Slansky v. State

Delaplaine, J., delivered the opinion of the Court. Jack Slansky was tried by a jury in the Circuit Court for Prince George’s County on the statutory charge of bigamy. Code 1939, art. 27, sec. 19. The State showed that on August 31, 1940, the defendant married Sima Lehrman in New York City, and on April 26, 1946, he married Juliet Warmack in Hyattsville.

He did not take the stand, but rested his defense on a decree of divorce granted to him by the Second Judicial District Court of the State of Nevada in and for the County of Washoe on April 20, 1946. The State challenged the validity of the decree, and the jury rendered a verdict of guilty. The trial judge, after overruling a motion for a new trial, sentenced the defendant to serve eighteen months in the Maryland House of Correction. He has appealed here from the judgment of conviction.

First. Appellant claims that he was denied due process of law. He contends that art. 15, sec. 5, of the Constitution of Maryland, providing that in the trial of all criminal cases the jury shall be the judges of law, as well as of fact, conflicts with the Fourteenth Amendment of the Constitution of the United States. The words “due process of law” are equivalent in meaning to the words “law of the land,” and mean law in its regular course of administration through courts of justice securing to the individual the benefit of those fundamental rules of the common law by which judicial trials are governed.

One aid to the decision of the question whether the denial of a certain right is a denial of due process is to inquire how the right was rated during the time when the meaning of due process was in a formative ¹⁰¹ state and before it was incorporated in American constitutional law. The crucial question is: Did those who then were formulating and insisting upon the rights of the people believe that the right was so fundamental that there could be no due process without it? Twining v. New Jersey, 211 U. S. 78 , 29 S. Ct. 14, 23 , 53 L. Ed. 97 . In England the question whether the jury should have the right to decide the law in criminal cases was for centuries the subject of controversy.

But at the time of American independence the prevailing rule of the common law in England was that the court should judge the law, and the jury should apply the law to the facts. This doctrine was condemned by some of the Colonial statesmen, notably John Adams, who believed that the juries should be entitled to disregard the arbitrary and unjust rulings of the judges holding office by authority of the Crown, particularly in the trial of cases concerning freedom of speech and freedom of the press. In some of the New England Colonies it was fully understood that the judges held office not for the purpose of deciding causes, for the jury decided all questions of both law and fact, but merely to preserve order and see that the parties were treated fairly before the jury. This procedure received patriotic justification as increasingly oppressive measures were taken by the royal officials; however, the fact that many of the judges had not studied law was probably an additional explanation for the procedure.

The restrictions upon the province of the judges in this State were thus due less to the English practice than to the habits to which they themselves had become accustomed in administering the law of the Colonies. Speaking of the efforts in this country to protect the individual from oppression in the administration of punitive justice, Dean Pound has said: “The colonists had had experience of the close connection of criminal law with politics. The pioneers who had preserved the memory of this experience were not concerned solely to do away with the brutality of the old law as to felonies. Even more ¹⁰² their constant fear of political oppression through the criminal law led them and the generation following, which had imbibed their ideas, to exaggerate the complicated, expensive and dilatory machinery of a common-law prosecution, lest some safeguard of individual liberty be overlooked, to give excessive power to juries and to limit or even cut off the power of the trial judge to control the trial and hold the jury to its province.” Pound, The Spirit of the Common Law, 122, 128.

In the early part of the nineteenth century the trial judges in the Federal courts and the Justices of the Supreme Court, sitting on circuit, instructed the juries that they were the judges both of the law and the fact in a criminal case and were not bound by the opinion of the court. But in 1885 Justice Story wrote the leading Circuit Court opinion in United States v. Battiste, Fed. Cas. No. 14,545, 2 Sumn. 240 , 243, which had a far-reaching influence in diverting the current of American judicial opinion away from the doctrine that juries in criminal cases are judges of the law. He conceded that the jury in a criminal case as well as in a civil case have “the physical power” to disregard the law as laid down to them by the court, but he denied that they have “the moral right” to decide the law according to their own notions or pleasure.

He held definitely that it is the duty of the court to instruct the jury as to the law, and the duty of the jury to follow the law as laid down by the court. In 1845 the Supreme Judicial Court of Massachusetts, speaking through Chief Justice Shaw in Commonwealth v. Porter, 10 Metc., Mass., 263, declared that it was a mistaken notion that it was the province of the jury to determine the law in criminal cases, but rather oddly held that the trial judge in that case had erred in not allowing counsel to argue the law to the jury. In 1855, after the Massachusetts Legislature had enacted a statute providing that “in all trials for criminal offenses, it shall be the duty of the jury * * * to decide at their discretion, by a general verdict, both the fact and the law ¹⁰³ involved in the issue,” Chief Justice Shaw said that the statute was merely a declaratory act which made no substantial change in the law, and held that the trial court had erred in permitting any question of law to go to the jury for decision. Commonwealth v. Anthes, 5 Gray, Mass., 185, 187.

Not all of the States repudiated the jury’s right to judge the law in criminal cases prior to the ratification of the Fourteenth Amendment by the States in 1868. For years afterwards a number of the States clung to the doctrine that the jury should have the right to be judges of the law. The Supreme Court of Pennsylvania asserted in 1879: “The power of the jury to judge of the law in a criminal case is one of the most valuable securities guaranteed by the Bill of Rights. Judges may still be partial and oppressive, as well from political as personal prejudice, and when a jury are satisfied of such prejudice, it is not only their right but their duty to interpose the shield of their protection to the accused.” Kane v. Commonwealth, 89 Pa. 522, 527 , 33 Am.

Rep. 787 . In the same year the Court qualified the rule by approving an instruction that, although the jury had the right to decide the law, their only safe course was to accept the court’s interpretation of the law. Nicholson v. Commonwealth, 91 Pa. 390 . In 1885 the Court in Hilands v. Commonwealth, 111 Pa. 1 , 2 A. 70, 72 , 56 Am.

Rep. 235 , stated that the jurors in a capital case “are not only the judges of the facts * * * but also of the law.” In 1891 the Court approved the trial court’s instruction that the statement of the law by the court was the best evidence of the law, and, viewing it as evidence only, the jury are to be guided by what the court said with reference to the law. Commonwealth v. McManus, 143 Pa. 64 , 21 A. 1018 , 22 A. 761 , 14 L. R. A. 89. Finally, in Commonwealth v. Bryson, 276 Pa. 566 , 120 A. 552, 554 , the Court stated that it is the duty of the jury to take the law from the court to the same extent in a criminal case as in any other, and the trial judge can properly so instruct. ¹⁰⁴ In a number of other States the rule that the jury should have exclusive right to judge the law likewise underwent modification by judicial interpretation. As late as 1875 the Supreme Court of Illinois recognized the statutory right of the jury to judge the law in Mullinix v. People, 76 Ill. 211 ; but in 1906 the Court said in Juretich v. People, 223 Ill. 484 , 79 N. E. 181 , 183: “The statute which makes the jury the judges of the law and the facts has been often severely criticized by the professional, and justly so.

Instead of resorting to the Legislature to repeal it, the courts have from time to time qualified it, until finally it has been rendered absolutely nugatory. No honest and intelligent jury would, upon reflection, say that by their study and experience they were better qualified to judge of the law than the court * * *.” Thirty years ago there were at least ten States in which it was provided by the State Constitution or by statute that the jury in criminal case were judges of both law and facts. These States were Connecticut, Pennsylvania, Maryland, Georgia, Tennessee, Indiana, Illinois, Louisiana, Arizona and Oregon. Today there remain only two States, Indiana and Maryland, where the. jury have the constitutional right to determine the law in criminal cases.

The Constitution of Indiana, art. 1, sec. 19, provides: “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” The Supreme Court of Indiana, in its latest pronouncement on the subject in 1948, definitely declared that the right of the jury to determine the law and the facts in Indiana cannot be modified or minimized by instructions or otherwise. Steinbarger v. State, Ind Sup., 82 N. E. 2d 519 . Under the Maryland Constitution of 1776 there was lack of uniformity in procedure with respect to instructions to juries in criminal cases. In some parts of the State it was the practice of the judges to decline to give instructions to the jury in criminal cases under any circumstances ; in other parts of the State it was the practice of the judges to give advisory instructions when ¹⁰⁵ requested to do so.

It was regarded as entirely a matter of discretion with the judge, there being no positive duty requiring him to pursue the one course or the other. In order to make the procedure uniform throughout the State, the members of the Convention which framed the second Constitution inserted the provision that “in the trial of all criminal cases the jury shall be the judges of law as well as fact.” 2 Debates and Proceedings of Md. Reform Convention, 1851, 766-768; Md. Consitution of 1851, art. 10, sec. 5. In 1858 the Court of Appeals held that this provision of the Constitution was merely declaratory of the preexisting law on the subject, and that it did not authorize the jury to judge of the constitutionality of an Act of the Legislature. Franklin v. State, 12 Md. 236 ; Demby v. State, 187 Md. 7, 17 , 48 A. 2d 586 .

A similar provision was inserted in the Constitution of 1864, art. 12 sec. 4, and in the present Constitution of 1867. The decision of the United States Supreme Court in Sparf v. United States, 156 U. S. 51 , 15 S. Ct. 273, 288, 293 , 39 L. Ed. 343 , that juries in criminal cases in the courts of the United States must follow the judge’s instructions on matters of law, is not applicable to proceedings in State courts. There is no implication in the decision that a provision in a State Constitution providing that juries shall be judges of the law conflicts with the Fourteenth Amendment. On the contrary, Justice Harlan plainly stated in the opinion of the Court: “Undoubtedly, in some jurisdictions, where juries in criminal cases have the right, in virtue of constitutional or statutory provisions, to decide both law and facts upon their own judgment as to what the law is and as to what the facts are, it may be the privilege of