text:
    MELVIN ALFONZO CROSS a/k/a “Teejay” v. STATE OF MARYLAND
    [No. 1042,
    September Term, 1976.]

      Decided June 13, 1977.

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

      Robert B. Levin, Assigned Public Defender, with whom were Frank, Bernstein, Conaway & Goldman on the brief, for appellant.

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Wehland, State’s Attorney for Howard County, and Gary S. Peklo, Assistant State’s Attorney for Howard County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Melvin Alfonzo Cross, was convicted by a Howard County jury, presided over by Judge Joseph Mattingly, of grand larceny. Upon this appeal, he raises five contentions, the first four of which are interestingly intertwined:

(1) That a new trial should have been granted because the jury’s verdicts of guilty of both larceny and receiving stolen goods were inconsistent and, therefore, fatally defective;

(2) That the evidence was not legally sufficient to support the grand larceny verdict;

(3) That irrelevant testimony from one Cindy Brosenne was erroneously admitted;

(4) That prejudicial evidence of another crime was erroneously admitted; and

(5) That an in-court identification was the product of an impermissibly suggestive pretrial photographic viewing.

The Inconsistent Verdicts

The jury returned verdicts against the appellant of guilty of grand larceny and guilty of receiving stolen goods, both charges arising out of the same incident. The appellant is absolutely correct in his major premise that “a defendant cannot be both a thief and a receiver when it is apparent that the property alleged to have been stolen is the same as that alleged to have been received.” Bell v. State, 220 Md. 75, 81, 150 A. 2d 908. It is also true “that a general verdict of guilty on two inconsistent counts, such as larceny and receiving, is defective.” Id., at 80; Heinze v. State, 184 Md. 613, 42 A. 2d 128. The question before the Court, however, is not that of whether the verdicts were inconsistent but rather that of what should be done when such inconsistencies unfortunately occur.

The appellant urges further that the best of all solutions, when such inconsistent verdicts are rendered, is to send the jury back to the jury room, with appropriate instructions, so that they can exercise their choice between the verdicts, either of which might be appropriate but both of which cannot. He quotes correctly from Heinze v. State, at 184 Md. 618, that “it is the safer practice to send the jury back to their room with instructions as to the corrections that ought to be made, so that they can amend the verdict as they think proper unhindered by the presence and possible influence of others.” To the same effect, we said in McDuffie v. State, 12 Md. App. 264, 267, 278 A. 2d 307:

“It is clear that in the case now before us, the better procedure would have been for the trial judge to have asked the jury to return to the jury room and, if they were indeed intent upon returning a verdict of guilty under the first count charging robbery with a dangerous and deadly weapon, then to return verdicts of not guilty on the other counts....”

Although this would indisputably be the best of all remedies, the flaw in the appellant’s argument is that nobody, significantly including the appellant, even spotted the problem, let alone suggested the preferred remedy, at the time it occurred. The rendition of the jury verdicts occurred as follows:

“(THE JURY RETURNED TO THE COURT ROOM AT 4:55 P.M. WITH A VERDICT AS FOLLOWS:)
Count Two—Breaking and Entering Not Guilty
Count Three — Grand Larceny Guilty
Count Five — Receiving Stolen
Goods Guilty
Whereupon, by request of Defense Counsel, the Jury was polled and all twelve answered in the affirmative. The jury was then dismissed.
MR. GOLDBERG: Your Honor, for the record, the Defense requests a PSI.
THE COURT: Very well, sir. A pre-sentence report is therefore ordered and sentence will be delayed pending the receipt of the report from the Parole Department.
MR. GOLDBERG: Thank you, Your Honor.
MR. PEKLO: Thank you, Your Honor.
THE COURT: Thank you.
COURT RECESSED AT 5:10 P.M.”

The short answer to the contention would be simply to point out that the issue has not been preserved for appellate review. Maryland Rule 1085. In Bell v. State, supra, a case also involving inconsistent verdicts of guilty of both larceny and receiving, the Court of Appeals made it clear that the failure to raise the issue at the trial court could be dispositive, saying at 220 Md. 81:

“When a verdict of guilty is rendered on inconsistent counts, the defendant has a right to require the trier of facts to specify on which of the counts he is guilty, but it is a right which may be waived. Since the question was not raised below in any manner, it may be that the defendant waived the inconsistency. "(Emphasis supplied)

We spoke to the same point in Thomas v. State, 2 Md. App. 645, 648, 236 A. 2d 747:

“The next complaint concerns the conviction of grand larceny and receiving stolen goods on the basis that the counts were mutually exclusive. It is true that the verdict is inconsistent, however, there was no objection below and there was no prejudice.”

In the exercise of our discretion, however, we would go further and address the merits. Even if the point had been preserved for appellate review, it would avail the appellant little. The trial concluded with the rendering of the verdicts on April 20, 1976. The appellant first raised the question of inconsistent verdicts at the hearing on his Motion for a New Trial on September 24, 1976. The jury had not simply been dismissed but it had, as of then, been totally dispersed for over five months. There was no way under the sun that that jury could be reconstituted. The sole thrust of the appellant’s argument both upon the Motion for a New Trial and before this Court was not for such corrective action as was still available to the court, but for a complete reversal and a remand for a new trial before a new jury. The injury did not compel so radical a cure.

The State had, in the meantime, taken corrective action of its own. It nolle prossed the charge of receiving stolen goods so that the only sentence ultimately imposed was for the conviction of grand larceny. The appellant now questions the power of the State’s Attorney to enter a nolle pros after a verdict has been rendered by the fact finder. Although we perceive no impediment to the entering of a nolle pros by the State at that stage of the proceedings, the entry of the nolle pros is not the subject of this appeal. The judgment appealed from was the sentence upon the conviction of grand larceny. We are concerned not with the method by which the conviction for receiving stolen goods was dissolved, but with the propriety of the conviction for grand larceny remaining undissolved.

The ultimate harm flowing from inconsistent verdicts is not the possibility that the jury may have been confused in its decisional process (for illogical and “compromise” jury verdicts are countenanced without question, if not indeed without power to question) but rather the risk that a defendant will erroneously be subjected to double and inconsistent punishments. That threat was removed in this case by the State’s prompt dismantling, via the nolle pros, of one horn of the dilemma. The appellant was relieved of potential prejudice. That the agency of that relief happened to be the State’s Attorney rather than the trial judge is of no moment.

The appellant would have us believe, however, that the inconsistency of the jury was in and of itself a sin beyond redemption, except at the hands of that jury. We cannot take so stern an attitude toward the technical missteps that frequently bedevil the complicated and snare-strewn trial process. The philosophy, rather, which invigorates our approach was that quoted with approval by the Court of Appeals in Heinze v. State, supra, at 184 Md. 619. The words were those of Chief Justice Paxson in Appeal of Nicely, 130 Pa. 261, 18 A. 737, 739:

“There was a time in the history of the English criminal law when great crimes were left unpunished because of harmless, technical errors. This greater strictness was perhaps due to the fact that at that period the Criminal Code was especially bloody. Capital punishment was inflicted for very trifling offenses; and, it may be, the judges sought to ameliorate its rigor by holding the crown to the observance of the nicest technicalities. * * * With the advancement of judicial science, and a more enlightened administration of the law, mere technicalities are less regarded, where they work no harm to a defendant.”

These words were applied in Bell v. State, supra, where the Court of Appeals declined to reverse on the basis of inconsistent verdicts, absent ultimate prejudice. It said, at 220 Md. 81:

“In any event, the court passed but one sentence of a year’s duration and then provided that it should run concurrently with the previous sentence of three years for the receiving and unauthorized use of the automobile referred to in the first indictment. Since it does not appear that the defendant has been prejudiced [Heinze v. State, supra] by the rendition of inconsistent verdicts under the second indictment, we see no reason to make such inconsistency the basis for a remand of the case for further proceedings or a new trial. Novak v. State, 139 Md. 538, 115 A. 853 (1921).”

Similar results were reached in Hardesty v. State, 223 Md. 559, 165 A. 2d 761; Novak v. State, 139 Md. 538, 115 A. 853; Price v. State, 3 Md. App. 155, 238 A. 2d 275; Tender v. State, 2 Md. App. 692, 237 A. 2d 65; and Boone v. State, 2 Md. App. 80, 117, 233 A. 2d 476. In terms of diagnosing what probably-happened and the innocuous nature of the happening, we feel in this case exactly as we did, in looking at .a patient with similar symptoms, in McDuffie v. State, supra, at 12 Md. App. 267-268:

“A common-sense review of what transpired, however, permits of no other conclusion than that the jury found the appellant guilty under the most major count — robbery with a dangerous and deadly weapon — and then, subsidiarily but erroneously, concluded that all of the other counts were lesser-included constituent parts of the major count and that a finding of guilt thereon was logically compelled. . . .
To forestall any danger of multiple convictions and multiple sentencing on either the lesser-included or the inconsistent counts, the trial judge promptly directed the clerk to enter verdicts of not guilty on counts 2 through 7. The appellant was sentenced only upon the first count, of which the jury obviously found him to be guilty. We feel that he, thereby, suffered no prejudice.”

In this case, the evidence (as we shall presently see) was legally sufficient for the judge to let the charge of grand larceny go to the jury. The jury found the appellant guilty of grand larceny beyond a reasonable doubt. The appellant was ultimately sentenced only for the crime of grand larceny. Whatever traps and snares there may have been along the path have now been rendered moot. We perceive no prejudice.

The Legal Sufficiency of the Evidence

Our analysis of the legal sufficiency of the evidence to establish grand larceny has two aspects to it. In a moment, we shall assay the affirmative evidence in terms of its sufficiency to establish the necessary elements of the crime of grand larceny. Initially, it is meet to comment upon the jury’s ultimate finding as to receiving in terms of its arguably erosive effect upon the evidentiary sufficiency as to larceny. The motion that the finding of guilt as to receiving ipso facto represents a finding that the appellant was not the thief and that it, therefore, fatally erodes the legal sufficiency of the evidence as to theft is without any persuasiveness whatsoever. Yet, just such arguments are regularly made whenever a jury renders inconsistent verdicts. The answer to such arguments is twofold.

Secondarily, one half of the inconsistent verdict serves to demolish the creaking edifice of strained reasoning erected upon the other half. The direct jury conclusion, necessary for the larceny verdict, that the appellant was the thief refutes the deduction, flowing from the receiving conviction, that the jury somehow found that the appellant was also not the thief. There are too many plausible explanations of how a jury comes up with inconsistent results to let defense exercises in arid logic unduly trouble us. Even when inconsistent verdicts are rendered by legally trained judges, we recognize that what is called for is simply the untangling of a procedural or logical snarl and not the aborting of an entire adjudicative process that was itself free from fatal snarls. It was of this very problem that we spoke in McDuffie v. State, supra, at 12 Md. App. 271:

“In both Tender v. State, supra, [2 Md. App. 692] and Price v. State, supra, [3 Md. App. 155] inconsistent verdicts were handed down by trial judges, sitting without juries. In each case, there was a verdict finding guilt for the consummated crime of armed robbery and also for the attempt to commit that crime. In neither case did we permit ourselves to be boxed into the logical absurdity of holding that the fact-finder had somehow concluded, beyond a reasonable doubt, both that the defendant had completed the crime and also that he had failed to complete the crime. In each case, recognizing the error for what it was, we simply reversed the judgment of guilt as to the count charging the attempt.”

More significantly, nothing that the fact finder does in the deliberative stage of the case can conceivably have any bearing whatsoever upon the question of the legal sufficiency of the evidence. A criminal trial has at least three distinct stages which are pertinent to the present analysis. One is the adjudicative stage, wherein all evidence is adduced that will go to the fact finder. Only after that adjudicative stage has been completed do we enter into the deliberative stage, in the course of which the fact finder weighs the evidence earlier adduced and reaches a verdict. At the conclusion of the deliberative stage, we enter into the judgmental stage. If the verdict of the deliberative stage is guilty, the judgmental stage consists of imposing an appropriate sentence; if the verdict of the deliberative stage is not guilty, the judgmental stage is a simple, “Hail and farewell.”

When we measure the legal sufficiency of evidence, we do so at the control point where the adjudicative stage connects with the deliberative stage. The judge, either at trial or on appeal, is sitting at a sluice gate measuring the flow of evidence from the adjudicative stage into the: deliberative stage. If it is not sufficient, quantitatively and qualitatively, the trial is terminated and the deliberative stage never begins. If it is sufficient, the deliberative stage does begin. That stage is in the unfettered control of the fact finder. We may not inquire into that decisional process, beyond seeing that it was kept free from contaminating external influences.

In terms of measuring the legal sufficiency of the evidence, the situation is frozen as of the moment when the deliberative process is permitted to begin. This is true whether the fact finder be a jury or a judge. As Judge Orth meticulously and lucidly brought out in his pioneering analyses of the process in Williams v. State, 5 Md. App. 450, 247 A. 2d 731, and Metz v. State, 9 Md. App. 15, 262 A. 2d 331, we ask only whether the evidence is sufficient, as it passes that control point, to permit the fact finder, court or jury, to be convinced beyond a reasonable doubt. What the fact finder then does with legally sufficient evidence — logical or illogical, cogent or fanciful, consistently or by way of compromise, by sound avenues of reasoning or by nonsensical blind alleys of the mind, by thought or by prayer, by deduction or by intuition — is forever beyond our ken and beyond our power to review. We control simply what goes into that process, not the process itself nor what comes out of it.

When the deliberative stage moves into the judgmental stage, we do have limited control over inconsistent verdicts. This, however, is simply to see that a defendant is not punished twice for two offenses, either of which he could have committed but both of which he could not have committed. This control, for sentencing purposes, has nothing whatsoever to do with the question of legal sufficiency. The determination to open the sluice gate and let the deliberative process begin is right or wrong at the moment it is made. Nothing that happens thereafter can date back to make its propriety other than it was at that instant when it was frozen in time for purposes of appellate review. Legal sufficiency is not concerned with whether the fact finder did the right thing. It is rather concerned with whether the fact finder had sufficient raw material with which to work so that he could have done the right thing. It is a problem of supply and not of execution.

In this case, the ultimate jury verdicts can have no bearing on the trial judge’s earlier determination that the evidence was legally sufficient to let the case go to the jury, because subsequent events cannot, by definition, relate back to influence anterior decisions.

We now turn our attention to the affirmative evidence in the case, as the trial judge, directed by' the appropriate motion, measured the evidence passing the control point between the adjudicative stage and the deliberative stage and determined that it was sufficient to trigger deliberation.

The home of Mr. and Mrs. Robert L. Fridell, in Howard County, was burglarized at approximately 4 p.m. on Sunday, February 15, 1976. Forty=seven items of personal property were discovered to be missing, including a diamond engagement ring, which had been owned by Mrs. Fridell for 42 years, which was split where it finally had to be cut from her finger and which had been kept in a cigarette box in the den of the Fridell home. That ring, later identified by Mrs. Fridell, could be traced to an automobile owned by the appellant. Although the ring was not literally recovered by the police until February 18, three days after the burglary, it could inferentially be located in the appellant’s car as early as February 16, one day after the burglary. The evidence established that the appellant’s automobile was involved in an accident in Prince George’s County on February 16. The automobile was towed to a filling station in Bowie. On that same day, the appellant presented himself to the operator of the towing business at the filling station and displayed a release form from the police for personal property contained in the vehicle. He removed a number of items of personal property. His automobile was subsequently moved to the police impounding lot, where a search on February 18 revealed the diamond ring.

For whatever reasons, the appellant offered no explanation for the presence of the recently stolen ring in his automobile. Nor for that matter did he offer any explanation by way of indicating that his automobile had not been in his possession during the period February 15-February 16. If it had been stolen, he did not say so. If it had been loaned to others, he did not say so. The jury was at liberty to infer that if he offered no explanation, either as to the ring or as to the car, it was because he had no explanation to offer. The state of the evidence at this point was well described by Judge Orth for this Court in Boswell and Poe v. State, 5 Md. App. 571, 577, 249 A. 2d 490:

“The constitutional right of a defendant not to incriminate himself and the prohibition against adverse comment and inference from his failure to testify does not protect him from the probative force of the evidence against him. If he does not attempt to rebut the incriminating fact that he was the possessor of property recently stolen, he cannot, merely by remaining silent, escape the natural and reasonable inferences deducible from such fact.... Thus it is relevant for the defendant to offer evidence of facts and circumstances showing that his possession was innocent; for example, that he found the goods, that he came into possession under an honest belief that it belonged to him; that upon discovering the mistake, he had sought out the owner and paid the value of the property or returned the property itself; that he purchased the property. In explaining the possession he may prove from whom he got them and what the parties said at the time. And it is relevant for him to offer evidence of what he said, or what explanation he gave, at the time when he was first found with the property in his possession.”

In this case, the appellant chose to explain nothing.

The presence of the stolen ring in the appellant’s automobile, absent even a suggestion that the automobile had been in the control of another, is sufficient to establish “exclusive possession of recently stolen goods” within the contemplation of our case law. The State is certainly not required to negate, in vacuo, a remote possibility that the police or the towing service operator “planted” the ring, into the possession of which they had mysteriously come, in the appellant’s automobile for some unexplained purpose.

Nor does the fact that both the appellant and a second person had been observed in the appellant’s car on the afternoon of February 15, at about the time of the burglary, present any problems in terms of exclusivity. As we made very clear in Brown v. State, 8 Md. App. 224, 225-226, 259 A. 2d 85:

“The term ‘exclusive’ is also a relative one and its meaning as applied to a given case will vary with the circumstances of the case. We discussed fully the meaning of ‘exclusive’ in this context in Boswell and Poe v. State, 5 Md. App. 571, 576-579. We said that it is in the sense of a personal possession and an assertion of property, express or implied by the exercise of dominion and right of disposal, that the possession is exclusive. So the possession of stolen property is exclusive if it shows exclusion of all persons who are not parties to the crime, although as to accomplices, the possession of one is the possession of all. Thus the possession to be exclusive, need not necessarily be in one person and may be a joint possession of several persons. See Davis and Napier v. State, 7 Md. App. 667.”

Prom this legally sufficient evidence of exclusive possession of recently stolen goods, what inferences may flow? There are several. The fact finder may infer that the possessor is a receiver of stolen goods. He may, alternatively, infer that the possessor was the thief (or if the theft was a compound one, that the possessor was also the burglar, the robber, the murderer, etc.). In terms of legal sufficiency, any of these inferences is permitted. The variety of the permitted inferences from the fact of possession was described by the Court of Appeals in Brewer v. Mele, 267 Md. 437, 449, 298 A. 2d 156:

“We have long and consistently held that exclusive possession of recently stolen goods, absent a satisfactory explanation, permits the drawing of an inference of fact strong enough to sustain a conviction that the possessor was the thief, Cason v. State, 230 Md. 356, 187 A. 2d 103 (1963); Stapf v. State, 230 Md. 106, 185 A. 2d 496 (1962); Lewis v. State, 225 Md. 474, 171 A. 2d 244 (1961); Glaros v. State, 223 Md. 272, 280, 164 A. 2d 461 (1960); Debinski v. State, 194 Md. 355, 359-360, 71 A. 2d 460 (1950); or, under appropriate circumstances, that the possessor was a receiver of stolen goods, Jordan v. State, 219 Md. 36, 148 A. 2d 292 (1959); People v. Galbo, 218 N. Y. 283, 112 N. E. 1041, 1044 (1916); or, where the theft was compounded, that the possessor was also the burglar, Anglin v. State, 244 Md. 652, 224 A. 2d 668 (1966); Howard v. State, 238 Md. 623, 209 A. 2d 604 (1965); Boggs v. State, 228 Md. 168, 179 A. 2d 338 (1962); Ponder v. State, 227 Md. 570, 177 A. 2d 839 (1962); Oden v. State, 223 Md. 244, 164 A. 2d 284 (1960); Butz v. State, 221 Md. 68, 156 A. 2d 423 (1959); Felkner v. State, 218 Md. 300, 146 A. 2d 424 (1958); or the robber, Booker v. State, 225 Md. 183, 170 A. 2d 203 (1961).”

We addressed ourselves to the same variety of permitted inferences drawable from the single fact of possession, in Brown v. State, supra, at 8 Md. App. 226:

“The fact inferred from such guilty possession by the accused fixes his identity as the offender — that he was the criminal agent. Proof of the corpus delicti of the crime may establish the offense he committed. Thus where a burglary is proved to have been committed, the possessor of goods stolen therein may be found to be the burglar, Anglin v. State, 1 Md. App. 85; where a storehouse breaking is proved the possessor of goods taken therefrom may be found to be the one who broke the storehouse, Jones v. State, 5 Md. App. 180; where a larceny is proved the possessor of goods stolen may be found to be the thief, Frey v. State, 3 Md. App. 38. However, if there is credible evidence that the possessor of the goods was not a principal in the burglary or storehouse breaking or larceny, he may be found to be a receiver of stolen goods, Boblits v. State, 4 Md. App. 534.”

Although, as will be hereinafter discussed in other contexts, there was additional evidence placing the appellant near the crime scene at the time of the burglary, it is unnecessary to catalog that evidence yet. In order to cross the bare threshold in terms of legal sufficiency to establish the appellant’s criminal agency as to larceny, the showing of exclusive possession in him (not necessarily upon his person) is enough. For this purpose, all else is surplus.

The Relevance of the Testimony of Cindy Brosenne

As of the moment when the deliberative stage of the case began, the fact finders had before them evidence from which they were permitted to infer, beyond a reasonable doubt, that the appellant was either a receiver of stolen goods or a thief/burglar. They were not, however, permitted to infer both. Their responsibility, had they properly carried it out, was to choose between. The choice before them was aptly described by Judge Cardozo in People v. Galbo, 112 N. E. 1041, 1044 (N.Y., 1916):

“Only half of the problem, however, has been solved when guilty possession fixes the identity of the offender. There remains the question of the nature of his offense. Here again the facts must shape the inference. Is the guilty possessor the thief, or is he a receiver of stolen goods? Judges have said that, if nothing more is shown, we may take him to be the thief. * * * But as soon as evidence is offered that the theft was committed by someone else, the inference changes, and he becomes a receiver of stolen goods.”

In this regard, any evidence, direct or circumstantial, which would help the fact finder to tilt intelligently one way or the other would be, by definition, relevant and, therefore, admissible. As the guilty possessor of recently stolen goods oscillates between the competing poles of theft and receiving, his demonstrated proximities in time and space to the theft are significant magnets pulling him in that direction.

In terms of such proximities, the testimony of Cindy Brosenne was significant. She worked at a Howard County liquor store. She unequivocally identified the appellant as the young man who, along with a white male companion, came into her store on Sunday afternoon, February 15. The place was within two and one-half miles of the burglarized home of the Fridells. The time was between 3:30 p.m. and 4:30 p.m., within one-half hour of the time of the burglary. She further testified that the appellant purchased a six-pack of Michelob beer, a circumstantial link with the further proximities established by the testimony of Hugh Buffington, which testimony will be discussed in dealing with the next contention. The appellant argues, “It is submitted that this testimony was irrelevant and the fact that an accused is seen two and one-half miles from the crime scene does not tend to establish his guilt of a crime committed at that scene.”

What is relevant and what is irrelevant depends upon the unique facts of each case. In this case, the appellant lived in Hagerstown. He put on alibi testimony which placed him in Hagerstown on the afternoon of the crime. If all the State had was the permitted inference arising from his possession of the stolen ring a day later in Prince George’s County, the fact finders might well not have concluded that the appellant was the thief beyond a reasonable doubt. Against that backdrop of geography, the testimony of Cindy Brosenne took on a probative value that it might not have possessed in other circumstances. Distance and time are relative values and not absolutes. To place a suspect within two and one-half miles of a crime scene and 70 miles from home is a far cry from placing a suspect within two and one-half miles of a crime scene and several blocks from home. In a crowded city, to place a resident suspect within ten blocks of a crime and an hour of the crime may prove nothing. If, on the other hand, a librarian from Kansas City is suspected of a jewel theft in Istanbul, to place her in the Athens Airport, 500 miles away from the crime scene, within several days of the crime, may prove a great deal. Fact finders do not look at where a person is, in a vacuum. They look at where a person is in relation to where a person came from. Once two points have been established, we have not simply locus but movement.

The appellant urges that such proximity in time and place is n.ot nearly enough to establish his criminal agency as the thief. He is quite right, but that is not the test of relevancy. McCormick, The Law of Evidence (1st Ed., 1954), discusses relevance at p. 317:

“This same practice of determining the admissibility of items of evidence singly as they are offered leads to another distinction, often stressed in judicial opinions. This is the distinction between relevancy and sufficiency. The test of relevancy, which is to be applied by the trial judge in determining whether a particular item or group of items of evidence is to be admitted is a different and less stringent one than the standard used at a later stage in deciding whether all the evidence of the party on an issue is sufficient to permit the issue to go to the jury. A brick is not a wall.”

The Supreme Court spoke in a similar vein in McCandless v. United States, 298 U. S. 342, 347, 56 S. Ct. 764, 766, 80 L. Ed. 1205 (1936):

“[A]n offer of proof cannot be denied as remote or speculative because it does not cover every fact necessary to prove the issue. If it be an appropriate link in the chain of proof, that is enough.”

As Dean McCormick points out, at 318:

“[T]he most acceptable test of relevancy is the question, does the evidence offered render the desired inference more probable than it would be without the evidence?”(EvaphssXs in original text)

By way of answer to that question, the testimony of Cindy Brosenne placing the appellant 70 miles away from his alibi, within two and one-half miles of the crime scene, within 30 minutes of the crime, does render the inference that he was, indeed, the thief “more probable than it would be” without such testimony. That, by definition, is relevance.

The Admissibility of Evidence of Another Crime

The appellant takes great umbrage at the testimony of one Hugh Buffington. Mr. Buffington was a resident of Catonsville, near the western border of Baltimore County and close, therefore, to Howard County. Mr. Buffington testified that he was returning to his home at approximately 6:30 p.m. on Sunday, February 15, 1976, when he noticed a 1967 blue Chevrolet backed into his driveway. He noticed further that the doors to his house had been torn out. He immediately took down the license number of the strange car and went to a neighbor’s home to call the police. By the time he returned to his own home, the Chevrolet had driven away across his lawn. Both the description of the automobile and the license number established that the automobile was that of the appellant. Mr. Buffington testified further that he found a Michelob beer bottle lying on his lawn, after the strange car drove away.

There is no gainsaying the fact that this testimony established that a crime was in progress and had, therefore, a potential for embarrassing the appellant in the present case by revealing to the jury a propensity to commit crime. The natural inclination of the law is to exclude such evidence, but there are exceptions where its probative value makes it nonetheless admissible. We discussed both the general rule and the exceptions in Chandler v. State, 23 Md. App. 645, 649-650, 329 A. 2d 430:

“It is certainly true, as appellant contends, that evidence of prior offenses committed by an accused are ordinarily not admissible, the theory being ‘that the jury may be misled into a conviction for an offense for which the defendant is not indicted, or that he may be prejudiced by the accumulation of offenses which he is not prepared to defend.’ Gorski v. State, 1 Md. App. 200, 202, quoting Wharton’s Criminal Evidence (10th ed.). On the other hand, there are several well ingrained exceptions to this general rule. As stated in Avery v. State, 15 Md. App. 520, 532, quoting Gordon v. State, 5 Md. App. 291, 306:
‘* * * evidence of other crimes is admissible to prove the specific crime charged when such evidence tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial. To like effect, see Jones v. State, 4 Md. App. 445; Thomas v. State, 3 Md. App. 708; Gilchrist v. State, 2 Md. App. 635; Loker v. State, 2 Md. App. 1; Gorski v. State, 1 Md. App. 200.’ ”

See also Veney v. State, 251 Md. 182, 198-200, 246 A. 2d 568.

Of the five recognized exceptions, those of 1) motive, 2) intent and 3) absence of mistake or accident have no pertinence in this case. Nor can we agree with the State that the Buffington crime tends to establish “a common scheme or plan.” The mere practice of backing a getaway car up to a premises to be burglarized does not, in our judgment, constitute so unusual a modus operandi that it could be labeled the “signature” of a particular criminal so as to establish his identity. We do, however, conclude that the fifth exception to the general rule is here applicable. The testimony of Mr. Buffington does tend to establish the identity of the appellant as the thief in the Howard County case.

Mr. Buffington could not identify the appellant himself. He did unequivocally identify the appellant’s automobile, both by general description and by specific license tag number. Mr. Buffington’s testimony helped to place the appellant in Catonsville, just across the Patapsco River from Howard County within no more than two hours after the Howard County burglary. Neighbors of the Fridells had testified that the two white male burglars operated from a blue Chevrolet matching the description of the appellant’s car. The stolen ring was found at a later time in the appellant’s blue Chevrolet. Cindy Brosenne's testimony placed the appellant himself near the crime scene, but she did not identify his automobile. Mr. Buffington identified the automobile, but not the appellant. Cindy Brosenne’s selling of Michelob beer to the appellant and Mr. Buffington’s finding of a Michelob beer bottle after the appellant’s automobile had left his lawn tend to bring the appellant'and the appellant’s automobile together.

With the jury perhaps wavering between drawing a permitted inference of receiving and drawing a permitted inference of theft from the mere possession of the recently stolen ring, the combined testimony of Cindy Brosenne and Hugh Buffington had strong probative force in establishing the identity of the appellant as the actual thief and not as a mere receiver of stolen goods. Under those circumstances, the testimony of Hugh Buffington was properly admitted.

The In-Court Identification by Cindy Brosenne

The short answer to this contention is that the appellant did not object to the in-court identification made of him by Cindy Brosenne. There is, therefore, nothing preserved for appellate review. Maryland Rule 1085; Cousins v. State, 18 Md. App. 552, 308 A. 2d 692.

Judgment affirmed; costs to be paid by appellant.

      . Indeed, United States v. Brokaw, 60 F. Supp. 100, 102 (S. D. Ill., 1945), is strongly persuasive in this regard:
      “The rule at the common law seems to have been, and jn the present-day common law courts to remain, that prior to trial the prosecutor has the absolute uncontrolled power to enter a nolle prosequi; that after the empaneling of the jury until the return of the verdict the power is subject to the control of the court since it may not be used at that time to the prejudice of the defendant; and that following the return of the verdict the uncontrolled power of the prosecutor to enter a nolle revives and continues until such time as judgment is entered and sentence imposed. [Lengthy list of citations omitted]
      The foregoing array of authorities and the lack of holdings to the contrary seem to establish the doctrine as presented by the recognized texts, including Corpus Juris Secundum, beyond question.”

      . The intellectual miasma which threatened to stifle the decisional process in McDuffie, Tender and Price, above, has since been swept away by the welcome fresh air of Lightfoot v. State, 25 Md. App. 148, 334 A. 2d 152, and Lightfoot v. State, 278 Md. 231, 360 A. 2d 426, declaring that “failure to consummate” is not an element of the crime of attempt.

      . Incidentally, Mr. Buffington’s testimony served to negate the appellant’s alibi that he was in Hagerstown on the afternoon of the crime.


source: Caselaw Access Project

author: Moylan, J.,

license: Public Domain

text:
    BERNARD J. COSTER v. DEPARTMENT OF PERSONNEL, STATE OF MARYLAND, et al.
    [No. 1100,
    September Term, 1976.]

      Decided June 14, 1977.

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

      Benjamin Lipsitz with whom was Eleanor J. Lipsitz on the brief, for appellant.

      A. Gwynn Bowie, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William M. Huddles and James F. Truitt, Jr., Assistant Attorneys General, on the brief, for appellees.
   Moylan, J.,

delivered the opinion of the Court.

This is an appeal by Bernard J. Coster from an order of the Circuit Court of Baltimore City dissolving a temporary injunction restraining the appellees from terminating his employment at Baltimore-Washington International Airport (BWI).

The appellant was hired on or about September 17, 1975, under the Classified Service of the Maryland State Department of Personnel to work as an airport operations manager at BWI, a facility operated by the State Aviation Administration of the Maryland Department of Transportation. Pursuant to Md. Code, Art. 64A (Merit System), § 33, he was placed on probationary status for a period of six months. On or about February 22, 1976, his immediate supervisor, Daniel W. Riordan, one of the appellees herein, submitted an unsatisfactory “Probation & Annual Efficiency Rating Report” on him, which resulted in an extension of his probationary status for an additional six months, up to and including September 17, 1976. On July 1, 1976, Mr. Riordan informed the appellant that his employment would be terminated on August 31, 1976.

On July 30, 1976, the appellant filed a grievance under the grievance procedure specified by the Department of Personnel. On August 31, 1976, he filed a bill of complaint for an injunction restraining the appellees from terminating his employment pending a determination of the merits of the case. In his bill, he stated that his grievance was then on the third step of the five-step grievance procedure. He further alleged that the actions of the appellees were “arbitrary,” “capricious” and “without cause” and that, unless an injunction was issued, he would “suffer substantial, immediate and irreparable injury, for which he has no adequate remedy at law.” On the same day, pending a hearing on the matter, a temporary injunction was granted for ten days. The temporary injunction was subsequently extended on September 10, 1976, for an additional ten-day period.

Meanwhile, on September 9, the appellees filed a motion to dissolve the ex parte injunction, contending that the bill did not contain facts to support appellant’s claim of substantial, immediate and irreparable injury for which there was no adequate remedy at law and that, as a probationary employee, the appellant’s employment could be terminated without cause. On September 20,1976, following a hearing on the matter, the injunction was dissolved.

The appellant argues that the lower court erred in dissolving the temporary injunction restraining the State Aviation Administration from terminating his employment because, even if he was still a probationary employee, the agency could not terminate his employment without cause. The appellees, on the other hand, argue that appellant was still a probationary employee and that, under Maryland Code, Art. 64A, § 33, a probationary employee may be terminated without cause.

In deciding whether the temporary injunction was properly dissolved, however, it is unnecessary, in the posture of this case, for us to reach the questions whether the appellant was still a probationary employee and what rights a probationary versus a permanent employee under the Maryland State Classified Service enjoys. The appellant sought the injunction on the ground that if his employment was terminated, he would “suffer substantial, immediate and irreparable injury, for which he has no adequate remedy at law.” In discussing irreparable injury as a grounds for injunctive relief, 42 Am.Jur.2d, Injunctions, § 48, states:

“A court of equity reserves its injunctive process for the protection of property or other rights against actual or threatened injuries of a substantial character which cannot be adequately remedied in a court of law. That is to say, the jurisdiction or power to grant injunctive relief should be exercised only when intervention is essential to effectually protect property or other rights, of which equity will take cognizance, against irreparable injuries. The very function of an injunction is to furnish preventive relief against irreparable mischief or injury, and the remedy will not be awarded where it appears to the satisfaction of the court that the injury complained of is not of such character. Suitors may not resort to a court of equity to restrain acts, actual or threatened, merely because they are illegal or transcend constitutional powers, unless it is apparent that irremediable injury will result. The mere assertion that apprehended acts will inflict irreparable injury is not enough. The complaining party must allege and prove facts from which the court can reasonably infer that such would be the result.”

42 Am.Jur.2d, Injunctions, § 49, defines “irreparable injury” as follows:

“As ordinarily understood, an injury is irreparable, within the law of injunctions, where it is of such a character that a fair and reasonable redress may not be had in a court of law, so that to refuse the injunction would be a denial of justice — in other words, where, from the nature of the act, or from the circumstances surrounding the person injured, or from the financial condition of the person committing it, it cannot be readily, adequately, and completely compensated for with money.”

At the time of the hearing on the motion to dissolve the injunction, the appellant was pursuing the grievance procedure available to him under the pertinent Department of Personnel Policy. See 60 Opinions of the Attorney General 545 (1975). Regardless of what rights probationary versus a permanent employee enjoys, and regardless of appellant's status in the Classified Service at the time of his separation, if he is successful under that grievance procedure, he would be entitled to reinstatement in his position and full back pay for the entire period of his separation. State Employees Personnel Rules, Rule 06.01.00.50. In effect, if his claim is meritorious, the relief he will receive will be adequate and as full and complete as the injunction would afford him. His allegation of irreparable injury, therefore, has no foundation. Under the circumstances* this was not a case for equity to assume jurisdiction. Mayor and Council of Salisbury v. Camden Sewer Co., 135 Md. 563, 109 A. 333.

The appellant, however, makes one final argument. He contends that the temporary injunction should not have been dissolved upon the appellees’ motion because no answer was filed to his bill of complaint. He argues that the allegations of his bill provided a sufficient basis for a temporary injunction and that since these allegations were not controverted by answer, the injunction should have been continued until determination of the merits of the cause. The appellant’s contention has no merit. The allegations of his bill did not provide a basis for injunctive relief. Where the allegations are insufficient, there is no requirement that an answer be filed before an injunction is dissolved.

Regarding ex parte temporary injunctions, Md. Rule BB72 b provides, in pertinent part:

“An ex parte injunction shall be served forthwith on the adverse party by the quickest possible means; it shall give the adverse party leave to move for a hearing on not more than two days' notice; and it shall expire by its terms within such time after entry as the court may fix. Such time shall not exceed ten days.... The court may within the time so fixed, for good cause shown, extend such time for one like period....”

Md. Rule BB79 provides:

“Any party to the action, party in interest or party against whom an injunction may issue, may move to have it modified or dissolved,”

Heck v. Vollmer, 29 Md. 507, 509, stated:

“As a general rule, it is no doubt true, that where there are several defendants to the bill, a motion to dissolve the injunction should not be heard until they have all answered. This is so where the injunction has been properly granted in the first instance; for it is competent to the parties affected by the injunction to come in at once, and before answer, and move to dissolve upon the insufficiency of the grounds disclosed by the hill.” (Emphasis supplied)

In effect, a motion to dissolve a preliminary or temporary injunction, filed before an answer to the bill, operates as a demurrer. 43 C.J.S., Injunctions, § 249 provides:

“On a motion to dissolve a preliminary injunction before answer or any evidence, or at any time for want of equity in the bill, the allegations of fact properly made in the bill will be taken as true, and the injunction or restraining order dissolved or not according to whether the complaint or bill shows sufficient grounds for it, at least where no other sound reason for dissolution is presented. In this respect the motion operates the same as a demurrer. All amendable defects in the bill may be considered, for the purposes of the motion, as having been amended.”

Therefore, for purposes of passing on the motion to dissolve, even accepting appellant’s allegations of fact — that the actions of the appellees were arbitrary, capricious and without cause — as true, his bill, nevertheless, failed to show that he would suffer irreparable injury. The grievance procedure available to him under the Maryland Department of Personnel provides an adequate remedy. The injunction was properly dissolved.

Judgment affirmed; costs to be paid by appellant.


author: Thompson, J.,

text:
    PAUL HOLMES BEY, JR. v. STATE OF MARYLAND
    [No. 1103,
    September Term, 1976.]

      Decided June 14, 1977.

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

      W. Stanwood Whiting, Assigned Public Defender, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Wehland, State’s Attorney for Howard County, and Dwight S. Thompson, Assistant State’s Attorney for Howard County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Paul Holmes Bey, Jr., the appellant, was convicted by a jury in the Circuit Court for Howard County, Judge James Macgill presiding, of daytime breaking and entering and grand larceny. He was sentenced to concurrent terms of seven years on each count. On this appeal, he contends that the charges against him should have been dismissed because of the failure of the State to bring him to trial within the dictates of the Intrastate Detainer Act, Art. 27, § 616S, and that the trial court erred when it allowed the jury to hear a tape recording containing irrelevant and prejudicial material of the police interrogation of the appellant, without prior judicial review outside of the jury’s presence.

The testimony adduced at a pretrial hearing on a motion to dismiss the criminal information, on the grounds that the appellant had not received a prompt trial under the Intrastate Detainer Act, showed that the appellant escaped from the Maryland House of Correction, where he had been confined, on August 19, 1975. On August 30, 1975, he was arrested in Howard County on the charges which are the subject of this appeal. On November 17, 1975, the appellant received at the Maryland House of Correction a warrant for his arrest served by the sheriff. He contacted his classification counselor at the institution, informed him of the warrant, and requested a fast and speedy trial on these charges. The counselor filled out the appropriate forms and gave them to his clerk. He informed her to have the appropriate forms typed up and after all the forms were typed to return them to him. When the clerk obtained the inmate status form, however, she noticed that the appellant had been taken in for an arraignment. Mistaking this arraignment to apply to the charges in the instant case, she did not complete the forms. Some time the next April, counsel for the appellant inquired as to the whereabouts of the request for the speedy trial forms. At that point the counselor discovered that no action had been taken. A motion to dismiss under the Intrastate Detainer Act was filed on May 28, 1976, and the matter was called for trial on the 6th of June, 1976. A request for continuance was granted in open court and this hearing on the motion to dismiss was held on September 27, 1976.

In King v. State, 5 Md. App. 652, 662, 249 A. 2d 468 (1969), this Court outlined the procedures required for invocation of this Act. It said that the court shall lose jurisdiction and the indictment shall have .no further force or effect if the prisoner is not brought to trial within the time limitation, which commences after his request and the warden’s statement have been delivered to the appropriate State’s Attorney and court. The court, however, does not lose jurisdiction and the indictment still has force and effect and shall not be dismissed for any other failure to comply with the provision, not only on the part of the prisoner but also on the part of the authorities. In that case we foresaw the problem which arose in the case at bar when we stated:

“We can only determine the legislative intent to have been that the prisoner file the request (no particular form is necessary) with the warden within 30 days of the prisoner’s notification of the indictment and that it is the warden’s obligation to prepare the statement and to deliver it by certified mail to the appropriate State’s attorney and court. We recognize that by this construction there is no time limitation within which the warden is to so deliver the request and statement and that the time
limitation within which the prisoner must be brought to trial dates from the time his request is delivered to the State’s attorney and court. Thus the prisoner may be precluded from invoking the Act by the failure of the warden to deliver the request as required for no sanction is provided by the statute for such failure. While we may construe statutes within the legislative intent, we cannot enact legislation and we may not presume a sanction when none is provided.” (Footnote omitted). Id. at 659-660.

See also Davis v. State, 24 Md. App. 567, 575, 332 A. 2d 733 (1975), where the thirty day time period in which the correctional institution is to notify the appropriate authorities was found to be directory rather than mandatory.

In State v. Barnes, 273 Md. 195, 328 A. 2d 737 (1974), the Court of Appeals said that King v. State, supra, did not mandate that the provisions of § 616S be strictly construed. It added that it was not suggesting that a liberal construction, to effectuate the purposes of the statute, should absolve proof by competent evidence of those conditions precedent necessary for bringing the provisions of the statute into play. The conditions precedent necessary to bring the provisions of the statute into play are the knowledge by the prisoner of the nature and content of the filed detainer and the delivery of his request to the State’s Attorney and the appropriate court in the jurisdiction where the charge is pending. It further stated at 278 Md. 209 that it saw no incompatibility between the holding in King v. State, supra, and the result reached in that case. The Maryland cases dictate our holding; there is no need for us to consider out of state cases under the Interstate Act. These cases apply different statutes than exist in Maryland, even though the Act is denominated “Uniform.”

Following the mandates of State v. Barnes, supra, King v. State, supra, and Davis v. State, supra, we hold that the statutory period of 120 days did not begin to run until the appropriate court and State’s Attorney were notified of the appellant’s intention to invoke his rights under the Intrastate Detainer Act. While it is not clear exactly when the State’s Attorney and appropriate court were first informed of the invocation of this Act, it was within 120 days of the continuance which stayed the proceedings. See also Isaacs v. State, 31 Md. App. 604, 358 A. 2d 273 (1976); Wise v. State, 30 Md. App. 207, 351 A. 2d 160 (1976) and Gardner v. State, 29 Md. App. 314, 347 A. 2d 881 (1975).

Tape Recordings

During the course of the trial, the State sought to introduce a statement made by the appellant while in custody. At this point, the trial judge dismissed the jury and heard evidence concerning the voluntariness of the statement. It was détermined that the statement was voluntary. After the jury was reconvened, the State sought to introduce a tape recording of the appellant’s statement. The defense objected to the admission of the tape on the basis that the court and the two attorneys should hear the tape out of the presence of the jury in the event certain material in the tape was inadmissible. The trial court questioned whether either side had heard the tape recording. Both counsel replied in the negative, although both had read a summary of the tape. The trial court stated that he did not know what was on the tape but that he would advise the jury to disregard the improper material. The tape was then played to the jury.

Appellant contends that where the admissibility of a taped interrogation is an issue, the trial court is obliged to exclude the jury and play the tape out of its presence, in order to give counsel the opportunity to interpose appropriate objections and delete those portions which are prejudicial and inadmissible.

The Maryland courts seem not to have considered the specific argument of the appellant, but his general proposition is supported by the language of a number of cases. In Wright v. State, 38 Ala. App. 64, 79 So. 2d 66 (1954), it was stated that the trial court should first have the recording played out of the presence of the jury so that counsel would be afforded the opportunity at that time to interpose the appropriate objections. This procedure was found necessary to insure the accused of the protection of his rights under our criminal system. See also Leeth v. State, 94 Okl. Cr. 61, 230 P. 2d 942 (1951); Lamar v. State, 258 Ind. 504, 282 N.E.2d 795 (1972) and Mayor and Aldermen of the City of Savannah v. Palmerio, 135 Ga. App. 147, 217 S.E.2d 430 (1975).

We fully agree that counsel should have an opportunity to object to improper portions of the tape, but we are reluctant to lay down a rule requiring a trial judge, in every case, to listen to the tapes outside of the jury’s presence. We note that there is support for a rule that does not require the trial judge to listen to the tapes if counsel have been given an opportunity to hear or read a transcript thereof prior to the beginning of the trial, so that they can properly formulate objections, if any they have, to particular portions thereof. See Flannagin v. State, 289 Ala. 177, 266 So. 2d 643, 650 (1972) and State v. Chappell, 83 N. M. 63, 488 P. 2d 113, 115 (1971). We think this modified rule is eminently fair and suggest that State’s Attorneys arrange for counsel and/or the accused to listen to tapes in advance of the trial.

In the case at bar, defense counsel stated that he had not had an opportunity to review the tape recording; therefore, he raised objections to the admissibility of portions of the tape and requested an opportunity to hear it outside the presence of the jury. The trial judge was in error in not granting this request. We do not consider the error reversible, however, for a number of reasons.

In the beginning of the tape it was developed that the appellant was an escapee, to which there was no objection below and thus the question is not before us under Md. Rule 1085. The next question on the tape was, “What was the charge?” An objection was posed to this question and the answer was not played to the jury. Thereafter, it was brought out that the appellant had taken twelve bags of heroin at about 9:30 in the morning of the day he was being questioned. The appellant argues on appeal that his drug addiction was not admissible. On the contrary, in this context it was admissible for the purpose of determining the voluntariness of the statement and was most relevant. Dempsey v. State, 277 Md. 134, 152, 355 A. 2d 455 (1976). The tape then showed that the appellant was advised fully as to his constitutional rights and agreed to make a statement and did sign his name to the waiver of rights form. After having done this, the appellant volunteered:

“Well, this — there’s really nothing to tell. You know. I — I’m a drug addict and I’m addicted to heroin and I’ve got a big habit, and I need money.”

He then was asked if the twelve bags he had taken were sufficient to last him for the day. He said that he would probably need about twelve more, which he would purchase if he had the money, and his supplier was a man on Wolfe Street whom he did not know “personally.” The next portion of the tape concerns questioning as to why the appellant was in Howard County and why he was in the presence of the alleged accomplice. On appeal, but not below, appellant alleges that subsequent questions asking the appellant if he had been involved in other burglaries in the area were prejudicial. We do not see it that way. The appellant denied his involvement in any of the crimes and there was nothing to show otherwise, except the questions themselves, which under these circumstances are not improperly suggestive. At the end of the tape the interrogating officer suggested that if the appellant were to assist in solving other crimes it could be beneficial to him. Again the appellant denied any involvement and said he was unable to furnish any additional information.

The reasons we have given are entirely adequate to show that the error is not reversible error, but, in addition, the appellant was caught by the officers in the victim’s living room after he had been observed in an attached garage. His fingerprint was on the door knob near the broken windowpane in the kitchen door which was the point of entry. Some of the victim’s property had been loaded in the accomplice’s automobile which had been parked inside the victim’s formerly locked garage. If there is ever a case where we can declare beyond a reasonable doubt that the alleged inadmissible evidence did not contribute to the verdict, it is this case. See Dorsey v. State, 276 Md. 638, 659, 350 A. 2d 665 (1976).

Judgments affirmed.

Appellant to pay the costs.

      . Md. Code, Art. 27, § 616S (1976 Repl. Vol.) provides that:
      “(a) Request by prisoner; statement from warden Having custody. — Whenever the Department of Correction receives a detainer against any prisoner serving a sentence in any correctional institution under the jurisdiction of the Department or whenever any county or city jail receives a detainer against any prisoner serving a sentence in the county or city jail any such prisoner shall be brought to trial within 120 days after the request of the prisoner for final disposition of the indictment, information, or complaint has been delivered to the State's Attorney of the City of Baltimore or of the county in which the Indictment, information, or complaint is pending and to the appropriate court; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be filed within 80 days of the prisoner’s notification of any untried indictment, information, or complaint and shall be accompanied by a statement from the warden or superintendent having custody, setting forth the term of the commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good tim.e earned, the date of parole eligibility of the prisoner, and any decisions of the Board of Parole and Probation relating to the prisoner. The written notice and statement provided herein shall be delivered by certified mail.
      “(c) Dismissal when action not commenced. — If action is not commenced on the matter for which request for disposition was made, within the time limitation set forth in subsection (a) above, the court shall no longer have jurisdiction thereof, and the untried indictment shall have no further force or effect; and in such case the court shall enter an order dismissing the untried indictment with prejudice.”
      Acts 1976, Chapter 658, effective July 1, 1976, amended § 616S. Inasmuch as the effective date of the amendment is subsequent to the date on which the motion to dismiss was filed, the new act appears to have no application to the case at bar. In addition, there would be no difference in our opinion under either statute; both require that the appropriate court and State’s Attorney receive a written request before the 120 day time limit begins to run, We note the new statute does require the dismissal of an indictment, information, warrant or complaint if the prisoner is not notified of his rights under the statute within one year after a detainer is filed. Another significant difference in the statutes is that under the new statute the dismissal is without prejudice instead of with prejudice.

      . See Code, Article 27, § 616R of the Interstate Act.

      . It is well established that a tape recording is admissible in evidence, if a proper foundation is laid. Raimondi v. State, 265 Md. 229, 232, 288 A. 2d 882 (1972), cert. denied, 409 U. S. 948; McGuire v. State, 200 Md. 601, 606, 92 A. 2d 582 (1952), cert. denied, 344 U. S. 928, 73 S. Ct. 497, 97 L.Ed.2d 714 (1953); Tumminello v. State, 10 Md. App. 612, 272 A. 2d 77 (1971); Lynch v. State, 2 Md. App. 546, 236 A. 2d 45 (1967), cert. denied, 249 Md. 732 (1968). While recordings are prone to abuse, distortion, tampering and other infirmities, they are of substantial evidentiary value when their use is properly safeguarded. These safeguards are established by presenting the proper foundation necessary for the introduction of the sound recording. Corbi v. Hendrickson, 268 Md. 459, 466-467, 302 A. 2d 194 (1973); 58 A.L.R.2d 1024(1958).

      . Appellant cites four other cases which tend to support his argument but these cases do not discuss the question as fully as those we have cited.

      . Obviously, the trial judge may have to listen to portions of the tape to rule on objections.

      . In addition, appellant had waived objection to this evidence by bringing out on cross-examination of Officer Allen Hafner, Jr. that the appellant was an escapee. See Peisner v. State, 236 Md. 137, 144, 202 A. 2d 585 (1964), cert. denied, 379 U. S. 1001.

      . This evidence had also been previously elicited by the appellant on cross-examination of Officer Hafner and thus any objection was waived. Peisner v. State, supra.

      . Of course, evidence of other crimes is admissible to prove the specific crime charged when such evidence tends to establish motive. Ross v. State, 276 Md. 664, 669, 350 A. 2d 680 (1976) and Chandler v. State, 23 Md. App. 645, 649, 329 A. 2d 430 (1974).


author: Liss, J.,

text:
    COLEMAN PARKER ALTMAN v. GISELE ALTMAN
    [No. 1136,
    September Term, 1976.]

      Decided June 14, 1977,

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

      James M. Griffin, with whom were Stedman Prescott, Jr. and Staley, Prescott & Ballman, P.A. on the brief, for appellant.

      Bryan Renehan, with whom were Jeffrey N. Greenblatt and Jackson Brodsky And Brodsky & Greenblatt on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court,

The factual situation in this appeal is not disputed by either the appellant or the appellee. The parties were married in Virginia in 1959 and subsequently moved to Maryland which was their marital domicile for the next 11 years. No children were born as a result of the marriage. In September, 1975, the appellant left the marital abode for what he said was to be an extended vacation. Mrs. Altman, the appellee, was suffering from advanced multiple sclerosis and did not accompany him. The appellant’s travels continued over a period of months and included trips to California, where he visited his daughter, an extended visit in the western national parks and a stay in Europe. He finally landed in Las Vegas, Nevada. On March 10,1976, the appellant returned to Maryland and removed his personal belongings.

Mrs. Altman, not unreasonably, interpreted the appellant’s odyssey as an indication that he intended to breakup the marriage. She filed a bill of complaint with a show cause order attached in the Circuit Court for Montgomery County in which she prayed the court to grant her a divorce a mensa et thoro and to award her alimony pendente lite and permanent alimony. She was able to secure personal service on the appellant in Laurel, Maryland, on March 24, 1976. The parties had been residing in a condominium apartment in Bethesda, Maryland, which was titled in the name of the appellant. On March 30, 1976, the wife secured an order enjoining the appellant from selling or leasing the condominium pending the disposition of the rights of the parties. Subsequently, the husband conveyed title to the condominium to his wife subject to an agreement on her part to assume the monthly mortgage payment. At the time of the conveyance the equity in the condominium was between $8,000 and $10,000. There is no dispute as to this conveyance except with regard to the question of what effect, if any, should have been given by the chancellor to its value in reaching his decision as to an appropriate amount of alimony.

On June 14, 1976, some two months after the commencement of the appellee’s suit in Maryland, the appellant obtained a decree of divorce a vinculo matrimonii from the appellee in the State of Nevada. It is conceded that the appellant’s action in Nevada was filed subsequent to that of Mrs. Altman’s action in Maryland; that she was not personally served (being notified by mail) and did not appear in person or by counsel to contest the Nevada divorce. The a vinculo decree in Nevada made no provision for alimony or support for the wife.

The appellee continued to prosecute vigorously her suit in Maryland and on- September 1, 1976, a hearing was held before a master of the Circuit Court of Montgomery County. The appellee appeared before the master; the appellant did not but was represented by counsel of record. The master filed a report in which he recommended an order providing for a monthly payment of $325 as alimony pendente lite to be paid by the appellant. No pendente lite order was issued because the case was heard on its merits shortly after the master’s recommendation. Testimony was taken from the wife and her daughter by a previous marriage. Again the husband did not appear but was represented by counsel of record. After considering the testimony and legal arguments, the chancellor concluded that the Montgomery County Circuit Court had jurisdiction to award alimony to the wife and that she had made out a case for such award.. He entered an order directing the husband to pay the sum of $350 per month as alimony to the wife and that he pay $500 as a contribution toward her counsel fee. It is from that order that this appeal is filed.

The appellant raises two questions to be decided:

I. Did the chancellor have the legal authority to issue an order directing the appellant to pay permanent alimony and counsel fees to the appellee when prior to the entry of that order the husband, appellant, had been granted a divorce a vinculo matrimonii in another state (the validity of which decree had not been challenged by the wife) and where it was concluded that the appellant had no real or personal property in the State of Maryland?
II. Was the chancellor’s award of permanent alimony excessive?

1.

Those of us who have taken to our bosom that jealous mistress, the Law, have soon learned that the life of the law is not logic but experience. A blind and slavish imitation of the past for reasons which have long since lost their validity can only lead to stultification. If the law is to remain viable and responsive, it must be based upon reason; and when the reason for a law ceases, that law should also cease. The truth of that premise can be no more persuasively demonstrated than by the status of the law in this case.

Prior to 1969 the Maryland law was clear that a wife’s right to support and counsel fees did not survive a valid dissolution of the marriage, i.e., Maryland subscribed to the unitary rule of divorce. In Staub v. Staub, 170 Md. 202, 183 A. 605 (1936), the Court of Appeals had before it a case in which the wife moved from Maryland to Arkansas where the court, acquiring jurisdiction by virtue of an order of publication against the husband, granted a decree of absolute divorce without any provision for alimony. Subsequently, the wife filed a petition for alimony in Maryland. The Court, not unmindful of a lack of uniformity in the decisions of other jurisdictions on this question of law, concluded that Maryland would continue to follow the unitary rule of divorce which says that a decree of divorce a vinculo in the absence of an award of alimony or a reservation of alimony amounted to final adjudication of the rights of the parties and terminated the wife’s right to further adjudication or relief. Since alimony is allowable only as an incident to the status of marriage, the destruction of that status did not permit the survival of the right to alimony which is founded upon the common law obligation of a husband to support his wife. See Marshall v. Marshall, 162 Md. 116, 159 A. 260 (1932); Tabeling v. Tabeling, 157 Md. 429, 146 A. 389 (1929); Emerson v. Emerson, 120 Md. 584, 87 A. 1033 (1913).

The first breezes of the winds of change evidenced themselves in the two cases of Johnson v. Johnson. In the first Johnson case, 199 Md. 329, 86 A. 2d 520 (1952), the court had before it a factual situation in which the wife had obtained a decree in Maryland granting her a divorce a mensa et thoro and awarding her alimony and support money for their infant son. The husband then obtained a divorce a vinculo matrimonii from his wife in Florida in a proceeding in which his domicile in Florida was never questioned and in which the wife appeared and contested the case. The Florida decree contained a provision to the effect that nothing in the decree would be held or construed to relieve the husband in any manner from complying with the support and maintenance provisions of the a mensa decree previously granted by the Maryland court. In spite of that provision, the Court held that the power to award alimony and “suit money” did not survive the dissolution of the marital relation. The Court declined to adopt the “divisible divorce” doctrine promulgated by the United States Supreme Court in Estin v. Estin, 334 U. S. 541, 68 S. Ct. 1213, 92 L. Ed. 1561, 1 A.L.R.2d 1412 (1948) aff'g, 296 N. Y. 308, 73 N.E.2d 113 (1947). It suggested that if a different result was desirable the Legislature' was the proper instrument of change and that it “must first change the Maryland law so that power to make and change maintenance and expense allowances shall survive divorce.” 199 Md. at 338-39, 86 A. 2d at 524.

In Estin the Supreme Court had before it a case in which both husband and wife were domiciled in New York and the wife obtained a decree of separation and alimony in New York. Later the husband obtained a Nevada divorce in a proceeding in which the wife was notified constructively but entered no appearance. The Nevada decree made no provision for alimony and the husband subsequently stopped making payments. The wife sued in New York for the amount in arrears. The husband appeared and defended on the ground that the Nevada decree should be given full faith and credit by the State of New York. The New York Court of Appeals held that the divorce was valid but granted the wife judgment for the arrears of alimony on the theory that a support order can survive a subsequent divorce. The Supreme Court, speaking through Justice Douglas, held:

“The result in this situation is to make the divorce divisible — to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony. It accommodates the interests of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern.” 334 U. S. at 549, 68 S. Ct. at 1218, 92 L. Ed. at 1569.

A year after the first Johnson case the parties were before the Court of Appeals again in Johnson v. Johnson, 202 Md. 547, 97 A. 2d 330 (1953). That appeal considered the question of a release of stocks deposited with the Clerk of the Circuit Court No. 2 of Baltimore City to secure the payment of alimony to the wife. In reversing the trial court’s refusal to release the stocks, the Court reaffirmed its prior holding that the Florida decree of divorce effectively dissolved the marriage and foreclosed the wife’s right to claim alimony in the Maryland courts.

The future, however, cast its shadow ahead in a strong concurring opinion, written by Judge Hammond joined by Chief Judge Sobeloff, which expressed dissatisfaction with the results of Maryland’s adherence to the unitary rule and invited the Legislature to correct the injustices which they found existed:

“Under the reasoning and holding of Staub v. Staub, 170 Md. 202, 183 A. 605, if Mrs. Johnson had ignored the Florida divorce proceedings and the divorce had been granted ex parte, Maryland would have no jurisdiction to give or continue alimony. In these days of Nevada, Florida, Arkansas, and other prolific divorce States, this puts a separated wife in a real predicament. She is on the horns of a dilemma, having the alternative of submitting to the jurisdiction of a foreign Court, where as an out-of-state defendant, she is under a disadvantage in seeking alimony, or of ignoring the foreign divorce proceeding and losing the alimony granted by her home Court entirely. Under the mores and practices of the times, it is hardly fair for Maryland to put its lady citizens in this predicament because of a narrow, artificial and unrealistic concept and judicial interpretation of alimony.
If the Legislature amended the law so that a Court would have the power to require support of a former wife at any time that the interests of justice and the parties required it, regardless of whether the divorce decree had provided for alimony or had retained jurisdiction, it would add flexibility where both parties are Maryland residents, or where, as in the instant case, the wife and the property of the husband are in Maryland. The result which could have been achieved and which I would have urged in the present case, if the proposed change had been the law, would be far more fair and just than the result which had to come under the present state of the law.” 202 Md. at 558, 561-62, 98 A. 2d at 278, 279.

The Legislature did not accept the invitation and the Court of Appeals in the case of Dackman v. Dackman, 252 Md. 331, 250 A. 2d 60 (1969), availed itself of the prerogative enunciated by Justice Oliver Wendell Holmes in Southern Pacific Co. v. Jensen, 244 U. S. 205, 221, 37 S. Ct. 524, 531, 61 L. Ed. 1086, 1100 (1917) (dissenting opinion), when he said, “I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to. molecular motions.” Judge Hammond, who had by that time been elevated to the position of Chief Judge, attacked the question of the unitary divorce rule with gusto as evidenced by this quote:

“When the bonds of matrimony which have endured for years are severed unilaterally by the husband when he becomes infatuated with another female, the indignity his spouse feels has been heaped upon her often may result in her determination to acquire from him financial support, the adequacy of which she measures by that indignity and, if he seeks a divorce to legitimatize his amour, the measure is weighted by her righteous duty to exact the toll that public morality demands. In such cases the price of the right to remarry may become so high that the husband may take counter measures reflecting the philosphy that the best defense is a strong offense.” 252 Md. at 333, 250 A. 2d at 61.

In Dackman, the husband obtained a final and absolute ex parte divorce in Nevada, which his wife could not or did not choose to impeach in Maryland. The husband had considerable property in Maryland and the equity court awarded support and maintenance to the wife payable only from the husband’s property in Maryland. The Court held it appropriate for a Maryland court to exercise its inherent power to award support payable to the wife from property within the court’s jurisdiction under the circumstances set out in its opinion:

“It would seem particularly appropriate for a Maryland equity court to exercise that inherent power in a case in which the marital domicile was in Maryland for many years, the deserted wife continues to reside here, the adultery which is the fault which justifies support and maintenance — assuming it is proven that it occurred — took place in Maryland, there is ample property in Maryland to furnish the support, and the foreign divorce was granted without the wife being personally before the court. Under these circumstances, and we at this time limit our decision and holding to the particular facts of the case before us, we would affirm a suitable decree granting the wife support payable only from the property of her husband in Maryland if the wife cannot or does not choose to impeach the Nevada decree and the trial judge finds it factually appropriate to grant such a decree.” Id. at 346-47, 250 A. 2d at 68-69.

In a later case this Court had before it a case involving a factual situation similar to that in Dackman, supra. In Colburn v. Colburn, 20 Md. App. 346, 316 A. 2d 283 (1974), the only significant factual distinctions were that the husband was guilty of desertion rather than adultery and prior to the foreign a vinculo divorce the wife had obtained an a mensa divorce in Maryland. As in Dackman, it was found that there was property in Maryland to furnish support to the wife. In analyzing the Dackman decision, Chief Judge Orth of this Court (now an associate judge of the Court of Appeals) said:

“What Dackman said was that, an equity court, under its inherent right and power, could act in cases in which only support was sought, similarly to the way it may act in a decree for a divorce under the authority bestowed by Art. 16, Section 4. The precise holding was that a court of equity has the inherent right and power to require sequestration or attachment of a non-resident husband’s property within its jurisdiction as a source of support and maintenance to a legally and factually deserving wife and to award her that support and maintenance from the property. The real significance of the holding, however, was that the court has this right and power despite a decree of divorce granted by a foreign state without the wife being personally before the foreign court. It is clear that this was a departure from the former rule followed in Maryland, even though the Court expressly limited its decision and holding to the particular facts of the case before it.” 20 Md. App. at 362, 316 A. 2d at 292. (emphasis supplied).

In the case sub judice it is conceded that the marital domicile was in Maryland for many years; that the deserted wife continued to live in Maryland; that the husband deserted the wife and was at fault for the breakup of the marriage; that the desertion took place in Maryland; and that the foreign divorce obtained by the husband was granted without the wife being personally before the foreign court. There are two facts which distinguish this case from Daekman — first, the appellant was personally served in Maryland before his suit was filed in Nevada, and, second, there is no real or personal property in Maryland from which support may be obtained other than by the enforcement of the trial court’s order or by its inherent power to punish for contempt.

We think personal service on the appellant of the show cause order and bill for permanent alimony is of substantial significance in this case. In McSherry v. McSherry, 113 Md. 395, 400-01, 77 A. 653, 655 (1910), the Court in discussing the effect of service of process on a non-resident husband within the State, said:

“A decree for alimony is a decree in personam, and unless the Court has jurisdiction over the person against whom it is passed it is not binding upon him. Such jurisdiction over a non-resident can only be acquired by service of process upon him within the State, or by his voluntary appearance, in person or by attorney. Constructive service by publication, or personal service of process beyond the limits of the State, is not sufficient, nor does a special appearance for the purpose of objecting to the jurisdiction of the Court confer upon that Court jurisdiction to decree on the merits of the case. Garner v. Garner, 56 Md. 127; Fisher v. Parr, 92 Md. 245, Gemundt v. Shipley, 98 Md. 657; Pennoyer v. Neff, 95 U. S. 714; Harkness v. Hyde, 98 U. S. 476; 2 Bishop, Marriage, Divorce and Sep., Ch. 3; 14 Cyc., 745.
Where, however, a defendant appears generally, either in person or by attorney, or process is served upon him within the State, the Court acquires jurisdiction over him for the purpose of the suit. It is said in 19 Ency. of P. & P. 574: ‘When the original process has been served on the defendant he is in Court for every purpose connected with the action, and is charged with notice of whatever action the Court may take while the suit is pending.’ Or, as stated in 1 Freeman on Judgments (4th ed.), sec. 142, ‘Jurisdiction over a party, being obtained, continues until judgment.’ And Mr. Bishop says: ‘In these cases, as in all others governed by the like reasons, a voluntary appearance by the defendant, or the citation of him when found within the territorial limits of the Court, lets in the jurisdiction in personam, and then the personal judgment, which would otherwise be incompetent, may be rendered against him.’ 2 Bishop on Marriage, Divorce and Sep., sec. 81.”

See: Employers Inability Assurance Corp. v. Perkins, 169 Md. 269, 181 A. 436 (1935).

We hold that once Maryland obtained in personam and subject matter jurisdiction over the appellant it retained its jurisdiction over him and it even though he thereafter obtained a foreign a vinculo divorce from his wife. Nor do we accept the appellant’s contention that the Dackman and Colburn cases narrowly restrict the Maryland Court’s retreat from the unitary divorce rule to those cases which fit only into the criteria there enunciated — particularly the requirement that there be property in Maryland from which a monetary award of alimony could be enforced. To suggest that a wife’s right to maintenance and support is dependent on a race to the courthouse door is, we believe, patently ridiculous. To require a female resident of this State, deserted by her husband, to follow him to Mexico, The Dominican Republic, Florida, Nevada, Alabama, Arkansas or any of the other “quickie” divorce havens and to litigate her right to alimony or support in those jurisdictions on pain of losing all right to alimony upon the issuance of a decree of divorce is, we think, manifestly unfair. In the light of the appellee’s physical condition in this case such a holding would be cruel and inhuman. Maryland has an interest in protecting the welfare of its citizens. Its taxpayers have a right to expect that erring husbands will not transfer the duty of support of their wives to the already staggering tax burden of social welfare.

We hold that where, as here, personal service on the husband has been obtained and where, as in Dackman and Colburn, the marital domicile was in Maryland for many years; the deserted wife continues to live here; the fault which justifies maintenance and support took place in Maryland; and the foreign divorce was granted without the wife being personally before the court — the fact that there is no personal or real property in Maryland is of no controlling significance and does not prevent the Maryland court from entering an appropriate order for alimony and support.

II.

In Mays v. Mays, 232 Md. 122, 122a, 192 A. 2d 80, 81 (1963), the court set out the criteria which may be considered in determining whether an award of alimony is excessive. It stated those criteria to be: “[t]he husband’s wealth and earning capacity, the station in life of the parties, their physical condition and ability to work, the length of time they have lived together, the circumstances leading up to the divorce and the fault that destroyed the home.” See also: Bowis v. Bowis, 259 Md. 41, 267 A. 2d 84 (1970), and cases cited therein.

The testimony indicated that the appellant’s income from his pension was $11,600 per year and that the appellee’s income was approximately $7,500 per year. It indicated further that the appellant had the capacity to supplement his pension by gainful employment while the appellee, because of her progressively deteriorating condition, could not pursue any gainful occupation. The evidence indicated that the parties had been married for 17 years and that the breakup of the marriage had been occasioned by the appellant’s desertion of the appellee without any fault for that desertion being attributable to the appellee. Mrs. Altman because of her illness was forced to retire from her job and is confined to a wheelchair and is periodically bedridden. Medical expenses were indicated to be approximately $500 per month. Additional expenses were proven for mortgage payments, food, medicine and maintenance of the appellee’s condominium apartment. The appellant complained that he was given no credit for the equity in the condominium which he conveyed to the appellee. The fact of the matter is, however, that the transfer of the mortgage obligation has removed a heavy burden from the appellant and transferred it to the appellee. It is obvious that there would be no comparable housing available to the wife at this price and the husband would be chargeable with providing such housing were it not .for the condominium.

In making an award of alimony the court is required to use its judicial discretion. There is no special statute or rule governing this discretion. It must be exercised to the necessary end of achieving justice and based upon reason and law. Donigan v. Donigan, 208 Md. 511, 119 A. 2d 430 (1955).

The Court of Appeals has said in a number of cases that the award of alimony and support was within the sound discretion of the chancellor and his determination will not be set aside or modified unless the award clearly represented an abuse of discretion. Willoughby v. Willoughby, 256 Md. 590, 261 A. 2d 452 (1970); Pet v. Pet, 238 Md. 492, 209 A. 2d 572 (1965); Mays v. Mays, supra.

We have carefully reviewed the evidence in this unfortunate case. We have no right to quarrel with the appellant's determination that he could no longer live with his wife. We do, however, have the responsibility of determining whether the chancellor in the exercise of his sound discretion correctly considered the criteria established for the determination of the amount of alimony to be awarded; whether he considered the needs of the wife, the ability of the husband to pay and has avoided the use of the alimony award as a means of punishment. We find no abuse of the chancellor’s discretion and we shall affirm.

Order affirmed.

Costs to be paid by appellant.


author: Gilbert, C. J.,

text:
    PAUL MURRAY et al. v. FRANCIS M. WILLETT, JR., Personal Representative of the Estate of Edward A. Murray
    [No. 1190,
    September Term, 1976.]

      Decided June 14, 1977.

      The cause was argued before Gilbert, C. J., and Moylan and Melvin, JJ.

      Bruce N. Goldberg for appellants.

      Fred Warren Bennett, with whom were Stephen K. Carper and Goldstein, Ahalt & Bennett, Chartered on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

A fundamental ingrained principle of the testamentary law of Maryland is that when a will contains a residuary clause, the courts will employ every intendment against general or partial intestacy. Crawford v. Crawford, 266 Md. 711, 296 A. 2d 388 (1972); McElroy v. Mercantile-Safe Deposit and Trust Co., 229 Md. 276, 182 A. 2d 775 (1962); Ball v. Townsend, 145 Md. 589, 125 A. 758 (1924); Holmes v. Mackenzie, 118 Md. 210, 84 A. 340 (1912); Lavender v. Rosenheim, 110 Md. 150, 72 A. 669 (1909); Dulany v. Middleton, 72 Md. 67, 19 A. 146 (1890); Barnum v. Barnum, 42 Md. 251 (1875).

In this appeal from a decree of the Circuit Court for Montgomery County (Frosh, J.), construing the Last Will and Testament of Edward A. Murray, the appellants, Paul Murray et al., recognize the cardinal rule but assert its non-application to this particular case.

When the testator made his will on August 30, 1964, by completing a printed form, his four brothers were all dead. One died in infancy, one in his teens, and the other two, Thomas F. Murray and Stephen J. Murray, Sr., the fathers of the appellants, passed away in 1957 and 1941, respectively. At the time of the execution of his will, the testator had two living sisters, Mary M. Willett, the mother of the testator’s personal representative, the appellee in this case, and Isabel M. Sweeney, the mother of Edward A. Sweeney.

After a formal recital and the revocation of “all other and former Wills,” the testator provided:

“First, after my lawful debts are paid, I give devise and bequeath in equal shares all of my estate of whatsoever nature and wherever situated to my belove [sic] sister, Isabel and Mary. In the event of the prior decease of Isabel, her share is to go to Mary. In the event of the prior decease Mary, her share isto [sic] go Iasber [sic].”

Mary died in June 1971, leaving Francis M. Willett, Jr., as her only heir. Isabel died in 1973, leaving Edward Sweeney as her only heir. Murray is, of course, survived also by other nephews and nieces who constitute the appellants.

Following the filing of the “Bill of Complaint for the Construction of Will,” two groups of heirs answered. Francis Willett, Jr., in his individual capacity, as distinguished from his being the Personal Representative of Edward Murray, and Sweeney asserted that they should divide the estate, or, in the alternative, it should all devolve upon Sweeney. The other group, consisting of the appellants, contended that the Will is so vague and ambiguous that it is inoperative, and, therefore, the estate should pass by way of distribution under the intestacy law. Md. Est. & Trusts Code Ann. § 3-104 (b).

We agree with Judge Frosh that the clause of the will upon which the appellants focus their attack is clearly a residuary clause, defined in Black’s Law Dictionary 1473 (4th ed. 1968) as that “[cjlause in will by which that part of property is disposed of which remains after satisfying bequests and devises.” The particular clause in the case sub judice is lacking any unmistakable verbiage such as “all the rest and residue of my estate” or “the residue of my estate” or “the balance of my estate,” but there is no requirement that those stylistic forms be utilized. In this State, “[n]o particular form of expression is required to constitute a residuary clause, it being sufficient if the intent to dispose of the residue appears.” McElroy v. Mercantile-Safe Deposit and Trust Co., supra at 284, 182 A. 2d at 779.

The difficulty with the clause in the instant case is occasioned by the phrase “of the prior decease.” Those words give rise to two distinct inferences. The phrase could be argued to mean, first, that each sister must survive the other in order to take under the will, or, second, that each sister must survive the testator before she may take under the will.

Had the testator been cognizant of and heeded the message in the “Minutes and Advices of the Yearly Meeting of Friends Held in London” (1802), that

“[fjriends are earnestly recommended to employ persons skilful in law, and of good repute, to make their wills; as great inconvenience and loss, and sometimes the ruin of families, have happened through the unskilfulness of some who have taken upon them [selves] to make wills .. .”,

it is likely that this litigation would never have arisen.

Bearing in mind that courts abhor intestacy, Crawford v. Crawford, supra; McElroy v. Mercantile-Safe Deposit and Trust Co., supra; Ball v. Townsend, supra; Holmes v. Mackenzie, supra; Lavender v. Rosenheim, supra; Dulany v. Middleton, supra; and Barnum v. Barnum, supra, we begin with the premise that the testator did not go to the trouble of writing a will in solemn form so as to create the solemn farce. It is obvious that having made the will he did not intend to die intestate. In re Harrison, 30 Ch. D. 390, 393-94 (1885).

The precise question posed by this appeal, i.e., the disposition of the residuary estate when all of the residuary legatees have predeceased the testator, does not appear to have been heretofore addressed in Maryland appellate opinions.

We believe this case to be controlled by Md. Est. & Trusts Code Ann. § 4-403, which provides in pertinent part:

“(a) Death of legatee prior to testator. — Unless a contrary intent is expressly indicated in the will, a legacy may not lapse or fail because of the death of a legatee after the execution of the will but prior to the death of the testator if the legatee is:
(1) Actually and specifically named as legatee;
(2) Described or in any manner referred to, designated, or identified as legatee in the will; or
(3) A member of a class in whose favor a legacy is made.
(b) Effect of death, of legatee. — A legacy described in subsection (a) shall have the same effect and operation in law to direct the distribution of the property directly from the estate of the person who owned the property to those persons who would have taken the property if the legatee had died, testate or intestate, owning the property.”

As we view the will in the case now before us, there is no “expressed” or “indicated” intent therein to demonstrate that the testator was desirous of having his estate, or any portion thereof, pass by way of intestacy. The clause can only reasonably be interpreted, therefore, to mean that Murray devised his estate to his two sisters, Mary and Isabel, in equal shares with the proviso that if either sister was not alive at his death, then the surviving sister would inherit the whole of the estate. Because both sisters predeceased Murray, it is safe to infer, in the light of the anti-lapse statute, § 4-403, that Murray intended for the children of Mary and Isabel to take by way of representation the share that the child’s mother would have taken had she survived Murray.

If Maryland did not have the anti-lapse provision in its statutory law, the appellants’ position would be on much sounder footing. The difficulty appellants encounter, and are unable to overcome, is the fact that we do have such a statute. The out-of-state cases upon which appellants rely pale into insignificance in the face of § 4-403. See generally Persson v. Dukes, 280 Md. 194, 372 A. 2d 240 (1977), aff'd 33 Md. App. 214, 364 A. 2d 86 (1976); Stewart v. Whitehurst, 268 Md. 589, 303 A. 2d 393 (1973).

We think that the trial judge properly and correctly applied the Maryland law to the case at bar. He did not, as appellants allege, “shoot from the hip,” but even if he did do so his marksmanship was uncanny because he struck the bull’s eye.

Judgment affirmed.

Costs to be paid by appellants.

      . Paul Murray, the son of a deceased brother of the testator, is joined in this appeal by his sisters, Rachel O’Hara, Mary Greiser, and Susan Murray. Stephen Murray, Anne Searcy, and John Murray, children of another deceased brother, are also joined as appellants.

      . Even at common law the courts were reluctant, In the face of a will, to declare intestacy. According to 2 Blackstone, Commentaries on the Laws of England 514 (Lewis ed. 1902), ”[w]hen all the debts and particular legacies are discharged, the surplus, or reddmm, must be paid to the residuary legatee, If any be appointed by the will; and if there be none, it was long a settled notion that it devolved to the executor’s own use, by virtue of his executorship,”

      . The testator died in 1978.

      . In so holding, we “anticipate with satisfaction that henceforth the group of ghosts of dissatisfied testators who, according to a late Chancery judge, wait on the other bank'of the Styx, to receive the judicial personages who have misconstrued their wills, may be ... diminished ...” by one. Perrin v. Morgan, 1 All E.R. 187, 194-95 (1943).