Lievers v. State

Orth, J., delivered the opinion of the Court. The appellant was charged under an indictment containing three counts: 1st count — forging a certain check in the amount of $400 ; 2nd count — uttering that check; 3rd count — obtaining $400 by a false pretense. He was found guilty of the offenses charged in counts one and two at a court trial in the Circuit Court for Baltimore County and sentenced to imprisonment for a term of 5 years on each offense, the sentences to run concurrently. Upon the finding of the guilty verdicts the State entered a nolle prosequi to the third count.

See Maryland Rules, 711. ²²¹ The only contention raised on appeal from the judgments is that the offenses of forgery and uttering merged into the offense of false pretense and therefore the convictions were improper, constituting reversible error. This Court has stated that the common-law doctrine of merger is now not followed in Maryland but that a modern concept of merger of offenses has been adopted. Chittum v. State, 1 Md. App. 205 . The true test under the modern doctrine is whether one crime necessarily involves the other.

Tender v. State, 2 Md. App. 692. That is to say, when the facts necessary to prove a lesser offense are essential ingredients in establishing the greater offense, the lesser offense is merged into the greater offense. Dunlap v. State, 1 Md. App. 444 . The rationale of the modern doctrine was set forth in Tender v. State, supra, at page 700: “We recognize that a person should not be twice punished for the same acts whether the offenses charged by reason of such acts be deemed to be inconsistent, duplicitous or to have merged.” Thus, with regard to merger, in a trial on multiple