author: Moore, J.,

text:
    LUKE JAMES v. STATE OF MARYLAND
    [No. 689,
    September Term, 1975.]

      Decided June 8, 1976.

      The cause was argued before Thompson, Davidson and Moore, JJ.

      Dermis M. Henderson, Assistant Public Defender, with whom were Alan II. Murrell, Public Defender and George E. Burns, Jr., Assistant Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City and Domenic lámele, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

The fatal shooting of a 22 year old Baltimore City policeman on April 5, 1974 gives rise to this appeal. Appellant, who relied for his defense upon a theory of alcoholic blackout or amnesia, was found guilty of first degree murder in the death of Officer Frank Whitby and of assault with intent to murder Officers William Nowakowski and Carl Grinnage. He was sentenced to life imprisonment for murder, 15 and 10 year consecutive sentences on the assault charges, to be served consecutively to the life term and two 5 year concurrent sentences for handgun convictions, to be served concurrently with the other sentences.

Appellant assails his convictions upon the grounds of alleged insufficiency of the evidence, alleged error in denying his motions for a mistrial based upon remarks by the prosecutor claimed to have been inflammatory, alleged error in the admission of evidence of a prior conviction and alleged failure of the trial court properly to consider the issue of whether his claimed amnesia precluded a fair trial.

After careful consideration of the record in this case, including some 1000 pages of transcript and numerous exhibits, we conclude that the assignments of error are not supported and that the judgments of conviction must be affirmed.

The senseless shooting of Officer Whitby occurred on Saturday, April 6, 1974, at approximately 1:00 p.m. Appellant, then 43 years of age, had apparently spent a substantial part of the previous day drinking. Witnesses for the defense testified that appellant and his girlfriend, Lagertha Buise, arrived at the home of her mother and stepfather on East Oliver Street at 9:30 or 10:00 p.m. The girlfriend’s uncle was also present. The group began playing pinochle, imbibing beer and liquor as they played. The quantity of drinks available to them and consumed by the appellant was variously estimated by the witnesses — the girlfriend stating with apparent exaggeration that appellant consumed as much as two gallons by the time the card game terminated at 8:30 or 9:00 the following morning. At that juncture appellant and Lagertha Buise .left her mother’s home, destined for the home of appellant’s sister. In response to a question on direct examination as to his condition at that time, appellant testified:

“I was pretty high. I was high but wasn’t what you call sure enough drunk. I wobbled a little bit.”

Not finding the sister at home, they located her at the house of a friend and went with her to a local bar at the corner of Wolfe and Lanvale Streets. There, the trio consumed beers and a pint of whiskey.

At approximately 1:00 p.m., one Barnard Smith, who was having his automobile washed in the neighborhood, entered a public telephone booth on the street outside the tavern to telephone his wife. As he did so, he observed appellant walking unaccompanied down East Lanvale Street shooting a pistol at random. One of the bullets came dangerously close to the telephone booth. Mr. Smith crouched on the floor and dialed the police. When the officers arrived on the scene, Mr. Smith informed them that appellant had entered a rowhouse, 1911 East Lanvale (later established to be the residence of his sister). Policemen were deployed to the front and rear of the house and Officers Whitby, Nowakowski and Grinnage ascended the front steps. Whitby was first in line. In response to his knock, appellant’s sister appeared at the door. She stated that there was no one in the house with a pistol — the only other occupant being her brother and that he had no gun. As she motioned the officers inside, Officer Whitby, armed with a shotgun, entered the vestibule and proceeded to the hallway of the house. As he did so, three shots rang out. He turned to his companions and stated, “I have been shot,” and fell to the floor. He then crawled back toward the outside door. He was assisted from the house by Officer Grinnage and placed in an alley a few doors away, awaiting the momentary arrival of an ambulance.

Officer Nowakowski took a position outside, to the left of the front steps, and testified that he presently found himself looking down the barrel of a revolver in appellant’s hand. He fired three shots but appellant withdrew into the house, unscathed.

Thereafter the police established a barricade in the front and rear of the premises. The supervising officer, using a “bullhorn” and having learned appellant’s name, called out to him to surrender. After some 40 minutes appellant shouted that he was coming out and giving himself up. Heeding the instructions of the supervising officer, he emerged with his hands up, descended the front steps and spread his arms on the hood of an automobile. He was quickly handcuffed and searched and then transported from the scene. One of the police officers, Paul A. Ayres, testified that appellant stated at the time of his apprehension that he did not know that the man he shot was a police officer.

Officer Whitby was taken to Johns Hopkins Hospital where he underwent 7 or 8 major surgical procedures. He died there on May 5,1974, the cause of death being extensive bronchial pneumonia, complicated by multiple gunshot woulds of his leg and abdomen.

The trial in this case commenced on February 10, 1975 and ended on February 20th. Appellant took the stand in his own behalf and testified that he had no recollection of events which transpired after drinking at the bar on Saturday morning until his apprehension by the police. He did remember walking from the home of his girl-friend’s mother on East Oliver Street to East Lanvale and also recalled going to and being at the local bar. He also admitted the possession of two revolvers and stated that he found them in a car at a garage where he was temporarily employed and had them in his custody at the time of his arrest because he intended to sell them.

II

We address ourselves to appellant’s contentions in the order in which they have been presented:

a. Sufficiency of Evidence First Degree Murder

In the instant appeal, the corpus delicti of homicide was amply demonstrated, as was the criminal agency of appellant, in the perpetration of the homicide. On his behalf it is contended, however, that in the absence of any confrontation between victim and assailant, there being no testimony of any exchange of words before the shots were fired, that the State did not prove, as it must, that the homicide was “wilful, deliberate and premeditated” so as to constitute murder in the first degree. Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 407; Chisley v. State, 202 Md. 87, 95 A. 2d 577 (1953); Wilson v. State, 261 Md. 551, 276 A. 2d 214 (1971); Gladden v. State, 273 Md. 383, 330 A. 2d 176 (1974).

As Judge O’Donnell stated for the Court in Gladden, supra:

“For a homicide to be ‘wilful’ there must be specific purpose and design to kill; to be ‘deliberate’ there must be a full and conscious knowledge of the purpose to kill; and to be ‘premeditated’ the design to kill must have preceded the killing by an appreciable length of time, that is, time enough to be deliberate.”

Citing Chisley, supra, the Court in Gladden pointed out that to sustain a conviction of murder in the first degree, as defined in Maryland, the jury must find:

“ ‘the actual intent, the fully formed purpose to kill, with so much time for deliberation and premeditation as to convince them, that this purpose is not the immediate offspring of rashness and impetuous temper and that the mind has become fully conscious of its own design.’ It is not necessary that deliberation and premeditation shall have been conceived or have existed for any particular length of time before the killing. Their existence must be judged from the facts of the case. . .. 273 Md. at 387.

And in Gladden, the Court also cited Wilson, supra, for the proposition that:

“If the killing stems from a ‘choice made as a result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder.’ ”

And as Judge Moylan pointed out for this Court in Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), in proving wilfulness, deliberation and premeditation beyond a reasonable doubt, the State will not have relied upon a mere presumption of malice but will of necessity have proved the element of malice, meaning “an intentional killing absent the mitigating circumstances of a hot-blooded response to a legally adequate provocation.”

In the present case it is significant that the shooting by the appellant of Officer Whitby was in no way provoked by any action of the decedent or of his two companions. The autopsy indicated that the victim suffered gunshot wounds to the right lower abdomen, right thigh and right leg. (The bullet to the abdomen perforated the major vascular structure of the lower abdomen, penetrated the diaphragm and ultimately became lodged in the left lung.)

Premeditation and deliberation, being subjective in nature, can be established from the circumstances surrounding the particular case. 40 Am.Jur.2d Homicide § 263; 1 Wharton, Criminal Evidence § 135 (13th ed. 1972). As the trial court observed in this case when he denied appellant’s motion for judgment of acquittal at the close of the case:

“The question of premeditation has to be determined by the facts of each case. In this case, I think the triers of the fact, the jury, may well draw the inference the Defendant was in the hallway or the area of the hallway, heard the conversation between the stout woman and the police, knew the police were going to talk to him, approach him or apprehend him, and as the police approached he stepped forward to a doorway and fired three shots fatally wounding Officer Whitby.”

The circumstances above related by the trial court, as well as the appellant’s subsequent statement that he did not know the person he shot was a policeman, combined with the number of shots fired, add support to a permissible inference of premeditation and deliberation. Chisley v. State, supra; Wilson v. State, supra; Cummings v. State, 223 Md. 606, 165 A. 2d 886 (1960). We must reject appellant’s contention that:

“In the absence of any facts which would supply a reasonable foundation for an inference of deliberation and premeditation, the jury was left to reach its determination through speculation and conjecture.”

b. Sufficiency of the Evidence Assault with Intent to Murder

The appellant was convicted of assault with intent to murder Officer Grinnage and of assault with intent to murder Officer Nowakowski. It is our conclusion, contrary to the contentions of appellant, that there was legally sufficient evidence from which the jury could find Luke James guilty of these offenses beyond a reasonable doubt. The trial court effectively summarized the evidence when he stated, in ruling against appellant’s motion for judgment of acquittal:

“With respect to the two indictments, assault with intent to murder, I think there is sufficient evidence to go to the jury on these. Shots were fired in the direction of all three officers. One was in back of the other, plus the testimony of Officer Nowakowski, which would be a separate situation entirely. The motion will be denied.”

Assault with intent to murder is a statutory offense. Md. Code (1957, 1976 Repl. Yol.) Art. 27, § 12. The essential element of the crime is an assault made with intent to murder, that is, if death had ensued, the killing would have constituted murder. A specific intent to murder is not necessary to sustain a conviction, it being sufficient if there was an intention to commit grievous bodily harm. Webb v. State, 201 Md. 158, 93 A. 2d 80 (1952); Bird v. State, 231 Md. 432, 190 A. 2d 804 (1963). The intent to kill is inferable from the use of a deadly weapon directed toward a vital part of the body. Bird v. State, supra.

The testimony of Officer Nowakowski, to which the trial court referred above, related to the developments which rapidly occurred after the initial gunfire inside the house when Officer Whitby was fatally wounded. Officers Nowakowski and Grinnage exited the building and Nowakowski, as previously stated, took up a position near the doorway. Looking up, he saw the appellant:

“A. I then looked, like, just laid my body up against the wall on the pavement at that time and I was looking at the house and Mr. Luke James, he was standing there in the same doorway where I first seen him and he was holding the gun.
Q. Who was?
A. That man, holding a gun.
Q. Were you able to see the gun?
A. I was looking right down the barrel.
Q. What did you do then?
A. I just leaned on — I was leaning over the steps at that time and I had my service revolver at that time and extended my arm out and laid it against the legs of that fat lady, the heavy-set woman. She was still standing in the vestibule. I laid my arm against her legs and fired three shots.
“A. I came over here and I wanted to peek in, see what was happening and I didn’t have any idea when I pulled my gun. Sometime I did pull my hammer after I went down the steps. I looked around and Officer Whitby was in the vestibule. Guess it must have been about this time. The heavy-set woman was standing right here, almost to the frame of this, in this door. And, I looked and I seen that man over there and his gun was pointing at me at that time, I fired three shots.”

From this testimony the trier of fact could have found that appellant pointed a deadly weapon at a vital part of Officer Nowakowski’s body and would have shot Officer Nowakowski had the policemen not fired first at the appellant, forcing him to retreat into the house.

With respect to the assault upon Officer Grinnage, the evidence is also sufficient to sustain appellant’s conviction. Officer Grinnage was directly behind Officer Whitby as the trio entered the vestibule and proceeded into the hallway. Officer Grinnage testified that, “We were fired upon from the right side of the house.” (Emphasis added.) Because of the close proximity between Whitby and Grinnage when appellant fired the shots, there was a permissible inference that appellant was pointing a gun at all three of the officers and attempting to shoot Officer Grinnage as well as the other two; and that appellant’s failure to do so was attributable to the instinctive reaction of Grinnage in taking flight to avoid being killed or wounded.

Appellant has failed to show that there was no legally sufficient evidence or inferences therefrom from which the jury could find him guilty of both charges of assault with intent to murder beyond a reasonable doubt. Without such a showing a judgment entered on the verdict of the jury may not be overturned on grounds of insufficiency. Culver v. State, 1 Md. App. 406, 230 A. 2d 361 (1967); Johnson v. State, 9 Md. App. 166, 263 A. 2d 232 (1970).

c. Alleged Inflammatory Comments of Prosecutor

At the outset of this somewhat protracted trial, the court delivered a carefully phrased instruction to the jury. This took place prior to opening statements and before any testimony was received. The court enunciated the proposition, inter alia, that the statements of counsel during opening and closing arguments are not evidence and that the jury was to decide the ultimate issues based upon the testimony and exhibits, the court’s instructions themselves being advisory.

Twice during the course of the opening statement, once during his closing argument and once in his rebuttal, the prosecutor made statements which appellant claims were inflammatory and he contends that a mistrial should have been granted.

In his opening statement, after relating what the facts would show with respect to the shooting of Officer Whitby, the prosecutor declared:

“The saga doesn’t end here. It goes on because an ambulance responded and quickly left and Officer Whitby was transported to Johns Hopkins Hospital. He was taken in the greatest haste possible to the operating room where he was placed directly on the operating table. Certain tests were conducted and it was the conclusion of the medical people there that he was losing gross amounts of blood, so an incision was made in his upper left chest right over here and an incision was made in his belly right over here. The first incision was for the purpose of tying off the aorta, one of the major blood vessels. They clamped that off, the reason being he was bleeding from the wounds he sustained, that being in the abdominal area. They then did an exploratory laparotomy. They cut him open to find out what was wrong and they found out what was wrong, that a bullet pierced him and in doing so, pierced what is known as iliac, the major blood vessel that goes to the leg, and he was losing tremendous amounts of blood. It also pierced his bowels so that his own fecal matter was spilling into his abdomen.
“MR. HARRIS [Defense Counsel]: Objection. May we approach the bench?”

An unrecorded conference was held at the bench out of the hearing of the jury. (The following day at a conference in chambers, counsel for appellant stated — and the court concurred — that the record should show that a mistrial was requested during the unrecorded bench conference and that the court denied the motion.) The prosecutor thereupon resumed his statement and continued in similar vein:

“MR. IAMELE [for the State]: Ladies and gentlemen, this was on April 6th that Officer Whitby was admitted. These operations were performed on April 6th. After that there were approximately four or five more operations that were performed on him because the hospital, the doctors, could not control the bleeding in his abdomen. In fact, one hundred and fifty units of blood, fifteen times the amount of blood each of us has, was given to him during the course of his treatment. Officer Whitby when he went on that operating table April 6th 1974, did not have a pulse, he was not breathing. His life was sustained through the miracle of medicine. His condition, as bad as it was, grew progressively worse during the next month. As I said, he had about five more operations after that, all to his abdomen. His kidneys shut down and he was put on a kidney dialysis machine.”

At that point defense counsel again objected and the following took place at the bench out of the hearing of the-jury:

“MR. HARRIS: I make the same objection I made a moment ago. I believe the State’s Attorney is overdramatizing in his opening statement and the only purpose is to inflame the jury and raise prejudice to the Defendant.
“THE COURT: I would just caution Mr. lámele not to overdramatize the situation and proceed with what you expect to prove without going into details of the officer’s suffering.
“MR. IAMELE: Very well.”

In his closing argument, ten days later, the Assistant State’s Attorney made reference to the surgical procedures to which Officer Whitby had been subjected in the month following the shooting. The prosecutor again referred to Officer Whitby’s suffering:

“After this, ladies and gentlemen, you heard the testimony of Dr. Whitaker. He testified, he told you what horrible suffering that must have gone on for the month after that. He told you that Officer Whitby was admitted to the hospital, that he had approximately seven operations in that month. He told you his blood was replaced between fourteen times over or seventeen times over. He told you of his agony for a month.”

The defense interposed an objection and the following colloquy took place at the bench:

“MR. HARRIS: I don’t believe the doctor testified to the agony. Again, this man is not on trial for what happened in the twenty-nine days. He is charged with homicide of Officer Whitby. I believe I made this objection in opening statement and at the time the hospital records were tried to be gotten into evidence. What happened in the hospital has nothing to do with the case, and I move for a mistrial.
“THE COURT: The motion for mistrial is denied. Up to this point, I don’t think it has been so dramatized that it would require granting the motion. Further, I think it may fall within the general pattern of argument. However, having said that, I would caution the State not to pursue this further.
“MR. HARRIS: Thank you.”

Finally, in his rebuttal argument, the prosecutor remarked:

“Mr. Harris talks about the fact the .25 caliber is puny, is a slingshot. Matter of fact, a .25 caliber at close range is more devastating than a .38. A .38 highpower goes through a person. But a .25 goes helter skelter through the body itself, the kind of agonizing death Officer Whitby suffered.”

Defense counsel made an objection and the court responded:

“I think it’s argument.”

First, we observe that the prosecutor’s language in opening statement wherein he indulged in a vivid and irrelevant description of the unfortunate victim’s wounds, was improper. Also objectionable were the prosecutor’s references to the “horrible suffering” and “agony for a month” in his closing statement but we are inclined to agree with the trial court’s ruling, above quoted, that the subject had not been so “dramatized that it would require granting the [mistrial] motion.” With respect to the statements of the prosecutor made in rebuttal, we think the trial court was correct in characterizing his remarks as “argument” inasmuch as defense counsel had himself attempted to minimize the effect of a .25 caliber weapon, having called it “puny” and a “slingshot.”

In this factual context it is our conclusion that the trial court should have issued a cautionary instruction to the jury after the first of the prosecution’s statements — even though it had not been requested — and made it plain to the Assistant State’s Attorney that a repetition would not be tolerated. As indicated, we find of lesser objectionable impact the remarks made in the State’s closing statement and in its rebuttal argument — a closing statement and rebuttal argument which took place some ten days after the opening statement.

While we thus hold that it would have been better practice for the trial court to have acted sua sponte, in the manner suggested, we find ourselves unable to concur with appellant that there was prosecutorial misconduct such as to justify the granting of a mistrial. It is fundamental law that a request for a mistrial in a criminal case is addressed to the sound discretion of the presiding judge and the action of the court is reviewable on appeal for purposes of determining whether the denial of the mistrial constituted an abuse of discretion. In the leading Maryland case on this subject, Wilhelm v. State, 272 Md. 404, 326 A. 2d 707 (1974), the Court of Appeals made it plain that the action of a trial court, in the exercise of its discretion denying a mistrial, is not reversible “unless it is clear that there has been prejudice to the defendant.” 272 Md. at 429. The Court there also cited with approval the language of the Court in Cornish v. State, 272 Md. 312, 322 A. 2d 880 (1974), that the trial court in the exercise of its discretion should declare a mistrial only where there is “manifest necessity for the act.” The Court in Wilhelm characterized as in accord with Maryland authority the distillation of Illinois law on this subject as set forth in People v. Mackins, 17 Ill. App. 3d 24, 308 N.E.2d 92 (1974). There the following propositions were delineated:

1) The trial court has a superior opportunity to determine the propriety of final argument.
2) It is impractical to lay definite guidelines for what may and may not be said in arguments to a jury.
3) The mere occurrence of improper remarks does not by itself constitute reversible error.
4) An appellate court must necessarily conclude that no prejudicial error resulted from the argument, if it cannot be said that the assailed argument
(a) constituted a material factor in the conviction;
(b) must have resulted in substantial prejudice to the accused; or
(c) that the verdict would have been different had the improper closing argument not been made.

As a reviewing Court and finding as we have that the impropriety of the prosecutor’s remarks pertained principally to an opening statement made ten days prior to the deliberations by the jury we are unable to conclude that the argument to which appellant objected was a material factor in his conviction or resulted in substantial prejudice to him. The evidence of appellant’s involvement in the homicide of Officer Whitby was overwhelming. Compare, Berger v. United States, 295 U. S. 78 (1935) where the Court recognized as a standard that the less compelling the evidence of guilt the more readily a case should be reversed for prosecutorial misconduct. And see, Wilhelm, supra, where the Court described as an important and significant factor whether or not the judgment of conviction was “substantially swayed by the error or the evidence of defendant’s guilt was overwhelming.” 272 Md. at 427.

Furthermore, the trial court here was careful to advise the jury in its final instructions that Officer Whitby’s pain was not a factor. Judge Thomas explained:

“In weighing the testimony and arriving at your verdict, you are not to be influenced by questions of public interest or policy, or the effect of your verdict upon other persons charged with crime, or any suffering of the victim. Your verdict should be based upon the evidence or lack of it and nothing else.” (Emphasis added.)

d. Alleged Error in Admitting Evidence of Appellant’s Criminal Record

Appellant took the stand in his own defense. Over objection, the Assistant State’s Attorney elicited on cross-examination that appellant was on parole and, over objection, he was also permitted to establish the fact that one of the conditions of his parole was that appellant not “own or possess, use or sell any dangerous weapon or firearms without approval of the Parole Board.” The Court then permitted, over objection, the introduction into evidence of the Order For Release On Parole executed by the Chairman of the Board of Parole on April 18, 1972. The Order showed not only the conditions of parole but also that appellant had been convicted of the crime of robbery with a deadly weapon in the Criminal Court of Baltimore on April 3,1963.

Appellant does not argue the point that cross-examination with respect to his status as a parolee and the conditions of his parole was improper. Rather, it is contended that the Burgett principle (Burgett v. Texas, 389 U. S. 109 (1967) was violated in that the Parole Order recited a prior conviction but it was not established that the conviction and subsequent parole resulted from a trial at which appellant was represented by counsel or had knowingly and voluntarily waived such representation.

Although without the benefit of the majority opinion of this Court in von Lusch v. State, 31 Md. App. 271, 356 A. 2d 277 (1976), the State argues that appellant’s objection did not present to the trial court nor preserve for appeal the question of a violation of the Burgett principle. We do not see it that way, even in the light of von Lusch. When the Parole Order was initially marked as a State exhibit, defense counsel immediately objected and the following took place at the bench out of the hearing of the jury:

“MR. HARRIS: It has been established that by the question he was on parole. I assume for possible relevancy, this form the State’s Attorney is intending to produce ...
“MR. IAMELE: This is the thrust of my case. This merely lays the foundation for the fact one of the conditions of parole as indicated in a signed document Your Honor has in your hand now, shows the parolee shall not possess, use or carry firearms in the State of Maryland while he is on parole.
“THE COURT: I’ll overrule the objection.
(The proceedings at the bench were terminated.)
“THE COURT: The objection is overruled.”

Subsequently, the State established, over objection, that the Parole Order had been signed by the appellant and it was introduced:

“MR. IAMELE: I offer this as State’s exhibit no. 17 and ask the jury be allowed to see it.
“THE COURT: The basis of the objection is not authenticity?
“MR. HARRIS: The same as before. It’s not on the authenticity.
“THE COURT: If not on that basis, I’ll overrule the objection. ” (Emphasis added.)

At the conclusion of the testimony for the defense, counsel for appellant moved to strike the exhibit for the reason that it was not proven through “direct testimony from the defendant whether or not he was convicted of any crimes” and for the further reason “he was not asked the question whether or not he was represented by counsel or effectively waived his right to counsel.” Opposing the motion, the State explained its position: “. . . I thought it sufficient to introduce the parole [order] to show he had broken his parole. My impeachment on this issue goes simply to the fact he violated one of the conditions of his parole.” The motion was denied.

As we read the record, it seems clear that appellant challenged the Parole Order in a manner sufficient to raise the Burgett principle (see, Chenault v. Director, 28 Md. App. 357, 360-61, 345 A. 2d 440 (1975)); that appellant’s counsel was not accorded a timely opportunity to articulate fully all grounds for his objection, cf. von Lusch, supra; and that the trial court itself recognized no other possible basis for an objection except lack of authenticity. We think the stern requirements of Burgett were violated. See also, Bailey v. State, 263 Md. 424, 283 A. 2d 360 (1971); Anglin v. State, 28 Md. App. 150, 344 A. 2d 130 (1975); Carroll v. State, 19 Md. App. 179, 310 A. 2d 161 (1973); Moore v. State, 17 Md. App. 237, 300 A. 2d 388 (1973); Johnson v. State, 9 Md. App. 166, 263 A. 2d 232 (1970).

This violation of the Burgett principle would ordinarily constitute reversible error. In this instance, however, we take judicial notice of the practice in the Criminal Court of Baltimore in 1963, the year of appellant’s conviction of the crime of robbery with a deadly weapon, to assign counsel in all felony cases, and of the docket entries in appellant’s case, Indictment No. 354, 1963 Term, which disclose that appellant was represented therein by Norman Hockberg, Esq.

The general rule regarding judicial notice in Maryland is, as stated in Fletcher v. Flournoy, 198 Md. 53, 60, 81 A. 2d 232 (1951), quoting Morse v. Lewis, 54 F. 2d 1027, 1029 (4th Cir. 1932), that “a court will not travel outside the record of the case before it in order to take notice of the proceedings in another case, even between the same parties, and in the same court, unless the proceedings are put in evidence. ... .” We feel, however, that in contrast to Fletcher, the instant case is one in which the demands of justice do suggest an exception to settled rules, an exception recognized in Morse v. Lewis and also quoted in Fletcher v. Flournoy:

“But in exceptional cases, as high authority shows, the dictates of logic will yield to the demands of justice, and the Courts in order to reach a just result, will make use of established and uncontroverted facts not formally of record in the pending litigation.”

Here, we are confronted with an appeal in a case which has been tried twice, the first resulting in a mistrial. The second trial consumed ten days and some 23 witnesses testified. It would defy logic and any notion of fundamental justice and of judicial economy if this case were to be reversed solely on the ground of a violation of the Burgett principle, when it is a fact of public record that appellant was represented by counsel in connection with the prior conviction and, as appears from the decision of the Court of Appeals in Gill v. State, 265 Md. 350, 289 A. 2d 575 (1972), reversing Gill v. State, 11 Md. App. 378, 274 A. 2d 667 (1971), we are not permitted the alternative of a remand, without affirmance or reversal, for the limited purpose of receiving in evidence the docket entries in the prior case.

Reliable authority exists in support of our position. Thus, in Moore v. Estelle, 526 F. 2d 690 (5th Cir. 1976), the Court of Appeals took notice of various state and federal court actions upon a prisoner’s previous habeas corpus petitions to ascertain, inter alia, that petitioner had been represented by different counsel at trial and during the collateral attack. In United States ex rel Geisler v. Walters, 510 F. 2d 887 (3d Cir. 1975), the appellate court took notice of a state prisoner’s brief in his state court appeal in order to determine that he had exhausted his state remedies.

Similar results have obtained in state courts. In Hartman v. Joy, 365 N.Y.S.2d 182 (App. Div. 1975), the court, in deciding a rent control case, made the following statement:

“The reference to the Civil Court action, while it is dehors the record, is a matter of which we can take judicial notice. Besides, it is accurate information and a public record, and would help to speed resolution of the situation.” 365 N.Y.S.2d at 184.

In a paternity case the California Court of Appeal judicially noticed certain documents concerning a prior custody action. The court there said, in a footnote:

“These papers were not part of the record in the juvenile court proceeding from which this appeal is taken. Ordinarily matters not presented to the trial court are not a permissible part of the record on appeal and will not be considered by the reviewing court. [Citation omitted.] We are impelled to recognize this as an exceptional situation and shall take judicial notice of these papers in order to prevent prolongation of this litigation. . . .” In Re Lisa R., 115 Cal. Rptr. 859, 863 (1974).

And in Garrett v. Osborn, 431 P. 2d 1012 (Colo. 1967), a case concerning the denial of a motion for a new trial on the ground of inadequacy of counsel the state supreme court took judicial notice of the fact that the trial attorney of plaintiff in error had been disbarred.

While no Maryland case specifically prescribes the limits beyond which an appellate court may not notice facts outside the record, the Court of Appeals in Davidson v. Miller, 276 Md. 54, 67, 344 A. 2d 422 (1975), took judicial notice of data furnished by the Eighth Circuit Administrative Office in reaching the conclusion that the application of Art. IV, § 8 of the Maryland Constitution (“Removal of Causes”) was violative of the Equal Protection Clause of the United States Constitution. In Jones v. State, 29 Md. App. 182, 192, 348 A. 2d 55 (1975), cert. granted, February 5, 1976, this Court declined to take similar notice of “court records and statistics.” In the instant appeal, however, the indisputability of the fact that appellant was represented by Mr. Hockberg makes this a case in which refusal on our part to notice the official records of the Criminal Court of Baltimore would, to paraphrase the holdings in New York and California, hinder resolution of an exacerbated situation and needlessly prolong litigation. It would, moreover, be contrary to the demands of logic and justice.

e. Claimed Amnesia and A lleged Deprivation of Fair Trial

Placing heavy reliance upon the case of Wilson v. United States, 391 F. 2d 460 (D.C. Cir. 1968), appellant contends that his claimed alcohol-induced amnesia covering the period of approximately one hour (the time between his departure from the local bar and his apprehension by the police) precluded him from receiving a fair trial; and that the trial judge failed to give proper consideration to this contention.

Procedurally, the issue was presented to the trial judge in the form of a motion for appropriate relief, heard in open court on March 11, 1975, after conviction and prior to disposition. The “appropriate relief’ sought by appellant was an order setting aside his conviction.

At the hearing on the motion, appellant’s counsel made a proffer that he and two other defense counsel would testify that, in speaking with appellant, he informed each of them from the outset that he had no recall of the incident surrounding the firing of the gun; that he was unable to recall to them or to assist them in reconstructing the events that occurred inside the house on the afternoon in question; that the period of his memory lapse began in the local bar; that a State witness had testified that the appellant left the tavern in the company of three other persons; and that the appellant’s sister, Ella Mae Powell (who had been called as a State’s witness during the first trial but did not testify at the second) would testify that when the appellant arrived at her house after leaving the bar, he said something to the effect, “I am in trouble, I have been in an argument with three guys and I am in trouble.”

We find appellant’s reliance upon the Wilson case to be altogether misplaced. There, the appellant and an accomplice were involved in a serious accident in the District of Columbia while attempting to elude the police in a stolen car after a robbery. The accomplice was killed in the accident and appellant Wilson was so badly injured that he lost all recollection of the events on the day of the robbery. The government conceded, as the majority opinion of Judge J. Skelly Wright discloses, that the appellant suffered from permanent retrograde amnesia as a result of which he had no recollection of any of the events alleged in the indictment.

In the instant case there is no such concession on the part of the State and, as the trial court held in ruling upon the motion for appropriate relief, the jury by its verdict clearly disbelieved appellant’s testimony concerning the alleged alcoholic blackout. How, the trial court questioned, could it be effectively argued that appellant was deprived of a fair trial if the clear indication of the jury’s verdict was that no amnesia in fact existed? The logic in the court’s position is unassailable. Beyond this, the trial court in its ruling on the motion adverted to the holding of this Court in Parker v. State, 7 Md. App. 167, 254 A. 2d 381 (1969), and observed that there was no evidence in this case to suggest the presence of involuntary intoxication; that appellant had been found competent to stand trial; that the high quality of professional assistance rendered him by the Office of the Public Defender “negates the argument that the defendant did not receive a fair trial” and that the prosecution had fully cooperated with the defense by affording complete discovery.

On the basis of the record before us, therefore, we reject appellant’s final contention that the trial judge did not give proper consideration to the question of whether appellant’s amnesia precluded him from receiving a fair trial.

Judgments affirmed.

      . This was the second criminal trial of the appellant. The first trial resulted in a mistrial on October 1, 1974, for reasons not disclosed in the record. The trial resulting in this appeal began on February 10, 1975. Appellant, by appropriate plea to the indictments, raised the issue of his competency at the time of the alleged offense and at the time of trial. Prior to the first trial, Ross, J., presiding, the court ruled that appellant had not overcome the presumption of sanity, that he was competent to stand trial and that the issue of intoxication would be for the jury's consideration upon appropriate instructions. He also ruled, as noted later in the opinion, that the court could not, in advance of trial, determine whether or not the appellant’s claimed amnesia was such as to preclude a fair trial. At the outset of the second trial, Thomas, J., presiding, appellant moved for a rehearing on these issues but the motion was denied and the trial court adhered to the rulings previously made by Judge Ross.

      . The officer’s testimony was first received at a hearing on voluntariness out of the presence of the jury. The court ruled that it was voluntary.

      . At the conclusion of the State’s rebuttal at a conference at the bench out of hearing of the jury, defense counsel recorded an objection to the comments of the prosecutor concerning appellant’s inability to recall specific events and moved for a mistrial. He did not, however, also cite the above quoted remarks in support of his motion.

      . As the transcript, above quoted, reveals, there were two such motions. One was made after the first series of objectionable remarks in opening statement. The second motion was made after the State’s comments in closing argument. Only the first appears to have a substantial basis.

      . In Wilhelm, Judge O’Donnell wrote for the Court of Appeals, 272 Md. at 429:
      “In considering whether, in the first instance, any of the remarks attributed to the prosecutor had the effect of unfairly creating prejudice against the defendant, recognition must be given to the fact that the trial judge, who presides in the arena where the forensic adversaries are engaged, is in the best position to evaluate and assess — in the context in which the remarks are made and their relationship to other factors in the trial — whether they were in fact prejudicial.”

      . “Inquiry into the ‘length of time served and conditions or circumstances surrounding the parole of a defendant’ is improper.” People v. Smith, 48 Cal. Rptr. 382, 390 (Cal. S. Ct. 1966).

      . Fletcher was before the Court of Appeals from summary judgments and orders refusing to strike out the summary judgments for the defendants in two ejectment cases. It was held that neither the trial court in an ejectment action nor the Court of Appeals would take judicial notice of proceedings in a prior case in a Circuit Court from which the instant case had been removed, and which appellants claimed fully settled the controversy.

      . Professor McCormick speaks of the “axiom that these [appellate] tribunals can take judicial notice to the same extent as can trial courts.” McCormick, Evidence (2d. ed. 1972), § 333 at 773.

      . Amnesia per se does not bar prosecution. United States v. Sullivan, 406 P. 2d 180 (2d Cir. 1969); Wilson v. United States, supra; State v. McClendon, 437 P. 2d 421 (Ariz. 1968); Reagon v. State, 251 N.E.2d 829 (Ind. 1969); Commonwealth ex rel. Cummins v. Price, 218 A. 2d 758 (Pa. 1966); State v. Pugh, 283 A. 2d 537 (N.J. App. Div. 1971). We have found no Maryland criminal case wherein the issue has been squarely presented. See generally, Annot. 46 A.L.R.2d 544; and see Lester v. State, 370 S.W.2d 405 (Tenn. 1963). To have a fair trial the defendant must be competent to stand trial, i.e., to be able to consult with his lawyer with a reasonable degree of rational understanding and have an understanding of the proceedings against him. In Wilson, Judge Wright stated:
      “A prediction of the amnesic defendant’s ability to perform these functions must, of course, be made before trial at the competency hearing. But where the case is allowed to go to trial, at its conclusion the trial judge should determine whether the defendant has in fact been able to perform these functions. He should, before imposing sentence, make detailed written findings, after taking any additional evidence deemed necessary, concerning the effect of the amnesia on the fairness of the trial.”

      . In his pretrial ruling on competency, Judge Ross did find, as a fact, that appellant had no recall. That, however, was “for the purpose of this hearing”; and appellant was found competent to stand trial.


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    CARL STRASS et al. v. DISTRICT-REALTY TITLE INSURANCE CORPORATION
    [No. 740,
    September Term, 1975.]

      Decided June 8, 1976.

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

      Morton Rosenberg for appellants.

      Arthur C. Elgin, Jr., with whom were Thomas Penfield Jackson and Jackson, Parkinson & Jackson on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

The controversy involved in this appeal is whether assessments levied by the City of Rockville against nine residential lots for benefits resulting from installation of water and sewer lines by the City, were liens or encumbrances insured against by policies of title insurance purchased at the time of settlement by the owners of each of the lots. The claims of the respective lot owners were asserted in their Third Amended Declaration filed in the Circuit Court for Montgomery County against District-Realty Title Insurance Corporation. The plaintiffs were nine married couples. They were: Carl Strass and Elaine W. Strass, Morton Rosenberg and Aileen Rosenberg, Jon Ranhand and Barbara 0. Ranhand, Richard J. Zack and Mary T. Zack, James K. Jackson and Carol Jackson, Robert R. Hench and Marilyn Hench, Carl D. Olson and Rena Olson, Gabor F. Dobay and Norma Lee G. Dobay, Robert E. Gant and Janet Gant.

The title insurance company was the only defendant proceeded against in the Third Amended Declaration. The plaintiffs alleged that each of the couples, between 4 September 1970 and 25 June 1971, had settled with the builder and seller on a contract for the purchase of a house and lot in the Rockshire Subdivision in the City of Rockville, Montgomery County. Each of the couples obtained, at the time of settlement, a title insurance policy issued by District-Realty Title. The plaintiffs alleged that they thereafter learned that the City of Rockville made an assessment against each of the lots in the aggregate sum of $2,509.58, payable over a 20 year period, and that those assessments constituted liens or encumbrances against which they were protected by the title insurance policy.

The case was brought to issue by several pleas filed by District-Realty Title, including pleas of general issue and special pleas that the assessments did not constitute liens or encumbrances at the time its policies of title insurance were issued.

On 9 June 1975 a hearing was held in the Circuit Court for Mofltgomery County before Judge John J. Mitchell on a motion for summary judgment filed by the plaintiffs and a cross motion for summary judgment filed by the defendant. Each motion was accompanied by a supporting memorandum of points and authorities, including numerous attachments. In addition, each side filed a memorandum in opposition to the summary judgment motion against it.

Judge Mitchell took the motions under advisement. On 24 June 1975 he filed an order denying the motion of the plaintiffs and granting the motion of the defendant. On the same day, the docket shows the entry of judgment in favor of the defendant for costs.

Thereafter, Judge Mitchell filed a memorandum explaining the grounds for his decision. The plaintiffs, through their attorney, noted a timely appeal.

Each motion for summary judgment was, necessarily, premised upon the moving parties’ contention that there was no genuine dispute of any material fact. From our examination of the motions, and the memoranda supporting and opposing them, we find -nothing to indicate that any fact material to the decision of the case was disputed by either side.

Among the evidentiary material properly before the trial court, in conformity with Maryland Rule 610, the significant evidence, we believe, was the title insurance policies and the records of official actions taken by the City of Rockville. Matters of law were, of course, also before the court.

The earliest of the title policies here involved was issued on 10 September 1970» and the latest on 28 June 1971. Each policy insured against direct loss or damage by reason of

“1. Any defect or defects in the title of the Insured to the estate or interest covered hereby and identified under Schedule A hereof in the real estate described under said Schedule A; or 2. Liens or encumbrances charging the same, saving and excepting all loss or damage by reason of the defects, estates, interests, objections to title, liens or encumbrances mentioned in Schedule B hereof or excepted by the Conditions and Simulations of this Policy * * * .”

None of the policies contains a relevant exception in Schedule B. In the Conditions and Stipulations of each it is provided:

“2. The Company shall be liable hereunder in damages only: * * * (2) Where there has been [a final determination in a court of competent jurisdiction] adverse to the title insured upon a lien or encumbrance not excepted in this Policy.”
“8. Nothing contained in this Policy shall be construed as insuring * * * (6) against defects and encumbrances arising after the effective date of this Policy, or created, suffered, assumed or agreed to by the Insured.”

The critical action of the City of Rockville was taken in its Ordinance No. 33-71, adopted on 12 October 1971. It cited the completion of the construction of water and sewer lines in several subdivisions, theretofore authorized; it ordained the approval of the work and statements of costs of the several projects; and it ordained that:

“Pursuant to the provisions of Article X, Section 1, Paragraph d of the Charter of the City of Rockville, Maryland, the expense of the work described in Paragraph 1 above is hereby levied as special assessments against the abutting properties and respective record owners thereof as of July 1, 1971, in the amounts shown on the attached list. The work described above is hereby found and declared to be of special benefit to the properties shown on said list in the amounts assessed.”

The list of Special Assessments levied included, among other properties, 131 separate lots in the Rockshire Subdivision, each assessed for $2,509.58. Appellants were identified by name and address as owners of their respective lots.

The issue brought into sharp focus by what we have quoted is whether the assessments levied by the Ordinance of 12 October 1971 constituted liens or encumbrances on the lots of appellants on the effective dates of their title insurance policies. In addition to the Ordinance itself, other facts which it is contended bear on that issue are:

a. The minutes of a meeting of the Mayor and Council of Rockville held on 10 June 1968, containing this entry:
“Re Approval Water & Sewer Assessment Projects Rockshire Subdivision
“The Mayor and Council received a memorandum from the City Manager, noting receipt of a request, together with the appropriate waiver of public hearing, for the installation of water and sewer, on a special assessment basis, in a large portion of the Rockshire Farms subdivision. It was recommended that the Mayor and Council approve this request.
“On motion of Councilman Hanna, duly seconded and unanimously passed, the Mayor and Council gave its approval to the water and sewer projects.”
b. Final passage on 3 November 1969 by the Mayor and Council of Rockville of Ordinance No. 52-69. The Ordinance authorized the issuance of “General Improvement Bonds of 1969” in three series, Series A, Series B, and Series C, in varying amounts, all to be disbursed for financing various municipal improvements, itemized in the Ordinance by project number. The Ordinance prescribed the form of the bonds, the schedule of maturities, and the form of the advertisement of sale. It required the advertisement to contain the following statement:
“The bonds of each of the series described herein are general obligation bonds of The Mayor and Council of Rockville and will constitute an irrevocable pledge of the full faith and credit and unlimited taxing power of said City. In addition, special annual benefit assessments have been duly authorized with respect to the improvements to be financed by the proceeds of the Series A Bonds, which assessments are dedicated as the primary source of payment of such Series A Bonds. Also, water and sewer connection charges have been duly authorized with respect to the improvements to be financed by the proceeds of the Series C Bonds, which connection charges are dedicated as the primary source of payment of such Series C. Bonds.”
Ordinance 52-69 further provides, in Section 12:
“That, the proceeds of the special benefit assessments with respect to the improvements set forth above to be financed by the proceeds of the Series A Bonds, as and when collected, shall be credited to the appropriate accounts of Rockville for the purpose of providing, to the extent thereof, for the payment of the interest on and principal of the Series A Bonds.”

and in Section 14:

“That, for the purpose of paying the principal of and interest on the Bonds authorized to be issued by this Ordinance, Rockville shall levy or cause to be levied, and there is hereby levied, in each and every fiscal year in which any of the Bonds are outstanding ad valorem taxes upon all of the legally assessable property within the corporate limits of Rockville in rate and amount sufficient to provide for the payment, when due, of the principal of all of the Bonds maturing in each such fiscal year and of all the interest on the Bonds coming due in each such fiscal year, and, in the event the proceeds from the taxes so levied in each such fiscal year shall prove inadequate for the above purposes, additional taxes shall be levied in the subsequent fiscal year to make up any deficiency. It is the intent of this Ordinance that the rate of said ad valorem tax shall be so computed in each fiscal year that the proceeds of such ad valorem tax together with (i) in the case of the Series A Bonds, the proceeds of the special benefit assessments applied as set forth in Section 12 hereof, (ii) in the case of the Series C Bonds, the proceeds of the water and sewer connection charges applied as set forth in Section 13 hereof, and (iii) any other funds lawfully available for the purpose, shall provide sufficient funds to meet said maturing principal and interest on all of the Bonds. Rockville may also apply to the payment of principal and interest of the Bonds any funds received by it from the State of Maryland, the United States of America, any agency or instrumentality thereof, or from any other source, if such funds are granted for the purpose of assisting Rockville in the financing of the public improvements (or type of public improvements) for which such Bonds are issued and may lawfully be applied to such principal and interest payments, and to the extent of any such funds received or receivable in any fiscal year the taxes hereby required to be levied may be reduced proportionately.”

c. Final passage on 24 August 1970 by the Mayor and Council of Rockville of Ordinance No. 28-70.

This Ordinance authorized the issuance of “General Improvement Bonds of 1970” in two series, Series A, and Series B, in different amounts, to be disbursed for financing various municipal improvements.

It appears that Ordinance No. 28-70, in all respects material to this case, parallels Ordinance No. 52-69, except that it provides additional money for financing additional municipal improvements, some of which may have involved the water and sewer lines in Rockshire.

The City’s authority to undertake the improvements and to determine who would ultimately bear the cost was derived from its Charter, which appeared as Chapter 48 of the then current Montgomery County Code (1965). In what was then Article X. Special Assessments, Sec. 48-60 (now Article XI. Sec. 72-68) of the Charter provided, in part:

“(a) The council is authorized and empowered whenever, in its judgment, the public health, safety or comfort requires it, to grade, construct, reconstruct, pave, or otherwise improve any street, sidewalk, alley, curb and gutter and public highway, or parts thereof, at such time and to such extent and of such materials and in such manner as shall be provided by ordinance and to purchase, contract to purchase, lay or contract to lay water mains and trunk and lateral sewers in said city and to pay the costs of all such work and assess said cost, or any part thereof against the abutting property as hereinafter provided in this section.” (Emphasis added).

Subsections (b) and (c) provided that certain abutting owners may petition for a public improvement, and for notice and hearing on such a petition. Subsection (g) provided for the waiver of requirements when all of the abutting property affected is represented in the petition, as seems to have been the case with the developer of Rockshire.

Subsection (d) of Section 48-60 provided:

“(d) If, after the hearing, the council shall be of the opinion that the public health, safety or comfort requires the work or improvement proposed to be done or made, they shall provide by ordinance for the same and may charge the expense thereof or any part of such expense against the property which they shall find to be specially benefited thereby according to the lineal frontage of said property; * * * . The council shall also provide in said ordinance the time and terms upon which payment of said assessments for said work and improvements shall be made by said property owners, the rate of interest, if any, that shall be charged upon deferred payments and shall provide penalties for failure to pay any deferred payment when due. Assessments so levied as aforesaid shall be a lien upon the property against which they are charged superior to all other liens from the date of the approval of suck assessments by the council.” (Emphasis added).

Authority to borrow money for any proper public purpose, and to issue bonds, to be authorized by ordinance, was contained in Sec. 48-29 (now Sec. 72-37) of the Rockville Charter. It appears that Ordinance No. 52-69 and Ordinance No. 28-70, to which we have referred, were appropriate to exercise the City’s borrowing power. Their adequacy to do so is not at issue in this case.

For the first step in the decision of this case, we look to the enabling statute, and to the ordinances by which the authority was exercised. The Charter, Sec. 48-60 (h), says that the assessments levied against property benefited by an improvement shall be a lien upon the property from the date of the approval of the assessments. The first and only record of any levy of assessments by the City was in Ordinance No. 33-71, adopted 12 October 1971.

We hold that the assessments so levied became a lien upon the property of the appellants from 12 October 1971, the date of the approval of such assessments by the council. The lien arose after the effective date of each of the policies. Clearly the policies of title insurance afforded no protection against the assessments as liens.

Appellants contend, however, that their properties were at least encumbered by the prospective assessments long before the title policies were issued. They rely heavily upon the Court of Appeals decision in Manor Real Estate v. Zamoiski Co., 251 Md. 120, 246 A. 2d 240 (1968), which, they assert, is directly on point and dispositive of this matter.

We have examined the Manor Real Estate decision carefully. Its holding is quite narrow, and has no application to the issue in the case before us. Even the dicta in Manor Real Estate, quoted by the appellants as law, would not lead to a decision of the question here. Manor Real Estate involved an issue in common with Morris v. Ehlers, 211 Md. 23, 124 A. 2d 776 (1956), decided some 12 years earlier. Both cases involved disputes between buyer and seller over liability for front foot benefit assessments levied against abutting property by the Washington Suburban Sanitary Commission for the cost of installation of water and sewer lines.

In both cases the work had been completed and it appears that the assessments had been levied before the dates of the contracts.

Ehlers had contracted to sell Morris a tract of land in Montgomery County, and had agreed in the sales contract that:

“Taxes, general and special, are to be adjusted according to the certificate of taxes issued by the Treasurer of the County, except that assessments for improvements completed prior to the date hereof, whether assessment therefore [sic] has been levied or not, shall be paid by the Sellers or allowance made therefore [sic] at the time of transfer.”

Several years before the contract was signed front foot benefit charges had been determined and levied against parts of the property by the Washington Suburban Sanitary Commission. Morris wanted Ehlers, at settlement, to pay off or make allowance for the entire assessment, which was payable over a period of 40 years.

Chief Judge Bruñe, speaking for the Court of Appeals, referred to and quoted a part of the statute under which the Sanitary Commission imposed front foot benefit charges. Citing several previous cases decided under the same statute he stated the opinion of the Court “that the aggregate charges for which the Commission has imposed annual front foot benefit charges are assessments.” Against a contention that by custom in Montgomery County only annual current installments of front foot benefit charges made by the Commission were adjusted to the date of transfer, with no allowance made for the unpaid portion of the original assessment, the Court held that such benefit charges were comprehended within the term “assessment for improvements completed”, and that the plain meaning of the contract could not be contradicted by evidence of a custom. The Court said, at 28:

“Whether these charges constituted liens against the property for the full amount thereof from the dates when they became final under the statute, or whether they constituted liens only as and when annual charges were entered by the Commission’s agents on the books of the County Treasurer, is a question which we are not called upon to decide in this case.”

It is obvious that the holding of the Court in Morris v. Elders was that the burden of the assessments was upon the seller, not because of their legal effect as a lien or an encumbrance, which the Court found it unnecessary to decide, but because of the terms of the contract expressing the agreement of the parties.

With that background, we turn again to Manor Real Estate. In the contract Involved there the seller had agreed to convey a parcel of industrial property in Prince George’s County, “clear of all liens and encumbrances”. By the time set for closing the purchaser learned of an assessment which had been levied against the property by the Washington Suburban Sanitary Commission for front foot benefit charges. The amount yet to be paid was $10,130.76. The seller contended that each installment became a lien only in the year in which it was collectible. There was evidence of a custom to adjust such benefit charges to the date of closing, as is done with real estate taxes.

The Court of Appeals again found it unnecessary to decide whether the assessments constituted a lien for the full amount. It said, at 129-30:

“We see no more reason here than we did in Morris v. Ehlers, supra, to decide whether the $10,130.76 benefit charge is a lien because, in our judgment, it is an encumbrance even if it is not a lien. It has been said that the mere fact that property becomes liable for the payment of a benefit charge for municipal improvements may constitute an encumbrance even before the amount thereof has been ascertained. 4 H. Tiffany, The Law of Real Property § 1003, n. 3 at 135 (3d ed. 1939). It has been said also that present liability to an eventual lien may be sufficient to establish an encumbrance. 20 Am. Jur. 2d, Covenants § 87 (1965). Both parties have cited a number of cases in support of their respective positions but we have not found them to be helpful either because of the dissimilarity of the factual situations or because of the tendency of the courts to equate or confuse liens with encumbrances.
“That the benefit charge of WSSC is an encumbrance upon property served by its facilities seems to us to be a proposition which requires by way of proof nothing more than serious reflection upon the purpose for which WSSC was established, how it goes about accomplishing that purpose and the statutes authorizing and directing it to do what it does. Stated simply the business of WSSC is to construct (or acquire) water mains and sewers which the Legislature has ‘declared to be a benefit to all property abutting the same.’ The funds required for the construction (or acquisition) are provided by the sale of bonds. To raise the money to retire the bonds WSSC ‘is empowered and directed to fix and levy a benefit charge upon all abutting property.’ (Emphasis added.) The benefit charge is to ‘be paid annually, beginning from the time of the levy thereof, by all properties * * * , for a period of years coextensive with the period of maturity of the bonds out of the proceeds of which such construction [or acquisition] was done.’ (Emphasis added.)”

It is equally obvious that the holding of the Court in Manor Real Estate was that such an assessment, already levied, was at least an encumbrance, whether or not it was also a lien.

We find it quite significant that the Washington Suburban Sanitary Commission statute not only empowers, but directs the Commission to “fix and levy a benefit charge upon all property abutting upon said water main or sewer”. It may be that the statute directs the Commission to levy the benefit charge, because the Commission does not possess general taxing power. In any event, such a statutory direction may well be said to create, once the work is done, a “present liability to an eventual lien [which] may be sufficient to establish an encumbrance.”

The statutory authority of the City of Rockville, unlike that of the Washington Suburban Sanitary Commission, is permissive, rather than mandatory. The City of Rockville, by its Charter, is authorized and empowered “to pay the costs of all such work and assess said cost, or any part thereof, against the abutting property”.

In its Ordinance No. 52-69 and Ordinance No. 28-70, each authorizing the issuance of bonds, the City did indeed recite that special annual benefit assessments were authorized, and dedicated as the primary source of payment of the bonds. Those assertions of future intent cannot be said to be the equivalent to a present levy, nor to establish present liability to an eventual lien. This is especially so when in the same ordinances the City bound itself to levy ad valorem taxes on all Rockville property sufficient to pay the principal and interest on the bonds, and further stated that it may apply to the payment of the bonds any funds received from the State of Maryland, the United States of America, or any agency or instrumentality thereof, or from any other source, granted to assist the City in financing the public improvements.

We hold that the assessments in this case were not encumbrances until they were inevitable, and that as long as the City had the option to levy them or not, they were not inevitable until they were levied. The potential assessments were neither liens nor encumbrances when the policies of title insurance were issued. The entry of summary judgment in favor of the appellee was correct.

Judgment affirmed.

Appellants to pay costs.

      . Originally there were ten couples. The suit was later dismissed as to one of the couples.

      . The attorney who had represented all of the plaintiffs up to that point later filed in the lower court a motion for leave to withdraw, representing to the court that the plaintiffs had advised him of their intention to proceed with the appeal pro se. The circuit court granted leave, and the appearance was stricken. The record shows that each of the plaintiffs would prosecute his appeal pro se. Only the appellant Morton Rosenberg did so. He filed a brief describing himself as, “Attorney Pro Se and on Behalf of all other Appellants”.

      . While it is not readily apparent from the Ordinance itself, we shall assume that one or more of the projects listed relate to the water and sewer lines in Rockshire.

      . The City did not purport to exercise the permissive authority given to municipalities by Code, Art. 43, § § 409-413.

      . Now Chapter 72, Montgomery County Code, 1972.


author: Menchine, J.,

text:
    NORMAN BUSADA v. RANSOM MOTORS, INC.
    [No. 769,
    September Term, 1975.]

      Decided June 8, 1976.

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

      Bert W. Kapinus for appellant.

      Jess Joseph Smith, Jr., for appellee.
   Menchine, J.,

delivered the opinion of the Court.

An action for trespass q.c.f. was filed in the Circuit Court for Prince George’s County by Norman Busada (appellant) against Ransom Motors, Inc. (appellee). The latter had used a part of what later became appellant’s land to store automobile bodies and parts. Appellee’s use of the land commenced under an oral license conferred by appellant’s predecessor in title. Appellant, shortly after acquisition of his possessory interest in the land, gave written notice on September 11, 1973 to the appellee demanding removal of the chattels. They were not removed for some five months following the demand. The subject suit was brought to recover damages for continuing trespass from October, 1973 to February, 1974 when the chattels were removed by the appellee. At the conclusion of the appellant’s case (plaintiff below) the trial judge granted the appellee’s (defendant below) motion for a directed verdict. From the judgment thereafter entered appellant has appealed. We shall reverse.

It is undisputed that the appellant derived title to the real property in question on June 14, 1973. It is undisputed also that the appellee had no right, title, interest or estate in that property save for an oral license from appellant’s predecessor in title. In Zimmerman v. Summers, 24 Md. App. 100, 330 A. 2d 722 (1975), we said at 124 [736]:

“The rule adopted and applied in Maryland is that an oral license by an owner of land permitting another to use the land of the licensor is absolutely revocable. It is a personal privilege and is usually terminated on the death of either of the parties or by the transfer of ownership of either the land subject to the license or the land for the benefit of which the license was given.”

In Baltimore v. Brack, 175 Md. 615, 3 A. 2d 471 (1939), wherein the City of Baltimore had laid water and sewer lines and drainage facilities across the lands of Brack under an oral agreement with the prior owner of the tract, the Court of Appeals, after consideration and discussion of many Maryland and out of state cases, posed the following question, inter alia, at 618 [473]:

“It will thus be observed that the questions raised by the appeal are: (a) Whether, under an admittedly oral license, the City has the right to continue the use of the utilities over the land of the appellee; . . . .

It answered the question at 622 [474-75]:

“A brief summary of the cited cases, therefore, leads to the conclusion that unrecorded grants of easements in land must give way to a grant of the fee, and that apart from a prescriptive right, an easement is an interest in land which cannot be created except in the mode and manner prescribed by the recording statutes of this state; that a license for the use of land is revocable, both at law and in equity, whether the license is or is not executed by the expenditure of money by the licensee; . . . . ”

It is true that Zimmerman and Brack, both supra, were equity actions rather than suits at law for trespass. We consider this circumstance to be without significance.

In 1 Restatement of Torts 2d, Ch. 7 Trespass on Land, and Privilege to Enter Land, Ch. 8, it is said, inter alia, in §§ 160 and 171:

“§ 160. Failure to Remove Thing Placed on Land Pursuant to License or Other Privilege
A trespass may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor or his predecessor in legal interest has placed on the land
(a) with the consent of the person then in possession of the land, if the actor fails to remove it after the consent has been effectively terminated, or
(b) pursuant to a privilege conferred on the actor irrespective of the possessor’s consent, if the actor fails to remove it after the privilege has been terminated, by the accomplishment of its purpose or otherwise.
“Comment on Clause (a):
d. If a structure, chattel, or other thing is placed on land with the possessor’s consent conditioned upon the actor’s subsequently removing it, the termination of consent creates a duty to remove it from the land, ....
e. Continuing trespass. The intentional violation of such a duty of removal constitutes a continuing trespass for the entire time during which the actor is under a duty to remove the thing, and gives to the possessor of the land a series of independent causes of action for trespass unless and until the actor disseises the possessor (see § 162, Comment c), or by adverse user acquires an easement.
g. Mistaken belief that license is irrevocable. Even though the actor or his transferor has not agreed to remove the structure, chattel, or other thing from the land upon the termination of the license pursuant to which it was placed there, as where the parties act under a mistaken belief that the license is irrevocable, the termination of the license creates a situation in which the rule stated in this Section applies.
Illustration:
2. A executes and delivers to the B Telephone Company a document which both parties believe confers on the B Company an irrevocable license to erect and maintain telephone poles on A’s land. A transfers the land to C, who discovers that the document and the acts done under it do not create an irrevocable license. C notifies the B Company to remove its poles from the land. The B Company’s failure to remove the poles within a reasonable time is a trespass.

The rule of continuing trespass is applicable not only where the ownership or possession of the structure, chattel, or other thing is transferred after such thing comes upon the land (see Comment i), but also where the possession of the land is transferred thereafter ....

“§ 171. Termination of Consent

Subject to the privileges of reasonable egress and removal of things, the actor’s privilege to enter land created by consent of the possessor is terminated by

(a) the doing of any act, or the happening of any event, or the lapse of any specified period of time by which the consent is restricted, or

(b) a revocation of the possessor’s consent, of which the actor knows or has reason to know, or

(c) a transfer or other termination of the possessor’s possessory interest in the land.

Comment on Clause (c):

f. A consent given by one in possession of land ceases to be effective as conferring a privilege to enter or remain, when the interest of the licensor in the land is terminated. This rule is applicable to a transfer of the interest of the consenting possessor to a third person, whether voluntary or involuntary, inter vivos, or upon death. This is true although the licensee is not notified, and neither knows nor has reason to know that the consent given has been invalidated by termination of the interest in the land.” (Emphasis added.)

Applicability of the rule of Brack and Summers, both supra, to actions at law for trespass q.c.f. seems to be widely recognized. In Prosser, Law of Torts, Ch. 3, § 13, at 73-74 (4th Ed., HB, 1971), it was said:

“The trespass may also be committed by remaining on the land after a right of entry has terminated. Thus it is a trespass to refuse to leave after a license to remain has been revoked, or to fail to remove property at the end of an agreed period. At common law the action must be on the case, since there was no forcible invasion; but since the forms of action have been discarded, it is commonly held that there is an actionable trespass.”

In Phelps v. Berkshire St. Ry., 96 N. E. 128 (Mass. 1911), a leading case, it was said at the title page:

“The plaintiff’s knowledge that the defendant had entered this land and put up poles and strung wires thereon is not necessarily fatal to her maintenance of the action. She was then merely a second mortgagee of the premises, and rightly or wrongly supposed that the consent of the owner of the equity of redemption gave the defendant the right to do what it did. But this did not authorize the defendant, after the plaintiff’s superior title had become absolute, to maintain its structures upon her land without her consent and against her prohibition. For such maintenance and the continued use of the poles and wires for the transmission of an electric current over the land after her request for their removal the plaintiff can maintain an action of trespass quare clausum. She does not recover for the original entry and erection of the poles and wires, but for their wrongful maintenance and use in defiance of her request.” (Emphasis added.)

In Benjamin v. American Telephone & Telegraph Co., 82 N. E. 681 (Mass. 1907), it was said at the title page:

“The pole and the anchor to which the guy was attached had been set in the ground and the wires had been strung before the plaintiff became the owner of the premises, and she cannot therefore maintain an action for the trespass, if any, thereby committed. But the action of trespass quare clausum lies for any direct and wrongful invasion of the possession of another, and the maintenance of the pole and anchor and the operation of the wires by the defendant company under the contract between it and the American Telephone & Telegraph Co. of Massachusetts after the plaintiff became the owner of the locus and after a demand had been made by her for their removal constituted or could be found to constitute, in the absence of a legal justification therefor, a direct and wrongful invasion of the plaintiffs possession, and as such to entitle her to maintain an action of trespass quare clausum therefor. ‘The gist of the action is the disturbance or violation of the plaintiffs possession.’ ” (Emphasis added.)

The Massachusetts cases of Phelps and Benjamin, both supra, were discussed in Garver v. Public Service Co. of New Mexico, 421 P. 2d 788 (N.M. 1966) and their holding succinctly stated at 794:

“These cases stand for the proposition that one who purchases real estate after a trespass has been committed thereon, cannot maintain an action for such prior trespass, but may recover for trespasses which continue after the purchase.” (Emphasis added.)

We hold that the evidence produced by the appellant was legally sufficient to support an action at law for trespass q.c.f. This cause of action exists by reason of the alleged failure to remove the chattels from the land. The fact that there was no showing that appellee deposited additional chattels upon the land subsequent to its acquisition by the appellant is without legal significance. The gravamen of the subject action was the failure of the appellee to effect removal of the chattels after notice.

Judgment reversed and case remanded for a new trial.

Appellee to pay costs.

      . The decision in this case determines only the legal sufficiency of the evidence to establish a prima facie cause of action. We express no view upon issues of defense or damages.


author: Lowe, J.,

text:
    SAUL ROSENBLOOM et al. v. THE ELECTRIC MOTOR REPAIR CO.
    [No. 1027,
    September Term, 1975.]

      Decided June 9, 1976.

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

      Jonathan A. Azrael for appellants.
    No brief or appearance for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Louis J. Sagner, Esq., representing The Electric Motor Repair Co., a creditor of Knight Press of Maryland, Inc., filed a Bill of Complaint in the Circuit Court for Baltimore County, for the involuntary dissolution of Knight Press due to its insolvency, and the appointment of a receiver, pursuant to Md. Code, Art. 23, § 80. On March 19, 1975, the court, by Order of the chancellor pursuant to § 80, declared the corporation insolvent and appointed Mr. Sagner Receiver, expressly authorizing him to take possession of all property, books, records, papers, and effects of Knight Press. Knight Press was “required to yield up and deliver the same to the Receiver. . . .”

On June 20, 1975 the Receiver, alleging that he had not received any of the items specified in the order (nor had Knight Press prepared a schedule of its properties, encumbrances, creditors, exemptions or transfers) filed an application to compel compliance with Md. Rule BP2. That rule requires that a schedule of property and debts be filed by the debtor within fifteen days after the assumption of jurisdiction by a court. The rule provides an alternative in the event the debtor fails to comply.

“If the debtor fails to file the schedule within the time provided . . . the assignee or receiver shall, . . . cause such schedule to be made and filed. . . .” Md. Rule BP2.b.l.

The Receiver here did not comply with the rule’s alternate provision but chose instead to invoke its penalty clause. He filed an “Application to Compel Compliance with Rule BP2” and prayed simply that the “Court . . . pass an Order requiring the defendant to file schedules within a certain time or otherwise to be held in contempt . . .”, presumably because Md. Rule BP2.b.3. states that

“[a] debtor who wrongfully fails to file a schedule . . . may be punished for contempt.”

Thereafter, Saul Rosenbloom moved to strike the order and prayed a hearing on the Receiver’s application.

In his answer to that motion, the Receiver asserted:

“ . . . that there is not one penny in this estate and that the books and records of the Defendant are voluminous and are still in the possession of and under the control of Saul Rosenbloom and his accountant and that, therefore, it would be impossible for the Respondent to file schedules, as provided by the rules of court.”

The chancellor’s “Memorandum Opinion,” shows that the reasoning behind his order rested upon the respondent’s assertion that the corporate defendant was impecunious. The essence of the opinion is contained in its last three paragraphs which state:

“It is agreed that at the present time the corporation has no assets of any kind out of which the Receiver could pay for the preparation of schedules, nor has it had any such assets since March 19, 1975.
It is my judgment that Maryland Rule BP2 directs the filing of schedules by the debtor, and by necessary implication the debtor in this case being a corporation, contemplates that the preparation of schedules is to be effected by the officers and stockholders of the corporation. Clearly in this case, where there are no funds out of which the Receiver can pay for the cost of preparing the schedules, the burden should be on the last officers and stockholders of the corporation.
It will be ordered that the schedules be prepared and filed in this Court by Mr. Saul Rosenbloom on or before September 15,1975.” (Emphasis added).

The order that followed directed that “Saul Rosenbloom, former president of Knight Press, Inc., of Maryland” file the schedule of property and debts in compliance with Md. Rule BP2. Such schedule was not filed in the time prescribed by the order and, again, the Receiver ignored subsection b. of Md. Rule BP2 which mandates that if the debtor fails to comply, the receiver “shall” do so. This time the Receiver moved against Benjamin Rosenbloom, the sole stockholder and board chairman of Knight Press. “Application to Compel Benjamin Rosenbloom to Comply with Rule BP2” was filed by the Receiver and again the chancellor acquiesced, ordering “Benjamin Rosenbloom, former Chairman of the Board and sole stockholder of the Defendant [to] file schedules of the Debtor’s property and debts in compliance with Rule BP2. . . .” On the same day, the chancellor compounded that error by holding Saul Rosenbloom (the corporate president) in contempt, ordering him “committed to [the] custody of the Sheriff of this county to be confined until he shall obey the said lawful order of the Court.”

On October 1, 1975, both Benjamin and Saul Rosenbloom appealed from the orders directing them to file schedules pursuant to Md. Rule BP2. No appeal was filed from the contempt order directed at Saul Rosenbloom dated September 19, 1975. However, it is apparent that if the order upon which the contempt order is based is without merit, it too must fall.

Inexplicably, two days after appeal was noted, an “Application for Accountant” was filed reciting that a named Accountant had agreed to act if approved, on a contingent fee basis. It stated that the accountant “ ... is willing to . . . gamble on the ultimate results in view of the fact that he well realizes that at the present time there is not one penny in the estate.” The chancellor signed the order on October 3, 1975. If such action has mooted the controversy, we have not been so apprised, nor can we take judicial cognizance of that order since the chancellor had no authority to so act in this case after an appeal had been entered. The Court of Appeals has held as a general principle that the entry of an appeal divests the circuit court of its jurisdiction and it may not take further action upon the order appealed from “and any matters embraced therein.” Bullock v. Director, 231 Md. 629, 633. See also State v. McCray, 267 Md. 111, 145; Vancherie v. Siperly, 243 Md. 366, 375; Dietrich v. Anderson, 185 Md. 103, 111; Eastern States Corp. v. Eisler, 181 Md. 526, 535-536. Would it were not so that we might proceed no further. But proceed we must.

Appellants ask three questions, only two of which are subject to this appeal:

“1. May the former officer of a corporation in involuntary receivership, be compelled to prepare or cause to be prepared at his own expense, schedules of the property and debts of the insolvent corporation and to file same in the receivership proceedings?
2. May a former director and/or sole stockholder of a corporation in involuntary receivership, be compelled to prepare or cause to be prepared, at his own expense, schedules of the property and debts of the insolvent corporation and to file same in the receivership proceedings?”

The issues have become obfuscated partly because of the skeletal record from which we write. Because our decision in this case depends upon the interpretation of Md. Rule BP2, it is unnecessary to respond directly to the questions as they are asked.

Our review of the record and of the provisions of Rule BP2 convinces us that the chancellor erred in issuing the orders from which this appeal is taken. He committed not one error but three, by 1) ignoring the alternative provided by Rule BP2.b. in the event that the debtor fails to file a schedule; 2) issuing a contempt order for failure to comply with the rule without any finding that such failure was wrongful as required by subsection b.3.; and 3) attempting to “pierce the corporate veil” of the debtor by ordering the director and shareholder to do that which was required of the “debtor” under the provisions of the rule.

The chancellor fell into the interpretive trap, probably unintentionally laid by the Receiver who had obviously misread Md. Rule BP2, of invoking the penalty provision of the rule against the debtor who failed to file a schedule within the time provided. Subsection a. of that rule places the primary responsibility for filing the required schedule upon the debtor and subsection b.l. places upon the receiver the secondary responsibility for the schedule’s filing. Both the chancellor and Receiver obviously misread subsection b.3. as an alternative to subsection b.l.

The Receiver might complain (had he filed a brief) that, in the event of failure by the debtor to file the schedule because of lack of funds, it is more unjust to compel the Receiver to assume that responsibility than to lay it personally upon the officers, directors and shareholders. We do not agree.

In the first place, as we have indicated, the rule does not permit that alternative. Moreover, requiring the Receiver to advance the costs of preparation of a schedule, to whatever extent costs may be incurred, is consonant with the principle that the debtor’s property is entrusted to the receiver as an officer of the court and is in custodia legis awaiting ultimate disposal by the court according to the rights and priorities of the parties concerned. Williams v. Messick, 177 Md. 605, 610. Since the receiver in most instances, as in this case, is entrusted with the care of that property after petitioning the court on behalf of one or more of the creditors who will benefit by the location of assets, equity is not affronted by requiring the prospector to provide his own stake. We think that the provisions of Md. Rule BP2.b.l. clearly anticipate the logical next step to be followed when the debtor fails to file a schedule, i.e., the receiver shall do so.

The officers of a corporation for which a receiver has been appointed may, of course, be compelled to disclose information to the receiver which is necessary for the preparation of the schedule or to produce corporate records in their custody for that purpose. It is apparent, and we judicially notice, that both the president and the board chairman are charged with the knowledge of all of the facts and information required in the schedule called for by Md. Rule BP2.a. Subsection b.2. of Md. Rule BP2 makes clear that a delinquent debtor and any other person, whether a corporate officer or not, having knowledge of such information or its whereabouts may be ordered “to appear before the court or an examiner, and disclose any knowledge or information . . . necessary to the proper making of the schedule.” That provision obviously contemplates a debtor (individual or corporate) who may fail to file for reasons that are not wrongful, i.e., delinquent but not wrongfully so. When read in conjunction with the next subsection, it brings into play the alternative provision for the receiver to assume the filing responsibility with the necessary information being compulsorily provided by the delinquent debtor.

Subsection 3 of the Rule provides for punishment by contempt, but only for “[a] debtor who wrongfully fails to file a schedule ... or other person who wrongfully refuses to comply with an order to disclose information, pursuant to subsection 2 of this section b. . . .” (emphasis added). Presumably, that penalty is not available for mere delinquency in filing or simple refusal to disclose. Rather, to be punishable, the conduct must be wrongful. Before a judgment of wrongdoing may be rendered, the reasons for the failure to file (or the failure to disclose) must be ascertained by the court. While the contempt order in this case is not before us on appeal, it is apparent that it was not predicated on a finding that Saul Rosenbloom had “ . . . wrongfully refuse[d] to comply with an order to disclose information,” Md. Rule BP2.b.3., but rather that the corporate debtor had simply failed to file a schedule without regard to the reason therefor. We emphasize that the court is not precluded from ordering corporate officers to disclose or surrender information pursuant to Md. Rule BP2.b.2.; nor is it precluded from enforcing such an order through its contempt power pursuant to Md. Rule BP2.b.3. But before contempt is available as a punishment for failure to disclose, the court first must be satisfied by evidentiary offerings that the failure to disclose was wrongful. In any case, the purpose and effect of the orders here, directing Benjamin and Saul Rosenbloom personally to provide the costs of preparing the schedules to fulfill the corporate debtor’s responsibility, are clearly distinguishable from an order directing them to disclose the information necessary for the preparation of such a schedule.

The first two errors by the chancellor then led to a third, which he — more consciously committed. Although the “defendant” which was the subject of the Receiver’s prayer was the corporation Knight Press of Maryland, Inc., the ex parte order of the court signed pursuant to Rule BP2.b.3., ordered “Saul Rosenbloom, President of the defendant, [to] file the schedules of the debtor’s property and debts, in compliance with Rule BP2. . . .”

Since the procedure followed by the chancellor was erroneous for the reasons previously noted, we need not decide whether the officer and shareholder in this particular instance may be equated with the corporate debtor. It will suffice to reflect that a corporation will be regarded as an independent person, Bruñe, Maryland Corporation Law and Practice, § 371 (rev. ed. 1953), and its shareholders will not be held personally liable for the debts or other obligations of the corporation except where necessary to prevent fraud or to enforce a paramount equity. Damazo v. Wahby, 259 Md. 627, 633. A similar rule provides that the corporate veil protects officers'and directors from personal liability. Cf. A. B. Corporation v. Futrovsky, 259 Md. 65, 79; Ace Development Co. v. Harrison, 196 Md. 357, 366-367; Ex Parte Garey, 202 Md. 11, 17.

Because the procedure provided by the rule was not followed below, the orders appealed from are vacated.

Orders dated September 3, 1975 and September 19, 1975, as described in the orders for appeal, vacated.

Costs to be paid by appellee.

      . Mr. Sagner was later also appointed attorney for the Receiver.

      . Question 3 reads as follows:
      “May the Court issue an ex parte writ of attachment for contempt for a former officer’s failure to file schedules?”
      In response to that question, under which appellants argue for reversal, we have already indicated that appellants have not appealed from the contempt order. Their orders of appeal each specify and describe the order for compliance with Rule BP2 as the basis of the appeals. Neither refers to the order in contempt. We, therefore, may not address the issue raised of whether an ex parte contempt order is illegal.

      .
      “RULE BP2. SCHEDULE OF DEBTOR’S PROPERTY AND DEBTS.
      a. Preparation and Filing by Debtor.

      Within fifteen days after assumption of jurisdiction by the court over the estate of an assignee, or the appointment of a receiver, (unless the time be extended by the court for good cause shown) the debtor shall cause to be made and filed with the clerk, a schedule under oath, containing:
      (1) His name, occupation, place of residence and name and address of his business;
      (2) An itemized description of his property showing the nature and location thereof, any incumbrances thereon, and the value of the same, according to the best of his knowledge;
      (3) A list of all his creditors, designating those whose claims are contingent, unliquidated, or disputed, and unpaid or accrued taxes, the residence or place of business of each creditor, the sum owing to, or claimed by, each creditor, with the actual consideration therefor, and a statement of any security for the payment of the same;
      (4) A description of any property which he has transferred or disposed of, other than in the ordinary course of business, to a spouse during the three years immediately preceding the making of such assignment or appointment of such receiver, and to anyone other than a spouse during a period of one year immediately preceding the same, and as to each such transfer or disposition, the date thereof,-the consideration therefor, and the disposition of such consideration, the person to whom the property was transferred or how it was disposed of, and, if the transferee is a relative, the relationship; and
      (5) Any exemption claimed by the debtor.
      b. Failure to File — Filing by Assignee or Receiver.

      1. When Required.
      If the debtor fails to file the schedule within the time provided for in section a of this Rule, the assignee or receiver shall, within fifteen days after the expiration of such period, cause such schedule to be made and filed with the clerk. Such schedule shall include the information required by section a of this Rule insofar as the assignee or receiver is able to supply such information, except that—
      (a) the assignee or receiver need not assign specific values to each item of property belonging to the debtor; and
      (b) the list of creditors furnished pursuant to section a (3) of this Rule need not state whether the claims are contingent, unliquidated or disputed, nor state which creditors have claims for unpaid or accrued taxes.
      2. Debtor or Other Person May Be Compelled to Disclose Information.
      The court may, at any time, order a debtor who is delinquent in filing such schedule, and any other person possessing information relative thereto, to appear before the court or an examiner, and disclose any knowledge or information such debtor or other person may possess which is necessary to the proper making of the schedule.
      3. Failure to File Schedule or Disclose Information — Punishment by Contempt.
      A debtor who wTongfully fails to file a schedule, pursuant to section a of Rule BP2, or a debtor or other person who wrongfully refuses to comply with an order to disclose information, pursuant to subsection 2 of this section b, may be punished for contempt.”