Phillips v. State

Anderson, J., delivered the opinion of the Court. The appellant, James Oliver Phillips, was indicted for escape from the Baltimore County jail in violation of Md. Code, Art. 27, § 139 (1967 Repl. Vol.) (1968 Cum. Supp.).

He was convicted in the Circuit Court for Baltimore County by a jury, and was sentenced to the jurisdiction of the Department of Correction for one year. The case was submitted to the jury on an agreed statement of facts, which set forth that the appellant was lawfully confined under sentence in the Baltimore County jail, that he was participating in a Work release program authorized by Md. Code, Art. 27, §§ 645K-645S (1967 Repl. Vol.), that he failed to return to the jail after leaving his place of employment on March 15, 1968, and that he was apprehended on March 22, 1968. The appellant’s defense was that Md. Code, Art. 27, § 645-0 was the controlling statute, rather than Art. 27, § 139.

After the statement of facts was read, the court instructed the jury on the applicable law. At the conclusion of the charge the following proceedings took place: “(Mr. Wittstadt) I request that you so instruct the Jury that counsel in argument may refer to opinions of the other courts, relative to the other courts’ opinions as to the law. “(The Court) If you read some other case in a court of last resort, then the Court will let you do that, and I’ll so tell them now. “(Mr. Wittstadt) The only case I have is the case of State v. Barton, which was decided by Your Honor last week, which is identical to this case. “ (The Court) And you want to refer to that ? “(Mr. Wittstadt) Yes. “(The Court) And my ruling is that you can not.” 1 ⁵⁸ On this appeal, appellant’s sole contention is that the court erred in refusing to allow him to refer to the prior nisi prius decision of State v. Barton in his argument to the jury. In those jurisdictions other than Maryland which allow or at one time allowed argument of law to the jury, in criminal cases, the general rule has been stated that it is proper to argue from reported cases and from generally recognized textbooks. See, e.g., People v. Lloyd, 304 Ill. 23 , 136 N. E. 505, 534-35 (1922); Klepfer v. State, 121 Ind. 407 , 23 N. E. 287 (1890) ; State v. Whitmore, 53 Kan. 343 , 36 Pac. 748 , 749 (1894) ; State v. Dickey, 48 W. Va. 325 , 37 S. E. 695, 699 (1900) ; Davis v. State, 213 Ala. 541 , 105 So. 677, 678 (1925).

Compare State v. Bussa, 176 La. 87 , 145 So. 276, 281 (1932). See generally Annot., 67 A.L.R.2d 245 (1959). As the Constitution of Maryland, Art. 15, Sec. 5, provides that the jurors are the