State v. Williamson

282 Md. 100 (1978) 382 A.2d 588 STATE OF MARYLAND v. JOYCE MARCINE WILLIAMSON [No. 76, September Term, 1977.] Court of Appeals of Maryland. Decided February 21, 1978. The cause was argued before MURPHY, C.J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ. Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellant.

Alfred L. Scanlan, Jr., Assigned Public Defender, with ¹⁰¹ whom were Whiteford, Taylor, Preston, Trimble & Johnston on the brief, for appellee. SMITH, J., delivered the opinion of the Court. LEVINE and ELDRIDGE, JJ., concur in the result and LEVINE, J., filed a concurring opinion in which ELDRIDGE, J., joins at page 111 infra. Joyce Marcine Williamson, appellee here, was convicted by a Baltimore County jury of murder in the first degree, conspiracy to murder, and solicitation of murder.

The Court of Special Appeals in Williamson v. State, 36 Md. App. 405 , 374 A.2d 909 (1977), reversed as to the murder conviction. We granted the State's petition for the writ of certiorari in which two questions were posed: "1. Whether a person who employs a `hired killer' for the purpose of murdering another may be found guilty of first degree murder irrespective of the presence or absence of the employer at the scene of the murder? "2.

Whether the evidence was legally sufficient to find that the Respondent was a principal in the second degree and hence guilty of first degree murder?" We think a more precise statement of the question actually before us is whether a person indicted for murder in the form prescribed by Maryland Code (1957, 1971 Repl. Vol., 1975 Cum. Supp.) Art. 27, § 616 (a) may be convicted of murder in the first degree if the accused was only an accessory before the fact. Since we answer this question in the affirmative, it follows that we must reverse the holding of the Court of Special Appeals.

It thus will not be necessary for us to determine how the acts here fit within the distinction between principals and accessories and whether the common law distinction continues to have vitality in Maryland. The Court of Special Appeals said in its opinion: "Maryland recognizes the common law distinction between principals and accessories before the fact. ¹⁰² One charged as a principal cannot be convicted on evidence sufficient to show that he was an accessory but insufficient to show that he was a principal. Persons who themselves commit the crime, either by their own hand or by the hand of an innocent agent, are principals in the first degree. Persons who are present, either actually or constructively, and who aid and abet the commission of the crime but do not themselves commit it, are principals in the second degree, provided there is a guilty principal in the first degree.

Persons who procure, counsel or command the perpetrator, but who are not present, actively or constructively, at such perpetration, are accessories before the fact. Thus, the critical difference between a principal and an accessory before the fact is presence or absence during the commission of the crime. "Here, in order to sustain the appellant's conviction, the State was required to prove that the appellant herself committed the murder or was either actually or constructively present when the crime was committed." Id. at 406-07. (Footnotes omitted.) The victim was killed on October 5, 1975.

The Court of Special Appeals stated that "[b]eginning in January, 1975, [Mrs. Williamson], with the help of her brother, attempted to hire someone to kill her husband. During negotiations with someone who ultimately refused to commit the murder, [Mrs. Williamson's] brother, in describing a suggested mode of operation, said: `He would get the person drunk ... and the guy would be in the car and it would be no problem.'" That court then went on to relate that "[i]n July or August, 1975, [Mrs. Williamson], again with the help of her brother, hired Lawrence Merrick to kill her husband." It pointed out: "There was no evidence to show that on the night of the murder [Mrs. Williamson] helped the murderer in any way. There was nothing to show that she encouraged her husband to drink so that he ¹⁰³ would fall asleep in the car. Neither was there evidence to show that she signalled the murderer to come and commit the murder, nor that the murderer ever contacted her in the house.

Finally, there was nothing to show that she was awake at the time of the murder or that, if awake, she could see the murder site. "In the absence of such evidence, the fact that [Mrs. Williamson] had contact with Merrick before the crime was committed, even when coupled with the fact that she was physically close to the murder site, does not show or support a rational inference that at the time the murder was committed [she] helped or was so situated as to be able to help the murderer. Consequently, the evidence was insufficient to show [her] constructive presence at the time of the commission of the crime. Accordingly, it was insufficient to show that she was a principal in her husband's murder and to sustain her conviction for that murder.

We shall reverse." Id. at 409. (Footnote omitted.) The common law distinction between principals and accessories is explained in 4 W. Blackstone, Commentaries: "A man may be principal in an offence in two degrees. A principal in the first degree is he that is the actor or absolute perpetrator of the crime; and in the second degree he is who is present, aiding and abetting the fact to be done. Which presence need not always be an actual immediate standing by, within sight or hearing of the fact; but there may be also a constructive presence, as when one commits a robbery or murder and another keeps watch or guard at some convenient distance." Id. at ³⁴.

(Emphasis in original.) (Footnotes omitted.) "As to the second point, who may be an accessary before the fact; Sir Matthew Hale defines him to be one who, being absent at the time of the crime committed, doth yet procure, counsel, or command ¹⁰⁴ another to commit a crime. Herein absence is necessary to make him an accessary; for if such procurer, or the like, be present, he is guilty of the crime as principal. If A. then advises B. to kill another, and B. does it in the absence of A., now B. is principal and A. is accessary in the murder. And this holds even though the party killed be not in rerum natura at the time of the advice given.

As if A., the reputed father, advises B., the mother of a bastard child unborn, to strangle it when born, and she does so; A. is accessary to this murder. And it is also settled that whoever procureth a felony to be committed, though it be by the intervention of a third person, is an accessary before the fact." Id. at ³⁶-37. (Emphasis in original.) (Footnotes omitted.) A similar description of an accessory before the fact is given in 1 Chitty, Criminal Law: "1st. An accessary before the fact, is he that being absent at the time of the actual perpetration of the felony, procures, counsels, commands, incites, or abets another to commit it.

If a person be present, and aiding and abetting, he cannot be indicted as an accessary. Words that seem to imply mere permission, as if one person informs another that he is about to commit a felony, and the latter replies `you may do your pleasure for me,' this does not implicate him as an accessary, but it only fixes him with the guilt of a misprision. If one hire another to lay poison in order to kill a third, and he take it and die, the party hired is guilty, though absent, as principal, and the contriver is accessary; but, if the latter were present at the laying and disposing of the poison, both would be principals. And whoever procures a felony to be committed, though through the intervention of a third person, without any personal communication with the principal, is an accessary before the fact." Id. at ²⁶².

(Emphasis in original.) (Footnotes omitted.) ¹⁰⁵ Chitty was cited by this Court in Davis v. State, 38 Md. 15, 45 (1873). R. Perkins, Criminal Law (2d ed. 1969) states: "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." Id. at 658. * * * "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." Id. at 663. Presence (or absence) at the scene of the crime thus appears to be the key fact or which at common law distinguished an accessory before the fact from a principal in the second degree. This presence could be constructive, as noted by Blackstone.

Perkins states at 660, "A person is regarded as constructively present, within the rules relating to parties in criminal cases, whenever he is cooperating with the perpetrator and `is so situated as to be able to aid him, with a view known to the other, to insure success in the accomplishment of the common purpose,'" quoting Skidmore v. State, 80 Neb. 698, 700 , 115 N.W. 288 , 289 (1908). It may well be in this instance that, as is argued by the State, Mrs. Williamson was in fact constructively present at the scene of her husband's murder, being physically close enough to the scene that she could have rendered assistance to the killer. Apparently, however, there was no evidence that she did in fact act as a lookout. Since in this case there was sufficient evidence to establish that Mrs. Williamson was an accessory before the fact, it is not necessary for us to make a determination as to whether or not she was constructively present.

At common law the classification as an accessory had significance, even though the conviction was for the crime ¹⁰⁶ itself, see State v. Ayers, 67 Tenn. (8 Baxter) 96, 100 (1874), and the punishment was the same as for a principal. Blackstone discusses the differences in treatment: "4. The last point of inquiry is how accessaries are to be treated, considered distinct from principals.

And the general rule of the ancient law (borrowed from the Gothic constitutions) is this, that accessaries shall suffer the same punishment as their principals; if one be liable to death the other is also liable; as, by the laws of Athens, delinquents and their abettors were to receive the same punishment. Why then, it may be asked, are such elaborate distinctions made between accessaries and principals, if both are to suffer the same punishment? For these reasons: 1. To distinguish the nature and denomination of crimes, that the accused may know how to defend himself when indicted; the commission of an actual robbery being quite a different accusation from that of harboring the robber. 2.

Because, though by the ancient common law the rule is as before laid down, that both shall be punished alike, yet now by the statutes relating to the benefit of clergy a distinction is made between them: accessaries after the fact being still allowed the benefit of clergy in all cases, except horse-stealing, and stealing of linen from bleaching-grounds: which is denied to the principals and accessaries before the fact in many cases; as, among others, in petit treason, murder, robbery, and wilful burning. And perhaps if a distinction were constantly to be made between the punishment of principals and accessaries, even before the fact, the latter to be treated with a little less severity than the former, it might prevent the perpetration of many crimes by increasing the difficulty of finding a person to execute the deed itself; as his danger would be greater than that of his accomplices by reason of the difference of his punishment. 3. Because formerly no man could be tried as accessary ¹⁰⁷ till after the principal was convicted, or at least he must have been tried at the same time with him; though that law is now much altered, as will be shown more fully in its proper place. 4. Because, though a man be indicted as accessary and acquitted, he may afterwards be indicted as principal; for an acquittal of receiving or counseling a felon is no acquittal of the felony itself; but it is matter of some doubt whether, if a man be acquitted as principal, he can be afterwards indicted as accessary before the fact; since those offences are frequently very nearly allied, and therefore an acquittal of the guilt of one may be an acquittal of the other also.

But it is clearly held that one acquitted as principal may be indicted as an accessary after the fact; since that is always an offence of a different species of guilt, principally tending to evade the public justice, and is subsequent in its commencement to the other. Upon these reasons the distinction of principal and accessary will appear to be highly necessary; though the punishment is still much the same with regard to principals, and such accessaries as offend before the fact is committed." 4 Blackstone at ³⁹-41. (Emphasis in original.) (Footnotes omitted.) Perkins theorizes at 669 that the principal/accessory distinction was developed by judges to give them a tool to avoid the death penalty in some felony cases. Shelton v. Commonwealth, 261 Ky. 18 , 86 S.W.2d 1054 (1935), and Skidmore v. State, 80 Neb. 698 , each held that a person indicted as a principal could not be convicted as an accessory.

The Court of Special Appeals followed that view in McBryde and Bland v. State, 30 Md. App. 357 , 352 A.2d 324 (1976), and Agresti v. State, 2 Md. App. 278 , 234 A.2d 284 (1967). It expressed that view in Huff v. State, 23 Md. App. 211, 214-15 , 326 A.2d 198 (1974), cert. denied, 273 Md. 721 (1975). All of those cases involved robberies with a deadly weapon. There has been a general tendency away from the strict requirements for common law indictments as this Court ¹⁰⁸ pointed out in State v. Wheatley, 192 Md. 44 , 63 A.2d 644 (1949): "By the early common law it was essential to the validity of an indictment that it should conform strictly to established formality and charge the offense with technical accuracy of language.

These rules developed when punishment for crime was exceedingly severe and it was desirable that technicalities be invoked to prevent the cruelty of strict enforcement of the law. Gradually, however, the courts came to recognize that much of the prolixity which characterized indictments could be safely disregarded without any infringement of the right of the accused to be informed as to the nature of the accusation against him. It has been the modern policy of the courts to disregard the extremely technical rules of the early common law, and to require only that an indictment shall allege fully the essential elements of the offense charged. We hold, however, that an indictment is demurrable which charges that the defendant, while holding a certain office, wilfully neglected the duties of an entirely different office." Id. at 50 .

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