State v. Ward

Orth, J., delivered the opinion of the Court. With the common law of England, to which the inhabitants of Maryland are constitutionally entitled, Md. Const., Dec. of Rights, Art. 5, came the doctrine of accessoryship applicable to felonies. Although the common law may be changed by legislative act 1 or judicial decision, 2 the doctrine has not been altered in this jurisdiction. Maryland is one of the few, if not the only state, which has retained this doctrine in virtually the same form as it existed at the time of William Blackstone in the 18th century, and it represents the law of Maryland at the present time. 3 State v. Williamson, 282 Md. 100, 111 , 382 A. 2d 588 (1978) (concurring opinion by Levine, J.). ¹⁹² Accompanying the common law doctrine across the Atlantic were certain highly technical procedural rules, not altogether logical, which had developed from the distinction between principals and accessories before the fact.

These rules operate to the advantage of the accused and the detriment of the prosecution, for they “tended to shield accessories from punishment notwithstanding overwhelming evidence of their criminal assistance.” W. La Fave & A. Scott, Handbook on Criminal Law § 63, pp. 498-499 (hereinafter referred to as La Fave & Scott). The rules are frequently procedural embarrassments to the State, see State v. Magliano, 7 Md. App. 286 , 255 A. 2d 470 (1969), and the case at hand furnishes yet another example. It concerns the application of the common law doctrine of accessoryship to the crime of murder, and the procedural embarrassments to. the State are compounded by the statutory classification in Maryland of murder into degrees, which was unknown at the English common law. I The ultimate question on this appeal is whether the Circuit Court for Prince George’s County erred in dismissing an indictment returned against James Edward Ward, 4 Harry Edward Brockman and David Victor Maness were charged with the premeditated murder of Gerald Joseph Godbout, Jr. on 28 April 1972, and were tried in the Circuit Court for Prince George’s County.

Each pleaded guilty to and was convicted of the murder in the second degree under a plea bargain arrangement. 5 Maryland Rule 731 e, formerly Rule 724. On ¹⁹³ 17 July 1974 Ward was indicted for various offenses relating to the murder. At the time of the dismissal of the indictment on 11 April 1978, only the third count remained. 6 It charged Ward as an accessory before the fact of the murder of Godbout, alleged to have been committed by Brockman and Maness “feloniously, wilfully and of their deliberately premeditated malice aforethought.” It presented that Ward “did unlawfully aid, counsel and procure the said ... Brockman and ...

Maness to do and commit the said murder----” The indictment was dismissed upon the grant of a motion filed by Ward claiming that the third count was defective. In light of the allegations in the motion, the arguments made regarding them, and the comments of the court, these questions are presented which go to the determination of ¹⁹⁴ whether the court erred in dismissing the indictment as defective: 1) May there be an accessory before the fact of murder in the second degree? 2) If so, did the form of the third count permit Ward to be tried as an accessory before the fact of murder in the second degree? 3) In any event, may Ward be guilty of murder in the first degree as accessory before the fact when his principals stand convicted of murder in the second degree? II We lay a foundation for our determination of whether the court erred in dismissing the indictment by examining the relevant terms involved. Murder Homicide is the killing of a human being by a human being.

It is culpable when it is felonious, and it is felonious when it is not justifiable or excusable. See Clark & Marshall, A Treatise on the Law of Crimes §§ 10.00-10.14 (7th ed. 1967) (hereinafter referred to as Clark & Marshall); L. Hochheimer, Crimes and Criminal Procedure §§ 656-678 (1st ed. 1897) (hereinafter referred to as Hochheimer); R. Perkins, Criminal Law 28-96 (2d ed. 1969) (hereinafter referred to as Perkins). “In the English common law there was but one crime of felonious homicide (if petit treason is ignored). [ 7 ] The division of this into murder and manslaughter resulted from early statutes intended to exclude the ¹⁹⁵ more heinous types of homicide from benefit of clergy. In its origin this was merely a difference in penalty dependent upon the presence or absence of aggravating circumstances, and no doubt it would have been worded in terms of ‘degrees’ of the crime if that concept had been in use at the time. For most purposes murder and manslaughter have come to be regarded as distinct offenses....” Perkins, Parties to Crime, 89 U. Pa.

L. Rev. 581 , 587 (1941). In Maryland, murder and manslaughter are not considered as degrees of felonious homicide, but are regarded as distinct offenses, distinguished by the presence of malice aforethought in murder and the absence of malice in manslaughter. Davis v. State, 39 Md. 355 (1874); Weighorst v. State, 7 Md. 442 (1855). 8 At the common law there were no degrees of murder. A conviction of felonious homicide with malice aforethought, that is, murder, called for the sentence of death and was excluded from the benefit of clergy. 9 The penalty of death for all acts of murder long ago came to be thought too severe because of the widely different circumstances and varying atrociousness under which one person may feloniously kill another.

Ameliorative measures were taken in many states through legislative enactments, generally by dividing murder ¹⁹⁶ into degrees and relating the punishment to the degree. 10 Maryland followed this pattern. Acts 1809, ch. 138, § 3. The preamble to § 3 expressed its object: “And whereas the several offences which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment____” 11 As presently codified, the statute declares that “[a]ll murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree,” Maryland Code (1957, 1976 Repl. Vol.) art. 27, § 407, 12 and “[a]ll other kinds of murder shall be deemed murder in the second degree,” id. § 411.

Principals and Accessories “In the field of felony the common law divided guilty parties into principals and accessories.” Perkins at 643. Principals came to be classified as in the first degree (perpetrators) or in the second degree (abettors) and accessories as before the fact (inciters) or after the fact (criminal protectors). 13 ¹⁹⁷ A principal in the first degree is one who actually commits a crime, either by his own hand, or by an inanimate agency, or by an innocent human agent. A principal in the second degree is one who is guilty of felony by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, either actual or constructive. An accessory before the fact is one who is guilty of felony by reason of having aided, counseled, commanded or encouraged the commission thereof, without having been present either actually or constructively at the moment of perpetration.

An accessory after the fact is one who, with knowledge of the other’s guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment. See State v. Williamson, 282 Md. 103 -105; Camphor v. State, 233 Md. 203, 205 , 196 A. 2d 75 (1963); Thornton v. State, 232 Md. 542, 544 , 194 A. 2d 617 (1963); Veney v. State, 225 Md. 237, 238 , 170 A. 2d 171 (1961); Davis v. State, 38 Md. 15, 45 (1873); Agresti v. State, 2 Md. App. 278, 280 , 234 A. 2d 284 (1967); 4 W. Blackstone, Commentaries ³⁴-38 (hereinafter referred to as Blackstone); Clark & Marshall §§ 8.01-8.03,8.06; Hochheimer §§ 31-36; Perkins at 643-669. For a neat summary of the common law of parties as applied to felonious homicide, see State v. Powell, 168 N. C. 134, 138 , 83 S. E. 310 (1914). Ill (1) We receive little assistance from the common law in considering whether there may be an accessory before the ¹⁹⁸ fact of second degree murder because, as we have indicated, murder was not divided into degrees at the common law.

Blackstone asserts in his discussion of what offenses admit of accessories: “In murder and other felonies, there may be accessories: except only in those offences, which by judgment of the law are sudden and unpremeditated, as manslaughter and the like; which therefore cannot have any accessories before the fact.” Blackstone ³⁶. Commentators reject this exception. Perkins characterizes it as “a far-fetched corollary” to the rule that an accessory cannot be tried before his principal. Perkins at 673. 1 P. Wharton, Criminal Law § 680, p. 908 (12th ed. 1932) (hereinafter referred to as Wharton) states flatly: “A person may be legally convicted as accessory before the fact of murder in the second degree.” 1R.

Anderson, Wharton’s Criminal Law and Procedure § 111, p. 241 (1957) (hereinafter referred to as Anderson) asserts: “There may be accessories before the fact to the crime of murder in different degrees.” This view is thus explained in Wharton: “It has been doubted whether there can be an accessory before the fact to manslaughter, since accessoryship presupposes premeditation, and premeditation is incompatible with manslaughter. But... an instigator may, in hot blood, stimulate a person incensed with another to execute a deed of vengeance on such other, when the offense of the perpetrator would be only manslaughter; and we may also hold that an instigator may be guilty of murder in instigating another to commit manslaughter by the rash use of dangerous instrumentalities. A fortiori there may be an accessory before the fact to murder in the second degree.” Id. § 272, pp. 361-362 (footnotes omitted). See G. Williams, Criminal Law § 130 (2nd ed. 1961) (hereinafter referred to as Williams).

The General Assembly has recognized accessoryship of murder in the second degree at least to the extent of providing for punishment upon conviction thereof, but ¹⁹⁹ without distinction between accessories before and after the fact: “Every person convicted of the crime of murder in the second degree, or as accessory thereto, shall be sentenced to the penitentiary for not more than thirty years.” Code (1957, 1976 Repl. Yol.) art. 27, § 414 (emphasis added). 14 The view that there may be an accessory before the fact of murder in the second degree has a rational basis. A person may be guilty of “[c]onduct... accompanied by an intent to do serious bodily injury but without an intent to kill, which legally causes another’s death.” La Fave and Scott, 540. We recognized that such conduct constitutes murder in Davis v. State, 237 Md. 97, 104 , 205 A. 2d 254 (1964), cert. denied, 382 U. S. 945 (1965): “An actual intent to take life is not necessary for a conviction of murder if the intent is to commit grievous bodily harm and death occurred in consequence of the attack.” This “intent-to-do-serious-bodily-injury murder” has been traced back to Holloway’s Case, 79 Eng.

Rep. 715 (K.B. 1628). The murder in such circumstances is in the second degree. “If the intent were to commit grievous bodily harm, and death occurred in consequence of the attack, then the case would have been murder in the second degree____” Wharton § 841, pp. 1131-1132. The felonious homicide would be with malice aforethought but not wilful, deliberate and premeditated. See Gladden v. State, 273 Md. 383, 387 , 330 A. 2d 176 (1974).

So, if A shoots B in the leg with the intention of doing him serious bodily harm short of death but the injury thereby done to B results in the death of B, however contrary this may be to A’s intention, A is guilty of murder in the second degree. If C, sharing A’s intention that B be seriously injured but not killed, aided, counseled, commanded or encouraged the shooting, without having been present either ²⁰⁰ actually or constructively at the moment of perpetration, he would be guilty as an accessory before the fact to murder in the second degree. We conclude that there may be an accessory before the fact of murder in the second degree. (2) Having concluded that there may be an accessory before the fact of murder in the second degree, we find that Ward could be tried therefor under the third count of the indictment.

The statute classifying murder into degrees did not require a change in the common law forms of charging the offense. Wood v. State, 191 Md. 658, 667 , 62 A. 2d 576 (1948). However, the General Assembly of Maryland relaxed the formal common law requirements of indictment in homicide cases when it enacted Chapter 248 of the Acts of 1906. It authorized the use of a shortened statutory form which may, but need not, be used in lieu of the common law forms.

Although there were subsequent amendments to the form because of controversies relative to the death penalty, the only actual change in the formula authorized to be used in an indictment was the requirement added by § 7 of Acts 1963, ch. 558 that an indictment conclude with the words “against the peace, government and dignity of the State.” State v. Williamson, 282 Md. at 109 . The validity of the 1906 formula has been upheld by this Court. Kelley v. State, 181 Md. 642, 647 , 31 A. 2d 614 (1943); Neusbaum v. State, 156 Md. 149, 161-162 , 143 A. 872 (1928). The murder of which Ward was alleged to have been an accessory before the fact was charged in the third count of the indictment pursuant to the statutory formula, which, we observe, is expressly applicable, not only to murder and manslaughter, but “for being accessory thereto.” It is well settled that under an indictment pursuant to the statutory formula, even though it spells out murder in the first degree, the accused may be convicted of murder in the first degree, of murder in the second degree, or of manslaughter. ²⁰¹ Blackwell v. State, 278 Md. 466, 476 , 365 A. 2d 545 (1976), cert. denied, 431 U. S. 918 (1977); State v. Evans, 278 Md. 197, 199, n. 1 , 362 A. 2d 629 (1976); Carroll v. Warden, 205 Md. 631, 632-633 , 106 A. 2d 71 (1954).

This is not out of line with the common law, which never entirely lost sight of the notion that the crime is felonious homicide, of which murder and manslaughter are but different grades. Perkins at 649. Thus, it was said in 1 Hale P. C. ³⁴⁸: “Upon an indictment of murder, tho the party upon his trial be acquit of the murder, and convict of manslaughter, he shall receive judgment, as if the indictment had been manslaughter, for the offense in substance is the same.” We find that, under the third count of the indictment, Ward could be tried as an accessory before the fact of murder in the second degree. (3) We consider now whether a person may be convicted of murder in the first degree as accessory when his principal has been convicted of the murder in the second degree.

At the common law the principal in the second degree may be tried and convicted prior to the trial of the principal in the first degree, or even after the latter has been tried and acquitted. 1 Hale P. C. ⁴³⁷. Furthermore, a principal in the second degree may be convicted of a higher crime or a lower crime than the principal in the first degree. Clark & Marshall § 8.05, p. 521; Perkins at 670-671. 15 With respect to accessories, however, the common law took a different path. An accessory cannot be tried, without his consent, before the ²⁰² principal. 16 State v. Williamson, 282 Md. at 112 (concurring opinion by Levine, J.); Clark & Marshall § 8.05, p. 523; Perkins at 672-673.

And an accessory could not be convicted of a higher crime than his principal. Blackstone declares flatly: “It is a maxim, that accessorius sequitur naturam suiprincipalis: and therefore an accessory cannot be guilty of a higher crime than his principal; being only punished as a partaker of his guilt.” Blackstone at ³⁶. See Clark & Marshall § 8.03, p. 514; Hochheimer § 38; Perkins at 675; Wharton § 276. The rule that an accessory before the fact may not be convicted of a higher crime than the principal has not been altered by statute or judicial decision in Maryland and is the law of this State at the present time.

In arguing to the trial court that a person could be convicted of murder in the first degree as an accessory, although the principal has been convicted of that murder in the second degree, the State declared that “Wharton says we can do it.” 17 We think that the State misinterpreted Wharton. It is correct that Wharton says: “The instigator may act in hot blood, in which case he will be guilty only of manslaughter, while the ²⁰³ perpetrator may act coolly, and thus be guilty of murder. The converse, also, may be true: the instigation may be cool and deliberate, the execution in hot blood by a person whom the instigator finds in a condition of unreasoning frenzy. A person desiring coolly to get rid of an enemy, for instance, may employ as a tool someone whom that enemy has aggrieved, and who is infuriated by his grievance.

Hence an accessory before the fact (or, to adopt the terms of recent codes, an instigator) may be guilty of murder, while the principal (or perpetrator) may be guilty of manslaughter; or the accessory before the fact (instigator), acting in hot blood, may be guilty of manslaughter, while the perpetrator (principal), acting with deliberate malice, may be guilty of murder.” Wharton § 276, pp. 363-364. Immediately preceding this statement, however, is a recognition of the common law rule and a qualification regarding the view expressed: “Under the old law, the defendant was first convicted, and then the accessory was charged with being accessory to the offense which the conviction covered. But now that instigation is a substantive offense, it must be remembered that the offense of the instigator is not necessarily of the same grade as that of the perpetrator.” Id. § 276, p. 363 (emphasis added). Before us the State also quotes Williams § 130, pp. 390-391.

Professor Williams refers to the rule that a principal in the first degree may be convicted of murder and a principal in the second degree of manslaughter, and asserts: “There is no reason why a similar result should not be reached for accessories before.” Id. § 130, p. 390 (§ 62, p. 210 (1st ed. 1953)). He gives examples whereby an accessory before the fact could be guilty of manslaughter and the principal of murder, and the converse where the guilt of the secondary party is the greater. He concludes: “To put the matter generally, a secondary party can be convicted of a crime of ²⁰⁴ a higher degree than the principal.” Id. § 130, p. 391 (§ 62, p. 211 (1st ed. 1953)). But he relies heavily on Wharton, and we are constrained to conclude that his view, like that of Wharton, depends upon the status of the law whereby accessoryship before the fact has been made a substantive offense by statute.

Accessoryship before the fact was not a substantive offense under common law, and there being neither statute nor judicial decision in this jurisdiction making it so, it is not a substantive offense in Maryland. The common law theory of parties was based upon the concept of one crime with guilt attaching to several persons. The application of this theory to murder was well expressed in State v. Ayers, 67 Tenn. 96 (1874): “The offense is compounded of the connivance of the accessory and the actual killing by the principal felon, and the crime of the accessory, thought inchoate in the act of counseling, hiring or .commanding, is not consummate until the deed is actually done. The law in such case, holds the accessory before the fact to be guilty of the murder itself, not as principal, it is true, but as accessory before the fact, for it is the doing of the deed, and not the counseling, hiring, or commanding that makes his crime complete; and it is for the murder that he is indicted, and not for the counseling and procuring.” Id. at 100 .

Thus it is that Hale spoke of “an accessory to murder before the fact,” 1 Hale P.C. ⁴³⁵, rather than “an accessory before the fact to the crime of murder,” or some similar form, as is used under modern statutes which make accessoryship before the fact a separate substantive offense. Perkins at 649. What we perceive to be the basis of the view of Wharton and Williams that an accessory before the fact may be convicted of a higher crime than that of which the principal was convicted simply does not exist in Maryland. There may be no reason why the rule with respect to principals in the first degree and principals in the second degree should not be ²⁰⁵ extended to accessories before, as Williams stated, but the plain fact is that Maryland has not yet done so.

The classification of murder into degrees left intact the common law concept of murder as one crime: “ ‘Murder’ is here recognized as a general denomination, including offenses differing from each other in their degrees of atrocity, but not in their nature or kind; no attempt is made to explain or modify its meaning or abridge its range. Its common law sense is left unimpaired; the measure of punishment only is sought to be graduated according to the circumstances under which it was committed.” Davis v. State, 39 Md. at 374 . 18 See Gladden v. State, 273 Md. at 389-390 ; Stansbury v. State, 218 Md. 255, 260 , 146 A. 2d 17 (1958); Wood v. State, 191 Md. at 666 ; Abbott v. State, 188 Md. 310, 312 , 52 A. 2d 489 (1947); Hanon v. State, 63 Md. 123, 126 (1885). At first blush, it would seem that since murder is one crime, the rule that an accessory before the fact may not be convicted of a higher crime than his principal would be satisfied when both were convicted of murder, regardless of the degree. But the rule was based on the notion that an accessory should never suffer more punishment than the principal.

Perkins at 675. And at the common law, principals and accessories were equally culpable and subject to the same punishment. State v. Williamson, 282 Md. at 106 ; Agresti v. State, 2 Md. App. at 281 ; 1 J. Chitty, A Practical Treatise on the Criminal Law ²⁶⁷ (1819). Clark & Marshall states: “At common law an accessory before the fact is liable to the same punishment as the principal.” Id. § 8.05, p. 522.

In Maryland, at the time Ward was alleged to have committed the murder as an ²⁰⁶ accessory before the fact, the punishment prescribed by statute for “[e]very person convicted of murder in the first degree, his or her aiders, abettors and counsellers,” was death or life imprisonment, in the discretion of the court, except that when a jury in rendering a verdict of murder in the first degree added the words “without capital punishment,” the sentence was to be life imprisonment. Code (1957,1971 Repl. Vol.) art. 27, § 413. 19 As we have seen, the punishment upon conviction of murder in the second degree and of being an accessory thereto, was not more than thirty years. Therefore, to be faithful to the rationale of the rule at common law, it must be construed in light of present day circumstances to apply to degrees of murder, so that an accessory before the fact may not be convicted of a higher degree of murder than the principal committing that