State v. Campbell

• Decision Date: 13 August 1969
• Docket Number: No. 441,441
• Citation: 256 A.2d 537,7 Md.App. 538
• Parties: STATE of Maryland v. James Frank CAMPBELL and Richard Paul Reeves.
• Court: Court of Special Appeals of Maryland

Page 538

7 Md.App. 538

256 A.2d 537

STATE of Maryland v. James Frank CAMPBELL and Richard Paul Reeves.

No. 441.

Court of Special Appeals of Maryland.

Aug. 13, 1969.

Bernard L. Silbert, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Baltimore, Donald W. Mason and Paul J. Stakem, State's Atty., and Deputy State's Atty. for Allegany County, respectively, Cumberland, on the brief, for appellant.

J. Frederick Sharer, also on the brief, William L. Wilson, Cumberland, for appellee.

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

MURPHY, Chief Judge.

This appeal presents the question whether the State is empowered by Maryland Code (1968 Supp.), Article 5, Section 30 to appeal to the Circuit Court for Allegany County from acquittals entered by a tral magistrate in that jurisdiction in two cases charging criminal violations of the Motor Vehicle Code, viz., as to appellee Campbell, driving under the influence of liquor in violation of Maryland Code, Article 66 1/2, Section 206; and as to appellee Reeves, intentionally spinning the wheels of his motor vehicle in violation of Section 210 of that Article. ¹

In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, decided June 23, 1969, the Supreme Court of the United States overruled Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, and held that the guarantee against double jeopardy contained in the Fifth Amedment to the Federal Constitution ² is applicable to and enforceable against the states throught the Fourteenth Amendment. That constitutional guarantee protects against a second prosecution for the same criminal offense after acquittal by a tribunal competent to try the accused, and hence prohibits the government from securing a new trial by means of an appeal, even though the acquittal may appear to be erroneous. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, decided June 23, 1969; Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300; United States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445.

It would thus appear to be an exercise in academic futility for us to determine whether Section 30 of Article 5 authorizes the State to appeal from the magistrate's judgments acquitting the appellees, since, if it does, it is plainly unconstitutional in light of Benton. See also Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114. In so concluding, we are mindful of the principle that the rule of double jeopardy is generally applicable only when the first prosecution involves a trial before a court having jurisdiction and empowered to impose punishment by way of a fine, imprisonment, or otherwise as a deterrent to the commission of crime; in other words, the concept of double jeopardy clearly contemplates that action which bars a second prosecution must be one lawfully instituted in a court or tribunal which has the power to convict and punish the person prosecuted for his criminal conduct. Moquin v. State, 216 Md. 524, 140 A.2d 914; Smith v. State, 1 Md.App. 297, 229 A.2d 723. It is not contended by the State that the trial magistrate did not have jurisdiction to try the appellees. And it is clear that the offenses charged against appellees constituted violations of the criminal laws of this State, each being a misdemeanor punishable by imprisonment or fine or both. Under these circumstances, we hold that the federal constitutional protection against double jeopardy enunciated by Benton manifestly applies to a case involving, as here, an acquittal before a magistrate having jurisdiction to try the case and to impose punishment; and such acquittal operates as a bar to a subsequent prosecution for the same offense by a court of general or superior jurisdiction, i. e., the Circuit Court for Allegany County. See 22 C.J.S. Criminal Law §§ 268, 270, and cases there cited, particularly State v. Ridgley, 70 Wash.2d 555, 424 P.2d 632. Compare Bennett v. State, 229 Md. 208, 220, 182 A.2d 815, 4 A.L.R.3d 862, and State v. Lingner, 183 Md. 158, 36 A.2d 674, holding that under common law principles relating to double jeopardy where the offense is one over which an inferior tribunal has jurisdiction, an acquittal by that tribunal will bar a subsequent prosecution in a superior tribunal for the same offense. See also Crawford v. State, 174 Md. 175, 197 A. 866, holding that where the magistrate is without jurisdiction to try an offense, the accused has not been placed in jeopardy and may be subsequently charged for the same offense.

It has, of course, long been a well recognized part of the common law of this State that the rule against double jeopardy forbids a second trial for the same offense after acquittal. State v. Barger, 242 Md. 616, 220 A.2d 304, and cases cited at pages 618-619, 220 A.2d 304; Boone v. State, 3 Md.App. 11, 23-30, 237 A.2d 787. But as there was no Maryland constitutional provision protecting against double jeopardy, and so long as under Palko v. Connecticut, supra, the Fifth Amendment provision against double jeopardy was not applicable to the states, the right of the legislature, by statute, to change the common law rule of double jeopardy and authorize the State to appeal, even from an acquittal, was equally well recognized. Frod v. State, 237 Md. 266, 205 A.2d 809; Bennett v. State, supra; State v. Adams, 196 Md. 341, 76 A.2d 575; Johnson v. State, 191 Md. 447, 62 A.2d 249; Robb v. State, 190 Md. 641, 60 A.2d 211; Jenkins v. State, 3 Md.App. 243, 238 A.2d 922. That Benton changes the Maryland law in this respect and prohibits the Legislature of this State, as a matter of federal constitutional law, from authorizing the State to appeal from a judgment of acquittal is clear and definite, and to the extent that Section 30 of Article 5 would authorize the State to appeal, it is unconstitutional as violative of the Fourteenth Amendment to the Constitution of the United States. ³

Appeal dismissed.

ORTH, Judge (concurring).

This case comes to us on writ of certiorari to the Circuit Court for Allegany County. Md.Rule 1011(b). The appellees were acquitted of charges of criminal violations of the Motor Vehicle Code at a trial before a magistrate on 27 August 1967. The State appealed to the Circuit Court for Allegany County. Each appellee moved to dismiss the appeal and upon hearing the motions were granted. The holding in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, decided 23 June 1969, that the guarantee against double jeopardy contained in the Fifth Amendment to the Constitution of the United States is applicable to and enforceable against the states through the Fourteenth Amendment, prohibits the further prosecution of the appellees on the charges of which they were acquitted at a trial before a tribunal competent to try them. To now again try them would be to place them twice in jeopardy in violation of the constitutional guarantee. Thus, assuming that Md.Code, Art. 5, § 30 authorized the State to appeal to the circuit court for the county from any judgment of a trial magistrate in any motor vehicle cause, upon which such appeal 'the court to which such appeal is taken shall hear the case de novo and determine the same according to the law and the equity and the right of the matter', such authorization is rendered unconstitutional by Benton. I agree that the appeals must be dismissed.

This decision is properly reached without regard to the retroactivity vel non of Benton, for even if Benton is prospectively applied, the appellees, in the circumstances here, having not been retried prior to Benton, could not again be placed in jeopardy. I think, however, that it should be made abundantly clear that our decision is not to be interpreted as construing Benton to be retroactive. I believe that it has only prospective application.

It is difficult to reconcile the rationale of the opinions of the Supreme Court dealing with the retroactivity of its various constitutional pronouncements. It appears, however, that there is a choice between prospective or retroactive application of constitutional doctrine when there is a clear break with the past, even when clearly foreshadowed, as distinguished from a pronouncement which does not depart from any existing interpretation but merely confirms the previous demise of obsolete decision. See Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 1032- 1033, 22 L.Ed.2d 248. It was established in Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 that 'the Constitution neither prohibits nor requires retrospective effect' for decisions expounding new constitutional rules affecting criminal trials. I am aware of the criteria guiding resolution of the question as summarized in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199: '(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards', but I find no real consistency in the application of these criteria other than a tendency away from complete retroactivity. The Court said in Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882:

'(T)he retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved.'

Certainly the assistance of counsel is now established as a fundamental right at each critical stage of a criminal proceeding. Where the denial of that right must almost invariably deny a...