Ireland v. State

³³⁰ McAULIFFE, Judge. We are here concerned with the punishment that may be imposed following conviction of the common law crimes of assault and battery. William M. Ireland was charged in the District Court of Maryland sitting in Anne Arundel County with committing a battery upon his estranged wife by hitting and kicking her. He demanded a jury trial, causing the case to be removed to the circuit court where he was convicted.

Judge Morris Turk imposed a sentence of three years imprisonment, from which Ireland appealed. The Court of Special Appeals affirmed the conviction and sentence in an unreported opinion and we granted certiorari to consider Petitioner’s claim that the courts of this State have no authority to impose a sentence of imprisonment for the crimes of assault or battery. Petitioner’s argument rests upon three major premises: 1) assault and battery are common law offenses in this State, for which the Legislature has provided no particular penalty; 2) a sentence of imprisonment was not a legally permissible sanction for these crimes according to the common law of England as of July 4, 1776; and, 3) this Court does not have authority to modify the common law by providing for a penalty that did not exist at the time the common law was adopted in this State. Petitioner’s first contention is clearly correct, and therefore we turn to the remaining contentions which we shall discuss in reverse order.

I. Article 5 of the Declaration of Rights provides: That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such of English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experi ³³¹ ence, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity; ... except such as may have since expired, or may be inconsistent with the provisions of this Constitution; subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State____ The determination of the nature of the common law as it existed in England in 1776, and as it then prevailed in Maryland either practically or potentially, and the determination of what part of that common law is consistent with the spirit of Maryland’s Constitution and her political institutions, are to be made by this Court. Whether particular parts of the common law are applicable to our local circumstances and situation, and our general code of laws and jurisprudence, is a question that comes within the province of the Courts of justice, and is to be decided by them. The common law, like our Acts of Assembly, are subject to the control and modification of the Legislature, and may be abrogated or changed as the General Assembly may think most conducive to the general welfare; so that no great inconvenience, if any, can result from the power being deposited with the judiciary to decide what the common law is, and its applicability to the circumstances of the State, and what part has become obsolete from non-user or other cause. State v. Buchanan, 5 H. & J. 317, 365-66 (1821).

Because of the inherent dynamism of the common law, we have consistently held that it is subject to judicial modification in the light of modern circumstances or increased knowledge. Harris v. State, 306 Md. 344, 357 , 509 A.2d 120 (1986); Kelley v. R.G. Industries, Inc., 304 Md. 124 , 497 A.2d 1143 (1985). Equally well established is the principle that the common law should not be changed contrary to the public policy of this State set forth by the General Assembly. Kelley, supra, 304 Md. at 141, 497 A.2d 1143 ; Harrison v. Mont.

Co. Bd. of Educ., 295 Md. 442, 460-61 , 456 A.2d 894 (1983). In the area of civil common ³³² law this Court has not only modified the existing law but also added to the body of law by recognizing new causes of action. Kelley, supra, (recognizing cause of action against manufacturers or marketers for damages caused by “Saturday Night Special” handguns); Boblitz v. Boblitz, 296 Md. 242 , 462 A.2d 506 (1983) (permitting negligence action by one spouse against another); Moxley v. Acker, 294 Md. 47 , 447 A.2d 857 (1982) (deleting force as a required element of the action of forceable detainer); Adler v. American Standard Corp., 291 Md. 31 , 432 A.2d 464 (1981) (recognizing tort of abusive or wrongful discharge); Lusby v. Lusby, 283 Md. 334 , 390 A.2d 77 (1978) (deleting the defense of inter-spousal immunity in the case of outrageous intentional torts); Harris v. Jones, 281 Md. 560 , 380 A.2d 611 (1977) (recognizing tort of intentional infliction of emotional distress). Petitioner acknowledges the breadth of this Court’s decisions affecting the civil common law, but contends that this civil experience cannot serve as precedent in the common law of crimes and punishments.

He argues that the regulation of the criminal law, and particularly the establishment of new offenses and the fashioning of appropriate sentencing alternatives, should be left entirely to the Legislature. Our cases to date have not drawn the distinction suggested by Petitioner. This Court has often cited its general authority to fashion and mold the common law when dealing with criminal cases. A brief summary of our more recent cases in this area will indicate the broad spectrum of modifications we have made to the criminal common law.

Robinson v. State, 307 Md. 738 , 517 A.2d 94 (1986) (holding that the “depraved heart” species of common law murder does not require that more than one life be placed in danger); Harris v. State, supra, (acknowledging changes in the common law right of allocution since 1776); Jones v. State, 302 Md. 153 , 486 A.2d 184 (1985) (changing the common law to allow an accessory to be convicted of a greater crime than that of which the principal was convicted); Evans v. State, 301 Md. 45 , 481 A.2d 1135 (1984), cert. ³³³ denied, sub nom Grandison v. Md., 470 U.S. 1034 , 105 S.Ct. 1411 , 84 L.Ed.2d 795 (1985) (changing common law of former jeopardy to permit successive prosecution for the same offense by separate sovereigns); Lewis v. State, 285 Md. 705 , 404 A.2d 1073 (1979) (changing common law to permit prosecution of accessories before trial or conviction of principal); Pope v. State, 284 Md. 309 , 396 A.2d 1054 (1979) (abolishing common law offense of misprision of felony because inconsistent with contemporary standards). Petitioner suggests that these modifications of the common law of crimes and punishment have largely affected procedural matters, and where substance has been involved the action has been one of subtraction and not one of addition, i.e. that we have declined to recognize crimes, elements or principles affecting prosecution, but we have never created an offense or recognized a punishment that was unknown to the common law. For the purposes of discussion, and to avoid the difficulty of distinguishing matters of substance from those of procedure, we accept for the moment Petitioner’s characterization of our previous role in the development of the criminal common law. This historical precedent could represent, as Petitioner suggests, an implicit recognition that it is exclusively within the domain of the Legislature to create new crimes and punishments.

On the other hand, it could represent judicial self-restraint in an area of joint authority, perhaps in recognition of the active role taken by the Legislature in this field since at least 1809. 1 Or, it could simply be a product of the fact that we have never been asked to accomplish such a modification. As intellectually interesting as these questions may be, we find no need to answer them in this case. Not one of our earlier cases dealing with the permitted punishment for assault and battery indicates that this Court was engaged in the process of modifying existing common ³³⁴ law. Whenever this Court has exercised that power, it has been careful to point out what the common law had been, why a change was necessary, and the sources of the Court’s authority to accomplish the change.

No such discussion may be found in the many decisions of this Court discussing the available sentences for the crimes of assault and battery. We are persuaded that the resolution of this case turns not upon the power of this Court to modify the common law, but upon its unquestioned authority to determine and interpret that law.

II

We turn to a discussion of the common law of punishments of misdemeanors, particularly of assault and battery, in mid-eighteenth century England. Petitioner’s principal contention is that the only sanction permitted was a fine. Alternatively, he argues that if imprisonment was permitted, it could not exceed two years. The State contends that a judge in England or colonial America possessed broad discretion in this type of case, including the authority to sentence to imprisonment and to impose a fine, without specific limitation as to either.

Our examination of the cases and of the writings of legal commentators and historians discloses the existence of respectable authority supporting the argument made by each party, but we believe the more persuasive authority supports the State’s view of the matter. Petitioner cites several authorities for the proposition that English common law subjected a person guilty of an assault or battery to an action for damages at the suit of the party injured and to an indictment at the suit of the king “wherein he shall be fined according to the heinousness of the offense.” 1 W. Hawkins, Pleas of the Crown 264 (6th ed. 1788); 1 M. Bacon, New Abridgment of the Law 156 (4th ed. 1778); 1 R. Burn, The Justice of the Peace and Parrish Officer (10th ed. 1766); F. Pulton, De Pace Regis et Regni (1610); E. Wingate, The Body of the Common Law of England 24 (1655) (Reprint). Petitioner also ³³⁵ draws upon an American treatise of 1815 as support for this proposition. In J. Hall, The Office and Authority of a Justice of the Pease in the State of Maryland 27 (1815), the author adopts the statement of W. Hawkins, Pleas of the Crown, supra, concerning the civil and criminal remedies for assault and battery.

Moreover, Petitioner argues, the enactment in England and in this country in the eighteenth and nineteenth centuries of statutes providing for specific terms of imprisonment for the commission of aggravated assaults furnishes support for his position, for if unlimited imprisonment could be imposed for all assaults it would be unnecessary to provide specific penalties for some of them. In Manley v. State, 7 Md. 135 (1854), our predecessors referred to a two count indictment charging assault with intent to murder and assault and battery respectively, and said, at 148: The [charge] set out in the first count “is defined and prohibited” by the Act of 1809, ch. 138, State v. Dent, 3 G. & J. 8 , by which a severer punishment is prescribed than at common law. Standing in opposition to Petitioner’s contention is an unbroken line of cases extending back just over a century. This Court has consistently held that where the Legislature has not provided a penalty for common law misdemeanors such as assault and battery, the punishment may be by fine, or imprisonment, or both and that the only limitation upon the number of years to which one may be sentenced is, ordinarily, the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and Articles 16 and 25 of the Maryland Declaration of Rights.

Street v. State, 307 Md. 262, 265-66 , 513 A.2d 870 (1986); Simms v. State, 288 Md. 712, 714 , 421 A.2d 957 (1980); Gleaton v. State, 235 Md. 271, 277-78 , 201 A.2d 353 (1964); Duff v. State, 229 Md. 126, 127 , 182 A.2d 349 , cert. denied, 371 U.S. 898 , 83 S.Ct. 199 , 9 L.Ed.2d 130 (1962); Burley v. State, 226 Md. 94, 96-97 , 172 A.2d 394 (1961); Yantz v. Warden, 210 Md. 343, 351 , 123 A.2d 601 , cert. denied, 352 U.S. 932 , 77 S.Ct. 236 , 1 L.Ed.2d 167 ³³⁶ (1956); Roberts v. Warden, 206 Md. 246 , 111 A.2d 597 (1955); Heath v. State, 198 Md. 455, 467 , 85 A.2d 43 (1952); Apple v. State, 190 Md. 661, 668 , 59 A.2d 509 (1948); Mitchell v. State, 82 Md. 527, 534 , 34 A. 246 (1896); State v. Falkenham, 73 Md. 463, 466 , 21 A. 370 (1891); Hannon v. State, 63 Md. 123, 126 (1885). By ch. 120 of the Act of 1882 the Legislature specified whipping 2 as a permitted punishment for a “brutal” battery