Darby v. State

• Court: Maryland Court of Appeals
• Writing for the Court: Before MURPHY; ORTH
• Citation: Darby v. State, 239 A.2d 584, 3 Md.App. 407 (Md. App. 1968)
• Decision Date: 20 March 1968
• Docket Number: No. 173,173
• Parties: Richard Alan DARBY v. STATE of Maryland.

Page 407

3 Md.App. 407

239 A.2d 584

Richard Alan DARBY v. STATE of Maryland.

No. 173.

Court of Special Appeals of Maryland.

March 20, 1968.

Edward A. Palamara, Rockville, for appellant.

William E. Brannan, Asst.Atty.Gen., with whom were Francis B. Burch, Atty.Gen., Baltimore, William A. Linthicum, Jr., and Page J. Dignam, State's Atty. and Asst. State's Atty. for Montgomery County, respectively, Rockville, on brief, for appellee.

Before MURPHY, C.J., and MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

The appellant was convicted of robbery with a dangerous and deadly weapon by a jury in the Circuit Court for Montgomery County and sentenced to imprisonment for a term of 20 years. ¹

On appeal from the judgment the appellant contends:

I It was error to read the indictments to the jury.

II The crime of robbery with a dangerous and deadly weapon does not exist in Maryland.

III His arrest was illegal and evidence seized incident thereto was improperly admitted in evidence.

IV As his defense was "coercion and duress from [the] co-defendant", evidence proffered by him relevant thereto was improperly excluded, and the court erred in its instructions to the jury by failing to instruct on that issue.

I

[1, 2] Before any testimony was taken counsel for the appellant said, "We contemplate not reading--waiving the reading of the indictment." The court pointed out that the jury takes the indictments into the jury room with them when they retire to deliberate, whereupon counsel said, "If the court feels that the indictments should be read, then would it instruct the clerk not to read the counts that were stricken." The court replied, "The Court doesn't think it is proper that one charged with a criminal offense that the charge not be read to the Jury under the regular form that the clerk uses, so for that reason, the court will not grant your motion to waive the reading of the indictments." The clerk read the indictments to the jury. It appears that the only count then "stricken" was the second count of indictment No. 8129 which apparently was "word for word the same" as the 5th count in indictment No. 8128. In its instructions to the jury the court stated that "the second count in 8129 has been abandoned." It said, "The fact that one has been indicted by the Grand Jury raises no presumption of guilt merely because a grand jury charges a person with a crime, it doesn't mean he is guilty and you cannot infer that he is guilty because he has been indicted under the laws of this State." At the conclusion of the charge, it said, "The fact that I am referring to all these counts and these indictments as such is not to be construed as an inference that you are to make any findings of guilty or not guilty because you are the sole judges of the law and the fact." Upon the entry of a nolle prosequi to indictments Nos. 8129 and 8130 the court so informed the jury and it appears that they took only indictments Nos. 8127 and 8128 into the jury room and without objection.

Md. Rules, 558 a, provides:

"Upon retiring for deliberation, the jury may take with them into the jury room such of the pleadings, granted prayers or written instructions, and exhibits which have been received in evidence, as the court may deem necessary for a proper consideration of the case."

"The jury may also take with them notes of the testimony or other proceedings taken by themselves but none taken by any other person", Rule 558 b, but "[a] deposition may not be taken into the jury room, except by agreement of all parties, and with consent of the court", Rule 558 d. The provisions of Rule 558 apply to a criminal case, Rule 757. " 'Pleading' means any paper filed in any action ***" as set forth in Rule 5 v, but "action" does not include a criminal proceeding, Rule 5 a. Therefore the Maryland Rules do not provide by express terms that the jury may take the indictment into the jury room. By the provisions of Rule 756 b and c, with the provisos therein set out, the court may and at the request of any party shall, give such advisory instructions to the jury as may correctly state the applicable law and in giving such advisory instructions may make such summation of or references to the evidence as may be appropriate in order to present clearly to the jury the issue to be decided by them. It is the accepted practice in this State for the court in its instructions to refer to the counts in the indictment in stating the applicable law and referring to the evidence, and we think it proper to do so. It is obvious that the jury in a criminal proceeding must be informed of the charges against a defendant in order to assess the evidence and apply the law in relation to the charges. We see no reason why, in the discretion of the trial court, this information cannot be conveyed to the jury by the indictment itself, by it being read to them and by the taking of it into the jury room. Of course, the court should inform the jury before it retires of those counts not before them by reason of the granting of motions of judgment of acquittal or otherwise, and we deem it advisable that the court state to the jury, as it did in the instant case, that the fact of indictment raises no presumption of guilt. We feel that it was not prejudicial error for the clerk to read the indictments to the jury in the instant case. We think that the Maryland Rules do not compel a holding to the contrary and find support for our holding in Delcher v. State, 161 Md. 475, 158 A. 37 and Bell v. State, 200 Md. 223, 88 A.2d 567. And we note that Wharton, in his Criminal Law and Procedure (Anderson), Vol. 5, § 2033, p. 178 says:

"The practice sometimes adopted of reading the indictment or information to the jury as part of the prosecutor's opening statement has been criticized but held not prejudicial error."

The weight of authority in other jurisdictions is in accord with our view. ²

II

[3, 4] At the trial the appellant moved to dismiss the first count in each of indictments No. 8127 and No. 8128 charging robbery with a dangerous and deadly weapon, claiming that the offense charged is not a crime in Maryland. He urges that such offense was not a crime at common law and is not made a crime by statute. He argues that Md.Code, (1967 Repl. Vol.), Art. 27, § 488 does not "define a crime" but merely prescribes a penalty for a crime that does not exist. We agree that § 488 does not create a new substantive crime of "robbery with a deadly weapon." ³ The title to Chapter 457 of the Acts of 1927 reads as follows:

"An ACT to add an additional Section to Article 27, of the Annotated Code of the Public General Laws of Maryland, title 'Crimes and Punishments', subtitle 'Robbery', to be known as Section 481-A, (now § 488) and to follow immediately after Section 481, to prescribe increased penalties for the offense of Robbery with a dangerous or deadly weapon." (emphasis added)

The Act reads:

"Every person convicted of the crime of robbery or attempt to rob with a dangerous and deadly weapon or accessory thereto, shall restore to the owner thereof the thing robbed or taken, or shall pay him the full value thereof, and be sentenced to imprisonment in the Maryland Penitentiary for not more than twenty years."

We think it clear from the language and form of the title (the capitalization of the first letter in "Robbery") and from the language of the Act that the Act merely provides a statutory penalty (and for the restoration of or payment for the thing taken) for the existing crime of robbery more severe when the robbery is committed with a dangerous or deadly weapon than when it is not. See Hayes v. State, 211 Md. 111, 115, 126 A.2d 576; Jackson v. State, 231 Md. 591, 593-594, 191 A.2d 432. Robbery is a crime in Maryland under the common law. ⁴ It is not defined by statute but the penalty is fixed by statute. Md.Code, supra, Art. 27, § 486; Hayes v. State, supra, 211 Md. p. 113, 126 A.2d 576. It thus retains its common law definition--"the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence, or by putting him in fear." Clark and Marshall, Crimes, (6th Ed.) § 12.09, p. 781. So at common law the crime was robbery whether or not the violence or putting in fear was by means of a dangerous or deadly weapon. "Or if a person with a sword drawn begs an alms, and I give it him through mistrust and apprehension of violence, this is a felonious robbery." 4 Bl.Comm. 243. Section 488 clearly and simply provides that if the common law crime of robbery is committed with a dangerous or deadly weapon, the felon shall be subject to more severe punishment. The contention of the appellant that the section is indefinite and not "exacted with (such) exactness *** (that) the public is able to know what act or acts are unlawful" is untenable. ⁵ Stripped of its meretricious attractions of logicality, it stands bare as a purely sophistical argument. There was no error in the denial of the motion to dismiss the counts charging robbery with a dangerous and deadly weapon.

III

[5-8] The police departments surrounding the Washington metropolitan area are connected by a mutual aid radio network, enabling any police department to broadcast to any other or all by "pushing activating tones. These tones activate receivers in other police departments. By hitting one button you can bring in a group of seven and talk to them all at one time." The police departments of Montgomery County and Prince George's County are connected with this "Quick Call System." In the early morning of November 4, 1966 the communications division of the Montgomery County Police Department received a telephone call regarding an armed robbery at the Gulf gasoline station on Rockville Pike (the robbery charged in indictment No. 8128). Police cars were dispatched to the location of the crime and the police received information from the station attendant and another witness that there had been an...