State v. Williamson

• Decision Date: 21 February 1978
• Docket Number: No. 76,76
• Citation: 282 Md. 100,382 A.2d 588
• Parties: STATE of Maryland v. Joyce Marcine WILLIAMSON.
• Court: Maryland Court of Appeals

Page 100

282 Md. 100

382 A.2d 588

STATE of Maryland v. Joyce Marcine WILLIAMSON.

No. 76.

Court of Appeals of Maryland.

Feb. 21, 1978.

Alexander L. Cummings, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Alfred L. Scanlan, Jr., Assigned Public Defender, Baltimore

(WHITEFORD, TAYLOR, PRESTON, TRIMBLE & JohnSton, baltIMore, on the brieF), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

SMITH, Judge.

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.

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, 374 A.2d at 910. (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 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, 374 A.2d at 912. (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 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.)

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 factor 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 perpertrator 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 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...