted by a jury in the Circuit Court for Somerset County * for the murders of her adoptive father and mother and for armed robbery.

Sentenced to consecutive life terms for the murders and to a consecutive two year term for armed robbery, she raises the following issues on appeal:

1. Applicability of Miranda to initial investigative procedures.

2. Voluntariness of confession.

3. Alleged evidentiary errors.

4. Alleged absence of intelligent waiver of right to testify.

5. Sufficiency of the evidence

(a) Murder

(b) Robbery.

6. Alleged instructional errors.

1. Applicability of Miranda

Raymond W. Davis, for 10 years an employee of William Glazier, lived about 300 yards from the Glazier home on Ross Neck Road in Dorchester County, Maryland. At about 7 a.m. on September 23, 1974 Davis went to the Glazier garage. He noted that the Glaziers’ Mercedes automobile was not within it. He heard the Glazier dog barking incessantly. Looking through a window, he saw disarray within the dwelling. When Davis opened the utility room door, he saw things scattered all over the floor, including a CB unit lying in the doorway. As he entered the kitchen he noticed that the drawers were pulled out and their contents scattered.

Proceeding through the living room and hall, Davis ultimately opened the master bedroom door. A dead body was in the bed, ultimately identified as Dorothy Glazier. Unable at first to identify the body, Davis had called the sheriffs office and the sister of Mrs. Glazier, being under the impression that the Glaziers had gone to visit the sister over the weekend. A deputy sheriff, answering Davis’s call, arrived at the home at 7:42 a.m. and found the dead body of William Glazier lying on the floor on the other side of the bed. The Glaziers had been killed by shotgun fire. The deputy then called Sheriff Johnson who arrived at the home at 7:55 a.m.

State Police were alerted and Trooper Wade Roche, a criminal investigator, arrived at the scene at 8:32. Linda Sue Glazier, (appellant) adopted daughter of the Glaziers, was believed to be in attendance at college. Unsuccessful attempts were made to reach her there. The first police contact with Linda Sue Glazier was initiated by her and was thus described by the sheriff:

“Did you receive any call or anything at that time?

A Yes, sir.

Q Will you tell us about it, please?

A At approximately 20 minutes after 10:00, this is in the a.m., the telephone rang and I answered the telephone. And a young lady’s voice at the other end asked to whom she was talking and I identified myself. I said, ‘This is Sheriff Johnson.’

She said, ‘This is Linda Sue Glazier, and I want to know what in the hell is going on down at my mother’s and father’s.’

I said, ‘Where are you? ’

She said, ‘I’m at Dickie Greenwell’s trailer at Airey’s.’

And she said, T demand to know what in the hell is going on at my mother’s and father’s.’

I said, ‘Linda Sue, if you will, stay where you are. I will send a deputy to explain to you as to what happened. There has been an accident.’ ”

A deputy sheriff was dispatched to the trailer and the appellant was taken to an office of the State Police in Cambridge, Maryland. Trooper Roche met her there at 11 a.m. It is conceded that Miranda warnings were not given to the appellant at that time.

When the presentation of evidence at the trial had developed the circumstances heretofore outlined, proceedings before the jury were suspended. Testimony by Trooper Roche; by Sergeant Martin Joseph Keating, in charge of criminal investigation Barrack “I” Easton, Maryland; and by Linda Sue Glazier, was taken out of the presence of the jury. The testimony dealt with incidents occurring during two separate time periods, namely: (a) between 11 a.m. and 12:15 p.m. and (b) after 1:17 p.m. on September 23,1974.

The appellant contends that the initial interview with the appellant was in violation of the strictures of Miranda and “so tainted the subsequent proceedings as to invalidate her waiver of her privilege against self-incrimination.” Additionally, she contends “that under the totality of the circumstances, her confession was the involuntary product of unconstitutional pressures applied both before and after her purported waiver of her Miranda rights, and therefore should not have been admitted.”

The State’s position is that Miranda was not applicable to the initial interview occurring between 11 a.m. and 12:15 p.m. The State maintains also that a confession by the appellant made after Miranda warnings had been given her was her free, voluntary and unconstrained act.

The threshold question as to when the point is reached in police investigations that Miranda warnings are mandated was the subject of discussion in depth in the case of Cummings v. State, 27 Md. App. 361 (1975). We pointed out that where the interrogation was non-custodial in nature, Miranda is inapplicable and compliance therewith is moot (at page 369).

At the conclusion of the preliminary hearing out of the presence of the jury the trial judge ruled that:

“As far as I’m concerned, there was no in custody investigation taking place until after the Miranda warnings were given.
“Now, she may, I guess, argue maybe she was in police custody from the time she was put in the automobile. But according to her testimony, I don’t think she was.
“The officers put her in the car, took her in town, and carried her to the police station.
“And the police officer testified it was a general discussion trying to find something to help him with the investigation. That’s about what it amounted to, so I don’t think there was in custody investigation until later on in the day.
“When he found out she was a suspect, which was shortly after lunch, 1 o’clock, then he gave her the necessary constitutional warnings and she said she understood them.”

In our constitutionally mandated independent review of the record as a whole, we find that the initial interview between 11 a.m. and 12:15 p.m. did not constitute a custodial interrogation and thus is not within the purview of Miranda.

We deem the undisputed fact that the appellant initiated that police interview to be of considerable importance in our review of the record. It is true that the interview was carried on in the office of the Maryland State Police. The choice of that site under the circumstances of this case, however, certainly was not inappropriate. The shocking conditions extant at the home of the appellant ruled out its choice as a site for the police to respond to her inquiry. The trailer home of another person, from which she telephoned, was inappropriate also. Her interest, as it then appeared to police authorities, was to seek information concerning the tragedy and to assist in the apprehension of the perpetrators of the crime. The ensuing interview took place between the hours of 11 a.m. and 12:15 p.m. Roche summarized the general nature of the discussions between himself and the appellant between 11 a.m. and 12:15 p.m. as follows:

“The first time I spoke with her, Your Honor, was simply talking to her as a member of the family.
“She was not under suspicion at that point. I talked to her as I would talk to any members of the family trying to gather information that would lead to a successful conclusion of the crime.
“The questions were strictly investigative, such as, ‘Who would have a reason to want to harm your parents? ’ and things of that nature.
“We interviewed Linda. Like I said, I was asking her questions as to who might have had the motive to do harm to her parents, and talked to Linda just as I would any member of the family, just as we had Mr. Davis and other people that we had interviewed, neighbors, and asked them questions as to movements and things like that.”

He added that, “We talked about many things, the fact that she went — attended the same school that I had gone to, and talked about how things were at Goldey Beacom [College], and things other than investigative questions were talked about. It was more of a conversation.”

During the course of the interview a friend of the appellant “came in and asked if he could speak to Linda, and came in and told her, of course, he was sorry what happened and she was free to come and stay with him as soon as we were done talking to her.”

Trooper Roche thus declared his position when he arrived at the State Police office:

“Q You say when you arrived there that she was not in custody? Are you saying that?

A Right. I didn’t feel as though she were in custody.

Q She was free to go?

A There was no way I could legally held her or I would not have tried to hold her there at that point. No sir, I would not have.”

It is true that the appellant testified that, “I figured I was in custody of them.” She had previously said, however, that she “had a phone call telling me that the Glaziers were dead, that it had been heard over the radio and I called down there and the Sheriff said he would send somebody to get me and they would meet me when [they] got me to the police barracks.” She admitted that the subject whether she could leave during the initial interview wasn’t “ever brought up by anybody.”

We are persuaded, as was the trial judge, that viewing the issüe of custody — as applied to the period between 11 a.m. and 12:15 p.m. — from the state of mind of a reasonable person in the appellant’s circumstances, the appellant was not in custody. Miranda had no application to that period of time. Cummings, supra, at 381.

Moreover, there is no evidence (a) that any information emanating from the appellant during the course of the initial interview played the slightest role in the discovery of the damning evidence uncovered by other officers in their investigation being contemporaneously conducted, or (b) that any information elicited in that initial interview had influenced or affected her subsequent confession. There was in short, no showing of prior taint or that the later confession was in any respect the result of the prior interview.

2. Voluntariness of Confession

We find no merit in the secondary contention of appellant that the confession later made by the appellant was involuntary.

At 12:15 p.m. Trooper Roche had left the State Police office for the sheriffs office, to which other investigating officers had returned. There he learned — for the first time — “that [Deputy Roe] had found [at the Greenwell trailer] this shotgun, the shell casing, and the bloodstained napkins, what we took to be bloodstained napkins, and towel.”

She was subjected to no interrogation of any kind between 12:15 p.m. and 1:17 p.m. when the Miranda warnings were given.

After receiving that information from Roe, Trooper Roche returned to the State Police office at 1:17 p.m. and “advised [appellant] that she was now a suspect for the double homicide of her parents and at that time I give [sic] her the Miranda warnings.”

The appellant conceded that no one had threatened, beaten or intimidated her. The sole basis for her contention that her confession was coerced arises from her testimony that, “[Detective Sergeant Keating] had said that if I gave a statement voluntarily, that it might be easier on me in court.” She added that, “I thought that if they found out any information that could implicate me, it would be lesser charge.”

Keating denied making such a statement. Trooper Roche denied that any promises or inducements were made.

The trial judge thus pinpointed the credibility issue on this conflicting testimony:

“Now, you say sometime during that afternoon in the presence of Trooper Keating and Mr. Roche, you were told that it may go easier on you if you made a statement.

Is that about the size of it?

THE WITNESS: Yes, sir.

THE COURT: Which one of them told you that?

THE WITNESS: Sergeant Keating.

THE COURT: Sergeant Keating.

What time did he tell you that?

THE WITNESS: It was around 4:00 or 4:30, something like that.

THE COURT: Was Trooper Roche present when that was said?

THE WITNESS: I think he was not, but I’m not sure.

THE COURT: Did you hear him testify nothing like that was mentioned?

THE WITNESS: I heard him.

THE COURT: Did you hear Sergeant Keating testify nothing like that was mentioned?

THE WITNESS: That is right.

THE COURT: Both lying?

THE WITNESS: Yes, sir.”

The trial judge credited the testimony of Keating; he rejected the testimony of the appellant. We accept this first-level fact as found by the trial judge. Walker v. State, 12 Md. App. 684, 695 (1971). We find as an ultimate constitutional fact after examination of the record as a whole that the confession of the appellant was voluntary and admissible in evidence.

3. Alleged Evidentiary Errors

(a) Admission of witness’s contemporary notes as exhibit It probably can be said that in earlier times the weight of authority broadly was to the effect that his own contemporary notes, when used by a witness to refresh his recollection, were inadmissible as documentary evidence, except at the instance of the adverse party. That there is a clear trend to the contrary is shown in 3 Wigmore, Evidence § 754 (Chadbourn rev. 1970) where it is pointed out that “* * * in both the last and present century, much criticism of this doctrine has been voiced, and to a significant extent (the precise limits of which are difficult to determine) the advocates of forthrightly admitting the record as documentary evidence have gained ground.”

A classic example of this changing view is to be found in Fisher v. Swartz, 130 N.E.2d 575 (Mass. 1955), wherein a witness had read, without objection, a memorandum earlier prepared by him. The memorandum later was received in evidence over objection. The Supreme Judicial Court of Massachusetts, sustaining the propriety of its admission, rejected its earlier decision to the contrary, saying at 577, et seq.

“The defendant does not argue that the statement was not a record of past recollection. His position in substance is that it is not admissible in any event, and he relies on Bendett v. Bendett, 315 Mass. 59, 52 N.E.2d 2, cited above. That that case sustains the defendant’s contention cannot be gainsaid. There the plaintiff while testifying had used a diary kept in the usual course of business to ‘refresh his recollection.’ It is not clear from the opinion — and an inspection of the original papers furnishes no additional light — whether the memorandum revived a present memory or was a record of past recollection. The opinion dealt with the question on the basis that it might have been the latter. So treated, the court said that it saw ‘no reason for denying to the trial judge discretion to permit a witness to incorporate in his testimony a writing expressive of his past knowledge, and to read it and even to show it to the jury.’ 315 Mass, at page 64, 52 N.E.2d at page 6. But, as the court pointed out, the judge went further and admitted the writing as independent evidence and not as a part of the testimony of the plaintiff. This was held to be error. The court recognized that in some jurisdictions, ‘because of the slight practical difference between the incorporation of a writing in the testimony of a witness and the admission of the writing as evidence by itself, a written record of the past knowledge of a witness is held admissible in evidence.’ 315 Mass, at page 64, 52 N.E.2d at page 6. The court, nevertheless, was of opinion that ‘such a writing under some circumstances might have some inherent evidential weight independently of its adoption by the witness as the expression and embodiment of his testimony. In such a case, neither party would be entitled to have that weight thrown into the scale, on the merits of the case, unless the writing should be admissible on some other ground.’ 315 Mass, at page 65, 52 N.E.2d at page 6.
“In view of the importance of this question in the trial of causes we are disposed to reconsider it. Further study of the question has convinced us that both reason and authority lead to the conclusion that the writing ought to be admissible as evidence. It is to be noted that in the Bendett case a majority of the court was of the opinion that, although it was error to permit the memorandum to be put in evidence, the error, nevertheless, was harmless. The reason was that the witness had testified with respect to the items contained in the memorandum and had been cross-examined about them. ‘Thus,’ said the court, ‘the jury had been made familiar with everything material that was contained in the book. The admission of the book in evidence merely put before their eyes what they knew already. So far as appears there was nothing in the sight of the items in the book that was more convincing than the testimony of the plaintiff that they were the items in an account that he knew to be true. We do not see how the defendant was harmed.’ 315 Mass, at page 65, 52 N.E.2d at page 6. But that would be the case in most if not all situations where a memorandum of past recollection was put in evidence. Prior to its admission the witness would usually have read to the court or jury the contents of the memorandum, and its admission as evidence, since it would have added little or nothing, would generally be treated as harmless error. We prefer a less squeamish approach to the question. Rather than to say the admission of the writing is error, but error that does no harm, we think that it is better to say that there is no error at all.
“This is the prevailing view elsewhere and is favored by distinguished scholars in the field of evidence. * * *”

Although the precise issue was not presented in Hall v. State, 223 Md. 158 (1960), the language used by the Court of Appeals at page 173 offers clear assurance that it shares the current Massachusetts view:

“Where, as here, the past recollection recorded is vouched for as to accuracy by the person who made the record and it has been made at the time of the statement, Wigmore strongly favors its admissibility. He is firmly opposed to the qualification added by some courts to the effect that it is admissible only if the uñtness has no present recollection. See § 738, where he says:
‘A faithful memorandum is acceptable, not conditionally on a total or partial absence of a present remnant of actual recollection in the particular witness, but unconditionally; because for every moment of time which elapses between the act of recording and the occasion of testifying, the actual recollection must be inferior in vividness to the recollection perpetuated in the record.’ It is Wigmore’s view 751) that after the roitness has testified from the record, the record itself is admissible in evidence.
“Perhaps the leading case on the subject is Kinsey v. Arizona, supra, in which, 125 A. L. R. at pp. 13-14, the Supreme Court of Arizona said: ‘Regardless of the weight of the authority on the question, it seems to us that upon every principle of logic and common sense, evidence of this class should be admissible. It is an undisputed and undisputable fact the human memory weakens with the passage of time, more with some individuals, less with others, but to some extent with all, and that a written record, unless changed by extrinsic forces, remains the same for all time. It would seem, then, that such a record made contemporaneously with the event by a witness who was honest and capable of observing accurately what happened, would be far better proof of the true facts than the present recollection of that same witness six months later, whether unrefreshed or refreshed by some extrinsic aid, but still in the last resort presumably independent in its nature. There are but two objections to the use of such evidence which have been seriously urged. The first is that it is hearsay in its nature, and the second, that the witness who vouches for the record cannot be properly cross-examined. We think both of these objections are without foundation. The recorded memory of the witness is just as much the statement of that witness as to what he personally saw or heard as is his present independent recollection of the same fact. * * * But when the person who witnessed the event testifies to the accuracy of the memorandum as made, that memorandum is just as much direct and not hearsay evidence as the language of the witness when he testifies to his independent recollection of what he saw. The objection in regard to cross-examination, on its face, might seem to have some weight, but we think a careful analysis of the question will show that it also is unfounded. What is the purpose of cross-examination? Obviously it is to convince the triers of fact, in some manner, that the testimony of the witness is untrue, for if the cross-examiner accepts it as true, there will be no need nor desire for cross-examination. How, then, may the truthfulness of the evidence of a witness be attacked through cross-examination? It seems to us that all attacks thereon must be reduced to one of three classes: (a) Upon the honesty and integrity of the witness; (b) upon his ability to observe accurately at the time the incident occurred; and (c) upon his accuracy of recollection of the past events. When a witness testifies as to his present recollection, independent or revived, he may, of course, be cross-examined fully on all three of these points. When he testifies as to his past recollection recorded, he can be examined to the same extent and in the same manner as to the first and second of these matters. He cannot well be cross-examined on the third point, but this is unnecessary, for he has already stated that he has no independent recollection of the event, which is all that could be brought out by the most rigid cross-examination on this point when the witness testifies from his present recollection, independent or revived.’
“The arguments of Professor Wigmore and of the Supreme Court of Arizona as to the reliability of past recollection accurately and promptly recorded are convincing to us. * * *” (Emphasis added.)

Wilson v. State, 20 Md. App. 318 (1974) is readily distinguishable. In Wilson the documents admitted in evidence had not previously been read into evidence verbatim by the witnesses.

We see no error.

(b) Admission of court stenographer’s transcript of confession of accused

Here the appellant makes the additional contention that:

“The trial court erred in admitting the transcription of the second statement in the absence of authentication by the court reporter.”

The record shows that the witness Roche was present when the statement of the appellant was recorded by the Court Reporter of Dorchester County and certified to its accuracy. This was a sufficient authentication. See: 3 Wigmore, supra, §§ 737,748, 749 and 760.

See also, Hall v. State, supra, where in a dictum the Court of Appeals said at 177:

“We think there was no error in permitting Detective Davis virtually to read his notes in evidence or in permitting Mr. Perkins to read from his stenographic notes. Indeed, we think the trial court might well have admitted Detective Davis’ original notes and Mr. Perkins’ original notes and a correct transcription thereof into evidence as documents.”

4. Alleged Absence of Intelligent Waiver of a Right to Testify

Appellant was represented by experienced trial counsel. The issue is frivolous. In State v. McKenzie, 17 Md. App. 563 (1973), we said at 582-83:

“Where, * * * a defendant is represented by counsel, there is no duty on the part of the trial court to offer the accused any advice on his election to testify or not to testify or to explain the ramifications of either choice. The Court of Appeals said in Stevens, [232 Md. 33, U. S. cert. den., 375 U. S. 886] at 39:
‘[W]e do not deem it essential for the protection of a defendant’s constitutional rights that he be advised by the court of his right against self-incrimination when he is represented by counsel .... Here, the appellant was called to the stand by his counsel and in such a case there is no requirement that the court advise him of his right to refuse to testify.’ ”

5. Sufficiency of the Evidence

(a) Murder

The issue is frivolous. There was abundant evidence that the appellant was a willing participant in the premeditated murder of both of her parents.

(b) Robbery

There -was evidence from which a rational inference could be drawn that the wallet and pocketbook of Dorothy Glazier had been the subject of a forcible trespassory taking and asportation. There was also evidence from which a rational inference could be drawn that other items, scattered about the premises, were abandoned in the course of hasty departure. Wiggins v. State, 8 Md. App. 598, 603 (1970). The appellant was in no event less culpable than as principal in the second degree. Butina v. State, 4 Md. App. 312, 318 (1968).

6. Alleged Instructional Errors

(a) Felony murder instruction

There having been legally sufficient evidence tending to show that the murders occurred in the perpetration of a robbery, the instruction was proper. Code Article 27, § 410.

(b) Burden of proof instruction

The trial judge included in his advisory instruction the charge, given from time immemorial, that a burden rested upon the defendant to lower the degree of guilt from second degree murder to manslaughter. Appellant, relying upon Mullaney v. Wilbur, 95 S. Ct. 1881 (1975), contends that the instruction was erroneous in its light. This is not disputed. The State contends,,however, that in the circumstances of this case,, the error was harmless beyond a reasonable doubt and does not require reversal. We agree.

The appellant in the subject case was convicted of murder in the first degree. There was not a scintilla of evidence of mitigation or justification. In Brown v. State, 29 Md. App. 1, 19-20 (1975), we said:

“In such situations an erroneous instruction ' relative to a presumption of second degree murder arising ipso facto from a bare showing by the State of homicide is cured by the verdict of murder in the first degree because it is clear that the State has met its ultimate burden and proved that the crime was committed with wilful, deliberate and premeditated malice, the essential ingredients of first degree murder. By so proving to the satisfaction of the trier of fact, at a jury or a non-jury trial, the State has disproved second degree murder. Similarly, an erroneous instruction concerning an accused’s burden of lowering the offense from second degree murder to manslaughter is likewise cured because the State has negated to the satisfaction of the trier of fact, any mitigation. The net result, in such cases, of incorrect instruction where mitigation or ‘hot blood’ is not an issue fairly in the case, is that the instruction, at worst, is harmless beyond a reasonable doubt under Harrington v. California, 395 U. S. 250, 254, 89 S. Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967), and, at best, a gratuity given for the benefit of the accused and to which he was not entitled.”

We find no reversible error.

Judgments affirmed.

      . Indictments for the offenses had been returned in the Circuit Court for Dorchester County. The cases were removed, on suggestion of the appellant, to the Circuit Court for Somerset County.


source: Caselaw Access Project

author: Davidson, J.,

license: Public Domain

text:
    CLARENCE M. BULL, INC. v. ROBERT C. GOLDMAN et ux., et al.
    [No. 509,
    September Term, 1975.]

      Decided March 26, 1976.

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

      David L. Dowell, with whom was Irvin J. Brodsky on the brief, for appellant.

      Kenneth J. MacFadyen, with whom were Alvin E. Friedman and Friedman, Glorioso, Cohen & MacFadyen, P.A. on the brief, for appellees.
   Davidson, J.,

delivered the opinion of the Court.

On 4 December 1974, in the Circuit Court for Baltimore County, the appellant, Clarence M. Bull, Inc. (judgment creditor), filed a bill of complaint, seeking a judicial sale of real property to satisfy a judgment against Joyce Building Company (seller). The appellees, Robert C. and Phyllis R. Goldman (purchasers) were the then owners, and the Carrollton Bank of Baltimore (mortgagee) was the then mortgagee of the real property. On 9 May 1975, Judge John E. Raine, Jr., after a hearing, sustained the appellees’ second demurrer to an amended bill of complaint, without further leave to amend. This appeal was taken from that order.

The amended bill of complaint alleged in paragraph 1 that the judgment creditor had obtained a judgment against the seller for $6,153.12 on 31 July 1974, and that on 14 August 1974, execution was issued. The complaint .further alleged in paragraph 1 that the contract for the sale of the property, entered on 19 April 1973, failed to transfer equitable title to the purchasers because the seller “was not then seized with the land;” that the seller obtained title to the land on 7 August 1973; and that the deed from the seller to the purchasers, and the mortgage between the purchasers and the mortgagee were executed on 16 September 1974. The judgment creditor claimed that because the judgment was recorded and execution issued before 16 September 1974, it was entitled to a judicial sale of the property to satisfy the judgment.

Paragraph 2 of the complaint alleged the same facts, and claimed that “under the circumstances, a constructive trust by operation of law arose” as to “any funds in the hands of the Defendants or either of them due or payable to Joyce as of the date of the judgment. . . ,” and that “the Defendants became constructive trustees thereof for the benefit of the Plaintiff.” Count 2 then charged a violation of the constructive trust.

The purchasers and mortgagee demurred to the amended bill of complaint, maintaining in relevant part that their claim to the property was superior to that of the judgment creditor because the purchasers held equitable title to the real property under the contract of sale at the time the judgment creditor obtained its judgment and execution issued. They further charged that the bill failed to allege the essentials calling for the imposition of a constructive trust. In its memorandum of decision, filed 2 July 1975, the trial court said:

“A contract purchaser holds the equitable title under the contract of sale and has a superior claim to that of a creditor of the seller who obtains a judgment against the seller after the date of the contract. Stebbins-Anderson Co. vs Bolton, 208 Md. 185, and cases there cited.
“This is the fact situation presented by the pleadings and counsel suggests no amendment that would render the above principle inapplicable.”

On appeal, as below, the judgment creditor contends that equitable title did not pass to the purchasers before 16 September 1974, because, among other things, the seller did not have title on 19 April 1973, the date the contract of sale was executed. It argues that under these circumstances, the purchasers’ property was subject to levy, and the purchasers themselves became constructive trustees for the judgment creditor.

From the time of its execution, an unrecorded contract of sale of real property passes equitable title to the purchaser. Thereafter, pending fulfillment of the contract and conveyance, the seller retains only legal title. A judgment obtained by a third person against the vendor after the execution of the contract does not defeat or impair the purchaser’s equitable interest, nor does it constitute a lien on the purchaser’s land.

Here, the contract of sale was executed on 19 April 1973, the seller acquired title to the property on 7 August 1973, and the property was conveyed to the purchasers by deed on 16 September 1974. The judgment creditor did not get its money judgment against the seller until 31 July 1974. Regardless of whether equitable title passed when the contract was executed, or when the seller obtained title, the purchasers held equitable title to the real property before the entry of the judgment. Their equitable interest was not affected by the subsequent judgment against the seller. The trial court properly sustained the demurrer. Accordingly, we shall affirm.

Additional issues raised in the judgment creditor’s brief, to the effect that the purchasers held no equitable title because the contract was not specifically enforceable, and because the purchasers did not act in good faith, do not appear to have been raised or decided below. Neither the original or amended bill of complaint, nor the demurrers indicate that such issues were raised or decided. Under such circumstances, these additional issues are not properly before us.

Judgment affirmed.

Costs to be paid by appellant.

      . Stebbins-Anderson Co. v. Bolton, 208 Md. 183, 188, 117 A. 2d 908, 910 (1955); Burroughs v. State, 21 Md. App. 648, 657, 320 A. 2d 587, 592 (1974); See Motels of Maryland, Inc. v. Baltimore County, 244 Md. 306, 313-14, 223 A. 2d 609, 613 (1966).

      . Kingsley v. Makay, 253 Md. 24, 28, 251 A. 2d 585, 587 (1969); Stebbins-Anderson Co., supra; Caltrider v. Caples, 160 Md. 392, 396, 153 A. 445, 447 (1931); see Eastern Shore Building & Loan Corp. v. Bank of Somerset, 253 Md. 525, 530, 253 A. 2d 367, 370 (1969); Galeano v. Galeano, 21 Md. App. 208, 211, 319 A. 2d 129, 131 (1974).

      . Maryland Rules 345 b and 1085.


author: Moore, J.,

text:
    CHARLES FRANCIS BURROUGHS v. STATE OF MARYLAND
    [No. 532,
    September Term, 1975.]

      Decided March 29, 1976.

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

      J. Michael McLaughlin, Jr., for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, John D. Bailey, Jr., State’s Attorney for St. Mary’s County, and John F, Slade, Assistant State’s Attorney for St. Mary’s County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

The sole.contention presented on this appeal is that an Assistant State’s Attorney for St. Mary’s County, at the time of disposition on April 11, 1975, breached a plea bargain entered into by the State’s Attorney on or about November 6, 1974, when appellant’s guilty plea was accepted.

I

Appellant, Charles Francis Burroughs, was indicted on April 27, 1974 by the Grand Jury for St. Mary’s County and was charged with rape, assault with intent to rape and assault and battery. When the case was called for trial on November 6, 1974 appellant’s trial counsel (who is also his counsel on appeal) advised the court (Mattingly, J.) that a plea bargain had been made. He stated:

“I’d like to inform the Court that the State and myself on behalf of the Defendant with the Defendant’s knowledge and approval have entered into a plea bargain in this matter. The indictment presents three charges against Mr. Burroughs, and Mr. Burroughs has decided to plead guilty to the third count of this indictment, namely, to the charge of assault and battery occurring on November 12, 1973, at approximately 6:30 p.m.....” (Emphasis added.)

Thereupon appellant was subjected to detailed interrogation concerning the voluntariness of his plea, first by defense counsel and then by the court. At the conclusion of the court’s first series of questions, the State’s Attorney, John D. Bailey, Jr., summarized the State’s case. As presented by him, the evidence would show forcible intercourse between appellant and the victim on November 12, 1973 in an open field in the Piney Point area of St. Mary’s County. The victim was en route to her home in a trailer park after mailing a letter and had used the field as a short cut to elude appellant who had accosted her from a station wagon which he was driving. A co-defendant was also involved.

Counsel for appellant advised the court that the evidence would show' that appellant had been drinking from 10 o’clock in the morning until 6:30 in the evening shortly before the crimes alleged. That, he stated, was why the appellant was “unable to recall any events with any reasonableness at all” after receiving the keys to the station wagon at approximately 6:30 p.m.

The court ultimately found that appellant’s plea was “freely, voluntarily and understanding!}' made and [the court] accepts the plea.” When the court, prior to making that finding, inquired of the appellant as to whether he was pleading guilty because he was in fact guilty under the third count, the following colloquy occurred:

“THE DEFENDANT: I don’t know if I’m guilty of any of it, see, so I don’t. . . Just like I—

“THE COURT: Will you make up your mind whether you answer questions or not. If you are not, you can go before a jury and have them decide it.

(The Defendant conferred with Mr. McLaughlin.)

“THE COURT: The Court can’t take a halfway plea. If you’re going to plead guilty, you’re going to plead guilty; if you’re not, we’ll go before a jury and let the jury do it.

“THE DEFENDANT: Yes, sir, I am pleading guilty to that.

“THE COURT: Excuse me?

“THE DEFENDANT: I am pleading guilty to that third count.

“THE COURT: And you are pleading guilty because you are actually guilty as charged, is that correct?

“THE DEFENDANT: Yes, sir.

“THE COURT: Is that correct, sir?

“THE DEFENDANT: Yes, sir.”

Counsel for appellant then requested a presentence investigation and that appellant be continued on bond. Both requests were granted.

II

For reasons not disclosed by the record, sentencing of appellant did not take place until April 11, 1975, a delay of more then five months. At the disposition proceeding, the State was represented by John F. Slade, Esq., and not by Mr. Bailey.

Three witnesses testified for Mr. Burroughs, and his counsel than made a detailed and impassioned plea for leniency. In a reference to the plea bargaining, appellant’s counsel stated “... in discussing the possibility of pleading guilty, and this is over the dam, we are sticking by what we did of course, and we are bound, there was definite evidence to connect the defendant, Mr. Burroughs, with the crime .. . but most damningly the co-defendant would have testified.” Neither at that time, nor previously, were the particulars of the plea bargain spelled out.

Following these comments, the State’s Attorney was given an opportunity to speak, and the following occurred:

“MR. SLADE: Your Honor, the State considers this to be a most serious case.

“MR. McLAUGHLIN: Your Honor, may I approach the bench for a moment?

“THE COURT: Yes, sir.

(Whereupon, counsel approached the bench, conferred with the Court out of hearing of the Court Reporter, and then returned to their respective trial tables.)

“MR. SLADE: Your Honor, apparently I’m bound by a plea bargain that was formerly made by my predecessor State’s Attorney, and according to that agreement I must remain silent. I might add that it takes everything in me to remain silent, but it’s been our policy to follow agreements entered into previously, but I’ll tell you I don’t take this too lightly.” (Emphasis added.)

The court imposed a sentence of fifteen years imprisonment. Prior to the sentence the court addressed the appellant, in part, as follows:

“You have committed one of the most heinous crimes known to mankind. This is in view of the fact that you apparently have been living with a lady who calls herself Mrs. Burroughs over these years. What possessed you to do this the Court does not know; however, relative to your health, as was pointed out that you ran fast enough when this woman resisted in trying to evade you, you ran, so apparently your health is not as bad as some would make or would like the Court to believe.
“As I say, had you been tried before a jury, you could have been on the facts of this case found guilty of rape and facing a life term rather than something less. Bearing in mind that the jury could have limited the Court to twenty-one years, which is the maximum if they recommend mercy, but this is a crime which cannot be overlooked, and the Court regrets to say this but we cannot at all consider probation as very strongly urged by your attorney.” (Emphasis added.)

After the sentencing, a final reference to the plea bargain was made by the State:

“Your Honor, as to Counts 1 and 2 of the indictment, the State would move to nol pros, in compliance with the plea bargain which has been entered into by the defense and the State’s Attorney.
“THE COURT: Very well.”

Ill

In assessing appellant’s contention, three questions must be answered: (a) Does the record sufficiently disclose the elements of a plea bargain? (b) If so, was the bargain breached? (c) Has the question of breach been preserved for appellate review?

As this Court has heretofore had occasion to emphasize, Sturgis v. State, 25 Md. App. 628, 637, 336 A. 2d 803 (1975), the better practice is that the record affirmatively demonstrate the acceptance of a plea bargain and its terms. Here, the elements of the plea agreement were not specifically spread on the record. Nonetheless, we think it is abundantly clear from the references in the preceding extracts, that appellant agreed to plead guilty to assault and battery (count three), that the State agreed to make no recommendation at the time of sentencing, and the State also agreed to nol pros the counts charging rape and assault with intent to rape upon the acceptance of the guilty plea.

We consider it also patent that the agreement was breached when the State’s Attorney asserted, “Your Honor, the State considers this to be a most serious case.” That these words were not lost upon the court is manifest from the comments of the sentencing judge quoted above. Appellant obviously was considered by the court to have committed rape rather than assault and battery. Furthermore, the original breach was aggravated by the comments of the State’s Attorney when he returned to the counsel table after the conference at the bench and expostulated that “it takes everything in me to remain silent . . . but I will tell you I don’t take this too lightly.”

In the landmark case in this area of the law, Santobello v. New York, 404 U. S. 257 (1971), Mr. Chief Justice Burger wrote for the Court that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” At 262. In addition the Chief Justice allowed no exception for a situation where the plea was entered into by a prosecutor different from the one appearing at the time of disposition:

“The staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know what the right hand is doing’ or has done. That the breach of agreement was inadvertent does not lessen its impact.” At 262.

Maryland has, of course, followed the teaching of Santobello. In Miller v. State, 272 Md. 249, 322 A. 2d 527 (1974), the defendant was indicted on charges of receiving a stolen car, conspiracy, larceny, unauthorized use of a vehicle, and receiving other stolen goods. As a result of plea bargaining, he agreed to plead guilty to the charge of receiving a stolen car, and the State agreed to nol pros the other charges. The State also agreed to make no recommendation as to sentencing or disposition. At sentencing, the State’s Attorney informed the court that he was not in full agreement with the recommendations of the probation officer contained in the report of presentence investigation. The Court of Appeals held that this comment was in effect a “recommendation” as to the “disposition” of the case and thus constituted a breach of the plea bargain. The Court quoted from Commonwealth v. Alvarado, 276 A. 2d 526, 529 (Pa. 1971): “[A] prosecutor’s promise to make no recommendation as to sentence reasonably means a ‘commitment not to make any damning or even potentially damaging statements at the time of sentencing.’ ”

Breaches of such agreements were found by this Court in Sturgis v. State, supra, and Wynn v. State, 22 Md. App. 165, 322 A. 2d 564 (1974). In Sturgis, the breach was clear and unequivocal, the State’s Attorney having stated: “I’m going to deviate from the negotiations on the plea” — and then proceeded explicitly to do so. In Wynn, the State’s Attorney indicated that he did not personally agree with the plea bargaining arrangement but that he was bound to follow it. In an opinion by Judge Lowe, this Court held that “the attempt to take back with one hand what has been held out by the other is reversible error.” At 171.

Failure of performance of a plea bargain was also found by the United States Court of Appeals, Fourth Circuit, where the prosecutor presented the Government’s recommended sentence, after a guilty plea, only halfheartedly. United States v. Brown, 500 F. 2d 375 (1974). There, the prosecutor offered a sentence recommendation according to the terms of the plea bargain and then, in response to the Court’s question as to whether the prosecutor himself believed in this recommendation, stated: “Well, Your Honor, I do have some problems with that, anyhow, but that is the way I understand it.” Id. at 377. It was held that such a comment was a breach of the plea bargain. Judge Winter, speaking for the majority (Haynsworth, Chief Judge, dissenting), stated:

“We have no occasion to consider the propriety of sentence, or recommendation as to sentence, as an element of a plea bargain, but it is manifest that the consideration which induced defendant’s guilty plea was not simply the prospect of a formal recitation of a possible sentence, but rather the promise that an Assistant United States Attorney would make a recommendation on sentencing. This could reasonably be expected to be the sound advice, expressed with some degree of advocacy, of a government officer familiar both with the defendant and with his record and cognizant of his public duty as a prosecutor for the United States.” At 377. (Emphasis in original.)

In the instant case, we conclude that the plea bargain was unquestionably breached.

We also conclude that the State’s contention that the question of breach was not preserved for judicial review must be rejected. The bench conference between counsel and the court should obviously have been recorded; but we find it self-evident that the bench conference requested by appellant’s counsel, immediately upon the prosecutor’s statement that he considered this “a most serious case,” was clearly to call to the attention of the court the existence of the plea bargain and object to the making of any recommendation by the State as being in violation of the bargain. We note, of course, that no further objection was interposed by appellant’s counsel to the State’s singular remarks immediately after the bench conference. As previously indicated, however, the breach by the State had already occurred and the objection signified by the bench conference adequately preserved the question for our review.

Appellant requests that the sentence be vacated, and that we remand the case for further proceedings. In Santobello v. New York, supra, the ultimate choice of remedy where a plea bargain has been breached was left to the State courts. In Maryland, the alternatives were delineated by the Court of Appeals in Miller v. State, supra, at 255:

“Accordingly, where a guilty plea has been induced by the prosecutor’s agreement to make no recommendation as to sentencing, and the prosecutor violates that agreement, the defendant may at his option have the guilty plea vacated. On the other hand, if the defendant so desires, he may elect to leave the plea standing and be resentenced. As the Supreme Court stated in Santobello v. New York (citation omitted), the resentencing should be by a different judge. ” (Emphasis added.)

In Sturgis v. State, supra, we followed the rule of Miller and held that the appellant could elect to be resentenced (by a different judge) or to withdraw his guilty plea and proceed to trial.

The same doctrine was also applied in Brockman v. State, 27 Md. App. 682, 341 A. 2d 849 (1975). And in United States v. Brown, supra, where appellant sought specific enforcement of the plea bargain, it was held that “a remand for resentencing before a different district judge, after full compliance with the terms of the plea bargain, follows a fortiori from Santobello. ” Id. at 378. In the instant case, if appellant chooses to proceed to trial, the State may elect to proceed on the nol prossed counts after obtaining a new indictment. Sturgis v. State, supra.

Judgment reversed; case remanded for further proceedings not inconsistent with this opinion; costs to be paid by St. Mary’s County.

      . Appellant testified that he remembered “getting the keys and getting in and that is it . . . after drinking all that time. I don’t even know my own name.”

      . We do not reach the question whether the guilty plea should not have been received.

      . It is immaterial whether or not the sentencing judge was influenced by the prosecutor’s comments, if the plea bargain has been breached. Santobello v. New York, 404 U. S. 257 (1971).

      . For reasons not readily apparent, appellant argues in his brief that the breach of the plea bargain occurred at the bench conference held after Mr. Slade remarked that the State considered this “to be a most serious case.” As indicated, the bench conference was not recorded.


text:
    ISIDORE GORDON PREISSMAN v. BOARD OF APPEALS, MARYLAND DEPARTMENT OF EMPLOYMENT SECURITY
    [No. 537,
    September Term, 1975.]

      Decided March 29, 1976.

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

      Isidore Gordon Preissman in proper person.

      Diana G. Motz, Assistant Attorney General, with whom was Francis B. Burch, Attorney General, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Appellant, Isidore Gordon Preissman, a member of the Bar, is also engaged in business in Baltimore City. In his capacity as an employer, he challenges the constitutionality of the provisions of the Maryland Unemployment Insurance Law whereby his experience-rating was charged with benefits paid to a former employee who had not been laid off but had resigned. Specifically, appellant contends that the Unemployment Insurance Law, Annot. Code of Maryland, Article 95A, § 8 (c) (2) (1975 Cum. Supp.), which permits the charging of unemployment compensation benefits to the experience-rating account of an employer even where the employee left his service voluntarily and without a cause attributable to the employer, is violative of the Due Process and Equal Protection clauses of the Fourteenth Amendment, and of Article 23 of the Maryland Declaration of Rights and Article III, § 40 of the Constitution of Maryland.

I

William Thompson, employed by appellant in maintenance work, quit his employment on August 29, 1972. He was at that point disqualified for employment insurance benefits under Article 95A, § 6 which provides:

“An individual shall be disqualified for benefits —
(a) Voluntarily leaving work. For the week in which his unemployment is due to his leaving work voluntarily without good cause, if so found by the Executive Director and for not less than the one nor more than nine weeks which immediately follow such week as determined by the Executive Director in each case or until he has become reemployed and, has earnings therein equal to at least ten (10) times his weekly benefit amount. ’’(Emphasis added.)

During the next several months, however, Mr. Thompson worked for three different employers and earned “at least ten (10) times his weekly benefit amount,” as the latter term is defined in Article 95A, § 3. In June 1973 he lost his third job and then made application for unemployment insurance benefits. In the determination of such benefits, the Unemployment Insurance Law prescribes, inter alia, a “base period” which is defined in § 20 (a) as “the first four of the last five completed calendar quarters immediately preceding” the effective date of the claim for benefits.

Appellant was, by definition, one of Mr. Thompson’s base period employers and in June 1973 he received from the Maryland Employment Security Administration a form requesting separation information with respect to Mr. Thompson. He returned the form with the notation “subject resigned August 29,1972.”

Thereafter, the former employee received employment insurance benefits for the period June 9, 1973 to October 13, 1973 in the amount of $1,430. Under the Unemployment Insurance Law, benefits thus paid are required to be charged under a percentage formula against employers’ experience-rating records. Article 95A, § 8 (c) (2). Where an employee has more than one employer during the base period and no single employer paid 75 percent or more of his wages during that period, the statute provides that the benefits paid must be charged on a pro rata basis against all base period employers. This requirement is imposed by § 8 (c) (2), supra, which provides:

“If the claimant earned 75 percent or more of his base period wages from the principal base period employer, all regular benefits and one half of any extended benefits paid to such individual shall be charged against the experience-rating record of his principal base period employer (as defined in paragraph (9) of this subsection). If the claimant earned less than 75 percent of his base period wages from the principal base period employer, all regular benefits and one half of any extended benefits paid to such individuals shall be charged on a pro rata basis to all base period employers. The percentage of the charge to each base period employer shall be in the same proportion as the amount of wages paid to the claimant by each such employer is to the total amount of wages received by the claimant during the base period, and shall be computed as a whole number without decimals.” (Emphasis added.)

Since none of Mr. Thompson’s four (4) base period employers paid as much as 75 percent of his wages, the experience-rating records of all — including that of appellant — were charged. Appellant was assessed 29 percent of the benefits and this resulted in an increase, the percentage of which is not disclosed in the record, in his annual rate of contribution under the “Table of Basic Rates” prescribed by Article 95A, § 8 (c) (4) (ii).

Appellant protested the action of the Department in charging Thompson’s benefits to his experience-rating record and was granted a hearing before a Hearing Officer for the Executive Director of the Department of Employment and Social Services on February 6, 1974. The Executive Director of the Department, James N. Phillips, made a determination as of February 13, 1974 that the benefits paid to the claimant Thompson were properly chargeable to the appellant’s experience-rating account. Appellant then appealed the decision of the Executive Director to the Board of Appeals of the Department. Art. 95A, § 7 (f). The Board conducted a hearing on November 29, 1974 and affirmed the decision of the Executive Director.

Mr. Preissman thereupon sought judicial review of the decision of the Board of Appeals pursuant to Article 95A, § 7 (h), and the matter came before the Superior Court of Baltimore City (Liss, J.) on April 25, 1975. As he had before the Department, appellant raised before the court the issue of the constitutionality of the Unemployment Insurance Law. In an oral opinion from the bench, followed by a formal order entered on June 4, 1975, the Court refused to declare the statute unconstitutional and affirmed the decision of the Board, finding that the benefits paid to Mr. Thompson were properly chargeable to Mr. Preissman’s experience-rating account. Judge Liss stated, in part:

“The Court finds the scheme devised by the Legislature in the 1964 amendment to be reasonable and clearly within its powers. It is not unreasonable or arbitrary or capricious, nor does it burden or deprive the employer of his property without due process.”

From that decision, this appeal has been taken as we are also urged to hold the statute unconstitutional. For the reasons stated herein, we decline to do so.

II

Under existing provisions of the Maryland Unemployment Insurance Law, as noted above, benefits paid to a claimant are automatically chargeable to the experience-rating account of all “base period” employers regardless of the reason for separation. No discretion is lodged in the office of the Executive Director to waive such charges. This has been the situation since June 1, 1964. The statute previously permitted the non-charging of an employer’s experience-rating account when an individual left the employer’s employment voluntarily, without good cause attributable to the employer, or for any reason that might disqualify him from receipt of benefits. In 1964, however, the General Assembly deleted a provision in what was then Article 95A, § 8 (c) (6) which stated that:

“an employer’s account shall not be charged with benefits paid ... if [the claimant] left the service of the employer voluntarily without good cause attributable to his employer.. ..” L. 1964, c. 25 at 62.

While counsel for appellee conceded at oral argument that some element of inequity exists as a result of the deletion by the General Assembly of the above provision, it was maintained that the inequity is not of constitutional dimension. We agree.

The constitutionality of the statute in question here is clear. The Supreme Court considered a similar attack on the Alabama Unemployment Compensation Act in Carmichael v. Southern Coal and Coke Co., 301 U. S. 495 (1937). There, Mr. Justice Stone, writing for the Court, said:

“It is inherent in the exercise of the power to tax that a state be free to select the subjects of taxation and to grant exemptions. Neither due process nor equal protection imposes upon a state any rigid rule of equality of taxation. . . . This Court has repeatedly held that inequalities which result from a singling out of one particular class for taxation or exemption, infringe no constitutional limitation. [Citations omitted.]
“.. . A legislature is not bound to tax every member of a class or none. It may make distinctions of degree having a rational basis, and when subjected to judicial scrutiny they must be presumed to rest on that basis if there is any conceivable state of facts which would support it. . . .
“This restriction upon the judicial function, in passing on the constitutionality of statutes, is not artificial or irrational. A state legislature, in the enactment of laws, has the widest possible latitude within the limits of the Constitution. In the nature of the case it cannot record a complete catalogue of the considerations which move its members to enact laws. In the absence of such a record courts cannot assume that its action is capricious, or that, with its informed acquaintance with local conditions to which the legislation is to be applied, it was not aware of facts which afford reasonable basis for its action. Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.” 301 U. S. at 509-510. (Emphasis added.)

The Court in Carmichael found no constitutional infirmity in an unemployment insurance statute which, unlike Maryland’s, made no provision for adjustments to employers’ contribution rates based upon the frequency with which their unemployed workers received compensation. The following language strikes us as being particularly apposite here:

“It is not a valid objection to the present tax, conforming in other respects to the Fourteenth A mendment, and devoted to a public purpose, that the benefits paid and the persons to whom they are paid are unrelated to the persons taxed and the amount of the tax which they pay in short, that those who pay the tax may not have contributed to the unemployment and may not be benefited by the expenditure. Appellees’ contention that the statute is arbitrary, in so far as it fails to distinguish between the employer with a low unemployment experience and the employer with a high unemployment experience, rests upon the misconception that there must be such a relationship between the subject of the tax (the exercise of the right to employ) and the evil to be met by the appropriation of the proceeds (unemployment). We have recently stated the applicable doctrine. ‘But if the tax, qua tax, be good, as we hold it is, and the purpose specified be one which would sustain a subsequent and separate appropriation made out of the general funds of the Treasury, neither is made invalid by being bound to the other in the same act of legislation.’ Cincinnati Soap Co. v. United States, supra [301 U. S. 308]. Nothing is more familiar in taxation than the imposition of a tax upon a class or upon individuals who enjoy no direct benefit from its expenditure, and who are not responsible for the condition to be remedied.
“A tax is not an assessment of benefits. It is, as we have said, a means of distributing the burden of the cost of government. The only benefit to which the taxpayer is constitutionally entitled is that derived from his enjoyment of the privileges of living in an organized society, established and safeguarded by the devotion of taxes to public purposes. See Cincinnati Soap Co. v. United States, supra. Any other view would preclude the levying of taxes except as they are used to compensate for the burden on those who pay them, and would involve the abandonment of the most fundamental principle of government — that it exists primarily to provide for the common good.” (Emphasis added.) Ibid., at 521-523.

The Court observed, with approval, that the State Legislature might have proceeded on the theory, “for which there is abundant authority,” that the causes of unemployment are too complex to permit a “meticulous appraisal” of employer responsibility:

“Even if a legislature should undertake, what the Constitution does not require, to place the burden of a tax for unemployment benefits upon those who cause or contribute to unemployment, it might conclude that the burden cannot justly be apportioned among employers according to their unemployment experience. Unemployment in the plant of one employer may be due to competition with another, within or without the state, whose factory is running to capacity; or to tariffs, inventions, changes in fashions or in market or business conditions, for which no employer is responsible, but which may stimulate the business of one and impair or even destroy that of another. Many believe that the responsibility for the business cycle, the chief cause of unemployment, cannot be apportioned to individual employers in accordance with their employment experience; that a business may be least responsible for the depression from which it suffers the most.” (Emphasis added.) Ibid., at 523, 524.

Carmichael provided support for the decision of the Court of Appeals in a leading Maryland case concerning the Unemployment Insurance Law, Celanese Corp. of America v. Davis, 186 Md. 463, 47 A. 2d 379 (1946). There the employer was asserting that a wartime change in contribution rates based upon total payroll in 1940 could not validly be applied to it because it was not a war industry and its payroll and number of employees were not increased as a result of the war. Judge Collins, quoting from the opinion of Mr. Justice Stone in Carmichael, rules that the legislature’s attempt to secure funds for the unemployment it correctly believed would follow the war had a rational basis and was not susceptible to constitutional attack.

Recently, in Griffin v. Anne Arundel County, 25 Md. App. 115, 333 A. 2d 612 (1975), this Court quoted Carmichael to the effect that “[a] tax is not an assessment of benefits.” There we upheld a county-wide tax which was attacked by Annapolis residents who felt that they were not being taxed proportionately with the benefits they received.

Although recognizing Carmichael, appellant argues that the appellee “must first hurdle the obstacle in the form of the basic and controlling authority of Railroad Retirement Board v. Alton Railroad Co., 295 U. S. 330 (1935).” (Emphasis added.) There, Mr. Justice Roberts, for a 5-4 majority, held the Railroad Retirement Act of 1934 to be unconstitutional as violating due process. The Act established a compulsory retirement and pension system for all carriers subject to the Interstate Commerce Act. The classes of persons eligible for annuities included those employed within one year prior to the passage of the Act whether or not such persons were or would ever again be employed. The Court held that the Act was not a legitimate exercise of the power to regulate interstate commerce and “denies due process of law by taking the property of one and bestowing it upon another.” 295 U. S. at 350.

At its promulgation, the majority holding drew a vigorous dissent from the Chief Justice, Charles Evans Hughes, in which he was joined by Justices Brandéis, Stone and Cardozo. Within two years, the broad sweep toward judicial acceptance of legislative control over the marketplace became manifest.

Since then, the vitality of Alton Railroad has become highly questionable. Mr. Justice Rutledge, in Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 230 (1948), included it in a list of cases “which the evolving nature of our industrialism foredoomed to reversal.” In Chew v. Quesada, 182 F. Supp. 231, 232 (D.D.C. 1960), Judge Youngdahl stated flatly that “[t]he evidence is overwhelming that Alton is no longer controlling law.” He quoted Dowling, Cases on Constitutional Law, 284, n.l (5th ed. 1954) as saying that United States v. Lowden, 308 U. S. 225 (1939), shows that Chief Justice Hughes’ dissent in Alton Railroad “has since been accepted as the view of the Court.” He also quoted Mr. Justice Stone, Lowden’s author, as saying that “it serve[s] both as a footnote and a headstone for [Alton Railroad]. ” In Condor Operating Co. v. Sawhill, 514 F. 2d 351, 361 (Temp. Emer. Ct. of Appeals 1975), Judge Christensen characterized Alton Railroad as having “been questioned as being at variance with the tenor of modern authority.” Thus it is clear that while it has never been explicitly overruled, Alton Railroad is a case of little or no precedential value today. Cf. Plessy v. Ferguson, 163 U. S. 537 (1896).

On the other hand, Carmichael is clearly a landmark case on the question of the constitutionality of a State unemployment insurance law and has been quoted, cited and relied upon in Maryland. The Alabama statute, which was at issue in Carmichael, is comparable to the Maryland Unemployment Insurance Law. The Alabama statute set different rates during different time periods and there was no provision for non-charging an employer if he did not cause a particular claimant’s employment; neither was any allowance made at all for an employer’s experience-rating. Significantly, the constitutional challenge here is almost identical to that in Carmichael. As noted above, the employer there maintained that the tax was unconstitutional because the benefits were paid to persons “unrelated to the persons taxed and the amount of the tax which they pay — in short, that those who pay the tax may not have contributed to the unemployment and may not be benefited by the expenditure.” 301 U. S. at 521. This is also appellant’s argument here and we must reject it. That the Maryland General Assembly had a legitimate purpose in enacting the 1964 amendment is more than a presumption. Judge Liss, in his oral opinion, found two such purposes:

“The first was to insure the integrity and maintenance of the funds from which unemployment insurance benefits are paid. The second was to spread the charges against the experience rating to all employers in a base period.”

Judgment affirmed; appellant to pay the costs.

      . We are told that the above provision was deleted by the General Assembly at the instance of the Maryland Chamber of Commerce and that the Employment Security Administration opposed the deletion and has caused the introduction, at every Legislative Session since 1964, of a bill to return a “non-charging” provision. These proposals for a return to the prior law have been consistently defeated. See, House Bill 477, introduced January 29,1975; House Bill 1129, introduced February 27,1975; and Senate Bill 941, introduced March 3, 1975, none of which received even committee approval.

      . N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937) is generally regarded as the landmark case after which legislation regulating the marketplace, both during and after the New Deal, has enjoyed an almost conclusive presumption at constitutionality. There Mr. Justice Roberts “changed sides” to create a 5-4 majority supporting the intervention of the N.L.R.B. in a labor dispute. In dissent Mr. Justice McReynolds prophetically referred to “the far-reaching import of [this] decision [and] the departure from what we understand has been consistently ruled here____” 301 U. S. at 76. As stated by Judge Gibbons, in Frank Irey, Jr., Inc. v. Occupational Safety & Health Review Commission, 519 F. 2d 1200, 1224 (3d Cir. 1975) (dissenting on 7th Amendment grounds from enforcement of an administrative penalty), “The decision in Jones & Laughlin ... marked at least the beginning of the end of the Court’s attempt to impose its subjective economic views on the nation in the guise of substantive due process.”