Pope v. State

• Decision Date: 13 January 1978
• Docket Number: No. 341,341
• Citation: 38 Md.App. 520,382 A.2d 880
• Parties: Joyce Lillian POPE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 520

38 Md.App. 520

382 A.2d 880

Joyce Lillian POPE v. STATE of Maryland.

No. 341.

Court of Special Appeals of Maryland.

Jan. 13, 1978.

Thomas A. Lohm, Assigned Public Defender, for appellant.

Deborah K. Handel, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County, and Laurence D. Beck, Asst. State's Atty. for Montgomery County, on the brief, for appellee.

Argued before THOMPSON, MENCHINE ^*, and LOWE, JJ.

LOWE, Judge.

Having sinned by silence when the circumstances cried out for her to protest a mother's prolonged and inhumane treatment of a three-month-old child, the appellant, Joyce Lillian Pope, was convicted in the Circuit Court for Montgomery County of child abuse and misprision of felony. Although we find that the record contained insufficient evidence upon which the child abuse conviction can be sustained, there is ample to sustain the misprision conviction. That, in itself, may be a cause for concern to the contemporarily indifferent or the uninvolved sophisticates, who deny being their brothers' keepers. ¹

Most lawyers know, if only vaguely from law school recollection that misprision of felony is the concealment and/or nondisclosure of the known felony of another. Perkins, Criminal Law 512, et seq. (2nd ed.). The crime has never been recognized in the appellate courts of Maryland however, and we are confronted here with the question of whether it is an indictable offense in this State. Since there is no statute here so proclaiming, we must look to the Common Law of England or her statutes as they existed on July 4, 1776, for that is the law to which the inhabitants of Maryland are entitled. Md.Const., Art. 5, Decl. of Rights. Recognizing that it is generally a foolish thing to make a long prologue and be short in the story itself, because of appellant's denial of the existence of such an offense, we must overlook that Apocryphal admonition.

the prologue

". . . it is plain that there is and always has been an offense of misprision of felony and that it is not obsolete." H. L. Sykes v. Director of Public Prosecutions, 3 All E.R. 33, 40.

Whether particular parts of the common law are applicable to our local circumstances is a question for our courts to decide. Gilbert v. Findlay College, 195 Md. 508, 513, 74 A.2d 36; State v. Buchanan, 5 H & J 317. Such discretionary power to reject acknowledged common law concepts may exist in appellate courts, e. g., Holland v. State, 302 So.2d 806 (Fla.App.1974), however, as an appellate court with less than final jurisdiction we seldom analyze the philosophical appropriateness ² of clear concepts of common law to present-day social conditions, Hans v. Franklin Square Hosp., 29 Md.App. 329, 335, 347 A.2d 905, cert. denied, 276 Md. 744, and never address such questions raised in the abstract.

The primary question asked in this case is whether misprision of felony is "an indictable offense under the constitution and laws of this State." The argument raises the questions of whether that crime was one recognized under the Common Law of England when Maryland adopted that body of law, and if so, has the crime since been abandoned for obsolescence by its apparent non-use here. See State v Magliano, 7 Md.App. 286, 293, 255 A.2d 470, 474. There is no argument made that this crime which is in the nature of a criminal cover-up is "inconsistent with the spirit of the Constitution and the nature of our political institutions", see Gilbert v. Findlay College, supra, 195 Md. at 513, 74 A.2d at 38, or that it is:

". . . inconsistent with or repugnant to the spirit and principles of republican institutions, whose strength lies in the virtue and integrity of the citizen to correct the morals and protect the reputation, rights, and property of individuals, . . . ." Price v. Hitaffer, 164 Md. 505, 510, 165 A. 470, 472.

Appellant contends only that if viable in 1776 and thus adopted by Md.Const., Art. V, it has since atrophied to obsolescence by disuse.

Our prologuizing then, is restricted to determining whether misprision of felony was an offense known to the common law and subject to adoption by Art. 5 of the Declaration of Rights, since the facts here are inimical to a philosophical rejection of the crime for want of substantial justice in the case. If misprision is to be declared in the abstract philosophically repugnant to contemporary life, we leave that policy consideration for the Legislature, which may abrogate it by statute, or to the Court of Appeals which may change the common law when that law has become unsound in the circumstances of modern life. Hearst Corp. v. St. Dep't of A. & T., 269 Md. 625, 643-644, 308 A.2d 679. It will suffice in this case simply to determine if misprision was a crime under the common law of England when we adopted it as our own in 1776 and leave whether it "should be" a crime for a more appropriate policy determination.

With that in mind, we necessarily look to England, the fountainhead of the common law. Fortune smiles upon our search. In 1961, the House of Lords was faced in H. L. Sykes v. Director of Public Prosecutions, supra, with the question of whether misprision of felony was an offense known to the law. Their answer:

"My Lords, it has been an offence for the last seven hundred years or more, not always under the name 'misprision of felony', but still an offence. Ever since the days of hue and cry, it has been the duty of a man who knows that a felony has been committed to report it to the proper authority so that steps can be taken to apprehend the felon and bring him to justice." Id. at 36-37.

In an opinion, classic for its scholarship and commendable for its interest, Lord Denning relied upon jurisprudential forbears that strike awe into the heart of a legal scholar.

Sir William Staundford, summarizing a precedent from two cases, one decided in 1315 and the other in 1457, in Plees Del Corone, said:

" 'If anyone happens to be present, when another is killed, or when a felony is committed, and did not come there in the company of the felons, nor was part of their confederacy, but nevertheless did not intervene, or disturb the felons, or raise hue and cry, he is not on that account to be held a principal or accessory, for it is not a felony in him but only an offence for which he can be fined like trespass' " Sykes, supra, 3 All E.R. at 37.

Lord Coke, in 1628, spoke upon the subject in his 3rd Institute p. 139:

" 'Now are we to speak of concealement or not discovery of felony. As in case of high treason, whether the treason be by the common law, or statute, the concealment of it is misprision of treason. So in case of felony, whether the felony be by the common law, or by statute, the concealment of it is misprision of felony . . . And as the concealment of high treason is higher by many degrees then the concealment of felony, so the punishment for the concealment of the greater is heavier then of the lesser, and yet the concealment of felonies in sherifs, or bailifs of liberties is more severely punished then in others, viz. by imprisonment by one year, and ransome at the will of the King. (This is clearly a reference to the Statute of Westminster, 1275, c. 9, and shows that COKE too had in mind the 'hue and cry' cases.) From which punishment if any will save himself he must follow the advice of BRACTON, to discover it to the King, or to some judge or magistrate, that for administration of justice supplieth his place, with all speed that he can . . . And this is intended of a concealment, or not discovery (that is, non-disclosure) of his meer knowledge: for if in case of high treason, he that knoweth it, before it be done, and assenteth to it, is particeps criminis, and guilty of treason: and in case of felony, he that receiveth the thief, and assenteth to it, is accessory.' " Sykes, supra, 311 E.R. at 38-39.

Chief Justice, Sir Matthew Hale, in 1670 added to this in his Pleas of the Crown, Vol. 1, p. 374:

" 'By what hath been said touching misprision of treason we may easily collect what is the crime of misprision of felony, namely, that it is the concealing of a felony which a man knows, but never consented to, for if he consented, he is either principal or accessary in the felony, and consequently guilty of misprision of felony and more.' " Sykes, supra, 311 E.R. at 39.

Recalling, perhaps, that the Titans of Greek mythology unsuccessfully stacked only three mountains in their attempt to reach Heaven, Lord Denning piled on a fourth to assure attainment of his goal.

Sir William Blackstone in the fourth book of his Commentaries combined the statements of Lord Coke and Sir Matthew Hale in his authoritative recognition of the crime:

" 'Misprision of felony is also the concealment of a felony which a man knows, but never assented to; for, if he assented, this makes him either principal, or accessory. And the punishment of this, in a public officer, by the statute Westm. 1. 3 Edw. I. c. 9. is imprisonment for a year and a day; in a common person, imprisonment for a less discretionary time; and, in both, fine and ransom at the king's pleasure . . .' " Sykes, supra, 3 All E.R. at 39.

Nearly every author of any note from that day to this has followed these great names, and has said there is an offense of misprision of felony and described it in much the same terms ³ Sykes, supra, at 39. As explained interrogatorily by Lord Denning, "What need we of any further authority? If Staundford, Coke, Hale and Blackstone all say there is such an offence as misprision of felony, are we to say the contrary?"

Indeed, the United States has statutorily enacted such a crime in language not dissimilar to that describing the common law crime:

"Misprision of felony. Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person...