Gray v. State

Horney, J., delivered the opinion of the Court. Theodore Mitchell Gray (the defendant) was convicted by the Circuit Court for Prince George’s County (Gray, C. J.) of carrying a deadly and dangerous weapon concealed upon and about his person in violation of Code (1951), Art. 27, sec. 44 (a) [now codified as Art. 27, sec. 36 (a) in the 1957 Code]. The defendant’s only contention on his appeal to this Court concerns the amendment of the state warrant immediately prior to the commencement of the trial. On May 16, 1957, a justice of the peace in and for Prince George’s County issued a state warrant for the arrest of the defendant charging him, as issued, with having “unlawfully * * * [carried] a deadly and dangerous weapon, to wit: Two ’38 Caliber Pistols.” (Emphasis added).

The heading or titling of the warrant showed that it was a “Concealed Weapon” warrant. The text of the warrant concluded with the usual “exception” clause to the effect that the defendant was not one of the excepted persons referred to in detail in ⁴¹⁴ Code (1951), Art. 27, sec. .44 (b) [sec. 36 (b) in the 1957 Code], When he was brought before the trial magistrate, the defendant prayed a jury trial, whereupon the case was transferred or removed to the circuit court for trial upon the state warrant. In the trial court the defendant pleaded not guilty and elected to be tried by the court without a jury. At the beginning of the trial, the State moved to amend the warrant by adding the words, “concealed upon or about his person.” Counsel for the defendant objected to the amendment.

After a colloquy between the trial judge and counsel, 1 the State revised the amendment to read, “concealed upon and about his person.” The court permitted the State’s Attorney to make the amendment as revised. The trial judge suggested to the defendant’s counsel that the objection to the form and propriety of the amendment could be reached by a motion to dismiss the warrant after the amendment had been made, but counsel neither made such a motion nor requested a postponement to afford him time to prepare a defense to what he contended was a charge of which the defendant had not been informed by the warrant as it was issued. The defendant contends here (i) that the original warrant was a nullity, (ii) that it was reversible error to permit the State to so amend the invalid warrant as to charge the defendant with a criminal offense of which he had not been properly notified by a valid state warrant, and (iii) that the verdict and judgment of the lower court should be reversed. When a criminal case has been removed from a trial magistrate to a circuit court on an application for a jury trial, as this case was, Code (1951), Art. 52, sec. 20 [sec. 22 in the 1957 Code], specifically authorized the court, “on motion of the State’s attorney, * * * at any time before the trial or during the progress of trial, before final judgment, [to] amend the * * * warrant * * * in such case; provided, how ⁴¹⁵ ever, that such amendment does not change the character of the offense or crime with which the accused is charged.” (Emphasis added).

The defendant concedes that if the warrant had charged him with one of the two possible violations of law under Section 44 (a), supra, the State had a right to amend the warrant when it did so long as the character of the offense was not changed. But he insists that since the warrant as issued did not charge him with the violation of any offense or crime whatsoever, the warrant was not amendable in the circuit court, and he should have been discharged without a trial. The defendant also argues that his trial and conviction was a violation of Article 21 of the Declaration of Rights inasmuch as he was not “informed of the accusation against him,” and did not “have a copy of the Indictment, or charge, in due time * * * to prepare for his defence.” Relying on Willis v. State, 205 Md. 118 , 106 A. 2d 85 (1954), Leet v. State, 203 Md. 285 , 100 A. 2d 789 (1953), and State v. Lassotovitch, 162 Md. 147 , 159 A. 362 (1932), the defendant points out that a criminal charge must characterize the crime and describe the particular offense so as to put the accused on notice of what he is called upon to defend and to prevent a future prosecution for the same offense. The defendant has a constitutional right, as he properly claims, to be “informed of the accusation against him.” Such accusation may be made in a proper case by a state warrant as well as by an indictment or an information.

There is an important difference, however, between the amendability of a state warrant and an information on the one hand and an indictment on the other. The amendment of