text:
    HERMAN GREEN v. STATE OF MARYLAND
    [No. 256,
    September Term, 1974.]

      Decided, December 17, 1974.

    The cause was argued before Orth, C. J., and Gilbert and Lowe, JJ.

      John W. Sause, Jr., District Public Defender, for appellant.

      Albert Gallatin Warfield, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Sidney S. Cam,pen, Interim State’s Attorney for Talbot County, on the brief, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

On 19 November 1973 in the Circuit Court for Talbot County HERMAN GREEN was found guilty by a jury of forging a check in violation of Code, Art. 27, § 44. On 6 February 1974, upon receipt of a pre-sentence investigation report, a sentence of 8 years was imposed. Green appealed. We affirm.

Three questions are presented for decision:

1. Did the method of selection of the petit jury violate appellant’s rights?
II. Was there a fatal variance between the allegata and the probata .
111. Was the trial, as a whole, fundamentally fair?

I

Green was presented and indicted on 24 September 1973. The docket entry of 28 September shows that Nanie Green was “surety recognized in the amount of $2,000.00 for his appearance when notified.” Green was arraigned on 3 October. The docket entries under that date read:

“Traverser arraigned: Rule Plea.
Plea ‘Not Guilty’ and prays a Jury trial.
Trial set for Nov. 19,1973.
(Select Jury in Clerks Office).
Bail to continue.”

The transcript contains a statement concerning the arraignment:

“On Wednesday, October 3, 1974, at 1:30 o’clock, P.M., in the Circuit Court for Talbot County, at Easton, Maryland, before the Honorable Harry E. Clark, Judge, and with Sidney S. Campen, Jr., Esq., the State’s Attorney for Talbot County being present, Herman Green, the defendant, was brought into Court and was arraigned by the Clerk reading the indictment and asking the defendant as to his plea, and the defendant pleaded ‘Not Guilty’, and prayed a Jury trial. The date of November 19, 1974, was selected for the trial of said case, and the defendant was returned to the jail.”

There is no mention of the selection of a jury. The indictment came on for trial on 19 November. The docket entries under that date read: “Trial before Judge James A. Wise, Ernest J. Gretzinger, Reporter. Jury impanelled and sworn, viz: . . . .” There follows the name of each of the twelve jurors. The transcript of the trial contains the following notation:

“ (The jury panel had previously been called over by the Clerk of the Court and all were present. Counsel, by stipulation, had selected the jurors they desired to try the case, and the said selected panel of jurors were called to their places in the Jury box.) ”

The transcript continues:

“The Court: Is the State ready, Mr. Campen?
Mr. Campen [State’s Attorney ad interim for Talbot County]: The State is prepared, your Honor.
The Court: Is the defense ready?
Mr. Stafford [Defense Counsel]: Yes, your Honor.
The Court: Mr. Green, is this panel as now seated in the jury box agreeable to you? Are you satisfied that they shall try this charge against you?
The defendant: Yes, sir.
(The traverser had been previously arraigned, pleaded not guilty and elected trial by jury) ”

On the premise that he was not present when the twelve members of the jury who tried him were selected, Green claims reversible error. He argues that the selection of the jurors was a part of his trial, and that he had an absolute right to be present at all stages of the trial. Maryland Rule 775; Brown v. State, 272 Md. 450; State v. Saul, 258 Md. 100; Midgett v. State, 216 Md. 26; Saul v. State, 6 Md. App. 540. See Smith and Nelson v. State, 12 Md. App. 130.

Whether the jury was, in fact, selected in the Clerk’s office at some time prior to 19 November, and, if it was, how it was selected, and whether a judge and Green were present, cannot be ascertained from the record before us. In our consideration of an appeal, we must, of course, stay within the record. The record here is not adequate for a determination of the issue presented. Nor can we say, on the state of the record, that if Green was not present when the jury was selected, that he waived his presence. In the light of the little we know about what actually occurred, we would be loath to hold, in the circumstances existent, that Green waived a right he may have had to be present when the jury was selected merely by answering in the affirmative the court’s question whether he was satisfied to have the jury he found in the box try the charge against him. All things considered, we believe that the resolution of the contention as it reaches us here is best left to post conviction procedures, under which there may be a plenary hearing to ascertain exactly what occurred. We observe, however, that we have serious doubt of the propriety of selecting a jury in the Clerk’s office out of the presence of a defendant.

II

In arguing that there was a fatal variance between the allegations in the first count of the indictment and the proof adduced at trial, Green states the issue simply: “[M]ay a person charged with forgery of a check be convicted on evidence showing at most forging of an endorsement to a check? ” The State concedes that Green .. is absolutely correct in his statement that he was charged with forging ‘a certain check or bill of exchange.’ ” It admits that “[h]e is also correct in his evaluation of the evidence wherein it was conclusively proven that he had prepared the signature of Robert Thomas on the back of the check but had no part in the preparation of the handwriting on the face of the check.” It agrees that Green’s statement of the question .. precisely focuses the issue . . ..”

In the closing argument of the State’s Attorney he told the jury:

“Lastly counsel would have you believe that even though there was no endorsement or no proof that the defendant forged the face of this check, even though they made him put his name on the back, he had nothing to do with the face of it. I submit to you ladies and gentlemen of the jury that that is not necessary. The law is clear that any person who shall offer, make, forge or counterfeit, or cause or procure to be falsely made, forged or counterfeited, or willingly aid or assist in falsely making, forging, altering or counterfeiting any deed, document or affidavit or waiver of release or mechanic’s lien, promissory note for the payment of money or property, and then the next word is important, endorsement or assignment.”

Green now claims that an endorsement is not part of the instrument upon which it is placed and an allegation that the instrument was forged is not sufficient to charge forgery of the endorsement. He points to Code, Art. 95B, §§ 3-202, 3-413, 3-414, 3-417. The State acknowledges in its brief that authority is divided on the issue. It found no answer “in any single opinion of Maryland’s highest courts or in any local legislative source.” Recognizing that “From a commercial perspective, the primary signature and the endorsement are treated as two separate and distinct contracts and are, therefore, regarded as different ‘instruments’ ”, it urges us “to regard the check or ‘bill of exchange’ as a ‘single instrument’ for the purposes of applying the Forgery Statute and to leave the Commercial Law in its proper realm where the ‘separate contract’ theory may be used to dispose of civil disputes in a purely commercial setting.” We do not decide the issue because it is not properly before us.

There is no question but that the first count of the indictment was sufficient on its face to charge that Green forged the check designated. So the indictment itself is not subject to attack. But the general rule is that matters essential to the charge must be proved as alleged in the indictment. Love and Matthews v. State, 6 Md. App. 639, 642. We put it thus in Benjamin v. State, 9 Md. App. 373, 375: “It is, of course, well settled that the evidence in a criminal case must not vary from those allegations in the indictment which are essential and material to the offense charged.” When there is a material variance between the allegata and the probata, the judgment must be reversed. Melia and Shelhorse v. State, 5 Md. App. 354, 363. To preserve the point on appeal, however, it must be seasonably raised below. Jackson v. State, 10 Md. App. 337, 349. It may be so raised by a timely motion for judgment of acquittal. Butina v. State, 4 Md. App. 312, 319. The point then becomes a matter of the sufficiency of the evidence.

At the close of evidence offered by the State, Green sought and was granted a judgment of acquittal as to the second and third counts of the indictment. See note 1, supra. Green then testified in his own behalf. The defense rested and the State had no rebuttal. At that point in the trial, after inquiry by the court regarding instructions to the jur;, counsel made their closing arguments. The jury retired at 2:05 P.M., returned at 2:20 P.M. and rendered a verdict of guilty.

It is firmly established that this Court may entertain the issue of the sufficiency of the evidence in a case tried before a jury only upon the denial by the lower court of a motion for judgment of acquittal made at the close of all the evidence. Williams v. State, 5 Md. App. 450, 456. Green never moved for judgment of acquittal as to the first count of the indictment. Even if the motion for judgment of acquittal made at the close of evidence offered by the State be deemed to include the first count, that motion was withdrawn by Green when he offered evidence. He did not renew the motion at the close of all the evidence. Therefore, the matter of the sufficiency of the evidence is not subject to our review on this appeal.

The question of variance between the allegata and the probata was not otherwise raised below. The short of it is that the court was not called upon to rule on the point and it simply was not tried and decided at the trial. Rule 1085. We note that defense counsel could have argued contrary to the State’s view had he desired. But he put the matter of Green’s guilt vel non to the jury thus: “ [S]o the question before you and you have to decide is that, if you find he did endorse the name of Robert Thomas on the back of that check, is whether he -did it with the intent to defraud somebody of $76.92.1 think the evidence is very weak in this case. I think it is entirely up to you people to decide first if he did endorse the name of Robert Thomas on the back of that check, and if he did, if he did it with the intent of defrauding somebody out of some money.”

The variance issue not being properly before us; we do not reach it.

Ill

Green asserts: “Albeit inadvertently, the trial was fundamentally unfair to appellant; and he was denied due process of law.” He presents two bases for the assertion: (1) “Lack of definition of issue to jury,” and (2) “Statement of State’s Attorney.”

(1)

Green sums up his argument with respect to the first basis:

“In point of absolute, objective fact, the jury was never accurately told what charges had been made against Appellant; was never advised of which charges he had been acquitted by the Court; and with what conduct he must be connected in order to find him guilty. Obviously, the jury felt that Appellant had committed some misconduct; but the record fails to disclose that they had any basis whatsoever for equating the facts which they heard to any conduct proscribed by law.”

He centers on the absence of instructions to the jury by the court and couples that with the lack of arraignment before the jury, reference by the court to “this charge”, reference by the prosecution in opening argument to “forgery and uttering”, failure of the trial judge to tell the jury that there had been a judicial acquittal of the second and third counts, the statement of defense counsel in argument that there was no evidence of uttering, when at the time that charge, in fact, was not before them, the assertion of the prosecutor in his closing argument that “forgery of the check as alleged in the indictment was equivalent to forgery of an endorsement as referred to in the statute.”

We believe that the jury were sufficiently aware of what they were called upon to determine, that is, whether Green had forged a certain check. We first note that the absence of instructions to the jury was largely the doing of defense counsel. When the defense rested its case and the State indicated it had no rebuttal evidence, defense counsel began his closing argument. The transcript reads:

“The Court: Wait just a minute.
Mr. Stafford: I thought he waived his opening statement.
The Court: They haven’t been instructed. If anybody is urging —
Mr. Stafford: I didn’t want any.
The Court: Mr. Campen, do you want the jury . instructed at all?
Mr. Campen: No, your Honor. We will allow the Court to instruct the jury if the Court wishes to.
The Court: It is the privilege of counsel to ask for instructions. I don’t in this case insist on it.
Mr. Campen: I have no requests for instructions.
Mr. Stafford: Nor do I. You are also waiving opening argument, Mr. Campen?
Mr. Campen: I will defer to Mr. Stafford.”

Defense counsel resumed his argument.

It is apparent that the desire of the defense not to have the jury charged by the court was a carefully considered trial tactic. In any event, the closing arguments of counsel adequately apprised the jury of the crime they were to consider. Defense counsel said: “ [Y]ou have just one question, as I see it, to decide today, and that is this, whether or not, on the 27th day of June 1973, in Talbot County, with intent then and there to defraud, that he [Green] feloniously did make, forge and counterfeit a certain check.” He then reviewed the evidence on that charge. The State’s Attorney said: “ [Y]ou recall at the outset of this case that I indicated to you I was going to produce several witnesses, five in fact, in order to show you that, in fact, Herman Green forged a certain draft drawn on the New Brick and Tile Company.” He then reviewed the evidence so adduced.

We do not believe, in the circumstances, that any of the matters Green now couples with the lack of jury instructions operated to prevent the jury from understanding what they were to determine. We conclude that the trial was not fundamentally unfair and that Green was not denied due process of law by “a lack of definition of issue” to the jury.

(2)

The State’s Attorney concluded his argument in these words:

“1 am sure, ladies and gentlemen of the jury, that the endorsement in this case is, in fact, a forged endorsement by the defendant in the case, and I ask for a verdict of guilty.”

Green made no objection below. He now points to Ethical Consideration 7-24 under Canon 7 of the Code of Professional Responsibility adopted by Rule 1230. Canon 7 declares: “A Lawyer Should Represent a Client Zealously Within the Bounds of the Law.” E C 7-24 explains:

“In order to bring about just and informed decisions, evidentiary and procedural rules have been established by tribunals to permit the inclusion of relevant evidence and argument and the exclusion of all other considerations. The expression by a lawyer of his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused is not a proper subject for argument to the trier of fact. It is improper as to factual matters because admissible evidence possessed by a lawyer should be presented only as sworn testimony. It is improper as to all other matters because, were the rule otherwise, the silence of a lawyer on a given occasion could be construed unfavorably to his client. However, a lawyer may argue, on his analysis of the evidence, for any position or conclusion with respect to any of the foregoing matters.”

We do not think the comment was misleading or so prejudicial to Green as to warrant reversal. Had the prosecutor couched the conclusion in terms of the evidence rather than his personal feelings it would have been perfectly proper. See Witcher v. State, 17 Md. App. 426; Ott v. State, 11 Md. App. 259; Holbrook v. State, 6 Md. App. 265.

We conclude that the trial was neither fundamentally unfair nor was Green denied due process of law by the statement of the prosecutor. We observe again: “ ‘ [A] defendant is entitled to a fair trial but not a perfect one,’ for there are no perfect trials.” Brown v. United States, 411 U. S. 223, 231-232; Burnett v. State, 11 Md. App. 550, 554; Shotkosky v. State, 8 Md. App. 492, 505.

IV

Supplemental Issues

In appellant’s brief are ten contentions set out at his direction. The 7th, with reference to the selection of the jury, is covered by our discussion of question I. The 6th and 10th concern the sufficiency of the evidence, which we have held under question II to be not properly before us. The 2nd and 9th, involving jury instructions, are disposed of under question III. The 1st — “Did trial judge err by not letting the jury see the check? ” — and the 5th — “Did the State err by not having Robert Thomas in court? ” — are based on a misapprehension of fact. The check was submitted to inspection by the jury. The State never asserted the existence of “Robert Thomas” and appellant knew no one of that name. The 4th claims error by the imposition of a sentence of 8 years. The sentence was within the maximum authorized by Code, Art. 27, § 44 and there is no indication it was imposed by any unworthy motive. Bieber v. State, 8 Md. App. 522, 548. The 8th asks if the court erred in accepting a “handwriting expert’s report? ” Corporal Gary Girton of the Maryland State Police was accepted by the court as an expert in the analysis of questioned documents, including handwriting, after a thorough examination of his qualifications. The court did not abuse its discretion in so doing. The handwriting specimens received in evidence were properly admitted. See Sutton v. State, 4 Md. App. 70, 73; Spillers v. State, 10 Md. App. 643, 648. There was no evidence that the specimens were given involuntarily or otherwise illegally obtained. The 3rd and last to be considered asks if Green received adequate representation at the trial. He did not question his representation below and the matter' is not now before us. White v. State, 17 Md. App. 58, 64.

We hold that the pro se contentions afford no basis for reversal of the judgment.

Judgment affirmed.

      . The indictment filed against Green consisted of three counts. The first count charged that Green falsely forged a certain check, the second count charged that he caused and procured the check to be forged, and the third count charged that he uttered the check, all in violation of Code, Art. 27, § 44. At the close of evidence offered by the State, the State’s Attorney moved to “dismiss” the third count. At a bench conference in the presence of Green it appeared that the defense sought a judgment of acquittal on both the second and third counts. After discussion the court said, “. . . I shall grant the motion of acquittal on the second and third counts, and submit only the question of direct forgery to the jury.”

      . The motion may be made at the close of evidence offered by the State. If it is not then granted, “. . . the accused may offer evidence without having reserved the right to do so, but by so doing, he withdraws his motion.” Maryland Rule 755 b. See Code, Art. 27, § 593.

      . Both the Constitution of the United States, Amendment VI, and the Declaration of Rights of the Constitution of Maryland, Art. 21, speak in terms of a speedy trial by an impartial jury. But Art. 23 of the Declaration of Rights declares “That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his-peers, or by the Law of the land.” Amendment XIV to the federal constitution forbids any State to deprive any person of life, liberty, or property, without due process of law. “Law of the land” has been construed to be synonymous with “due process of law.” In re Easton, 214 Md. 176.

      . See discussion under II supra.

      . The attorney representing Green on appeal is not the attorney who represented him below.

      . Rule 756 b provides that “The court may and at the request of any party, shall give such advisory instructions to the jury as may correctly state the applicable law;....”


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    ROBERT SHELTON RUSS, JR. et ux. v. DONALD H. BARNES et ux.
    [No. 268,
    September Term, 1974.]

      Decided December 18, 1974.

      The cause was argued before Orth, C. J., and Gilbert and Lowe, JJ.

      Alan Bernstein, with whom was Lawrence B. Goldstein on the brief, for appellants.

      Frank B. Haskell, III, with whom were Mitchell, Clagett & Haskell on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

The issue presented us concerns the validity of a novation of a land installment contract by the original parties. On September 22, 1961 appellants, Robert Shelton Russ, Jr. and Catherine Russ, entered into a land installment contract pursuant to Md. Code, Art. 21, §§ 10-101 through 10-107, now Real Property Art., § 10-100 et seq., for the purchase of certain improved real estate in Anne Arundel County from Donald H. and Novilla A. Barnes, appellees. Almost eleven years later, on May 25, 1972, the same parties entered into a “Sales Contract” for the same land which was consummated by execution of deed, deed of trust and note settled on August 7, 1972. In the latter agreement, the purchase price was $1,000.00 less than it had been in the original agreement and was to be paid “to the Sellers in the form of a deed of trust . . . .” at an interest rate increase of 1-1/2%. The monthly payments under the trust were substantially larger than the payments which had been required under the original agreement. The subsequent agreement made no reference to the original nor did it give appellants credit for the amounts paid under the original land installment contract. Payments already made by the Russes apparently included a $300.00 down payment and monthly installments from September 1961 to May 1972, of $104.50, which amount included interest at 6% per annum.

On November 28, 1973 appellants sued in the Circuit Court for Anne Arundel County (in Equity) for a rescission of the contract of May 25, 1972, a validation of the September 22, 1961 contract to which they ask that payments made on the May 25, 1972 contract be credited, “And such other and further relief as the nature of this cause may require.” Appellees’ answer was followed by their motion for summary judgment which contained an affidavit by appellees’ counsel. It stated that settlement under the subsequent agreement was initially scheduled for July 26, 1972. On that date, however, appellants showed him for the first time the unrecorded contract of September 22, 1961. The settlement was cancelled and appellants were admonished to consult with independent counsel with respect to the 1961 instrument.

Apparently the settlement was rescheduled for August 7, 1972, for at that time affiant recites the execution of the deed, deed of trust, note and settlement sheet by appellants. Additionally the affiant described a letter both on his firm’s stationery and addressed to his firm, signed by appellants, spelling out their full “understanding” of “matters” reached therein. These “matters” included:

1. Inspection and understanding of a title insurance binder.
2. The waiver of truth in lending disclosures.
3. The increase of $1,068.10 in the deed of trust over the purchase price to include items set forth on the settlement sheet.
4. A recitation that pursuant to counsel’s admonition they had sought independent counsel for the unrecorded Land Installment Contract and were now willing to settle on the basis of the May 25,1972 contract.

Citing Hudson v. Maryland State Housing Co., 207 Md. 320, 325-326, the Chancellor found “ . . . that the parties knowingly and willingly entered into the contract and were given every opportunity to determine whether or not it was necessary to do so; therefore, the parties could and did enter into a new land installment contract which superseded the first contract .... The Court finds that there is no dispute as to the material facts of this case and the defendants are entitled to the judgment as a matter of law.” We do not find Hudson apposite to the facts here and are more troubled than was the Chancellor. We find material facts in genuine dispute.

The claims asserted by appellants set forth precisely the predicament the Land Installment Contract Act was intended to prevent. When legislative intent is discernible, we are bound by the policy espoused by that predominant branch of government. One purpose of the Act was to provide a mechanism whereby a vendee would not lose the equity and interest he had built in his home in the event of default. Report to the General Assembly of 1951, Volume II, Item 71, p. A-44. See also Spruell v. Blythe, 215 Md. 117, 121-122. Here there is no allegation of default. Yet appellants appear to have lost a decade of equity, built month by month, without compensation or consideration for the loss.

Appellees contend that the execution of the 1972 contract effected a novation extinguishing the 1961 contract. They quote from District National Bank of Washington v. Mordecai, 133 Md. 419, 427:

“A novation may be made by the substitution of a new obligation or contract between the same parties, with the intent to extinguish the old obligation or contract; but it does not result from the substitution of one paper writing for another, or one evidence of debt for another, or one contract for another, unless such substitution is made with the intention of all the parties concerned to extinguish the old one.”

Appellants having signed that they were “willing to settle on the basis of the contract dated May 25, 1972, despite the execution of the prior contract” bolsters appellees’ argument that a novation was intended by the parties. The second step of their argument is that the 1972 agreement as well as the 1961 agreement were merged in the execution of the deed.

We are unable to agree with appellees over-simplified attempt to apply contract law, especially when the subject matter is a Land Installment agreement — so vulnerable to abuse that it has been cloaked with special protections by the Legislature.

Analyzing appellees’ assertion that the 1972 contract effected a novation, we must consider the necessary elements of that legal metamorphosis:

“ ‘A ‘novation’ is a new contractual relation, and contains four essential requisites: (1) A previous valid obligation; (2) the agreement of all the parties to the new contract; (3) the validity of such new contract; and (4) the extinguishment of the old contract, by the substitution for it of the new one ....’” Balt. Academy of the Visitation v. Schapiro, 169 Md. 332, 338-339 quoting Dist. Nat. Bank of Wash. v. Mordecai, 133 Md. 419.

A novation “necessarily involves the immediate discharge of an old debt or duty, or part of it, and the creation of a new one. There is no novation until this has been accomplished.” 15 Williston on Contracts (Jaeger ed.) § 1865, 587. Here the record indicates on the limited facts adduced on the motion that the vendor-appellees discharged no prior debt of appellants (vendees), rather they increased that debt and discharged only the equity accumulated by appellants over the preceding eleven years. The 1972 contract resulted in a gain to appellees and a loss to appellants of the principal paid during that period plus an increase of 1-1/2% on the interest rate. The question of what if any consideration was given (or obligation foregone) by appellees provides a “genuine dispute as to [a] material fact . . . .” Md. Rule 610. A court of conscience may inquire into the consideration upon which a contract is based even though it recites value received and is under seal, nor is the deed of trust immune from challenge for want of consideration. Stack v. Marney, 252 Md. 43, 47. If the court finds that the thing promised or done is already a legal obligation of appellee, such promise or act is not a valuable consideration to support another promise or agreement. Berger v. Burkoff, 200 Md. 561.

Also at issue, through the affidavit of Mrs. Russ, was the question of Mr. Russ’ competency to contract, as well as the contention that appellants were “intimidated” by “threats and coercion” of “immediate eviction and loss of the aforesaid property unless [they] signed a new contract.” In support of the latter contention, appellants appended a handwritten letter from Mr, Barnes:

"5-15-69
"Hi -
If you don’t let the appraiser in for a few minutes &emdash;I’ll get the Sheriff & we’ll kick the door down.&emdash; Now if you wan’t to be stupid & stubborn both &emdash; you’ll pay all the costs &emdash; involved, or else &emdash;
The house will be &emdash; and has to be appraised wheither you buy it or not &emdash;
The 35.00 I have paid to have it appraised will be forfeited unless you let the appraiser take a quick look &emdash; I don’t like &emdash; your bullshit!
Either cooperate or I’ll start foreclosure proceedings & that will cost you another $200.00 or 300.00 &emdash;
Call Mr. Moore
301-776-3355 & make & appointment with him to look at it &emdash; & I hope you can get it re financed &emdash; The house will be sold regardless &emdash;
Don Barnes
If you don’t let him in the next time that will be another $35.00 again lost.
I just talked to Max Schwartz & he said he thought you didn’t understand — OK.?”

In determing whether a summary judgment was properly granted, our responsibility on appeal is to decide whether a factual issue existed from a review of the record before us, and on doing so we must resolve all inferences against the moving party. Rooney v. Statewide Plumbing, 265 Md. 559, 563. It seems to us that the issues of consideration, competency and duress in these circumstances required factual findings and that the facts in dispute were such that their resolution would affect the outcome of the case. Id. at 264. Appellants should have been put to their proofs on each of those issues, but that opportunity was denied them by the summary judgment.

Although the preceding discussion of unresolved factual disputes disposes of the question of the propriety of the grant of summary judgment, we feel that certain additional observations, particularly with regard to the 1961 contract, are in order. On remand, they may provide further guidance to the trial court in reaching a just determination and fashioning an appropriate remedy.

The record indicates that the appellees as vendors under the original agreement failed to record the 1961 contract pursuant to Real Property Art. § 10-102 (f), nor have they furnished the annual financial statement as required by § 10-107. Although there is no penalty set forth for noncompliance with § 10-107, the failure of appellees to provide any of the required annual financial statements left appellants without important information to which they were entitled under the Act. This statement should have included:

“(a) The total amount paid for
(1) Ground rent, if any,
(2) Insurance,
(3) Taxes and other periodic charges;
(b) The amount credited to principal and interest; and
(c) The balance due.”

Without that information, appellants had no way of knowing whether the original purchase price of $11,000 had, by their monthly payments of $104.50, been reduced by 40% thus enabling them to “demand a conveyance of the premises,” subject to a purchase money mortgage for the balance. Real Property Art. § 10-105. Surely, if they could have demanded conveyance as of right, and knew they could, they would have reacted differently when confronted with the demand that they execute a substitute contract because their house was to be “sold regardless.” The quandary in which they found themselves, absent this knowledge, is at the very heart of the “serious actual or potential evils” sought to be corrected by the Act. Spruell, 215 Md. at 122 quoting Hudson, 207 Md. at 331. See also Report to the General Assembly of 1951, supra.

§ 10-102 (f), requiring recordation of the land installment contract, does have a stringent penalty clause, though remedial in nature. It provides vendee an “unconditional right to cancel the contract and receive immediate refund of all payments and deposits made on account of or in contemplation of the contract,” in the event vendor fails to record the contract as required. The Chancellor gives no indication to us whether he has ruled that that section has been waived or whether, indeed, he has determined that it is a “right so charged or colored with the public interest [that waiver] will not be allowed where it would thwart the legislative policy which it was designed to effectuate.” Brooklyn Bank v. O’Neil, 324 U. S. 697, 704.

On the other hand, the court on remand should remain cognizant that appellants affirmed in writing that they had consulted counsel before settlement and were satisfied to proceed. Recognizing the laudable purpose behind consumer protection laws, there is a point beyond which government cannot and should not go in an effort to protect a person from his own actions. When one seems so bent on self-destruction that he issues or affirms false statements in order to expedite that result, he takes himself beyond the sanctuary such laws provide. The incongruity of asking a court of conscience to protect oneself from one’s own falsehoods is self-evident.

Yet here we are troubled by that which we hold should have been matters of proof. The summary judgment was imprudently granted.

Judgment reversed; case remanded for further proceedings; costs to be paid by appellees.

      . “In this State the term ‘novation’ has been applied to a new contract between the parties as well as to a new contract involving one or more new parties.” Hudson v. Maryland State Housing Co., 207 Md. 320, 326.

      . Neither the applicability of the statutes nor the right to waive is an issue before us. We offer no opinion thereon.

      . “The legislative department is nearest to the source of power, and is manifestly the predominant branch of government.” Crane v. Meginnis, 1 Gill and Johnson 463, 472.

      . The Land Installment Contract Act, Real Property Art., Title 10, Subtitle 1, was enacted through Senate Bill 17 of 1951 having emanated from the Legislative Council. It was recommended to the Council by Mr. (now Judge) Marshall A. Levin and the Legal Aid Bureau as a precursor to the now more prevalent consumer legislation being considered.

      . The factual record is restricted to affidavits. That of appellant reads:
      “That my husband and I faithfully met our obligations and made the monthly payments as evidenced by the attached copy of the payment book signed by Donald Barnes, that is attached hereto as Attachment A, that after March, 1965, the payment book was not used, however, all payments were made either by check or money order.”

      . Responsibility for the lack of pecuniary detail may be laid at the feet of appellees who failed to provide the annual financial statements pursuant to Real Property Art., Title X, § 10-107 as will be discussed, infra.

      . We note, contrary to what appellees suggest, that the vendor’s obligation to record exists independent of any specific request by the vendee.


author: Men chine, J.,

text:
    JUDITH RHODA GRAY v. STATE OF MARYLAND
    [No. 274,
    September Term, 1974.]

      Decided December 18, 1974.

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

      Joseph M. Bryan, Assigned Public Defender, with whom was Edward P. Camus, Public Defender for Prince George’s County, on the brief, for appellant.

      Gary Melick, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and John B. Wynes, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Men chine, J.,

delivered the opinion of the Court.

Judith Rhoda Gray was indicted by the Grand Jury of Prince George’s County under a single, six count indictment charging the following offenses:

First Count: That on October 16, 1972 she did murder Michelle Mulkey;
Second Count: That on October 16, 1972 she did assault and beat Michelle Mulkey;
Third Count: That on November 20, 1972 she did assault and beat Diedra Prophet, a minor child 23 months of age;
Fourth Count: That on November 20, 1972 she did assault Diedra Prophet;
Sixth Count: That on December 11, 1972 she did assault and beat Kimberly Bush, a minor child 6 months of age.

Appellant filed a motion for separate trials, alleging, inter alia, that the counts dealt with separate and distinct situations as to victim, time and place; that the offenses were unrelated; and that they were not the result of a continuous transaction. The petition maintained that it would be prejudicial to be required in a single trial to defend three separate, distinct and unrelated offenses. An order granting the motion was passed by the Circuit Court for Prince George’s County providing that “separate trials be granted to the defendant as to counts 1 and 2, counts 3 and 4, and counts 5 and 6.” A plea of not guilty by reason of insanity was filed as to all counts.

On September 17, 1973 trial as to counts 3 and 4 was begun before Judge James H. Taylor. At the conclusion of that trial on September 19, 1973, the trial judge rendered a verdict of not guilty by reason of insanity.

On January 28, 1974, by agreement of counsel, remaining counts 1, 2, 5 and 6 came to trial before Judge William H. McCullough. A motion was filed to dismiss all such counts upon the ground that the prior verdict of not guilty by reason of insanity in the first trial barred further prosecution of the accused. Ruling on the motion was reserved. At the conclusion of the trial on February 1, 1974 the motion to dismiss was denied and a verdict of guilty of second degree murder under counts 1 and 5 was rendered, the court declaring that the offenses charged by counts 2 and 6 were merged. Appellant was sentenced to a term of imprisonment of twelve years under count 1 and to a consecutive sentence of twelve years under count 5.

The questions presented by the appellant may be thus summarized:

1. Was appellant denied due process of law with respect to the use of a confession?
2. Did the verdict of not guilty by reason of insanity at the first trial operate as a final judgment barring relitigation on the issue in a second trial?
3. Was the court’s decision finding the appellant to be sane, beyond a reasonable doubt, clearly erroneous?
4. Did the evidence presented in this case reduce the offense charged to manslaughter?

1. The Confession of the Accused

On July 11,1973, (prior to the first trial on counts 3 and 4) Judge Taylor had conducted a preliminary hearing on a motion to suppress three statements made by the accused. At the conclusion of that hearing, Judge Taylor had denied the motion as to statements 1 and 2, but granted the motion as to statement 3. On November 8, 1973 Judge Taylor, (subsequent to rendition of the verdict of not guilty by reason of insanity in the first trial under counts 3 and 4) concluding that he erred in his prior ruling, found that statement 3 also was admissible in evidence. Appellant questions the propriety of that action. No issue stemming from that decision is before us. The record of the subject trial before Judge McCullough shows that a new hearing was conducted upon the issue of the admissibility of statements 1 and 3 (the only two offered in the course of the second trial). He had a clear right to follow such a course in spite of a decision on the issue by another judge. Walker v. State, 12 Md. App. 684, 280 A. 2d 260. Statement 1, relating to the death of Kimberly Nicole Bush, was admitted without objection. We have examined the record with respect to the admission of statement 2, relating to the death of Michelle F. Mulkey, and find that Judge McCullough’s decision that the same was admissible is firmly supported by competent evidence.

2. Effect of Prior Acquittal

Appellant contends that the special verdict of not guilty by reason of insanity under counts 3 and 4 in the first trial operates to bar relitigation of the sanity of the accused in the second trial under the doctrine of res judicata or collateral estoppel. We do not agree.

Early decisions summarily rejected contentions that a verdict of not guilty by reason of insanity as to one offense operated as a bar to prosecution of the accused for contemporaneous offenses against other victims. Examples of such cases are: Hotema v. U. S., 186 U. S. 413 (1902) and People v. Cygan, 200 N. W. 967 (S. Ct. Mich. 1924). In Hotema the accused had been found not guilty by reason of insanity in the killing of two persons. At a trial of the accused for the murder of a third person on the same day, a special plea that he had been once placed in jeopardy was filed by the accused. The Supreme Court rejected the special plea, saying at 422:

“While the plea, on such facts, is wholly without merit, and need not be further noticed, it is only adverted to for the purpose of recognizing the fact that the defendant has been charged with the murder of three different persons on the same day, and that seemingly there was no motive shown for the killing of any of them, or, at any rate, there was none shown for the killing of the person described in the indictment in this case, as the charge of the court in substance concedes. It also appears in this record that the first jury impaneled in this case was unable to agree upon a verdict. We are thus made acquainted, from the record, with the fact that one jury, upon the question of the insanity of the defendant, has, upon the trial of the consolidated indictments charging him with two distinct and separate murders, acquitted him of the alleged crimes on that ground; another jury has been unable in this case to agree upon the question; a third one has, in the case now before us, convicted him. Being unable to see any legal error committed by the trial court we are bound to affirm the judgment.”

The current validity of those summary decisions may be doubted. In Benton v. Maryland, 395 U. S. 784, the double jeopardy clause of the Fifth Amendment was made applicable to the states through the Fourteenth Amendment. Recognition of collateral estoppel as a constitutional right followed closely with the decision in Ashe v. Swenson, 397 U. S. 436. In Holloway v. State, 14 Md. App. 703, 288 A. 2d 652, this Court discussed the meaning and effect of the decisions in Benton and Ashe, both supra, and outlined the procedures by which determination of the existence vel non of collateral estoppel should be made. In Holloway we said at 711 [656]:

“As the rule of collateral estoppel in criminal cases requires the court to examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter so as to determine whether the trier of fact could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration, we look to the record here to see what evidence was adduced relating to the proceeding* * *.”

State v. Sanders, 229 So. 2d 288 (Dst. Ct. of App. 1st Dst. Fla. 1969), although citing excerpts from Hotema and Cygan, both supra, with approval, went on to consider whether a verdict of not guilty by reason of insanity served to bar a subsequent prosecution for the contemporaneous murder of another victim under the doctrine of res judicata or collateral estoppel. That Court utilized much the same procedures for the determination as did this Court in Holloway, supra. In Sanders the trial court had dismissed the second indictment upon the ground that: (P. 289)

“* * * the jury could not have reasonably rendered their verdict upon any other basis than a determination by them that the defendant was insane at the time and place, when and where, both [victims] was killed, * * * and therefore * * * necessarily found and concluded that the defendant was insane at the time of the homicide in the instant case* * *.”

The Appellate Court then said at 290:

“we too must go to the record in said [former] case, * * *, and analyze the testimony and evidence in order to show wherein we feel that the matter of the homicide of [the second victim] has not been litigated nor has the sanity or insanity of the defendant at the alleged time of the killing * * * been necessarily concluded and become res judicata.”

After declaring (P. 290) that the court did “not feel that the testimony of the psychiatrists need be analyzed for the purpose of decision,” the Appellate Court detailed at some length the testimony of the accused himself during the course of the second trial and then stated: (P. 292)

“In the case of sub judice, we have two alleged homicides — occurring on the same date, but no one knows how closely together they occurred except the defendant. No element of the homicide of the Granger girl was necessary to a trial for the homicide of the Wood girl. All we know is that the Wood girl was the first one shot and the doctors’ testimony was that the bullet entered one side of her chest and came out the other. Was she killed instantly by this shot? Who knows? Was it afterwards, after the homicide of Miss Wood that the defendant lost his mind? Who knows? There are too many unanswered and frankly, unasked questions for the rule of res judicata, double jeopardy or estoppel to apply.”

Examination of the Record in the Subject Case

At the first trial, Judge Taylor, in announcing his verdict in the trial of the third and fourth counts of the indictment, found that the State had proved the elements of the offense charged beyond a reasonable doubt. He then recapitulated the testimony bearing upon the sanity vel non of Judith Rhoda Gray and declared his conclusion based upon that evidence in the following language:

“Now, it certainly is not to say that any person who commits an irrational act at a given time, without any explanation of it, is insane, and it does not say that through the periods of time as mentioned in this indictment that Mrs. Gray was insane, but it does say that the State has not shown beyond a reasonable doubt that Mrs. Gray was sane on the 20th of November, at the time that she committed the offense for which she is charged. So, in light of that, I have got to find her not guilty by reason of insanity * * *.” (Emphasis added.)

Thus, there was a direct rejection by the trial judge that his decision in the first trial did or could determine the sanity vel non at other times than the date upon which those offenses had been committed. This alone would demonstrate that such decision could not operate as res judicata or collateral estoppel as to the sanity of the accused on other dates.

Evidence from the lips of the psychiatrist called by the defense further demonstrates that the doctrine can have no application here. Examples are:

“Q What about what had gone on in October-December, 1972?
A We also went over that ground again. She also was able to talk about Spring Grove. Then between the first time I saw her and July at — I really had not particularly intended to see her again. I saw her when Mr. Bryan called me and raised the question about competency. And I went to see her and at that time she was again emotional, distraught, et cetera, but I felt she was competent.
* * *
A * * * schizophrenic reactions can be, they can come and go. They can be fleeting in nature. One can exhibit some of the symptoms, part of the symptoms, none of the symptoms at various times. It was demonstrated, for example, during the course of World War II, the Korean War, the war in Vietnam, that anyone could become schizophrenic. For example, under sufficient stress it was known when people spent a sufficient time in combat that they could then have acute schizophrenic reaction which might be transient in nature, which might be repetitive in nature, they could exhibit various of the symptoms of schizophrenia, et cetera.
Q Doctor, I noticed in there you read a passage where she said she had considered suicide but didn’t have the guts for it, is that correct?
A That is what she said.
Q Does that indicate to you a certain amount of judgment, reasonable judgment, ability to judge?
A I don’t think that Judith Gray has at all times been devoid at all times of ability to judge things.
A I have to, again, say that I think it may be very difficult for lay people to understand that somebody is either not crazy — it is not a black and white thing — that somebody is either crazy or they are not. It is a very subtle process in which there are varying states of consciousness, varying states of judgment, varying times when they will exhibit these four A’s that we are talking about, and it is a continuum as is indicated in these studies in schizophrenia; it is a subtle process.”

We have no difficulty in concluding from this record that the prior verdict of not guilty by reason of insanity did not give rise to “collateral estoppel” — “the principle that bars relitigation between the same parties of issues actually determined at a previous trial.” Ashe, supra, 397 U. S. at 442, 90 S. Ct. at 1193. The first verdict here did not, as it did in Ashe, resolve “[a] single rationally conceivable issue in dispute,” that controlled decision in both trials. The record makes clear that the verdict of Judge Taylor in the first trial was restricted to the issue of the sanity vel non of the accused on November 20, 1972. The evidence at the second trial shows that such decision was not dispositive of the question of her sanity on October 16, 1972 or December 11, 1972, the dates of the subject offenses. Prosecution of those offenses was not barred by collateral estoppel.

3. The Evidence of Sanity

Appellant’s contentions with respect to the insanity defense essentially amount to a claim that the medical witness offered by the defense was so sound in his views, and the medical witnesses offered upon the issue by the State so unsound, that the decision to accept the latter was clearly erroneous. At the conclusion of testimony and arguments of counsel, Judge McCullough delivered an oral opinion that included a most careful summary of all of the evidence that bore upon the sanity of the accused. We shall quote the following pertinent parts of the conclusion he reached:

“Turning to the insanity defense, the Court notes that our procedural law requires a presumption that the defendant was responsible for criminal conduct and sane at the time of such conduct until, after the filing of a proper plea, there is adduced proof that she lacked substantial capacity either to appreciate the criminality of her conduct or to conform her conduct to the requirements of law, as a result of a mental disorder. This proof need only be sufficient to raise a doubt as to her sanity as defined in the minds of reasonable men in order to overcome the initial presumption of sanity. The burden then shifts to the State to prove sanity as well as the other elements of the offense beyond a reasonable doubt.
“The Court feels that the initial presumption of sanity was easily overcome by the testimony of the defendant’s psychiatric witness, Dr. Lanham.
“Dr. Lanham testified at length to his qualifications and the Court has no reason to doubt that he is an eminent psychiatrist, a specialist in his field, and board certified.
“He testified that he had performed a comprehensive psychiatric evaluation to determine whether or not the defendant suffered from a mental disorder that met the Maryland statutory test.
“I do not question Dr. Lanham’s qualifications. I do question the manner in which he went about this interview of the defendant, and I question the basis on which he lays his conclusion of schizophrenic reaction, latent type.”

After summarizing the testimony of two lay and three medical witnesses offered by the State in rebuttal of the insanity defense, Judge McCullough declared:

“As the Court earlier said, the testimony of Dr. Lanham overcame the presumption of sanity. This, of course, required the State then to go forward with testimony in an attempt to convince the Court beyond a reasonable doubt that the defendant was in fact sane at the time of the commission of these offenses or, as is stated in the statute, that the defendant did not have a mental disorder so as to lack substantial capacity either to appreciate the criminality of her conduct or to conform her conduct to the requirements of law.
“The Court has very carefully considered Dr. Lanham’s testimony on this point and has tried to record his testimony almost verbatim as he gave it. And, without casting any reflection on the doctor’s competence, the Court feels that his conclusion was erroneous.
“The Court finds that the evidence produced by the State is, and the Court is convinced beyond a reasonable doubt, that this defendant’s conduct was a result of a mental disorder, but that the mental disorder did not affect her acts to the extent that she lacked the substantial capacity to appreciate the criminality of her conduct or to conform her conduct to the requirements of the law.”

We have examined the record and find that there was substantial evidence to support the conclusion reached by the trial judge. We cannot find that his decision was clearly erroneous. Rule 1086.

4. Sufficiency of the Evidence of Murder

Appellant’s contention that the evidence established no more than manslaughter is wholly without merit.

Dr. Irwin M. Sopher, Deputy Chief Medical Examiner for the State of Maryland, gave the following testimony concerning his post mortem examination of Michelle Mulkey:

“THE WITNESS: Yes. As indicated in red this would be the area of skull fracture as noted in the post mortem examination.
BY MR. WYNES:
Q Doctor, what was the length of that fracture?
A Approximately 6 inches in total.
Q Doctor, what can you tell the Court regarding the strength of the skull of a 9 month old infant? How does this compare to the strength of the skull, say, of an adult?
A Well, the infant’s skull, due to the fact that the bones are not totally fused, is more flexible than that of an adult. That is to say, in broad terms, that given the same force applied to the same area in an adult skull it would require more force to inflict injury on a child’s skull. The child’s skull in general is more resistant to injury than would be the adult skull.
Q Does the length of the fracture in this case tell you anything regarding how the injury was sustained, what it was caused by?
A There is a suggestion that an object was used.
MR. BRYAN: Objection.
THE COURT: Objection overruled.
A suggestion that an object was used?
THE WITNESS: Yes. One cannot be definite. That is to state that a pipe or a table leg versus a fist was used to impart the injuries, it is difficult to say with any degree of certainty.
BY MR. WYNES:
Q Could it have been any of those three?
A Yes, definitely.
Q What about the injury to the liver, the tearing at the liver?
A Yes. This, again, could be due to a blunt force object such as a baseball bat or table leg or a fist. It would be compatible with the injury.
Q Doctor, what about the rib fractures that you observed?
A Yes. Again a blunt force injury, application of pressure to the chest either from a fistlike blow or a blunt object, we mentioned, would be appropriate here.
Q Could they have been caused by attempts at closed heart massage?
A Yes, they could have, definitely.
Q How about the bruises?
A Not the bruises of the head, certainly, not the bruise or either bruise of the belly, in the front of the belly. If closed heart massage, that is, compression of the chest in resuscitation, were employed you would find bruises of the chest and not of the belly. The bruises in this instance were of the belly and of the lower left hip area as well as about the head. Of course these would not be seen in closed chest massage.”

Dr. James L. Luke, Chief Medical Examiner of the District of Columbia, gave the following testimony concerning his post mortem examination of Kimberly Bush:

“Q Would you tell us, if you would, the pertinent findings as a result of that autopsy?
A The body was that of a well-developed, well-nourished black female infant, appearing the stated age of six months. The pertinent findings included the following: There was confluent or difuse hemorrhage that was found underneath the mucous lining of the eyes. This sort of abnormality is consistent with blunt force impact.
There was evidence of hospital intervention in terms of a surgical cutdown incision in the right ankle. There were multiple vena puncture wounds, or needle puncture wounds consistent with her hospital intervention.
In addition there were fractures of the right ribs 9 through 11 and of the left ribs 7 and 8 at the vertebral margin, or the back portion of those ribs, with corresponding hemorrhage.
The ribs were fractured internally. In other words, the force came from the back towards the front.
And in addition to that there were in-line fractures of right ribs 4 through 9 at the midaxillary line.
Q Where is that?
A The mid portion of the thorax.
On examination of the scalp it revealed difuse, fresh hemorrhage of the scalp and underneath the scalp that involved the left parietal or occipital region, or the left side and back of the head. Underneath this hemorrhage was a 12.4 centimeter, or approximately 8 inch, ragged linear fracture which traversed the outside portion of the skull in a horizontal fashion.
Q What can you tell us about the quality of the skull of an infant of that age that is six months old in terms of strength, that sort of thing?
A Well, it is extremely fibrous. Of course, it has not been formed into bone yet. It is quite resilient and flexible and has much the consistency of celluloid or — the old icing glass [sic] that was in automobile windows some time ago. It is very strong.
Q Doctor, how does its strength or quality relate to those of an adult skull?
A Well, it is more flexible and more fibrous and I guess an analogy would be an adult skull is more easily cracked. To generate a factor [sic] like this would require considerable force in a child of this age with a skull that is flexible.
Q Doctor, did you form an opinion, based upon a reasonable degree of medical certainty, as to the cause of the various rib fractures?
A Well, I can tell you about the rib fractures parallel to the vertebral column in the back, and these resulted from force applied to the back, directed toward the front of the body.
Q Doctor, based on your training and experience are you familiar with what is known as closed heart massage?
A Yes.
Q Can you tell us what that is, how it is applied?
A This is compression of the front of the chest in an effort to, repetitive compression in an effort to stimulate the pumping of the heart to circulate the blood.
Q Where is that applied, that pressure?
A In the front lower portion of the chest.
Q Now, were you able, after the autopsy in this case and based upon your experience, to form an opinion, within a reasonable degree of medical certainty, as to whether or not those rib fractures at the back could have been caused by the application of closed heart massage by a medical doctor?
A Yes.
Q What was that opinion, Doctor?
A They are inconsistent with having been caused by closed heart massage.”

Thus the evidence clearly shows that both victims sustained multiple injuries caused by the application of great force by a blunt object. Suggestions that such injuries could be the result of accidental falls were expressly rejected by competent medical evidence as to both.

In DeVaughn v. State, 232 Md. 447, 194 A. 2d 109, it was said at 456 [114]:

“Where the law, as in Maryland, divides murder into grades, there is a presumption that the homicide is murder in the second degree * * *.”

Appellant contends, however, that the evidence showed circumstances of alleviation or mitigation sufficient to rebut the presumption that all homicides are committed with malice aforethought. The trial judge had before him all factors suggesting such alleviation or mitigation and chose to reject them. We cannot say his action was clearly erroneous. Rule 1086. This case is quite easily distinguishable from that of Whitehead v. State, 9 Md. App. 7, 262 A. 2d 316, wherein a conviction for second degree murder was reversed by this Court. In Whitehead, we said at 13 [320]:

“We do not feel that the evidence showed beyond a reasonable doubt that appellant sought the occasion or provoked the difficulty for the purpose of killing the deceased, nor was there a deadly weapon used by him. It did not appear that the deceased was beaten to death. Although the evidence was sufficient to prove that appellant’s acts were the proximate cause of the death, as from an intentional blow which the lower court found was struck by appellant, knocking deceased to the ground, it did not show that the killing was the direct result of a blow or blows struck by appellant. The autopsy findings were that the deceased died ‘of cranio-cerebral injuries consistent with a fall’ and the manner of death was stated as ‘undetermined.’ ”

In the subject case the cause of death was stated as “homicide” and the injuries were declared to be inconsistent with a fall. The criminal agency of the defendant is not contested here. The evidence was legally sufficient to convict the appellant of murder in the second degree as to both victims.

Judgments affirmed.

      . Statement 1 dealt with victim Bush (counts 5 & 6 of the indictment); Statement 2 dealt with victim Prophet (counts 3 & 4 of the indictment); Statement 3 dealt with victim Mulkey (counts 1 & 2 of the indictment).


text:
    IN RE APPEAL NO. 287 from the Circuit Court of Baltimore City, sitting as a Juvenile Court
    [No. 287,
    September Term, 1974.]

      Decided December 18, 1974.

    The cause was argued before Orth, C. J., and Gilbert and Lowe, JJ. ,-

      Solomon Reddick, Assistant Public Defender, for appellant.

      Albert Gallatin Warfield, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Clarence Long, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Upon occasion we have had cause to affirm a trial judge for doing “the right thing for a wrong reason.” Here we must reverse the judge for doing the right thing at the wrong time.

We have gleaned from a memorandum dated April 4, 1974 in a most sparse record, that appellant was adjudicated delinquent by the Circuit Court of Baltimore City, Division of Juvenile Causes, for having given a false alarm of fire. The memorandum then recites that a requested dispositional hearing was held on the same date which resulted in the master’s recommendation that appellant be committed to “Boys’ Village.” An order was attached to the recommendation to be signed by a judge of the Circuit Court of Baltimore City, Division of Juvenile Causes. Appellant filed exceptions on the same day of the hearing and recommendations by the master, April 4,1974.

Chronologically, the event next appearing in the record occurred four days later on April 8, 1974, when the “Order of Commitment” pursuant to the recommendations was signed by the Judge. The “Order of Commitment” recited that “it has been duly adjudged after hearing before . . . Judge of the Circuit Court of Baltimore City, Division for Juvenile Causes, that [the juvenile by name] is a delinquent child and is by reason thereof in need of care and treatment.” [Emphasis added]. The juvenile was then committed to the authorities of Boys’ Village “to be kept and detained under [their] care and custody . . . .” The de novo hearing was not held, however, until May 3, 1974. It is a strange proceeding indeed where judgment is rendered before the hearing is held.

The Premature Order

Md. Rule 908 e 2 provides that:

“The petitioner or any party may file written exceptions to the master’s findings or recommendations or any part thereof within five (5) days after the hearing.”

In the Matter of Anderson, Epps, Smith and Brady, 20 Md. App. 31, we vacated an order approving the findings and recommendations of a master which was entered before the time for exceptions had expired. The State attempts to distinguish our holding there by arguing that when appellant filed the exceptions on the first day, the remainder of the five day period had no further “legal significance” for appellant, and the judge should have been permitted to act on the master’s findings. While that statement at first appears technically correct the State overlooks the “legal significance” of the filing of exceptions.

Md. Rule 908 e 3 provides:

“If, within the specified time, exceptions are filed, the judge shall hear the entire matter or such specific matters as set forth in the exceptions de novo.” [Emphasis added].

The meaning given de novo by Black’s Law Dictionary is “Anew; afresh; a second time.” Appellant therefore, is not an “adjudicated delinquent” until the de novo hearing is held and judgment properly rendered by the court. Notwithstanding the judge’s precipitous execution of the order pursuant to the master’s recommendation, appellant remains an “alleged delinquent” until the requisite hearing is held. While the court in a proper case may detain the juvenile, pending his “trial of new” just as he could have been detained before the master’s hearing, due to appellant’s continued status as an “alleged delinquent,” that detention may not ordinarily be in a facility to which children who have been adjudicated delinquent are committed. The only exception is when adequate facilities have not been established for such detainees and it appears “that public safety and protection reasonably require detention.” Courts Art., § 3-823. The record here establishes neither of the conditions necessary for detention of an “alleged” delinquent.

Questionable detention notwithstanding, we repeat for emphasis that appellant was surely entitled to a hearing before the court rendered its decision.

Failure To Appear

Although the commitment order recited that it was “adjudged after hearing,” no hearing was held until May 3, 1974. Appellant did not appear on that date although his counsel did. His absence was explained by the court and affirmed by counsel:

“THE COURT: Mr. Reddick, I do not see the Respondent present here today, and my understanding of the posture of the case is, and please correct me if I am wrong, is that — and I received — My Bailiff just gave me a memorandum from Mr. John L. Herman of the Probation Department. Memorandum of todays date saying that this Respondent was tried on this charge on April 4, 1974 before Master Rifman. He was found delinquent and committed by the master to Boys Village; that an exception was filed and that the matter was set for hearing before me on todays date, but, that on April the sixth, 1974 the Respondent escaped from Boys Village and remains as an escapee, whereabouts unknown at this time.”

Appellant’s argument that he did not waive his right to a trial de novo is totally disingenuous. As stated by Mr. Justice Frankfurter dissenting in Eisler v. United States, 338 U. S. 189, 192 a court “can entertain a case and decide it only if there is a litigant before-it against whom the court may enforce its decision.” Appellant’s argument that there is no evidence of notice to appellant of the date and place of hearing is belied by his counsel’s presence at the hearing. Following the guidance of the Supreme Court of the United State we find it “clearly within [the] discretion [of the hearing judge] to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment [the court] may render.” Smith v. United States, 94 U. S. 97. Although juvenile causes are held in the Circuit Court, and are not a “criminal case in error” the reasoning remains valid. It woyld be perfectly ridiculous to permit the right to a hearing to remain 'open until appellant chose to appear, notwithstanding the possibility of lost witnesses, and dimmed recollections during the period of absence.

The order of commitment is vacated; however, the de novo hearing has been waived by appellant. Upon remand the court is enjoined peremptorily to confirm, modify or remand the master’s findings and recommendations as if no exceptions had been filed within the prescribed period.

Order of April 8, 197U approving the finding and recommendation of the master vacated; case remanded with direction to Juvenile Judge to enter a new order in accordance with this opinion.

      . “No, No! ” said the queen. “Sentence first — verdict afterwards.” “Stuff and nonsense! ” said Alice loudly. “The idea of having the sentence first! ”

        Alice’s Adventures in Wonderland, Chap. 12, p. 187.

      . The Court of Appeals granted certiorari on the issues of double jeopardy and State’s right to appeal. The case was affirmed, Matter of Anderson, Epps, Smith and Brady, 272 Md. 85.

      . The record does not reflect nor does appellant contest the “authority” by which he was “committed by the Master to Boys Village . . . .” That question is not before us, although we presume the master was authorized by the court to authorize “detention or shelter care” pursuant to Courts Art., § 3-824 and that proper written notice and statement of reasons were given by him for the detention pending copjimitment by the court.