Busch v. State

• Decision Date: 13 March 1981
• Docket Number: No. 13,13
• Citation: 426 A.2d 954,289 Md. 669
• Parties: Charles Leroy BUSCH v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 669

289 Md. 669

426 A.2d 954

Charles Leroy BUSCH v. STATE of Maryland.

No. 13.

Court of Appeals of Maryland.

March 13, 1981.

Gary E. Bair, Assigned Public Defender, Washington, D. C. (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant

Stephen Rosenbaum, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

DAVIDSON, Judge.

In the District Court of Maryland sitting in Prince George's County, Charles Leroy Busch, the petitioner, was charged in a statement of charges that read in pertinent part:

STATEMENT OF CHARGES

(I)t is formally charged that Charles Leroy Busch ... did unlawfully resist and hinder a police officer in the lawful execution of his duties, knowing him to be a police officer in violation of Common Law of Md." (Emphasis added.)

Thereafter, the petitioner was found guilty of resisting arrest.

The petitioner appealed to the Circuit Court for Prince George's County. At a trial de novo, after the jury was sworn, the State moved to amend the statement of charges. Although the petitioner objected, the Circuit Court permitted the statement of charges to be amended to read in pertinent part:

STATEMENT OF CHARGES

"(I)t is formally charged that Charles Leroy Busch ... did unlawfully resist arrest by a police officer in the lawful execution of his duties, knowing him to be a police officer in violation of Common Law of Md." (Emphasis added.)

The petitioner was tried on the amended charge and found guilty of resisting arrest.

The petitioner filed a petition for a writ of certiorari that we granted. We shall reverse the judgment of the Circuit Court.

When an appeal is taken from a District Court to a Circuit Court, the offenses are tried on the original District Court charging document. Lewis v. State, 289 Md. 1, 4, 421 A.2d 974, 977-78 (1980). See Md.Rule 710 d. Maryland Rules 1314 b ¹ and 713 a ² establish that in an appeal from a judgment of a District Court to a Circuit Court that is tried de novo, a charging document may not be amended without the consent of the parties if the amendment changes the character of the offense. This case presents the question whether in such an appeal an amendment made without the consent of the petitioner constituted a matter of form or a change in the character of the offense charged.

In Thanos v. State, 282 Md. 709, 716, 387 A.2d 286, 290 (1978), this Court considered the question of what constitutes a change in the character of an offense. There the offense involved was shoplifting. Either the act of altering, removing, or otherwise disfiguring the price tag on an item of merchandise is one of the elements of this offense. The charging document in the District Court alleged that the accused attempted to alter the price tag on an item of merchandise. In a trial de novo in the Circuit Court, the charging document was amended without the consent of the accused to substitute the word "remove" for the word "alter." In holding that the amendment constituted a change in the character of the offense, we said:

"We thus think it clear that there is a change in the character of the offense charged where the amendment 'change(s) the basic description of the offense,' Gray v. State, supra (216 Md. 410) at 416 (140 A.2d 643, 646); it is equally clear that the basic description of the offense is indeed changed when an entirely different act is alleged to constitute the crime.... We think it elementary that where a specific criminal act has been charged, another may not be substituted for it on the theory that it is simply a matter of 'form.' " (Thanos, 282 Md. at 716, 387 A.2d at 290.)

We think it equally clear that the basic description of the offense is indeed changed, not only when the amended charge requires proof of an act different from the act originally charged, but also when the amended charge requires proof of acts additional to those necessary to prove the offense originally charged. After an offense has been charged, another offense that requires proof of a different or additional act may not be substituted for the offense originally charged on the theory that such an amendment is simply a matter of form. Thus, in this case, in order to determine whether the amendment of the charging document changed the character of the offense originally charged, it is necessary to determine whether the offense of resisting arrest requires proof of an act different from or additional to the acts necessary to prove the offense of resisting, hindering, or obstructing an officer in the performance of his duties.

Resisting arrest constitutes an offense at common law. Preston v. Warden of Md., 225 Md. 628, 629, 169 A.2d 407, 408, cert. denied, 366 U.S. 974, 81 S.Ct. 1940, 6 L.Ed.2d 1262 (1961); Jordan v. State, 17 Md.App. 201, 208, 300 A.2d 701, 704 (1973); Lyles v. State, 10 Md.App. 265, 268, 269 A.2d 178, 180 (1970); R. Perkins, Criminal Law 495-97 (2d ed. 1969); 4 Wharton's Criminal Law & Procedure § 1617 (Anderson 1957). The character of this common law offense was described in Regina v. Bentley, 4 Cox C.C. 406, 406-08 (1850). There it was said:

"The prisoner was indicted for cutting and wounding with intent to resist his lawful apprehension : the evidence showed that the prosecutor, a police constable, went with a brother officer, both being in plain clothes, and with two other policemen in uniform, to a public-house, and told the prisoner that he wanted him on a charge of highway robbery. He had no warrant, but from information he had received, he thought it his duty to apprehend the prisoner. The latter asked him for further information relative to the charge, which he refused to give, and the prisoner then told him that he would not go to the station-house, unless he was told why, or by what authority, he was apprehended. On the witness immediately proceeding to arrest him, the prisoner violently assaulted and seriously injured him.

Robinson (for the prisoner) contended that, upon this evidence, the prisoner could not be convicted of the crime alleged against him.

Talfourd, J. I am of opinion, that the objection taken is not well founded. There is, upon the evidence, a sufficient case for the jury. I think that, to support a charge of resisting a lawful apprehension, it is enough that the prisoner is lawfully apprehended, and it is his determination to resist it." (Emphasis added.)

In Maryland, this offense was described in Preston, 225 Md. at 629, 169 A.2d at 408. There an accused resisted when a trooper attempted to place him under arrest on a charge of larceny. The accused was charged with "resisting an officer in making arrest" and was convicted. On appeal, he contended that the offense of resisting arrest did not exist in Maryland and, alternatively, that the sentence imposed was illegal. This Court rejected both contentions and held:

"A refusal to submit to lawful arrest and resistance to an officer of the law in the performance of his duties constitutes an offense at common law, and is an offense in this State. Moreover, the warrant was so worded as to charge the applicant with the common-law offense of resisting arrest, and, having been found guilty thereof, the sentence imposed was neither excessive nor illegal." (Citations omitted.) (Preston, 225 Md. at 629, 169 A.2d at 408.)

In Preston, this Court recognized that the offense of resisting arrest ordinarily requires resistance to a lawful arrest made by an officer of the law in the performance of his official duties. Preston, 225 Md. at 629, 169 A.2d at 408; Jordan, 17 Md.App. at 208, 300 A.2d at 704; Lyles, 10 Md.App. at 268, 269 A.2d at 180-81. But see Rodgers v. State, 280 Md. 406, 421, 373 A.2d 944, 952, cert. denied, 434 U.S. 928, 98 S.Ct. 412, 24 L.Ed.2d 287 (1977). Accordingly, in Maryland, a lawful arrest ordinarily is essential to the offense of resisting arrest. Preston, 225 Md. at 629, 169 A.2d at 408; Kraft v. State, 18 Md.App. 169, 175, 305 A.2d 489, 491 (1973), overruled on other grounds, Goode v. State, 41 Md.App. 623, 628 & n.6, 398 A.2d 801, 804 & n.6 (1979); Streeter v. State, 5 Md.App. 435, 439, 248 A.2d 119, 121 (1968). See e. g., Regina v. Walker, 6 Cox C.C. 371, 372 (1854); Regina v. Bentley, 4 Cox C.C. at 406; Rex v. Howarth, 1 Moody, Cr.Cas. 207, 216 (1828). See also State v. Russell, 76 N.W. 653, 654 (Iowa 1898).

Resisting, hindering, or obstructing an officer of the law in the performance of his duties also constitutes an offense at common law. Roddy v. Finnegan, 43 Md. 490, 505 (1876); Perkins on Criminal Law 496-97 (2d ed. 1969); Hochheimer's Criminal Law 435-36, 440 (2d ed. 1904). The character of such a common law offense was described as long ago as 1634 in Sheffelds Case, Clayt. 10, 10-11 (1634). There it was said:

"An Action of false imprisonment brought against a Constable, who pleaded not guilty, the Defendant did shew in evidence, that he came to search in time of the plague for lodgers in the town, and he found a stranger and questioned him which way he came into the town; who answered, over the bridge, and the Judge conceived this to be a scornful answer to an Officer, and because he had no Passe, but travelled without one, and gave such an answer, the Defendant did offer to apprehend him, and the Plaintiffe thereupon being present said to the Defendant he shall not go to prison, but yet offered to passe his word for his forth coming, upon which the Defendant did commit the Plaintiffe, and it was ruled upon evidence, there was good cause to commit the Plaintiffe for opposing the Constable though but verbally in his Office, who is so ancient an Officer of the commonwealth." (Emphasis added.)

In Maryland, such an offense was recognized in Roddy v. Finnegan, 43 Md. at 500-05. There, Curran sold a wagonload of hay to Finnegan that was delivered by a driver to the street in front of Finnegan's...