State v. Ward

• Decision Date: 21 December 1978
• Docket Number: No. 66,66
• Citation: 396 A.2d 1041,284 Md. 189
• Parties: STATE of Maryland v. James Edward WARD.
• Court: Maryland Court of Appeals

Page 189

284 Md. 189

396 A.2d 1041

STATE of Maryland v. James Edward WARD.

No. 66.

Court of Appeals of Maryland.

Dec. 21, 1978.

Kathleen M. Sweeney, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty. and Richard P. Arnold, Asst. State's Atty., Upper Marlboro, for Prince George's County, on brief), for appellant.

James P. Salmon, Upper Marlboro (Hal C. B. Clagett, III, Upper Marlboro, on brief), for appellee.

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

ORTH, Judge.

With the common law of England, to which the inhabitants of Maryland are constitutionally entitled, Md.Const., Dec. of Rights, Art. 5, came the doctrine of accessoryship applicable to felonies. Although the common law may be changed by legislative act ¹ or judicial decision, ² the doctrine has not been altered in this jurisdiction. Maryland is one of the few, if not the only state, which has retained this doctrine in virtually the same form as it existed at the time of William Blackstone in the 18th century, and it represents the law of Maryland at the present time. ³ State v. Williamson, 282 Md. 100, 111, 382 A.2d 588 (1978) (concurring opinion by Levine, J.).

Accompanying the common law doctrine across the Atlantic were certain highly technical procedural rules, not altogether logical, which had developed from the distinction between principals and accessories before the fact. These rules operate to the advantage of the accused and the detriment of the prosecution, for they "tended to shield accessories from punishment notwithstanding overwhelming evidence of their criminal assistance." W. La Fave & A. Scott, Handbook on Criminal Law § 63, pp. 498-499 (hereinafter referred to as La Fave & Scott). The rules are frequently procedural embarrassments to the State, See State v. Magliano, 7 Md.App. 286, 255 A.2d 470 (1969), and the case at hand furnishes yet another example. It concerns the application of the common law doctrine of accessoryship to the crime of murder, and the procedural embarrassments to the State are compounded by the statutory classification in Maryland of murder into degrees, which was unknown at the English common law.

I

The ultimate question on this appeal is whether the Circuit Court for Prince George's County erred in dismissing an indictment returned against James Edward Ward. ⁴ Harry Edward Brockman and David Victor Maness were charged with the premeditated murder of Gerald Joseph Godbout, Jr. on 28 April 1972, and were tried in the Circuit Court for Prince George's County. Each pleaded guilty to and was convicted of the murder in the second degree under a plea bargain arrangement. ⁵ Maryland Rule 731 e formerly Rule 724. On 17 July 1974 Ward was indicted for various offenses relating to the murder. At the time of the dismissal of the indictment on 11 April 1978, only the third count remained. ⁶ It charged Ward as an accessory before the fact of the murder of Godbout, alleged to have been committed by Brockman and Maness "feloniously, wilfully and of their deliberately premeditated malice aforethought." It presented that Ward "did unlawfully aid, counsel and procure the said . . . Brockman and . . . Maness to do and commit the said murder . . .."

The indictment was dismissed upon the grant of a motion filed by Ward claiming that the third count was defective. In light of the allegations in the motion, the arguments made regarding them, and the comments of the court, these questions are presented which go to the determination of whether the court erred in dismissing the indictment as defective:

1) May there be an accessory before the fact of murder in the second degree?

2) If so, did the form of the third count permit Ward to be tried as an accessory before the fact of murder in the second degree?

3) In any event, may Ward be guilty of murder in the first degree as accessory before the fact when his principals stand convicted of murder in the second degree?

II

We lay a foundation for our determination of whether the court erred in dismissing the indictment by examining the relevant terms involved.

Murder

Homicide is the killing of a human being by a human being. It is culpable when it is felonious, and it is felonious when it is not justifiable or excusable. See Clark & Marshall, A Treatise on the Law of Crimes §§ 10.00-10.14 (7th ed. 1967) (hereinafter referred to as Clark & Marshall); L. Hochheimer, Crimes and Criminal Procedure §§ 656-678 (1st ed. 1897) (hereinafter referred to as Hochheimer); R. Perkins, Criminal Law 28-96 (2d ed. 1969) (hereinafter referred to as Perkins).

"In the English common law there was but one crime of felonious homicide (if petit treason is ignored). ( ⁷ The division of this into murder and manslaughter resulted from early statutes intended to exclude the more heinous types of homicide from benefit of clergy. In its origin this was merely a difference in penalty dependent upon the presence or absence of aggravating circumstances, and no doubt it would have been worded in terms of 'degrees' of the crime if that concept had been in use at the time. For most purposes murder and manslaughter have come to be regarded as distinct offenses. . . ." Perkins, Parties to Crime, 89 U.Pa.L.Rev. 581, 587 (1941).

In Maryland, murder and manslaughter are not considered as degrees of felonious homicide, but are regarded as distinct offenses, distinguished by the presence of malice aforethought in murder and the absence of malice in manslaughter. Davis v. State, 39 Md. 355 (1874); Weighorst v. State, 7 Md. 442 (1855). ⁸

At the common law there were no degrees of murder. A conviction of felonious homicide with malice aforethought, that is, murder, called for the sentence of death and was excluded from the benefit of clergy. ⁹ ] The penalty of death for all acts of murder long ago came to be thought too severe because of the widely different circumstances and varying atrociousness under which one person may feloniously kill another. Ameliorative measures were taken in many states through legislative enactments, generally by dividing murder into degrees and relating the punishment to the degree. ¹⁰ Maryland followed this pattern. Acts 1809, ch. 138, § 3. The preamble to § 3 expressed its object:

"And whereas the several offences which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment . . . ." ¹¹

As presently codified, the statute declares that "(a)ll murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree," Maryland Code (1957, 1976 Repl. Vol.) art. 27, § 407, ¹² and "(a)ll other kinds of murder shall be deemed murder in the second degree," Id. § 411.

Principals and Accessories

"In the field of felony the common law divided guilty parties into principals and accessories." Perkins at 643. Principals came to be classified as in the first degree (perpetrators) or in the second degree (abettors) and accessories as before the fact (inciters) or after the fact (criminal protectors). ¹³

A Principal in the first degree is one who actually commits a crime, either by his own hand, or by an inanimate agency, or by an innocent human agent. A Principal in the second degree is one who is guilty of felony by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, either actual or constructive. An Accessory before the fact is one who is guilty of felony by reason of having aided, counseled, commanded or encouraged the commission thereof, without having been present either actually or constructively at the moment of perpetration. An Accessory after the fact is one who, with knowledge of the other's guilt, renders assistance to a felon in the effort to hinder his detection arrest, trial or punishment. See State v. Williamson, 282 Md. 103-105, 382 A.2d 588; Camphor v. State, 233 Md. 203, 205, 196 A.2d 75 (1963); Thornton v. State, 232 Md. 542, 544, 194 A.2d 617 (1963); Veney v. State, 225 Md. 237, 238, 170 A.2d 171 (1961); Davis v. State, 38 Md. 15, 45 (1873); Agresti v. State, 2 Md.App. 278, 280, 234 A.2d 284 (1967); 4 W. Blackstone, Commentaries * 34-38 (hereinafter referred to as Blackstone); Clark & Marshall §§ 8.01-8.03, 8.06; Hochheimer §§ 31-36; Perkins at 643-669. For a neat summary of the common law of parties as applied to felonious homicide, See State v. Powell, 168 N.C. 134, 138, 83 S.E. 310 (1914).

III

(1)

We receive little assistance from the common law in considering whether there may be an accessory before the fact of second degree murder because, as we have indicated, murder was not divided into degrees at the common law. Blackstone asserts in his discussion of what offenses admit of accessories: "In murder and other felonies, there may be accessories: except only in those offences, which by judgment of the law are sudden and unpremeditated, as manslaughter and the like; which therefore cannot have any accessories Before the fact." Blackstone

Page 36

Commentators reject this exception. Perkins characterizes it as "a farfetched corollary" to the rule that an accessory cannot be tried before his principal. Perkins at 673. 1 F. Wharton, Criminal Law § 680, p. 908 (12th ed. 1932) (hereinafter referred to as Wharton) states flatly: "A person may be legally convicted as accessory before the fact of murder in the second degree." 1 R. Anderson, Wharton's Criminal Law and Procedure § 111, p. 241 (1957) (hereinafter referred to as Anderson) asserts: "There may be accessories before the fact to the crime of murder in different degrees." This view is thus explained in Wharton:

"It has been doubted whether there can be an accessory before the fact to manslaughter, since accessoryship...