Moaney v. State

Orth, C. J., delivered the opinion of the Court. We are called upon in this appeal to determine whether a person shall be held to answer in a court of this State for a felonious crime unless on an indictment of a grand jury. ⁴¹⁰ STATEMENT OF THE CASE On 18 March 1975, at a bench trial in the Criminal Court of Baltimore, DONALD EDWARD MOANEY was convicted of committing the crime of grand larceny on 13 January 1975 and sentenced to one year. 1 The trial came about in this manner. The offense was charged in a statement of charges made out by the arresting officer and filed in the District Court of Maryland. When the case came on in usual course in the District Court, Moaney demanded a jury trial, depriving the District Court of jurisdiction and placing the cause within the jurisdiction of the Criminal Court of Baltimore. 2 Courts Art. § 4-302 (d).

The matter was not presented to the grand jury for action, nor did the State’s Attorney file an information. The case came to trial on the statement of charges. Moaney pleaded not guilty and elected trial by the court. The court observed that “there is no allegation of an amount in the statement of charges.” In that part of the statement of charges narrating the information or observations upon which Moaney was arrested, the value of the goods stolen was stated to be $375.

That part of the charging document setting out the formal charge, however, omitted the value of the goods. It was stipulated that the value was $375 and the charging document was amended accordingly with the approval of Moaney. Whereupon defense counsel observed: “Your Honor, I think perhaps at ⁴¹¹ this time we also would have to waive an indictment on this.” The transcript reads: “THE COURT: The statement of charges under the rule can be handled here. MR.

KROOP [Defense Counsel]: I understand that. I have no objection to that but it is over $100.00 which raises it into a felony class. THE COURT: Preserve that point, I may agree. MR.

KROOP: Very well. Then the defense is not waiving its right to challenge the fact that the State has no right under a statement of charges to bring a felony against my client. You overrule the objection. THE COURT: I overrule the objection for the record.” The point was not further discussed.

Trial proceeded on a statement of facts presented by the State and accepted by Moaney. 3 A motion for judgment of acquittal was made and denied. The defense rested. The court rendered a verdict of guilty and imposed sentence. See note 1, supra.

Moaney promptly appealed. On appeal Moaney concedes that there was legally sufficient evidence to sustain his conviction, and indeed, the corpus delicti of the offense and Moaney’s criminal agency were clearly established by the undisputed statement of facts. As his sole contention, Moaney renews his attack on the statement of charges. He puts it this way: “That although Article 27, Section 340 undertakes to confer jurisdiction of larcenies under $500.00 in the District Courts of Baltimore City, larceny of the value of $100.00 or upwards is a felony for which at Common Law one can only be prosecuted by indictment in the absence of an affirmative waiver of his right to be indicted by the grand jury.” ⁴¹² Moaney’s argument goes thus.

Grand larceny is a felony. At the common law a felony could be tried only upon an indictment returned by a grand jury. He then turns to Code, art. 51, § 1, asserting that it is a clear declaration of the common law right to a grand jury upon accusation of an indictable offense. He recognizes that the common law right has been tempered by Maryland Rules 708, 709 and 710, but urges that, in the circumstances, these Rules do not permit him to be tried on a statement of charges.

He concludes that, in Maryland, “any accused charged with a felony is entitled to grand jury indictment” unless affirmatively waived. THE LAW In this jurisdiction, larceny is a crime under the common law, and when the value of the goods stolen is to the value of $100 or more, it is a felony, and, thus, an infamous crime. Code, art. 27, § 340; Farlow v. State, 9 Md. App. 515 (1970). See Mackin v. United States, 117 U. S. 348 (1886).

And, in this jurisdiction, there is no specific constitutional right to indictment by a grand jury. As to the federal constitution, the clause of Amendment V to the Constitution of the United States which provides that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury . . .” does not apply to the states. Fabian v. State, 3 Md. App. 270, 283 (1968), citing Heath v. State, 198 Md. 455 (1951). As to the Maryland constitution, we said in Fabian , at 282-283: “ ‘[Tjhere is no provision of the Maryland Constitution requiring an indictment in any case.

Article 21 of the Declaration of Rights merely requires that an accused ‘hath a right to be informed of the accusation against him; to have a copy of the Indictment, or Charge in due time (if required) to prepare for his defense.’ State, ex rel. Butler v. Warden, 195 Md. 713, 714 .’ ” In art. 5, however, of the Declaration of Rights of the Constitution of Maryland, the People declared “That the Inhabitants of Maryland are entitled to the Common Law of England. . . .” At the common law “whenever any ‘felonious’ offense is charged, the same requires that the accusation be warranted by the oath of ⁴¹³ twelve men, before the party shall be put to answer it.” 4 W. Blackstone, Commentaries ³¹⁰. See C. Moylan, The Historical Intertwining of Maryland’s Burglary and Larceny Laws or the Singular Adventure of the Misunderstood Indictment Clerk, 4 U. Balto. L. Rev. 28, 35 (1974).

Thus, by the common law, it appears that a person accused of grand larceny is entitled to be tried upon an indictment returned by a grand jury. As we have indicated, Moaney asserts that this common law right is declared by statute to be the general policy of Maryland. His argument is clouded by his failure to keep abreast of statutory changes by way of repeal and amendment. He refers to Code, art. 51, § 1, as providing: “Whenever a person is accused of an indictable criminal offense under the laws of this State, he shall have the right to a grand jury selected at random from a fair cross section of the citizens of this State resident in the county in which the court convenes or in Baltimore City if the court convenes therein.” This may be reflective of the common law, but it was repealed by Acts 1973, 1st Sp.

Sess., ch. 2, § 2, effective 1 January 1974. It reappears as Courts Art. § 8-102 (a), which was amended by Acts 1974, ch. 691, § 8, effective 1 July 1974, with significant change. It now reads: “When a litigant in a court of the State is entitled to trial by a petit jury and when a person accused of a criminal offense is presented to a grand jury, the jury shall be selected at random from a fair cross section of the citizens of the state who reside in the county where the court convenes.” Thus, the “Declaration of policy”, as the section is subtitled, under Title 8, “Juries”, is no longer expressed in terms of “having the right to a grand jury” upon accusation of “an indictable criminal offense.” (emphasis added) Rather, now, it is when “a person accused of a criminal offense is presented to a grand jury” that he is entitled to a jury selected at random, (emphasis added) Whatever the intent ⁴¹⁴ and effect of art. 51, § 1 may have been, it is clear that as reworded for clarification in Courts Art. § 8-102 (a), see Revisor’s note, the declaration no longer applies to all “indictable” offenses, but applies only when a person is “presented” to a grand jury. There is no obligation imposed to so present and no “right” to a grand jury contemplated.

Whatever may have been the effect of the statute before, we believe that as amended, considered in the frame of reference of the Title, “Juries”, under which it appears, that it cannot now be construed, as Moaney would like, to declare that whenever a person is accused of an indictable criminal offense under the laws of this State, he shall have the right to a grand jury. All it says is that it is the policy of this State that the grand jury shall be selected at random from a fair cross section of the citizens of this State who reside in the county where the court convenes, when a person accused of a criminal offense is presented to it. Common law rights may be changed by legislative enactment, judicial opinion, and rules of court. 4 Lutz v. State, 167 Md. 12 (1934); Basta v. State, 133 Md. 568 (1919); Dill v. State, 24 Md. App. 695 (1975). We look to see if there has been change in this jurisdiction with respect to the common law right to indictment.

That there has been change is manifest. Acts 1973, ch. 840, added § 592 to art. 27, effective 1 July 1973, 5 and Acts 1973, 1st Sp. Sess., ch. 2, § 7A, effective 1 January 1974 amended it. As enacted and amended it authorizes the State’s Attorney, “[i]n all cases involving a felony, other than a felony within the jurisdiction of the District Court,” under certain conditions involving a preliminary hearing, to charge by information.

Clearly such right to charge by indictment as existed at the common law was abrogated. Whether to seek indictment or to charge by information is now at the election of the State’s Attorney with the conditions specified. The common law ⁴¹⁵ right has also been changed by amendment to the Maryland Rules. Formerly, Rule 708 provided that a person charged with the commission of a felony may not be prosecuted upon an information except pursuant to Rule 709 (Immediate Trial).

It was amended 1 October 1973 to conform with art. 27, § 592: “A person charged with the commission of a felony may be prosecuted upon an information filed by the State’s Attorney after a preliminary hearing has been held and probable cause to hold the accused has been found or after such preliminary hearing has been waived.” The abrogation of the common law right to indictment is clearly shown by the amendments to Rule 709. Section a of that Rule formerly read: “An accused, including an accused who has prayed a jury trial before a trial magistrate, or who has appealed from a conviction before a trial magistrate, may file with the clerk a petition signed by the accused setting forth that there is a criminal charge pending against him, that he desires to waive his right to action by the grand jury, or that a jury trial was prayed before the trial magistrate, or that the hearing before the magistrate resulted in conviction and appeal, as the case may be, and that he seeks an immediate trial.” As amended, effective 1 June 1972 and 1 October 1973, to reflect the creation of the District Court and the provisions of art. 27, § 592, it states: “An accused may file with the clerk a petition signed by him setting forth that there is a criminal charge pending against him, that he desires to waive any right he may have to action by the grand jury, or that a jury trial was prayed in the District Court, or that the trial in the District Court resulted in conviction and appeal, as the case may be, and that he seeks an immediate trial.” ⁴¹⁶ We note that “he desires to waive his right to action by the grand jury” is replaced by “he desires to waive any right he may have to action by the grand jury.” (emphasis added). Former § b of Rule 709 provided: “Upon the filing of a petition pursuant to this Rule, the State’s Attorney shall immediately file an information against the accused except when an accused has prayed a jury trial in the District Court or has appealed from a judgment of the District Court, in either of which event the accused shall be tried upon the charging document.” Both former § b and present § b of Rule 709 enable trial in a circuit court without indictment by providing for the filing of an information. What we have discussed thus far indicates that a felony may be prosecuted in certain