Gray v. State
Decision Date | 16 July 1979 |
Docket Number | No. 1410,1410 |
Parties | Lawrence Samuel GRAY a/k/a Lawrance Samuel Gray a/k/a Launce Samuel Gray v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
George E. Burns, Jr., Asst. Public Defender, with whom was Alan H. Murrell, Public Defender on the brief, for appellant.
Kathleen M. Sweeney, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and Michael P. Whalen, Asst. State's Atty. for Prince George's County on the brief, for appellee.
Argued before GILBERT, C. J., and MOYLAN and LISS, JJ.
Despite the urgings of the appellant, Lawrence Samuel Gray, to the contrary, the common law is still alive and well in Maryland. More particularly, that portion of the common law, which we today hold still prospers upon these shores is the common law misdemeanor of criminal attempt.
A word, first, as to it. The notion that an attempt to commit a crime any crime, felony or misdemeanor, statutory or common law, preexisting or of later origin is itself a crime came relatively late into Anglo-American jurisprudence. It had its origins in the Court of Star Chamber, during Tudor and early Stuart times. 1 Its crystallization into its present form, however, is generally traced to the case of Rex v. Scofield, Cald. 397, in 1784. 2 The court held in Rex v. Scofield, "The intent may make an act, innocent in itself, criminal; nor is the completion of an act, criminal in itself, necessary to constitute criminality." The doctrine was locked into its modern mold by 1801 with the case of Rex v. Higgins, 2 East 5. Relying on Scofield, the court in Higgins confirmed a conviction, saying, "All offenses of a public nature, that is, all such acts or attempts as tend to the prejudice of the community, are indictable." In the wake of Scofield and Higgins, it was clear that an attempt to commit any felony or misdemeanor, of common law origin or created by statute, was itself a misdemeanor.
The crime of criminal attempt consisted of 1) a specific intent to do a criminal act and 2) some act in furtherance of that intent going beyond mere preparation. LaFave and Scott, Supra, p. 423; Perkins, Criminal Law (2nd Ed. 1969), p. 552.
It is, furthermore, clear that the common law misdemeanor of criminal attempt, notwithstanding its post-Revolutionary final crystallization, has always been recognized as part of the common law of Maryland. Hochheimer, Crimes and Criminal Procedure (2nd Ed. 1904), p. 297-298; Franczkowski v. State, 239 Md. 126, 127, 210 A.2d 504 (1965); Wiley v. State 237 Md. 560, 563-564, 207 A.2d 478 (1965); Lightfoot v. State, 278 Md. 231, 360 A.2d 426 (1976); Lightfoot v. State, 25 Md.App. 148, 334 A.2d 152 (1975); Fisher v. State, 1 Md.App. 505, 231 A.2d 720 (1967).
We turn now to the appellant's central thesis. He was convicted by a Prince George's County jury, presided over by Judge Albert T. Blackwell, of attempted second degree rape and false imprisonment. He received a ten-year sentence for the attempt and a concurrent five-year sentence for the false imprisonment. He now argues that there is no such crime as attempted second degree rape.
The thrust of the appellant's argument is that the General Assembly by Chapter 573 of the Acts of 1976 preempted the "Sexual Offenses" field when it repealed a number of preexisting statutes dealing with rape and related offenses and enacted in their stead the present Sections 461-465 of Article 27. The appellant relies heavily upon the editorial comment from "Rape and Other Sexual Offenses Law Reform in Maryland, 1976-1977," 7 U. of Balto. L.Rev. 150, 152 (1977):
"During the 1976 and 1977 legislative sessions, the Maryland Legislature enacted significant and comprehensive legislation which codified Maryland law on rape and other sexual offenses."
We cannot agree with the appellant's position. We note initially that the Legislature gave no indication that it intended the new subtitle to repeal or replace the common law misdemeanor of criminal attempt with respect to the substantive offenses it was then enacting. Indeed, the operative sections § 462 (First degree rape); § 463 (Second degree rape); § 464 ( ); § 464A ( ); § 464B ( ) and § 464C ( ) embrace only consummated conduct and not attempts to commit the same.
Additional evidence of the fact that the Legislature did not intend to preempt the entire field of criminal sexual activity was the non-repealer of § 553 (Sodomy) and § 554 ( ). 3
Even confined to non-consensual sexual activity, the appellant's argument as to total preemption of the field must fail. The Legislature, in enacting the new "Sexual Offenses" subtitle did not repeal § 12 dealing with assault with intent to rape. 4
For inchoate, not fully-consummated crime, society has long had available in its arsenal both the statutory offense of "assault with intent to . . ." and the common law offense of criminal attempt. Although these two offenses have a significant overlap, they are nonetheless distinct and each addresses certain pockets of inchoate criminal activity not covered by the other. 5
Before turning specifically to the impact of the newly articulated statutory offense upon the inchoate crime of attempting to commit the new statutory offense, an additional preliminary word is in order about the spirit with which we approach the possible erosion of our common law. That spirit can best be understood when we remember that the common law of England is constitutionally guaranteed to the citizens of Maryland that in enacting our very charter of liberty we provided "That the Inhabitants of Maryland are entitled to the Common Law of England . . . ." 6 The protection of our citizens against inchoate crime is part of that original entitlement, embedded in our very charter of statehood, and we do not lightly by mere implication dissolve so venerable a guarantee.
This attitude was early expressed by Hooper v. Baltimore, 12 Md. 464, 475 (1859):
" (Emphasis in original)
See also Keech v. Baltimore & Washington R. Co., 17 Md. 32, 45 (1861); Harrison v. State, 22 Md. 468, 488 (1864); Greenwood v. Greenwood, 28 Md. 369, 386 (1868); Heiskell v. Baltimore, 65 Md. 125, 151, 4 A. 116 (1886).
In Lutz v. State, 167 Md. 12, 172 A. 354 (1934), the appellant claimed that the newly enacted (1920) statute proscribing "Prostitution, Lewdness and Assignation" superseded and thereby repealed the common law offenses of maintaining a bawdy house and maintaining a disorderly house. In holding otherwise, the Court of Appeals said at 167 Md. 15, 172 A. 356:
See also Gleaton v. State, 235 Md. 271, 277, 201 A.2d 353 (1964); State v. Gibson, 4 Md.App. 236, 247, 242 A.2d 575 (1968); Watkins and Kingwood v. State, Md.App., 400 A.2d 464 (1979).
The Maryland attitude is consistent with that of our sister legatees of the common law tradition. The general rule in this regard is discussed in 3 Sutherland Statutory Construction 41 (Sands ed. 1974):
"
The statutory crime now in issue is § 463 (Second degree rape):
Putting aside for a moment the mechanism spelled out in subsection (1) or the status of the victims spelled out in subsections (2) and (3), the operative verbal phrase is "engaged in vaginal intercourse." It is obvious that one might specifically intend vaginal intercourse and might take...
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