Boswell v. State, 138

CourtCourt of Special Appeals of Maryland
Citation249 A.2d 490,5 Md.App. 571
Docket NumberNo. 138,138
PartiesJoseph Laurence BOSWELL and Robert Edward Poe v. STATE of Maryland.
Decision Date30 December 1968

Thomas V. Miller, Jr., Clinton, for Poe.

Michael G. Trainer, Hyattsville, for Boswell; Phillip A. Cole, Hyattsville, on brief.

Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., and James E. Kenkel, State's Atty. and Asst. State's Atty., for Prince George's County, respectively, on brief, for appellee.


ORTH, Judge.

The appellants, jointly indicted, were jointly tried and each was found guilty of burglary and grand larceny by a jury in the Circuit Court for Prince George's County. Each was given a 10 year concurrent sentence on each conviction. Separate appeals were filed. Each appellant presents questions relating to the following:

I The competency of trial counsel.

II The advisory nature of the instructions of the lower court to the jury as to the presumption of innocence and the burden of proof.

Poe presents a question relating to the following:

III The absence of counsel at the preliminary hearing.

Boswell presents questions relating to the following:

IV Leading questions propounded by the State.

V Hearsay testimony.

VI The instruction of the jury with respect to recent possession of stolen goods.

We shall lastly consider the questions under I relating to the competency of trial counsel.

II and VI

The Maryland Rules of Procedure clearly provide: 'If a party has an objection to any portion of any instruction given, or to any omission therefrom, or to the failure to give any instructions, he shall before the jury retires to consider its verdict make such objection stating distinctly the portion, or omission, or failure to instruct to which he objects and the ground of his objection. Opportunity shall be given to make the objection in open court out of the hearing of the jury upon application either orally or in writing, made before or after the conclusion of the charge.' Rule 756 f. And Rule 756 g provides: 'Upon appeal a party assigning error in the instructions may not assign as of right an error unless (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct was distinctly objected to before the jury retired to consider its verdict and (2) the grounds of objection were stated at that time.' In the instant case the instructions were given prior to the closing arguments of counsel. When the instructions were concluded the court asked the State and defense counsel: 'Are there any suggestions for additional instructions or exceptions?' The State replied: 'The State has none.' Defense counsel replied: 'I have none.' Therefore the appellants may not assign error in the instructions as of right. But Rule 756 g also provides that this Court either of its own motion or upon the suggestions of a party may take cognizance of and correct any plain error in the instructions, material to the rights of the accused, even though objection was not made. Both appellants suggest plain error material to their rights in the lower court telling the jury that its instructions were advisory only; they claim that the presumption of innocence, the burden on the State to prove guilt and that guilt must be proved beyond a reasonable doubt are binding on the jury and cannot be disregarded by them. They urge that it was prejudicial error for the court to tell the jury that its instructions with respect to these matters were advisory only. The Constitution of Maryland, Art. XV, § 5 provides that in the trial of all criminal cases the jury shall be judges of law as well as of fact, except that the court may pass upon the sufficiency of the evidence to sustain a conviction. Md.Rule 756 b states in relevant part: 'The court shall in every case in which instructions are given to the jury, instruct the jury that they are the judges of the law and that the court's instructions are advisory only.' We cannot construe the constitutional provision to mean that the jury are the judges of some of the law but not all of the law nor can we construe the mandate of the rule so as to permit the court to tell the jury that its instructions with regard to certain laws are binding on them but with regard to other laws are merely advisory. The import of the appellants' contention is that Art. XV, § 5 of the Maryland Constitution, and, thus the rule, violate the federal constitution. In Slansky v. State, 192 Md. 94, 63 A.2d 599 the Court of Appeals held that the Maryland constitutional provision did not conflict with the Fourteenth Amendment to the Constitution of the United States. In Giles v. State, 229 Md. 370, 183 A.2d 359, appeal dismissed, 372 U.S. 767, 83 S.Ct. 1102, 10 L.Ed.2d 137 it was held that the provision did not violate the due process and equal protection clause of the federal constitution. The Court, referring to Slansky said, 229 Md. at 383, 183 A.2d at 365. '(W)e were of the opinion then, as we are now, that § 5 of Art. XV is not unconstitutional and that we are not bound, absent a decision of the Supreme Court to the contrary, to follow the rulings in other jurisdictions with respect to similar constitutional provisions in other states, even though some of the cases have held that a state may not permit juries to determine the law in criminal cases without violating the Constitution of the United States.' It pointed out that the provision has not been construed as all inclusive and limitations on its scope have been recognized. It noted, at 385, 183 A.2d at 366: '(W)here full use is made of all presently available safeguards, it may be difficult, in practical operation, to distinguish between the power of a jury (under binding instructions) to render a verdict and the right of a jury (under advisory instructions) to determine the law for itself in reaching a verdict.' See also Wilson v. State, 239 Md. 245, 210 A.2d 824. We know of no Supreme Court decision to this date holding that a state may not permit juries to be the judges of the law in a criminal case. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, without questioning the constitutionality of the Maryland constitutional provision, commented that the provision did not mean precisely what it seems to say, noting, as did the Court of Appeals in Giles, the limitations added by state statute or judicial construction. And it was said in Wyley v. Warden, Maryland Penitentiary, 372 F.2d 742 (4th Cir.1967) that not only has the validity of the provision been repeatedly upheld by the Maryland courts, but the Supreme Court of the United States had occasion to consider it and failed to intimate any doubt of its constitutionality. This Court has also upheld the constitutionality of Art. XV, § 5. Reeves v. State, 3 Md.App. 195, 238 A.2d 307; Lewis v. State, 2 Md.App. 678, 237 A.2d 73; Avey v. State, 1 Md.App. 178, 228 A.2d 614, cert. granted and reversed for other reasons, 249 Md. 385, 240 A.2d 107. The appellants present no reason sufficient to persuade us to depart from the precedent so firmly established.

Boswell contends that the lower court committed prejudicial error in the instructions 'on the inference arising from recent possession of stolen goods in that the court neglected to include therein the requirement that such possession must be 'exclusive'.' He suggests that we take cognizance of this in the absence of objection under Md.Rule 1085. We think that Md.Rule 756 g is the appropriate rule but we cannot say that the alleged error here was such as this Court should take notice as plain error material to the rights of the appellant. The lower court said in its instructions, 'The possession of property recently stolen without giving a satisfactory account of why it is in a person's possession, by that may be inferred either the theft of the property or that it was received knowing it to be stolen.' The general rule is that there is an inference of guilt which arises from the possession of recently stolen property. Upon proof of the corpus delicti, the inference is strong enough to establish the criminal agency of the possessor of such goods and thus to sustain the conviction. If a burglary is proved to have been recently committed, the inference is that the possessor of goods taken during its commission was the burglar, Anglin v State, 1 Md.App. 85, 227 A.2d 364; if a larceny is proved to have been recently committed, the inference is that the possessor of goods taken during its commission was the thief, Frey v. State, 3 Md.App. 38, 237 A.2d 774; if either a burglary or larceny is proved to have been recently committed and there is credible evidence that another was the burglar or thief, the inference is that the possessor of goods taken during the commission of the crimes was a receiver of stolen goods, Boblits v. State, 4 Md.App. 534, 243 A.2d 891. 1 Once the inference arises, a burden is cast upon the possessor of such goods to give a reasonable explanation of how it came into his possession. Debinski v. State, 194 Md. 355, 360, 71 A.2d 460. The constitutional right of a defendant not to incriminate himself and the prohibition against adverse comment and inference from his failure to testify does not protect him from the probative force of the evidence against him. If he does not attempt to rebut the incriminating fact that he was the possessor of property recently stolen, he cannot, merely by remaining silent, escape the natural and reasonable inferences deducible from such fact. Or if he does testify but fails to testify as to how he came into possession of the stolen goods, the trier of fact may draw the adverse inference from his failure to give a reasonable explanation with respect to his possession. 1 Wharton's Criminal Evidence, 12th Ed., Anderson, § 146, p. 277. Thus it is...

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