text:
    GILBERT ROSENTHAL v. AL PACKER FORD, INC.
    [No. 612,
    September Term, 1976.]

      Decided June 8, 1977.

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

      Patrick A. O'Doherty for appellant.

      Jeffrey I. Goldman, with whom was Joseph W. Spector on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

A lawful and enforceable contract may come into being when one announces or circulates to all who may see or hear, an offer or promise that he will give or pay a reward or prize to a person who performs a specified act, and the offer is accepted by performance of the act.

Such a contract was asserted by Gilbert Rosenthal, appellant here, in a suit for $20,000 he filed in the Superior Court of Baltimore City against A1 Packer Ford, Inc., appellee here. Rosenthal lost below, when Judge Milton B. Allen granted summary judgment against him. His appeal from that judgment suffers a like fate in this Court.

In June 1972 Packer published newspaper advertisements conveying to the public, substantially this information:

$20,000.00 Has Been Deposited In The Union Trust Bank & It Will Be Paid To Anyone Who Can Prove That This Offer Is Not Absolutely True!
Six Days Only — Sale Ends Wednesday June 14th Brand New 1972 Fords! $89 Over Factory Invoice Full Price Inc. Freight & Dealer Prep.
411 Cars To Choose From Cars Must Be Sold From Stock June 8 To 14th

Rosenthal responded to the advertisement, and on 13 June 1972 he signed a contract with Packer for the purchase of a 1972 Ford automobile known as an LTD Brougham. This contract was never consummated, but that fact has little, if any, relevance to this case. Appellant’s declaration does not claim a breach of his purchase contract. His claim is that Packer became obligated to pay him $20,000 when he proved that Packer’s published offer was “not absolutely true". It is a mere coincidence that Rosenthal was himself a party to the transaction which he alleged did not conform to the offer.

Before we consider in further detail the facts before the lower court in this case, and the manner in which those facts were presented for the court’s consideration on motion for summary judgment, we shall examine the texts and the cases, for a clearer understanding of the law.

A concise statement of the applicable principles is found in 67 Am. Jur. 2d Rewards § 13 (1978 & Supp. 1976):

“As has been pointed out, an offer of a reward is merely a proposal, and acceptance of the terms of the offer is necessary to create a binding contract. Since an offer of a reward calls for an act, the performance of the act in compliance with the terms and conditions of the offer before its termination constitutes such an acceptance.”

And it is said in 77 C.J.S. Rewards § 2 (1952 & Supp. 1976):

“2. * * * rewards are essentially contractual. Accordingly, when an offer of reward is accepted by performance, it becomes a binding contract, based on the principles, and governed by the laws, of contracts generally; and this is especially true in the case of rewards offered by private individuals and organizations.”

Also helpful is the comment found in Anno., Prize Contests Rights and Remedies, 87 A.L.R.2d 649 (1963), where it is said, at 661:

“The general rule of the law of contracts that where an offer or promise for an act is made, the only acceptance of the offer that is necessary is the performance of the act, applies to prize-winning contests. The promoter of such a contest, by making public the conditions and rules of the contest, makes an offer, and if before the offer is withdrawn another person acts upon it, the promoter is bound to perform his promise.”

For a further discussion see 1A. Corbin, Contracts, § 64 (1968 & Supp. 1971).

Many of the cases we have reviewed are concerned with rewards for information leading to apprehension and conviction of a criminal, or with contests, in the traditional sense, involving competition among those undertaking to accept, with the prize usually going to the one who performs first or best. In some of the cases, the nature of the offer is such that it could be accepted by performance by one or more individuals, acting independently of each other. All of the cases apply contract law to hold that a binding contract comes into being when a general offer to the public or a segment of the public is accepted, and also hold that performance of the specified act constitutes acceptance.

Several of the cases we have reviewed merit further discussion. Two are non-competitive “prize” cases. The other three fall into precisely the same category as the case now before us. Each had its origin in a statement or claim published for the obvious purpose of advertising or promoting the goods or business of the offeror. In each case the claim was accompanied by the promise of a “reward” to anyone who could prove the claim to be wrong.

In each of the two “prize” cases, the prize was offered for a hole-in-one at golf. In Las Vegas Hacienda, Inc. v. Gibson, 359 P. 2d 85 (Nev. 1961), the owner of a golf course publicly offered $5,000 to any person, having entered for a 50 cent fee, who shot a hole-in-one on the course. Gibson entered, complied with all the conditions of the offer, and shot a hole-in-one. The offeror reneged, claiming that the alleged contract was a wager, and unenforceable, and that shooting a hole-in-one was not a feat of skill, but a feat of chance. The lower court held against Las Vegas Hacienda on both points. The Supreme Court of Nevada affirmed. The court said, at 86:

“The offer by one party of specified compensation for the performance of a certain act as a proposition to all persons who may accept and comply with its conditions constitutes a promise by the offeror. The performance of that act is the consideration for such promise. The result is an enforceable contract.”

A defense raised with better grace, at least, was equally unsuccessful in Grove v. Charbonneau Buick-Pontiac, Inc., 240 N.W.2d 853 (N.D. 1976). For the 1974 Labor Day Golf Tournament of the Dickinson Elks Club, Charbonneau had offered a 1974 Pontiac “to the first entry who shoots a hole-in-one on Hole No. 8.” The golf course consisted of nine holes, and the tournament rules required the players to go around twice. There were but nine greens, and the nine holes were numbered 1 to 9. At the start of each hole, there were two tees, numbered 1 and 10, 2 and 11, etc. On the second time around, shooting from Tee No. 17, Lloyd B. Grove put his first and only shot into Hole No. 8.

Grove claimed the prize — Charbonneau declined to give it, saying that the hole-in-one was made on Hole No. 17. Grove sued and won. Charbonneau appealed. The Supreme Court of North Dakota affirmed. It held that the ambiguity in the terms of the offer was to be construed against the offeror. It said, at 856:

“Rewards and prizes are governed by the general rules of contract. There must be a genuine offer and an acceptance. To collect a prize, the person must perform all of the requirements of the offer in accordance with the published terms in order to create a valid and binding contract under which he may be entitled to the promised award.”
“The acceptance or performance may not be a modification of the offer.”
“Substantial compliance, however, is sufficient.”
“The general rale of the law of contracts which provides that where an offer or promise for an act is made, the only acceptance of the offer that is necessary is the performance of the act, applies to prize-winning contests.”

The earliest of the decisions which fall into what might be called the “I’ll pay you if you prove me wrong” category is the English case of Carlill v. The Carbolic Smoke Ball Company, [1892] 2 Q.B. 484. The facts, which were not in dispute, are set out in the report, at 484-85:

“The defendants, who are the proprietors and vendors of a medical preparation called 'The Carbolic Smoke Ball,” inserted’in the Pall Mall Gazette of November 13, 1891, the following advertisement: '100A reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks, according to the printed directions supplied with each ball. 1000£. is deposited with the Alliance Bank, Regent Street, shewing our sincerity in the matter.
‘During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball.
‘One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, 10 s, post' free. The ball can be refilled at a cost of 5 s. Address:
‘Carbolic Smoke Ball Company,
‘27, Princes Street, Hanover Square, London, W.’
“The plaintiff, a lady, having read that advertisement, on the faith of it bought one of the defendants’ carbolic smoke balls, and used it as directed three times a day, from November 20 till January 17, 1892, when she was attacked by influenza. She thereupon brought this action against the defendants to recover the 100£. promised in their advertisement.”

One of the defenses was that there was no contract between the parties. The presiding judge ruled, at 488-89:

“As regards the first question, I am of opinion that the offer or proposal in the advertisement, coupled with the performance by the plaintiff of the condition, created a contract on the part of the defendants to pay the 100£. upon the happening of the event mentioned in the proposal. It seems to me that the contract may be thus described. In consideration that the plaintiff would use the carbolic smoke ball three times daily for two weeks according to printed directions supplied with the ball, the defendants would pay to her 100£. if after having so used the ball she contracted the epidemic known as influenza.
“The advertisement inserted in the Pall Mall Gazette in large type was undoubtedly so inserted in the hope that it would be read by all who read that journal, and the announcement, that 1000£. had been deposited with the Alliance Bank could only have been inserted with the object of leading those who read it to believe that the defendants were serious in their proposal, and would fulfil their promise in the event mentioned; their own words, ‘shewing our mw.eriiy in the matter,’ state as much. It may be that, of the many readers of the advertisement., very few of the sensible ones would have entertained expectations that in the event of the smoke ball failing to act as a preventive against the disease, the defendants had any intention to fulfil their attractive and alluring promise; but it must be remembered that such advertisements do riot appeal so much to the wise and thoughtful as to the credulous and weak portions of the community; and if the vendor of an artidle, whether it be medicine smoke or anything else, with a view to increase its sale or use, thinks fit publicly to promise to all who buy or use it that, to those who shall not find it as surely efficacious as it is represented by him to be he will pay a substantial sum of money, he must not be surprised if occasionally he is held to his promise.”

Two recent American cases have also held that one who publicly made a claim or statement, accompanied by an offer to pay money to anyone who could prove him wrong, was liable to a person who accepted the offer by proving that the offeror was wrong.

One of the cases reaches for its historical background into the 1880’s, and involves the outlaw Jesse W. James, whose exploits became a virtual legend known to every school child in the country. One Rudy Turilli, operator of the “Jesse James Museum”, at Stanton, Missouri, and publisher of a book titled "The Truth About Jesse James”, appeared on a nationwide television broadcast in 1967. Turilli claimed that the man shot and buried in 1882 as Jesse James was an imposter, and that the real Jesse James lived, under the name of J. Frank Dalton, at Turilli's museum for many years, and died in the 1950’s. Turilli announced to the network audience that he “would pay Ten Thousand Dollars to anyone * * * who could prove me wrong.”

Stella James, a daughter-in-law, and her two children, granddaughters of Jesse W. James, did prove, to the satisfaction of the judge and jury in the Circuit Court, Franklin County, Missouri, that Turilli was wrong. The St. Louis Court of Appeals affirmed, in James v. Turilli, 473 S.W.2d 757 (Mo. App. 1971). Regarding an attack upon the sufficiency of the performance of the required act by the plaintiffs, the court said, at 762:

“As pointed out earlier, the offer of a reward is a unilateral contract which becomes complete when accepted by performance of the act called for in the offer. A claimant to a reward needs only to show substantial performance. * * * As with other contracts, literal performance is not required.”

The other “prove me wrong” case arose in the State of Washington, when Warren Treece, an officer of Vend-A-Win, a punchboard distributor, appeared before the State' • Gambling Commission in support of punchboard legitimacy. Treece made a statement, disseminated in the news and broadcast media, that “I’ll put a hundred thousand dollars to anyone to find a crooked board. If they find it, I’ll pay it.” Two days later Vernon Barnes telephoned Treece, and asked if the statement had been made seriously. Treece assured Barnes that he was serious, and that the $100,000 was being held in escrow.

Barnes produced two punchboards which were rigged and dishonest. In affirming the judgment of the trial court against Treece, the Court of Appeals of Washington, Division 1, in Barnes v. Treece, 549 P. 2d 1152 (Wash. App. 1976), said, at 1155:

“The trial court properly categorized Treece’s promise of $100,000 as a valid offer for a unilateral contract. The offer made promised that a contract would result upon performance of the act requested. Performance of the act with the intent to accept the offer constituted acceptance. The trial judge entered a specific finding that Barnes performed the requested act of acceptance when he produced a rigged and fraudulent punchboard. We concur with the trial court’s holding that a binding unilateral contract was formed between Barnes and Treece and uphold the conclusions of the trial court in that regard.”

Based upon the law as we find it to be, we would have no difficulty in holding that if Rosenthal proved that Packer’s offer was “not absolutely true”, Packer owed Rosenthal $20,000.00. If the facts properly before Judge Allen on the motion for summary judgment presented a genuine dispute as to facts material to the question of Rosenthal’s performance of the specified act, he would have been entitled to a trial on the facts at issue.

The Court of Appeals has frequently explained the proper function, Maryland Rule 610, relating to summary judgments. One of the most recent cases is Lynx, Inc. v. Ordnance Products, 273 Md. 1, 327 A. 2d 502 (1974), in which the Court said, at 7-8:

“The function of the summary judgment procedure is not to try the case or decide the issues of fact raised; it is merely to determine whether or not there is an issue of fact to be tried and if there is none, to cause judgment to be rendered accordingly. * * * At the trial level, the purpose of the hearing on the motion is to decide whether a real dispute as to material facts does exist; if the pleadings, depositions, admissions and affidavits (if any) show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law, summary judgment should be granted. * * *
“A bare allegation in a general way that there is a dispute as to material facts is never sufficient to defeat a motion for summary judgment. * * * General allegations which do not show facts in detail and with precision are insufficient to prevent the entry of summary judgment. * * *
“Even where it is shown that there is a dispute as to a fact, when the resolution of that factual dispute is not material to the controversy, such dispute does not prevent the entry of summary judgment. * * * Such a material fact must be one, the resolution of which will somehow affect the 01M come of the case. * * *
“In connection with a ruling to be maxle on a motion for summary judgment the function of the trial court is much the same as that which, it performs at the close of all the evidence in a jury trial when motions for directed verdict or requests for peremptory instructions require a decision as to whether an issue requires resolution by a jury or is to be decided by the court as a matter of law. * * *
“In reviewing the propriety of the grant of a summary judgment we are concerned primarily with deciding whether a factual issue which was material to the resolution of the controversy existed and whether the trial judge was legally correct. * * * Where the record shows that there was no such genuine dispute as to any material fact necessary to resolve the controversy as a matter of law, and it is shown that the movant is entitled to judgment, the entry of summary judgment is proper.” [Citations omitted.]

A few of the cases which contributed to the synthesis quoted above are Salisbury Beauty Schools v. State Board, 268 Md. 32, 300 A. 2d 367 (1973); Brown v. Suburban Cadillac, Inc., 260 Md. 251, 272 A. 2d 42 (1971); Vanhook v. Merchants Mut Ins. Co., 22 Md. App. 22, 321 A. 2d 540 (1974); and Knisley v. Keller, 11 Md. App. 269, 273 A. 2d 624 (1971).

Before the trial court were the pleadings, interrogaterieg and answers, depositions, the motion for summary judgment, with exhibits and supporting affidavit, and the answer to the motion, with supporting affidavit.

The factory invoice, itemized, showed that the total for the vehicle and dealer charges was $4,085.26. The daily transaction register of the Ford Motor Credit Company with Al Packer Ford, Inc. showed that the invoice amount for the car ordered by Rosenthal was $4,085.26. The Baltimore Branch Manager of the Ford Motor Credit Company made an affidavit that the invoice statement to Al Packi Fowl, Inc. for this car was $4,035.26 and that A1 Packer Ford paid that amount.

The purchase contract between Rosenthal and Packer (the transaction in which it is claimed that Packer charged more than $89.00 over factory invoice) shows the figure “4035” to which is added “89”, carried to a total “4124”, and the amount “4124.00” is entered on the line “cash price of car”. To this figure is added, on a lower line, an item “+ 114.00”, with the description, “Remove AM Install AM FM Stereo”. Under these figures are added taxes and registration fee, with a credit for a $100.00 cash deposit.

A separate exhibit shows the details of the calculation for changing the radio as it was in the car in stock, to an AM FM Stereo, ordered by Rosenthal.

The affidavit supporting the answer by Rosenthal to the motion for summary judgment said only this:

“The affiant avers and makes oath in due form of law that there is a genuine dispute between the parties as to material facts, which are rightly matters for the jury to determine as the trier of fact in the instant case.”

In an earlier affidavit Rosenthal had itemized figures related to the change of radios .which suggested that Packer had charged $6.74 more than the cost of the change.

Two days after signing the purchase contract and making the deposit, Rosenthal wrote to Packer, referring to a misunderstanding about the color of the car, asking for the return of his deposit, and stating that he would consider the matter closed. On 26 June 1972 Rosenthal wrote Packer, making claim for the $20,000, "founded upon the fact that the installation of the AM-FM Stereo would take the sale well over $89.00 above the actual factory invoice in the event that one cent profit was made on the sale of this radio.”

Appellant argued below and in this Court, without the support of evidentiary facts, that there could have been a profit to Packer in the charge of $114.00 made for the changing of radios, and that certain items referred to as “holdbacks” on the factory invoice suggest that the ultimate cost of the car to Packer may have been less than the factory invoice price.

Neither argument is sufficient to raise a genuine dispute of material fact, so as to defeat the motion for summary judgment. The additional charge for additional equipment ordered by the purchaser of the car was separate and distinct from the sale of the car, “sold from stock” for “$89 over factory invoice.” Whether there was or was not a profit in the $114.00 radio charge could have no effect upon the “absolute truth” of Packer’s basic offer.

There is nothing in this record to suggest the meaning of the term “holdback”, but even if we assume that it may represent a potential future benefit to the dealer, Packer’s offer was to sell for $89.00 over factory invoice price. A mere glance at the factory invoice and Rosenthal’s purchase contract shows that Packer did what it offered to do.

The attempted “acceptance” of Packer’s offer to pay $20,000 was not effective, and did not create a contractual obligation by Packer to pay the $20,000.

Judgment affirmed.

Appellant to pay costs.

      . The Court of Appeals of Maryland, in Gallagher v. Garrett, 144 Md. 241, 124 A. 898 (1923), had only to allocate a reward among various claimants, each of whom had contributed- in varying degrees to the accomplishment of the single result, conviction of the persons who had committed a murder, for which the reward was offered. Far from denying their obligation to pay the reward, the offerors had paid the money into court with a bill of interpleader.

      . Madsen v. Dakota State Bank, 114 N.W.2d 93 (S.D. 1962); Schreiner v. Weil Furniture Co., 68 So. 2d 149 (La. App. 1953); Shorey v. Daniel, 234 P. 551 (Ariz. 1925); 87 A.L.R. 2d supra at 666; 67 Am. Jur. 2d supra at § 12.

      . Denny v. Reppert, 432 S.W.2d 647 (Ky. 1968); Madsen v. Dakota State Bank, supra; Sumerel v. Pinder, 83 So. 2d 692 (Fla. 1955); 87 A.L.R. 2d supra at 661; 67 Am. Jur. 2d supra at § 19 et seq.

      . Barnes also sued Vend-A-Win, Treece’s corporate employer. The court held that the corporation had neither authorized nor ratified the offer made by Treece, and was not liable.


source: Caselaw Access Project

author: Mason, J.,

license: Public Domain

text:
    RAYMOND A. HALL v. STATE OF MARYLAND
    [No. 645,
    September Term, 1976.]

      Decided June 8, 1977.

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

      John F. Fader, II, Assigned Public Defender, for appellant.

      Donald R. Stutman, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Donald Giblin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The appellant, Raymond A. Hall, was found to be a defective delinquent by a jury at a redetermination hearing in the Criminal Court of Baltimore. Appellant’s application for leave to appeal was granted and his case was transferred to the regular appeal docket of this Court. The appellant’s only contention is that the court below erred in requiring him to comply with the State’s request for admission of facts and in permitting that admission to be entered into evidence against him.

The record discloses that the Office of the Public Defender on its own initiative and without a request or order of court, employed a psychiatrist to examine the appellant for the purpose of determining whether he was a defective delinquent. Upon examination, the psychiatrist found the appellant was a defective delinquent within the meaning of the statute, Article 31B of the Annotated Code of Maryland.

The State’s Attorney’s Office became aware of the psychiatrist’s opinion and, pursuant to Maryland Rule 421 a, served a written request upon the Public Defender’s Office to admit:

1. That each of the following statements of fact are true:

A. That pursuant to a request originating from the Offices of the Public Defender, Dr. Leonard Hurtzberg, a psychiatrist, examined the Petitioner at the Patuxent Institution on or about April 20, 1976 for the purpose of evaluating whether the Petitioner meets the definition of a defective delinquent.
B. That Dr. Hurtzberg has been or will be paid a fee for performing these examinations from the funds of the Public Defender’s Office.
C. That subsequent to the April 20th examination, Dr. Hurtzberg reported to a representative of the Office of the Public Defender that, in his opinion, Petitioner fits the definition of a Defective Delinquent.

The Public Defender’s response to this request was as follows:

1. The Petitioner respectfully declines to admit or deny that the statements made by Respondent are true insofar as that the Petitioner believes that the request is beyond the scope of the discovery rules as propounded in the Maryland Rules of Civil Procedure; further, that to admit or deny the statements would be in violation of the attorney — client privileges; and lastly, that such information is within the scope of the attorney’s work product and as such is not discoverable.

The Court, in ordering the appellant to comply with the request for admission of facts, stated:

[W]hat you are really doing is circumventing the legislative intent as set forth in Article 31 (B), isn’t that correct?
As I read the cases and as I read the law the sole purpose of having the Court even get into the picture of the psychiatrist is for the exclusive purpose of having him paid by State funds. If he is paid by State funds then he is required to file his report with the Court and render a full and complete report.

This admission was entered into evidence over the objection of the appellant.

Article 31B, § 7 (b) of the Annotated Code of Maryland, in pertinent part, provides for an examination for possible defective delinquency by other than the Patuxent Staff:

[W]henever a request has been made to examine any person for defective delinquency, other than a request made by such person himself or by his attorney on his behalf, and whenever the court has on its own initiative ordered examination of any person, then such person shall be entitled, upon request, to be examined by a practitioner of psychiatry of his own choice for the purpose of determining whether he is a defective delinquent within the terms of this article; and the reasonable costs of such examination shall be defrayed by the State of Maryland from the appropriations to the judiciary, in such amount as may be approved by the court. The report of examination made by such psychiatrist shall be submitted in writing addressed to the court,. (Emphasis supplied).

We noted in Lincoln v. Director, 21 Md. App. 597, 602, n. 3 (1974):

The psychiatrist of the criminal’s own choice, furnished him as provided in Art. 31B, § 7 (b), is not in the position of a medical expert in an adversary proceeding. He is considered to be “independent”, and is required to submit a written report of his examination and findings to the court for consideration by the trier of fact. “The defendant has no control over the admission of the report of this independent psychiatrist and the physician-patient relationship does not apply.” Savage v. Director, 5 Md. App. 1, 2-3, quoting Sas v. Maryland, 334 F. 2d 506, 511, citing Simmons v. Director, 227 Md. 661. The defendant has no right under the statute to withhold the psychiatrist’s report from the court or to exclude it from evidence at the hearing, even when unfavorable to him. McCubbin v. Director, 17 Md. App. 351, 354.

As we view it, the narrow issue in this case is whether the appellant was required to admit to the facts set forth in the request of the State. The State argues that because the psychiatrist here was paid with State funds he is in the same position as one appointed pursuant to the statute. Thus, the psychiatrist’s report cannot be excluded from evidence, even though it is unfavorable to the appellant.

On the other hand, the appellant argues that the statute does not apply because the court neither furnished the psychiatrist nor paid for the examination. We agree. Nothing in the statute suggests, as urged by the State, that payment to the psychiatrist out of State funds, i.e., the Public Defender’s appropriations, in and of itself, makes the statute applicable. Moreover, Article 27, § 5 (b) of the Annotated Code of Maryland clearly authorizes the Public Defender to pay fees and expenses for professional and technical services rendered to indigent persons. The payment of fees and expenses for an examination to determine whether a defendant is a defective delinquent are not excluded.

As we read the statute, before a psychiatrist “is considered to be ‘independent’, and is required to submit a written report of his examination and findings to the court for consideration by the trier of fact”, Lincoln v. Director, supra, at 602 n. 3, he shall be appointed by the court at the defendant’s request and the fees and expenses for the examination shall be paid by the court. This is not the case here. The appellant did not request appointment or payment of his psychiatrist by the court.

In Kisselovich v. Director, 31 Md. App. 293 (1976), a case relied on by the State as expanding the scope of § 7 (b), the defendant without a request or order of court, was examined by a psychiatrist, Dr. Louis E. Kopolow, who determined that he was not a defective delinquent. Subsequently, on 9 June 1975 Kisselovich requested and the court passed an order appointing Dr. Kopolow to examine him. At the defective delinquent hearing, the court ruled that Dr. Kopolow’s report was inadmissible because the examination was conducted prior to the court’s signing an order appointing him as an independent psychiatrist. On appeal this Court stated:

We believe that Kisselovich was entitled to have the jury consider the report of Dr. Kopolow. It is correct that the examination was made before the order was issued authorizing it and that the report of that examination was not promptly filed in court. But, in the circumstances, we believe that the order of 9 June 1975 was sufficient authorization for the examination. Id. at 302.

Kisselovich is markedly different. There the court issued an order authorizing appointment and payment of the psychiatrist; whereas here there was no such request or authorization.

The State also contends that even assuming the “appellant’s psychiatrist was ‘private’, that is, that he was paid by appellant, his reports would still be subject to discovery.” On the contrary, the appellant contends that the reports of experts who do not 'testify are part of the attorney’s work product and are not discoverable.

Rule 400 d of the Maryland Rules of Procedure provides:

Subject to the provisions of sections e (Party’s or Witness’s Own Statement) and f (Information From Experts Who Are Expected to Testify at Trial) of this Rule, a party may not obtain discovery of documents and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) except upon a showing that
(i) The materials are otherwise discoverable under section c of this Rule, and
(ii) the party seeking discovery has substantial need of the materials in the preparation of his case, and.
(iii) he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.

In this case the psychiatrist was not expected to testify at trial and his report was a document prepared in anticipation of litigation or for trial. Therefore, in the absence of showing the exceptional circumstances required, the report was not discoverable under Maryland Rule 400 d. The State, however, in its demand for admission of facts did not request the psychiatrist’s report, i.e. “documents and tangible things”, which Maryland Rule 400 d speaks to. Instead the State requested an admission that the psychiatrist had diagnosed the appellant as a defective delinquent. Although the requested admission of fact is neither a document or tangible thing, it still falls within the ambit of the attorney’s work product exception.

The seminal case with respect to the attorney’s work product exception is Hickman v. Taylor, 329 U. S. 495 (1947). In that case plaintiffs sought by means of pretrial discovery to obtain copies of written statements and copies of memoranda of counsel regarding oral statements and other matters obtained by defense attorneys in the preparation for trial. The Court held that the requested material was exempted from discovery because it was the work product of the attorney.

In Wagonheim v. Maryland State Board of Censors, 255 Md. 297 (1969), the lower court refused to order the Board of Censors to disclose the names of all persons requested to view the film for the possible purpose of being used as a witness or for consultation concerning the obscene aspects' of the film. In upholding the ruling of the lower court, the Court of Appeals stated the scope of discovery in civil cases did not go to that which is in essence the work product of the attorney accumulated in the preparation of the case. Since it is clear the names of the non-witness experts consulted were not “documents and tangible things”, the Court of Appeals obviously was protecting from discovery the opinions and findings of these non-witness experts, which were part of the attorney’s work product.

A similar question was answered recently in Shavers, et al. v. Lutheran Hospital of Maryland, Inc. (Sup. Ct. of Balt. City, Ross, J.), Daily Record, March 14, 1976, where the court held in a well-reasoned opinion that the report of a doctor who was not going to testify at trial was not discoverable either by interrogatory or deposition. The rationale of the court in Shavers is applicable here:

Whether matter is discoverable does not depend upon the particular discovery device utilized. The scope of discovery established by Maryland Rules 400 and 406 and the decisions such as Wagonheim v. Md. State Bd. of Censors, supra, applies equally to all discovery devices. The several discovery devices are complementary means for obtaining that which is discoverable. When particular matter, such as attorney’s work product, is not discoverable, it is not discoverable by any of the discovery devices.

See also Reynolds v. Koutzes (Sup. Ct. of Balt. City, Niles, C. J.) Daily Record, Dec. 2, 1957 where the court said:

An interrogatory requesting the diagnoses and prognoses of all physicians who have treated an injured party is not proper, since the interrogating party is entitled to know the diagnoses and prognoses as contained in reports only of those experts whom the adversary proposes to call as witnesses.

And State ex rel. Britt v. Snyder (Sup. Ct. of Balt. City, Niles, C. J.), Daily Record, Feb. 20, 1957 where the court said:

[I]f an expert who has been consulted is not to be used in court, there is no duty on the litigant to disclose to his adversary what the opinion of that expert may be.

It follows from the views we have expressed, the court below erred in requiring the appellant to comply with the State’s demand for admission of facts and entering that admission into evidence against him.

Judgment reversed.

Case remanded for a new hearing.

Costs to be paid by Mayor and City Council of Baltimore.

      . A party to any action may at any time serve upon any other party a written request to admit (1) the genuineness of any relevant documents described in and exhibited with the request or (2) the truth of any relevant matters of fact set forth in the request. Copies of the documents shall be served with the request unless copies have already been furnished.

      . In Brown v. Director, 224 Md. 635, the lower court held, in a post conviction proceeding, that under § 7 b the person subject to defective delinquent proceedings was not entitled to have the trial court appoint a psychiatrist for him. Its view was that the court’s only obligation was to order payment out of State funds of the fee of a psychiatrist of the person’s own choice in an amount deemed reasonable by the court. The Court of Appeals found it unnecessary to pass upon the correctness of this construction of the statute because the issue had been waived by acquiescence and by failure to appeal.
      Subsequent opinions of the Court do not expressly resolve the question. But the Court speaks in terms of the “right to independent psychiatric examination" in finding that such “right” was waived. Murray v. Director, 228 Md. 658; Harmon v. Director, 233 Md. 595; Davis v. Director, 243 Md. 734. See Sas v. Maryland, supra, 511 in which the United States Court of Appeals for the Fourth Circuit referred to “the psychiatrist of the criminal’s own choice, which must be furnished him by the state upon request...We think it the better practice for the hearing court to appoint the requested private psychiatrist when that psychiatrist is qualified and willing to make the examination. Lincoln v. Director, supra, at 603 n. 4.


text:
    JOHN PAUL JARRELL and ROBERT THOMAS HOPPER v. STATE OF MARYLAND
    [No. 663,
    September Term, 1976.]

      Decided June 9, 1977.

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

      Robert Paul Mann for appellants.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Jeffrey N. Himmelstein, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The appellants, John Paul Jarrell and Robert Thomas Hopper, were convicted at a bench trial in the Circuit Court for Baltimore County of possession with intent to distribute a controlled dangerous substance (two counts) and of maintaining a premises for the purpose of storing, concealing or dispensing a controlled dangerous substance. Jarrell was sentenced to two concurrent five-year terms for possession with intent to distribute and a concurrent two-year term for maintaining a common nuisance. Hopper was sentenced to two concurrent two-year terms for possession with intent to distribute and a concurrent two-year term for maintaining a common nuisance.

On appeal both appellants challenge the legality of the seizure of the contraband from Jarrell’s automobile and residence.

In January of 1975, Detective Leo Matrangola of the Baltimore County Police Department received information from an informant that the appellants were in partnership, selling large quantities of marijuana in five, ten and fifteen pound lots. Subsequently, a surveillance of the Jarrell residence was initiated.

On 27 February 1975 at approximately 6:20 p.m., Detective Matrangola left his surveillance post and met the informant at a predesignated location where the informant advised him that within the past twenty-four hours he had been inside the Jarrell residence and had observed a quantity of marijuana in cardboard containers and duffle bags. He further advised the officer that he had overheard a conversation wherein the appellants discussed a sale of marijuana which was to take place within the next two hours.

Upon returning to the surveillance area at approximately 7:10 p.m., Matrangola observed Jarrell carry a duffle bag from his house and hand it to Hopper. Then Jarrell, together with Hopper and another man, later identified as Robert Reynolds, drove away in Jarrell’s brown Dodge Challenger. As the vehicle left, Matrangola contacted Detective Roland Long by radio, gave a description of the car and advised Long that the occupants were violating the narcotic laws. Detective Long stopped the vehicle and arrested all three men. In searching the car, police found a duffle bag containing approximately ten pounds of marijuana.

Search of Jarrell’s Automobile

In order to justify the warrantless search of the appellant’s automobile, under the so-called automobile exception, Carroll v. United States, 267 U. S. 132 (1925), probable cause and exigent circumstances must be established. Soles v. State, 16 Md. App. 656 (1973). In addition, when using an informant to show probable cause, such as here, it must be demonstrated that he was credible, his information reliable, and he possessed a sufficient basis of knowledge. Aguilar v. Texas, 378 U. S. 108 (1964); Spinelli v. United States, 393 U. S. 410 (1969).

An informant’s credibility can be established by showing receipt of present or past reliable information. Stanley v. State, 19 Md. App. 507, cert. denied, 271 Md. 745 (1974). As to the informant’s credibility in this case, Detective Matrangola testified that the informant had previously supplied him with vital information resulting in eleven arrests; two of which resulted in convictions, while the other nine cases are pending.

With respect to the informant’s basis of knowledge, the Court in Stanley v. State, supra, said:

The “basis of knowledge” prong assumes an informant’s “veracity”, and then proceeds to probe and test his conclusion: (“What are the raw facts upon which the informant based his conclusion?” “How did the informant obtain those facts?” “What precisely did he see or hear or smell or touch firsthand?” . ..). Id. at 531.

Here the informant supplied the police with firsthand information. He stated he was in Jarrell’s house within the past twenty-four hours, observed marijuana in duffle bags and cardboard containers, and overheard the plans for the sale of marijuana.

As to exigent circumstances, the informant here told the police that within the “next two hours” a drug sale would occur. Soon thereafter the appellants were observed driving off in Jarrell’s vehicle with a duffle bag which the informant had indicated contained marijuana. It is clear the police were faced with exigent circumstances demanding immediate action. See Soles v. State, supra, Peterson, Deal and Hunt v. State, 15 Md. App. 478 (1972). Under these circumstances, we conclude there was sufficient probable cause and exigent circumstances to justify the warrantless search of Jarrell’s car and the seizure of the marijuana.

Search of Jarrell’s Residence

When Detective Matrangola arrived at the police station, Jarrell was in an interview room with Detective William Dugan and Sergeant Edward Smith. During the course of the interview, Matrangola gave Jarrell his Miranda warnings, informed him that his residence had been secured by placing two officers in the front of the house and two officers in the rear, and asked him if they could search his house. Jarrell agreed to give the police permission to search his house and signed a consent to search form in the presence of Matrangola and Dugan. Sergeant Smith, however, had left the room prior to Jarrell signing this form. In searching the house, approximately twenty-two pounds of marijuana, narcotic paraphernalia, and $6,900 were found.

At the suppression hearing, the following testimony was elicited by defense counsel regarding Jarrell’s consent to search his residence:

Q. Why did you sign the waiver of consent to search?
A. I had no choice.
* * *
Q. You had no choice? Why didn’t you have a choice?
A. Because they were using Reynolds —
THE COURT:... Tell us what happened.
A. ... I went into a little hearing room, whatever kind of room it is, and Officer Smith indicated that he knew how serious Mr. Reynolds’ health was, and he didn’t look good. And I told Smitty [Sergeant Smith] that he was a very sick man. And Smitty kept saying, well, I’ll tell you what FU do. If you agree to sign for a search of your home and your car we’ll let Mr. Reynolds go; if you don’t sign we are going to leave him in jail.
THE COURT: Is that the reason you signed?
A. Yes.
Sí! if!

Later, defense counsel attempted to call Sergeant Smith to the stand. The trial court, however, refused and said:

THE COURT: You should have prepared for it before your hearing this morning. This matter was assigned for this morning. I am not going to hang around until 4:30, 5, 6 o’clock tonight.
DEFENSE COUNSEL: I am sure the man [Sergeant Smith] could be gotten here within the hour; without any question, immediately after lunch.
THE COURT: No, sir.
DEFENSE COUNSEL: Then we have uncontradicted testimony on the part of my client as to the voluntariness of this.
* * *

Defense counsel also attempted, unsuccessfully, to call as a witness Detective Dugan who was in the interview room with Sergeant Smith before Matrangola arrived.

Inexplicably, the State made no effort to call Sergeant Smith or Detective Dugan to rebut the testimony of Jarrell. The court, in denying that part of the motion to suppress the evidence seized from Jarrell’s residence, stated:

We arrive now. at the question of the search of the house. It is fully admitted that the Defendant, Jarrell, who had the right to occupy the house, signed a consent. No one has raised the question as to whether or not Hopper had any right to object to the search of the house. Under the view I take of the case, I do not find it necessary to make any determination in that regard.
Mr. Jarrell said that he was emotionally upset because his friend, Mr. Reynolds, was sick, and that Sergeant Smith told him that if he would sign it, that they would let Mr. Reynolds go. The whole evidence before me, even on Mr. Jarrell’s testimony, is that Sergeant Smith had left the premises — and by premises I mean the interview room or interrogation room, or whatever you wish to call it — had left that room prior to Detective Matrangola reading to Mr. Jarrell his rights under Miranda, which may or may not have been read to him, I think from the evidence they were, but it makes no difference. But Smith is gone. Matrangola reads the Miranda rights to Mr. Jarrell. He tells Mr. Jarrell that they have the house secured, Mr. Jarrell I would say, from the fact that the testimony before me is that he is a known prior convicted offender in narcotic activities, Mr. Jarrell is ringwise. Mr. Jarrell is fully conscious of the fact that if they have the house secured, that they can keep it secured, and have plenty of time to prepare an application for a search warrant and a supporting affidavit thereto, find a judge, and go search this secured house. That, in my opinion, is why Mr. Jarrell signed the consent order.
And it is my opinion, and I find as a fact, gentlemen, that Mr. Jarrell was not emotionally upset, was not so concerned that he signed the consent warrant because of his worry over his friend, Mr. Reynolds. I find as a fact, because I am entitled to draw these inferences as a finder of the facts, I find as a fact that Mr. Jarrell, being ringwise, being in the situation he was there in, believing that he was caught redhanded, threw up his hands, and said to himself, I might as well sign it, they are going to get a search warrant anyway. So that I find as a fact the consent was free, voluntary, and given by a person who was completely informed of his rights, who well knew his rights, who had been through criminal prosecutions prior to this occasion relative to controlled dangerous substances, and that it was not induced by anything involving him emotionally or psychologically or through any coercion promise, or anything of that kind. I think that he did it knowingly, willingly, and intentionally, and being fully advised of his rights. The motion, gentlemen, will be denied as to both the automobile and the house.

In Schneckloth v. Bustamonte, 412 U. S. 218, 227 (1973), the Supreme Court made it clear that a warrantless search based on consent must be voluntary.

. .. whether a consent to a search was in fact “voluntary” or was the product of duress or coercion, expressed or implied, is a question of fact to be determined from the totality of all the circumstances.

Accord Johnson v. State, 30 Md. App. 280 (1976); Wilson v. State, 30 Md. App. 242 (1976); Whitman v. State, 25 Md. App. 428 (1975); Lopata v. State, 18 Md. App. 451 (1973).

The same test, i.e., the “totality of the circumstances” has also been used over the years in determining the voluntariness of a confession.

“The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.”...
In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation. (Citation omitted). Schneckloth v. Bustamante, 412 U. S. 218, 225-226.

In the present case at the time the appellant consented to the search of his home, the psychological environment was suggestive of coerced consent. Jarrell was in custody; he was informed that his home had been “secured”; and he was promised, according to his uncontradicted testimony, that Reynolds would be released if he consented to the search.

In Streams v. State, 238 Md. 278 (1965), the accused testified that the arresting officer promised to bring him back home after he answered certain questions, that one of the officers said he would try to get him put on probation if he made a statement, and that another officer said if he did not sign the statement he would throw the book at him and get him more time. There was no refutation of the accused’s testimony. The Court of Appeals held:

We think the State’s failure, after Streams left the stand, to go forward with testimony which would refute his claim of promises and threats and to show the conduct of the police during the period he was in custody of the arresting officers was enough under the circumstances of this case to require a holding that the judgments appealed from must be reversed because the State did not meet its burden of establishing the voluntariness of the confessions as a prerequisite to their admission in evidence. Id. at 283.

See also Gill v. State, 265 Md. 350, 353-354 (1972), where the Court of Appeals held:

But when it is contended that someone employed coercive tactics to obtain inculpatory statements, the charge must be rebutted. Here it is claimed the inducement occurred while Gill was alone with [Detective] Hyson. Since it is uncontradicted that the suspect was in fact in the sole presence of this police interrogator, that specific person must rebut the allegations of coercion as no one else is qualified to do so .... From the facts of this case it is readily apparent that since Hyson did not testify the State failed to meet its burden of establishing the confession was voluntary. (Citations omitted).

In the present case, once the accusation was made that Sergeant Smith had promised to release Reynolds if Jarrell would consent to the search of his house, this charge should have been specifically refuted. The fact that the court below did not believe Jarrell consented to the search because of his concern for Reynolds did not relieve the State of its obligation to refute, if it could, Jarrell’s allegations. Although we are concerned here with the voluntariness of a consent as opposed to the voluntariness of a confession, a result contrary to Streams, supra and Gill, supra, is not dictated. The test for determining voluntariness of each is the same, i.e., the totality of the circumstances.

Another factor suggestive of coercion in the instant case was the police combining the request for permission to search with the statement to Jarrell that his house was secured, to wit: two policemen were in the front of the house and two were in the rear. We think this statement coupled with the request to séarch was calculated to persuade Jarrell that the search was inevitable, with or without his consent. In fact, the lower court, in its opinion, said: “I find as a fact that Mr. Jarrell, being ringwise, being in the situation he was there in, believing that he was caught redhanded, threw up his hands and said to himself, I might as well sign it, they are going to get. a search warrant anyway.”

In Whitman v. State, supra, at 456, this Court held that “police representations that the issuance of a warrant will be practically automatic” combined with other factors were inherently coercive and the arrestee’s consent to a search was lacking in voluntariness under the “totality of the circumstances”. We think this rationale is apposite here.

From our independent, constitutional review, we conclude that the coercive factors in this case rendered the appellant’s consent involuntary within the meaning of Schneckloth v. Bustamonte, supra.

Judgments as to count one of Criminal Information #51679 (possession with intent to distribute a controlled dangerous substance) affirmed.

Judgments as to counts one and five of Criminal Information #51678 (possession with intent to distribute a controlled dangerous substance) and (maintaining a premises for the purpose of storing, concealing or dispensing a controlled dangerous substance) reversed.

Costs to be divided equally between appellants and Baltimore County.

      . Although not raised below or on appeal, Appellant Hopper has automatic standing to challenge the legality of the seizure of contraband from Jarrell’s residence. See Duncan and Smith v. State, 276 Md. 715 (1976). In addition, there is sufficient evidence in the record to establish that Hopper resided at Jarrell’s house.

      . Reynolds was subsequently released without explanation.


author: Davidson, J.,

text:
    JAMES R. GLOVER et al. v. MICHAEL R. FLEMING
    [No. 664,
    September Term, 1976.]

      Decided June 9, 1977.

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

      W. Lee Harrison, with whom was Sheila J. Carpenter on the brief, for appellants.

      Irvin N. Copian, with whom was Robert J. Romadka on the brief, for appellee.
   Davidson, J.,

delivered the opinion of the Court.

After 7:30 p.m., on 22 August 1974, seven employees, including Michael R. Fleming and Robert C. Gray, were on duty at the Alban Tractor Co., Inc. At 6:30 a.m., on 23 August 1974, James R. Glover, the parts operation manager, learned that $460 had been taken from a cash drawer in an inner office. Glover called the police who interviewed six of the men who had been on duty. Gray was not interviewed because he did not report for work on 23 August. It was learned that before the theft Gray had borrowed a ring of keys containing a key to the inner office from another employee, and had removed and replaced that key before he returned the ring.

Subsequently, the police advised Glover that the interviews had not produced sufficient evidence “to charge anyone.” Glover opined that Gray was a “prime suspect,” but stated that he had no definite proof. They decided to administer polygraph tests to Gray and another employee. The tests were interpreted as showing that Gray had not truthfully answered questions about his involvement in the crime, and that he himself had either taken the money or knew who had taken it. Thereafter, Gray told the police and Glover that he had seen Fleming take the money and that he would so testify in court. The police and Glover questioned Fleming who denied the theft.

After consulting with another company official, Glover applied for a warrant. Fleming was arrested and charged with larceny. According to Glover, at the time he filed the complaint he “didn’t know” whether Fleming had committed the crime. He filed the complaint because “we wanted to find out who the guilty party was.”

The State’s Attorney, having determined that there was not enough evidence for a conviction, asked that Fleming be given a lie detector test. The test showed that he “had no involvement with the crime.” On 12 November 1974, the charge was dismissed. Fleming terminated his employment with the company in January, 1975.

On 29 January 1975, in the Circuit Court for Baltimore County, Fleming, the appellee, filed suit against Glover and Alban Tractor Co., Inc., the appellants, seeking damages for malicious prosecution. A jury, presided over by Judge Kenneth C. Proctor, found them liable. Here, the appellants contend that the trial court erred: 1) in refusing to grant their motion for a directed verdict because Fleming had failed to establish a lack of probable cause; and 2) in refusing to grant their motion for judgment notwithstanding the verdict because “the uncontradicted evidence negated any inference of malice.”

The elements of malicious prosecution are: 1) a criminal proceeding instituted by the defendant against the plaintiff; 2) termination of the proceeding in favor of the accused; 3) the absence of probable cause for the proceeding; and 4) malice, or a primary purpose in instituting the proceeding other than that of bringing an offender to justice. Probable cause has been defined as:

“ ‘A reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the person accused is guilty of the offense of which he is charged.’ ”

Viewed in the light most favorable to Fleming, the evidence here shows that the basis for Glover’s belief that Fleming was guilty was Gray’s statement that Fleming had stolen the money. The record also shows that Gray was a person of questionable credibility. He was initially suspected of having committed the crime. A polygraph test was interpreted as indicating that he did not answer questions truthfully. In this context, Glover’s statements that he “didn’t know” whether Fleming had committed the crime and that “we wanted to find out who the guilty party was” support an inference that Glover himself did not believe Gray’s statement that Fleming took the money. Under these circumstances, there was sufficient evidence to show a lack of probable cause to believe that Fleming was guilty. The issue of probable cause was properly submitted to the jury.

Malice is established by evidence which shows that a party acted from an improper motive. A party who acts from a motive other than that of bringing an offender to justice acts from an improper motive. Malice may also be inferred from a lack of probable cause. Such an inference may be negated by evidence that the party did not act out of ill will, spite, hatred or reckless conduct. Where malice is established by evidence showing an improper motive, the inference arising from lack of probable cause need not be considered.

Viewed in the light most favorable to Fleming, there was evidence to show that Glover acted from an improper motive. Glover’s testimony that at the time he filed the complaint he did not know whether Fleming had committed the crime, coupled with his testimony that he filed the complaint because “we wanted to find out who the guilty party was,” establishes that their motive was not to bring the accused party to justice, but rather to discover who had committed the crime. While such a motive may serve a valid societal interest in identifying the perpetrator of a crime, it is nonetheless improper in that it subjects an innocent individual to the anxiety and concern arising from an unwarranted criminal prosecution. Under the present circumstances, there is no need to rely upon an inference of malice arising from a lack of probable cause. The evidence of an improper motive established malice and was sufficient to support the jury’s verdict.

Judgment affirmed.

Costs to be paid by appellants.

      . Krashes v. White, 275 Md. 549, 554, 341 A. 2d 798, 801 (1975); Brewer v. Mele, 267 Md. 437, 440, 298 A. 2d 156, 159 (1972); Boyd v. Cross, 35 Md. 194, 196 (1872); Derby v. Jenkins, 32 Md. App. 386, 390, 363 A. 2d 967, 970 (1976).

      . Nance v. Gall, 187 Md. 656, 669, 50 A. 2d 120, 126 (1946), mod. 187 Md. 656, 51 A. 2d 535 (1947); Stansbury v. Fogle, 37 Md. 369, 381 (1873).

      . Tully v. Dasher, 250 Md. 424, 440-41, 244 A. 2d 207, 217 (1968); Kelly v. Exxon Corp., 35 Md. App. 272, 277, 370 A. 2d 162, 166 (1977); Derby, supra, 32 Md. App. at 390, 363 A. 2d at 970-71.

      . Kennedy v. Crouch, 191 Md. 580, 590, 62 A. 2d 582, 587 (1948); Nance, supra, 187 Md. at 669-70, 50 A. 2d at 126; Kelly, supra, 35 Md. App. at 278-79, 370 A. 2d at 166; Derby, supra, 32 Md. App. at 394, 363 A. 2d at 972. See Banks v. Montgomery Ward & Co., Inc., 212 Md. 31, 42, 128 A. 2d 600, 606 (1957).

      . Zablonsky v. Perkins, 230 Md. 365, 370, 187 A. 2d 314, 317 (1963); Johns v. Marsh, 52 Md. 323, 332-33 (1879); Kelly, supra, 35 Md. App. at 279, 370 A. 2d at 166.

      . Wesko v. G.E.M., Inc., 272 Md. 192, 197, 321 A. 2d 529, 532 (1974); Jannenga v. Libernini, 222 Md. 469, 474, 160 A. 2d 795, 798 (1960); Banks, supra, 212 Md. at 42, 128 A. 2d at 606; Shipp v. Autoville Ltd., 23 Md. App. 555, 577, 328 A. 2d 349, 362 (1974), cert. denied, 274 Md. 725 (1975).

      . Wesko, supra, 272 Md. at 199-200, 321 A. 2d at 533-34, relied upon by the appellants, is inapposite. There, there was no evidence of an improper motive to support a finding of malice.

      . See Zablonsky, supra, 230 Md. at 370, 187 A. 2d at 317; Kelly, supra, 35 Md. App. at 281, 370 A. 2d at 168.


author: Moore, J.,

text:
    JOHN LEE LEONARD, JR. v. STATE OF MARYLAND
    [No. 688,
    September Term, 1976.]

      Decided June 9, 1977.

      The cause was'submitted on briefs to Thompson, Moylan and Moore, JJ.
    Submitted by H. Gregory Skidmore for appellant.
    Submitted by Francis B. Burch, Attorney General, Leroy Handwerger, Assistant Attorney General, and Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Appellant was one of three individuals indicted in Anne Arundel County following an armed robbery of an Acme Market on January 24, 1975. Tried separately in the Circuit Court for Anne Arundel County, he was convicted by a jury (Evans, J., presiding) under two indictments, one charging him with assault with intent to murder Donald Dunbar, the manager of the store, and the other with armed robbery of the cashier, Pamela Marie Simkunas. Thereafter, appellant was sentenced to 15 years imprisonment for assault with intent to murder and 5 years, consecutively, under a count alleging the use of a handgun in the commission of a felony. He also received a 10 year concurrent term for the armed robbery conviction.

I

On appeal, Mr. Leonard raises three issues in support of his claim that the judgments of conviction should be reversed. First, he contends that the State’s cross-examination of him pertaining to his post-arrest silence and references thereto in the State’s final argument violated his right to due process. Second, he claims that he was denied his constitutional right to a speedy trial. Finally, he argues that the instructions of the trial court were inconsistent, conflicting and contradictory.

The State conceded merit in the first question raised. The prosecutor improperly interrogated appellant concerning his failure to relate his alibi to the arresting officers. This impropriety was compounded when the State, in final argument, conceded appellant’s right to remain silent after having relied upon Miranda v. Arizona, 384 U. S. 436 (1966), but then exclaimed to the jury, “[I]f he had an alibi, if he was with his sister and her fiance, why didn’t he tell them [the police]?” It is fundamentally unfair and a deprivation of due process thus to exploit the silence of a person under arrest. Doyle v. Ohio, 426 U. S. 610, 96 S. Ct. 2240 (1976); Sutton v. State, 25 Md. App. 309, 334 A. 2d 126 (1975). Unfortunately, however, our review of the record reveals a complete lack of objection by trial counsel to the State’s question on cross-examination or to the comments of the prosecutor in final argument. The question was therefore not preserved for appellate review. Maryland Rules 522 d 2; 1085.

Similarly, we find that trial counsel did not object to any portion of the advisory instructions given by the court and although the instructions were not a model of clarity, we find no “plain error. .. material to the rights of the accused” to warrant our intervention. Maryland Rule 756 g.

Appellant’s second contention, which raises the speedy trial issue, is properly before us. Upon our review of the record, we find error in the procedure by which disposition was made of appellant’s motion to dismiss. We accordingly reverse and remand for a new trial.

II

Appellant was arrested on April 9, 1975, more than two months after the date of the alleged crime, and was brought to trial on February 3, 1976, nine months and 23 days following his apprehension. Unable to make bail which had been set at $50,000, he was incarcerated during that entire period. On October 24, 1975, his trial counsel filed a motion for a speedy trial. The State’s Attorney responded in writing that: (a) the State proposed to try first a co-defendant, Wade Iglehart Johnson, whose case had been removed to Carroll County; (b) the Carroll County trial had been continued once because of illness of defense counsel and again because a police officer, a “key witness” for the State, had been selected to attend the FBI Academy in Quantico, Virginia; and (c) a trial date in appellant’s case after the return of the police officer in mid-December would be agreeable, although the State still desired to proceed first with the trial of the co-defendant.

Approximately one month after the filing of the State’s response, the trial court signed an order on December 3, 1975 that appellant’s motion for a speedy trial be denied. No such order should have been presented by the State, nor signed by the court. The proper disposition of such a motion is, of course, the setting of the case for trial. At all events, without knowing the fate of his counsel’s motion for a speedy trial, appellant himself prepared a motion to dismiss for lack of a speedy trial, in which he complained of a denial of due process. The filing date of this motion was also December 3, 1975. The following day, the trial court summarily denied the motion to dismiss, without awaiting any response from the State, and without a hearing or the entry of an order that the motion be the subject of a hearing at the time of trial. The net result is that there is no testimonial record — by way of affidavits or a transcript of testimony — upon the basis of which this Court might undertake the “balancing process,” under the now familiar guidelines of Barker v. Wingo, 407 U. S. 514 (1972), essential to a determination of whether appellant’s constitutional right to a speedy trial was violated. See Epps v. State, 276 Md. 96, 345 A. 2d 62 (1975); State v. Wilson, 35 Md. App. 111, 371 A. 2d 140 (1977). And, of course, no such record was before the trial court.

Presently, and until July 1, 1977, the effective date of the recently adopted Rules in Chapter 700 (Criminal Causes) of the Maryland Rules of Procedure, motions before trial raising defenses or objections are governed by Rule 725 d:

“d. Hearing on Motion.
“A motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. All issues of fact raised by such motion may be determined by the court without a jury on affidavit or in such other manner as the court may direct.”

Notwithstanding the caption, “Hearing on Motion,” it is plain from the language of Rule 725 d that it governs (a) the timing of the disposition of a pre-trial motion, and (b) the procedure whereby issues of fact may be determined, i.e., by a hearing or otherwise.

Thus, in the case of a speedy trial motion to dismiss, the trial court is confronted with a decision as to whether the motion is to be disposed of' prior to trial, and whether the factual record requisite to the “balancing process” shall be developed by a hearing or some other adequate procedural substitute. With respect to the timing of the disposition, it is manifest, we think, that in most situations the proper time to consider such a motion is at the time of trial. It is then that the (a) length of the delay, (b) reasons for the delay, and (c) prejudice to the defendant — three of the key factors delineated in Barker v. Wingo, supra — can best be evaluated.

In the case subjudice, some seven months and 24 days had elapsed from the date of appellant’s arrest to the date of the motion to dismiss. No Maryland case has held this amount of time to be an acceptable “triggering mechanism” under Barker v. Wingo and yet, when the motion was filed, the eventual date of trial was still two months’ distant. The circumstances were such, therefore, as to establish that the motion was not frivolous but, on the other hand, that its consideration and disposition should be deferred.

It is our conclusion that reversible error occurred when the trial court did not postpone consideration of the motion but, more significantly, denied the motion without any findings of fact and, indeed, without making available a factual predicate for his denial. See generally Barnett v. State, 8 Md. App. 35, 257 A. 2d 466 (1969). Such a combination of errors, in our judgment, offends basic principles of fundamental fairness and due process of law — the same requirements that mandate a hearing, out of the presence of the jury, on an accused’s motion to suppress an in-court identification on the basis of an impermissibly suggestive pre-trial viewing procedure, Perkins v. State, 11 Md. App. 527, 275 A. 2d 517 (1971); Smith & Samuels v. State, 6 Md. App. 59, 250 A. 2d 285 (1969), or where a defendant challenges the voluntariness of a confession or other inculpatory statement, Day v. State, 196 Md. 384, 76 A. 2d 729 (1950); Barnhart v. State, 5 Md. App. 222, 246 A. 2d 280 (1968), or where there is a challenge to the legality of a search and seizure and a motion to suppress evidence claimed to have been unconstitutionally obtained is made, Md. Rule 729; Taylor v. State, 19 Md. App. 386, 311 A. 2d 468 (1973); or an attack upon the admissibility of prior convictions, Johnson v. State, 9 Md. App. 166, 263 A. 2d 232 (1970).

In reaching the conclusion that, under the circumstances here presented, the trial court committed error of constitutional dimension in the peremptory denial of appellant’s motion to dismiss, and without conducting a hearing or otherwise providing a factual basis for evaluation of appellant’s speedy trial claims — we do not overlook the fact that appellant did not reassert his contention at the time of trial. His failure to do so does not attenuate the error we find. But c.f. White v. State, 23 Md. App. 151, 326 A. 2d 219 (1974) (appellant’s failure to bring to the attention of the trial court an undecided pre-trial motion to dismiss for lack of speedy trial held to constitute a waiver of his right to a ruling on the motion). It is, however, a factor which may weigh against him in the balancing process when, upon retrial, his contention that he was denied a speedy trial can properly be evaluated. As the Supreme Court stated in Barker, supra:

“We think the better rule is that the defendant’s assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.... [Such a rule] would also allow a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection.” (Emphasis added.) 407 U. S. at 528-29.

Judgments reversed; case remanded for a new trial; Anne Arundel County to pay the costs.

      . Johnson v. State, 36 Md. App. 162 (1977).

      . At appellant’s trial, no police officer testified.

       It does not appear that the trial court set a trial date at the time required by Md. Code, art. 27, § 591 (1957, 1976 Repl. Vol.), and we are unable to ascertain from the record the date when appellant’s trial date of February 3 was set.

      . Under the revised rules, effective July 1, 1977, motions before trial are governed by Rule 736, subsection e, entitled “Determination,” which provides:
      “A motion filed pursuant to this Rule, except a motion to dismiss for failure to obtain a speedy trial, shall be determined before trial unless the court otherwise directs in motions involving subsection alt of this Rule. If factual issues are involved in determining the motion, the court shall state its findings on the record.”

      . As previously indicated, under new Rule 736 e a motion to dismiss for failure to obtain a speedy trial is excepted from the requirement that pre-trial motions be determined before trial.

      . If a trial judge, after proper hearing before or at trial, concludes that the motion should be granted, the correct course would be to rule immediately. In the event of doubt concerning the key elements or if the court inclined to the view that the motion should be denied, decision should be withheld until after verdict. See Brady v. State, 36 Md. App. 283 (1977). See also Taylor v. State, 22 Md. App. 370, 323 A. 2d 648 (1974).

      . In State v. Becker, 24 Md. App. 549, 332 A. 2d 272 (1975), a delay of 9V2 months was found to be sufficiently inordinate to “trigger” the four-factor analysis.


author: Melvin, J.,

text:
    JOSEPH LINDSEY CRANFORD v. STATE OF MARYLAND WILLIAM LEWIS WRIGHT v. STATE OF MARYLAND
    [No. 751A,
    [No. 751B,
    September Term, 1976.]
    September Term, 1976.]

      Decided June 9, 1977.

      The case was argued before and submitted on brief to Thompson, Powers and Melvin, JJ.
    Argued by Joseph A. DePaul and William C. Brennan, Jr., with whom were DePaul, Willoner & Kendel, P.A. on the brief, for appellant Cranford. Submitted by Alan H. Murrell, Public Defender, and Michael R Malloy, Assistant Public Defender, for appellant Wright.
    In No. 751A, argued by Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, Steven Kupferberg and Charles P. Strong, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee. In No. 751B, submitted by Francis B. Burch, Attorney General, Arrie W. Davis, Assistant Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, Steven Kupferberg and Charles P. Strong, Assistant State’s Attorneys for Prince George’s County, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

By the first count of an indictment filed 1 October 1975, the Grand Jury of Prince George's County charged the appellants, William Lewis Wright and Joseph Lindsey Cranford II, both age 25, with murdering Mary Ann Bunten, age 51, on or about 25 September 1975. The second count of the indictment charged Cranford with being an accessory after the fact to her murder, alleged in that second count to have been committed by Wright alone. After separate jury trials in the Circuit Court for Prince George’s County, the appellants were each convicted of second degree murder under the first count of the indictment. Before the jury was sworn for the trial of Cranford (the first to be tried) and over Cranford’s objection, the trial court granted the State’s motion “to nol-pros” the second count.

Although tried separately and represented by different counsel, both appeals come to us in one record. We shall consider each appeal separately.

APPELLANT WRIGHT (CASENO. 751B)

Wright presents a single question in his appeal: “Did the trial court commit plain error by instructing the jury about the standard for sufficiency of the evidence?”

At the close of all the evidence, appellant’s motion for judgment of acquittal was denied. In the course of his advisory instructions to the jury, the trial judge said:

“The test of sufficiency of the evidence has been established as being whether the evidence either shows directly or supports a rational inference of the facts to be proved from which you, the trier of the facts, could fairly be convinced beyond a reasonable doubt of the Defendant’s guilt of the offense charged.”
“To be sufficient in law to justify a conviction, the admissible evidence adduced must show directly or circumstantially or support a rational inference of the facts to be proved from which you, the trier of the facts, could fairly be convinced beyond a reasonable doubt of the Defendant’s guilt of the offense charged.”

The appellant did not object to any of the court’s instructions. He, nevertheless, argues that, pursuant to Maryland Rule 756 g, we should recognize the above-quoted portions as “plain error”. Rule 756 g provides:

“Upon appeal a party assigning error in the instructions may not assign as of right an error unless (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct was distinctly objected to before the jury retired to consider its verdict and (2) the grounds of objections were stated at that time. Ordinarily no other error will be considered by the Court of Appeals, but the Court of Appeals either of its own motion or upon the suggestion of a party may take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to as provided by section f of this Rule.”

While the now-challenged portions of the instructions correctly state the substance of the legal test to be applied by a trial judge when ruling on a motion for a judgment of acquittal Code, Art. 27, § 593; Williams and McClelland v. State, 5 Md. App. 450, 247 A. 2d 731 (1968); Vuitch v. State, 10 Md. App. 389, 271 A. 2d 371 (1970), they have no place in instructions to the jury and should be avoided. If this were all the judge told the jury regarding the standard of proof necessary for conviction, we would unhesitatingly take cognizance of and correct the plain error by awarding a new trial even though no exceptions were taken below. To tell the jury that a conviction would be justified if they “could fairly be convinced beyond a reasonable doubt of the Defendant’s guilt” is obviously not the proper standard for it to apply in determining guilt. A judgment of conviction premised on a finding by the jurors that they could be convinced of guilt beyond a reasonable doubt, however reasonable that possibility may be, could never be sustained.

As stated by the Court of Appeals in State v. Grady, 276 Md. 178, 345 A. 2d 436 (1975), “it is not always appropriate to quote from appellate decisions in jury instructions since the language employed in a particular opinion may not adequately inform jurors of their responsibility [citations omitted]”. 276 Md. at 186. In this case, however, both before and after the offending portions of the instructions, the trial judge carefully and fully “inform[ed] the jurors of their responsibility” not to “convict the accused unless, after weighing all of the evidence, including the evidence of good character, you are convinced beyond a reasonable doubt that the Defendant was guilty of the crime chargedthat the burden was upon the State “to prove to your satisfaction beyond a reasonable doubt and to a moral certainty the guilt of an accused”, that “[e]very accused is entitled to every inference in his favor which can reasonably be drawn from the evidence”; that “where there are two inferences which may be drawn from the same fact or set of facts, one consistent with guilt and one consistent with innocence, the accused is entitled to the inference consistent with innocence”; and that “[n]o greater degree of certainty is required when the evidence is circumstantial than when it is direct, for, in either case, you, the trier of the facts, must be convinced beyond a reasonable doubt of the guilt of the accused”.

Although we think it was technical error to include the now-challenged portions in the advisory instructions, when the instructions are viewed in their entirety, we do not think the error was so “plain” or “material to the rights of the accused” as to invoke the exercise of our discretion to correct it under Rule 756 g. See, Dimery v. State, 274 Md. 661, 338 A. 2d 56 (1975), cert. denied, 423 U. S. 1074 (1976); Brown v. State, 14 Md. App. 415, 287 A. 2d 62 (1972). See, also, United States v. Brown, 522 F. 2d 10 (9th Cir. 1975); United States v. Christy, 444 F. 2d 448 (6th Cir., 1971).

The judgment in case no. 751B will be affirmed.

APPELLANT CRANFORD (CASENO. 751 A)

At the close of all the evidence, Cranford’s motion for judgment of acquittal was denied. In this appeal, he contends that the ruling on the motion was in error. We disagree.

In reviewing the refusal of the trial judge to grant a motion for judgment of acquittal in a jury case, it is our limited function to determine whether the evidence shows directly or supports a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. Vuitch v. State, 10 Md. App. 389, 271 A. 2d 371 (1970). In other words, we must review the relevant evidence and determine whether it is legally sufficient to sustain Cranford’s conviction of second degree murder.

The Evidence

At approximately 11:15 A. M. on 26 September 1975, the partially nude body of Mary Ann Bunten was found on the side of Church Road near Bowie, Maryland. The Assistant State Medical Examiner testified that the cause of death was a stab wound that had severed the left iliac artery in the area of the vagina and rectum, thus causing her to bleed to death “in a matter of minutes”. There was also evidence that the alcohol content of the victim’s body was .39%, “... and [that] one could possibly be comatose with this degree of alcohol”.

As a result of information obtained from those who had seen Mrs. Bunten during the 24 hour period preceding the discovery of her dead body, Cranford and his brother-in-law, William Lewis Wright, were questioned by the police. Each gave written statements concerning their contacts with Mrs. Bunten. Cranford’s statement was introduced in evidence by the State. Wright’s statement was not offered by either party.

According to Cranford’s statement and his testimony at trial, the following occurred during the evening of 24 September and the early morning hours of 25 September: Cranford and Wright began the evening by attending Cranford’s young son’s birthday party, where they drank several beers. After the party they went to a restaurant and had more beer. After purchasing a six pack of beer each, they left that restaurant and went to Wilson’s Tavern in Cranford’s car. As they arrived at Wilson’s, at approximately 9:00 P. M., they noticed Mrs. Bunten walking up the roadway near the tavern parking lot. Wright approached her and began talking to her, while Cranford entered the tavern and began “socializing” and drinking more beer. Some minutes later Wright entered the tavern and asked Cranford for the keys to his car. Wright and Mrs. Bunten then left in Cranford’s car. Cranford remained inside the tavern “socializing” and drinking until approximately 1:30 A. M. when he went outside to wait for Wright to return with his car.

When Wright and Mrs. Bunten returned, Mrs. Bunten got in the back seat, Wright got in the front passenger seat, and Cranford got behind the wheel. Cranford asked Mrs. Bunten, whom he had never met before, where she lived. She mumbled an address and the three drove off to find her house. Before leaving the parking lot, however, Wright “reached between the two seats and took" Mrs. Bunten's slacks down. At that point she was “quite drunk and couldn’t tell me where she lived. She mumbled an address”. He was unable to find her house. After driving around for a short while, he stopped at the parking lot of a steak house where he joined Mrs. Bunten in the back seat and Wright drove the car. While Wright was driving, Cranford attempted to have sexual intercourse with Mrs. Bunten on the back seat but was unable to do so “because of my drunken condition” and because “she was very dry”. During the attempt, he was on top of her for “fifteen minutes, probably”, during which time she was “conscious” but “quite drunk” and said nothing, nor did Cranford or Wright say anything. Wright then stopped the car and said “ ‘Let’s switch’ or something to that effect”. Cranford then drove the car while Wright was in the back seat with Mrs. Bunten. Cranford said he did not know “what was going on in the back seat”, but he “assumed they were having intercourse”. After “approximately 20 minutes”, Cranford stopped the car at Wright’s request. Wright got into the front passenger seat. At that point Cranford saw that Wright “had blood on hís hand and he [Wright] said that the woman had a miscarriage” or “was having her period” and that “we had to let her off’.

Cranford stopped the car in a dark and lonely area along Church Road. He assisted Wright in removing Mrs. Bunten from the car. At that point, according to Cranford, she was “unconscious” and Cranford could see by the dome light of the car that she was bloody and that there was a large amount of blood on the back seat of the car. Wright carried Mrs. Bunten off to the side of the road and left her there. When Wright returned to the car, Wright drove the car to Wright’s apartment, where, at Wright’s request, Cranford disposed of Wright’s bloody clothes.

In his testimony concerning the drunken condition of Mrs. Bunten, the Assistant Medical Examiner testified how a person with .39 per cent, by weight, of alcohol in his blood would act:

“There would be stupor, there would be a marked decrease in responses to stimuli, and one could possibly be comatose with this degree of alcohol.”

It is well settled that unlawful sexual intercourse with a female person without her consent constitutes the common-law felony of rape. It is also settled that unlawful sexual intercourse with a woman who is incapable of giving or withholding consent is rape. See, Perkins, Criminal Law, 2nd Ed., Ch. 2, § 5, at 163:

“One of the leading American cases on the law of rape involved unlawful sexual intercourse with a woman ‘so drunk as to be utterly senseless.’ She had given no consent prior to her insensibility, but counsel urged that it was not ‘against her will’ because her will was quite inactive one way or the other, and the wording of the statute was ‘by force and against her will.’ The court pointed out that ‘against her will’ means ‘without her consent,’ so far as the law of rape is concerned, and that unlawful intercourse ‘with a woman, without her consent, while she was, as he knew, wholly insensible so as to be incapable of consenting, and with such force as was necessary to accomplish the purpose was rape.’ It is to be emphasized that this was not a case in which defendant had made the woman drunk but merely one in which he had taken advantage of her helpless condition. The court mentioned with approval the ‘established rule in England that unlawful and forcible connection with a woman in. a state of unconedortifmetfó at the time, whether that state has been produced by the act of the prisoner or not, is prerMsaed to be without her consent, and is rape/ ‘If it were otherwise/ the court added, ‘any woman in a state of utter stupefaction, whether caused by drunkenness, sudden disease, the blow of a third person, or drugs which she had been persuaded to take even by the defendant himself, would be unprotected from personal dishonor. The law is not open to such a reproach/ In another case it was held that unlawful intercourse with a woman who had fainted was rape.”

It is also well settled that the trier of fact is not obliged to accept as true Cranford’s denial of any wrongdoing on his part. Wilson v. State, 261 Md. 551, 276 A. 2d 214 (1971); Elder v. State, 7 Md. App. 368, 255 A. 2d 91 (1969).

Viewing the evidence as a whole we think it permitted a reasonable inference that both Wright and Cranford were guilty of at least murder in the second degree. There can be no question that either Wright or Cranford struck the fatal blow. On the evidence the jury could permissibly conclude beyond a reasonable doubt that if Wright was the actual perpetrator of the murder, he committed the crime in the perpetration of or the attempt to perpetrate a rape, and was thus guilty of murder in the first degree under the felony-murder rule pursuant to Md. Code, Art. 27, § 410:

“All murder which shall be committed in the perpetration of, or attempt to perpetrate .. . any rape ... shall be murder in the first degree.”

The jury could have further found that Cranford, who was present and knew of the victim’s condition and knew of Wright’s unlawful purpose, and who combined with him in the accomplishment of that purpose by his aid and encouragement, was equally guilty of the resulting murder as a principal in the second degree. See, Mumford v. State, 19 Md. App. 640, 313 A. 2d 563 (1974).

We realize that Cranford was ultimately convicted of second degree murder and was acquitted of first degree murder. We also note that the State did not argue the felony-murder rule at the motion for judgment of acquittal as a reason for denying the motion. As the trial judge did not state his reasons on the record for denying the motion we do not know whether he considered the rule or not. In any event, in reviewing the propriety of a denial of a motion for judgment of acquittal on the broad grounds of insufficiency of the evidence, we do not feel that we are restricted to any particular reasons or arguments that may have been advanced by the State at the trial below or on appeal. The question raised and decided below was the sufficiency of the evidence. That is the legal question we now decide, without regard to and independently of any particular arguments or reasons advanced by the State, the appellant or the trial court. Unlike Rule 552, applicable in civil cases, Rule 755 does not require the moving party to state grounds or reasons for granting the motion (other than the broad ground of insufficient evidence), nor does Rule 755 require the State to set forth specifically its reasons why the motion should be denied. See also, Md. Code Art. 27, § 593.

Moreover, in the case sub judice, aside from the felony-murder rule, we think the evidence is such that the jury could have found that Cranford himself was the actual perpetrator of the murder and thus guilty as principal in the first degree of at least second degree murder. The evidence surely warranted a finding beyond a reasonable doubt that either Wright or Cranford struck the fatal blow. In his testimony, Cranford denied that he was the culprit. But as we have seen the trier of fact was not obliged to accept his denial. If the jury, who saw and heard him, concluded, as they had a right to do, that his denials were false, then a fortiori, under the circumstances, they could have reasonably concluded beyond a reasonable doubt that he and not Wright was the one who dealt the mortal wound.

After a careful review of all the evidence, we hold that the trial judge correctly denied the motion for judgment of acquittal.

Cranford’s Other Contentions on Appeal

1.

The appellant contends that the trial court erred by admitting photographs of the deceased depicting in detail her fatal wound. Admission of photographic evidence rests within the sound discretion of the trial court. Clark v. State, 238 Md. 11, 202 A. 2d 456 (1965); Madison v. State, 200 Md. 1, 87 A. 2d 593 (1952); Corens v. State, 185 Md. 561, 45 A. 2d 340 (1946); See, Anno. 73 A.L.R. 2d 769 (1960). We find no abuse of that discretion here.

2.

The appellant next contends that the jury instruction was “misleading” in several respects. We have carefully examined these contentions and find them to be without merit. The contentions now raised on appeal were either not preserved for our review, Md. Rules 756 g and 1085, or the points complained of were adequately covered by the trial judge in his advisory instructions.

3.

The appellant finally contends that it was error for the trial judge “to submit a charge of first degree murder to the jury”. In view of our holding concerning the motion for judgment of acquittal, this contention is likewise without merit. We note also that the appellant made no objections to the trial court’s advisory instructions concerning first degree murder or the possible verdicts that the jury could render, including a verdict of “guilty of murder in the first degree”. Rules 756 g, 1085.

Having carefully considered all of the appellant’s contentions raised in this appeal, we find no reversible error. On the record before us, we think he received, if not a perfect trial, an eminently fair one — and in this imperfect world that is all he was entitled to receive.

Judgment in Case No. 751B affirmed; appellant Wright to pay the costs.

Judgment in Case No. 751A affirmed; appellant Cranford to pay the costs.