BEARD v. STATE
No. 5, September Term, 1957.
Court of Appeals of Maryland
Decided April 21, 1958.
216 Md. 302
Judge HENDERSON has authorized me to state that he joins in the views above expressed.
The cause was argued before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
James H. Norris, Jr., Special Assistant Attorney General, and Joseph S. Kaufman, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, and J. Harold Grady, State‘s Attorney for Baltimore City, on the brief, for appellee.
BRUNE, C. J., delivered the opinion of the Court.
The appellant, Beard, was tried in the Criminal Court of Baltimore on December 5, 1952, for violation of the narcotics law, was found guilty by the jury on four counts of the indictment against him and was sentenced on December 17, 1952, to fifteen years’ imprisonment. He sought to appeal within the time allowed by law, but for some reason not fully explained there was delay on the part of the prison authorities in censoring and forwarding Beard‘s appeal. He later filed a petition for a writ of habeas corpus, which, after our holding in Beard v. Warden, 211 Md. 658, 128 A. 2d 426, and a hearing in accordance therewith, resulted in this delayed appeal. At the above hearing, Beard was represented by court-appointed counsel, and at his request the same counsel was аppointed to represent him on this appeal. (He was represented by other counsel at his original trial.)
The indictment contained six counts. The first two charged, respectively, that Beard had possession and control of a narcotic drug on October 14, 1952; the 3rd and 4th counts recited, respectively, that he had been convicted of possession and control of a narcotic drug on November 24, 1950, and charged him with corresponding offenses on October 14, 1952. The 5th and 6th counts recited, respectively, that he had been convicted of possession and control of a narcotic drug on January 30, 1948, and charged him with corresponding offenses on October 14, 1952. The State conceded in this Court that there was but one offense committed on October 14, 1952, whether it was having possession or having control of a narcotic drug. We shall refer to that offense as the current offense and to the prior offenses by the respective years of the convictions or as prior offenses “A” (1948) and
The appellant challenges the validity of the sentence and also asserts that the delay in his appeal deprived him of the equal protection of the laws. His attack on the sentence is based upon the general form of the verdict and the absence of specific findings that he had been previously convicted of narcotic offenses, but the sufficiency of the indictment to sustain the imposition of a sentence upon the appellant as a third offender is also presented on the record before us and seems appropriate for consideration in accordance with Rule 739 g of the Maryland Rules. We shall take up these questions in the following order: first, the equal protection of the laws; second, the verdict and lack of specific jury findings of past convictions; and third, the sufficiency of the indictment for the purpose stated.
This case was argued at the opening session of the present (September, 1957) Term of this Court and resulted in a considerable diversity of opinion on the questions pertaining to the verdict and findings and to the indictment. A motion for reargument was granted at the instance of the State, which sought reargument only on the third question, since this was the only one decided adversely to it by a majority on the original hearing. All questions were open when the case was reargued in January, 1958, together with McCoy v. State, 216 Md. 332, 140 A. 2d 689, which had originally been argued in November, 1957, and was reargued at the instance of the Court, since it presented, inter alia, some kindred problem. Long and intensive consideration of this case has produced some changes in views on the part of most of the present members of this Court (including the writer) who heard this case initially, but it has not produced complete unanimity of opinion. We now proceed to a discussion of the three questions above stated.
Equal Protection of the Laws.
The appellant contends that the delay in his appeal caused
“The Fourteenth Amendment precludes Indiana from keeping respondent imprisoned if it persists in depriving him of the type of appeal generally afforded those convicted of crime. On the other hand, justice does not require Indiana to discharge respondent if such an appeal is granted and reveals a trial record free from error. Now that this Court has determined
the federal constitutional question, Indiana may find it possible to provide the appellate review to which respondent is entitled. The judgments of the Court of Appeals and the District Court are vacated and the case remanded.”
Lack of Specific Jury Findings of Past Convictions.
In cases such as this in which a more severe punishment may be, or is required to be, imposed for a current offense because of one or more prior convictions, it is, of course, a prerequisite to the imposition of the more severe penalty that the prior conviction or convictions be established. Maguire v. State, 47 Md. 485; Goeller v. State, 119 Md. 61, 85 A. 954; Kenny v. State, 121 Md. 120, 87 A. 1109; Hall v. State, 121 Md. 577, 89 A. 111; Robertson v. Warden, 212 Md. 646, 129 A. 2d 90. See also Mazer v. State, 212 Md. 60, 127 A. 2d 630.
The Narcotic Drug Act, under which the appellant was prosecuted, defines various offenses, among them (
It is the settled law of this State that an indictment charging a defendant as a second or third offender must allege the prior offenses. See the Maguire, Goeller, Kenny, Hall
In this State, under the rule of the Maguire case and of the cases following it, if there is a general verdict of guilty on a count or indictment charging a current offense and alleging one or more prior offenses, the defendant can be sentenced only as for a first offense. The law in most of the States is otherwise, though there is said to have been some tendency in comparatively recent years towards the minority view. See Annotations, 58 A. L. R. 20; 116 A. L. R. 209, 234; 139 A. L. R. 673, 696. The rule of the Maguire case seems at variance with the usual rule in criminal cases that a general verdict of guilty is equivalent to a finding of guilt under each and every count. Cf. Berger v. State, 179 Md. 410, 415, 20 A. 2d 146.
The question here presented is whether or not the accused‘s admission by stipulation in open court during his trial for the current offense that he had been convicted of each of the prior offenses which were alleged in the indictment is sufficient to warrant his being sentenced as a second or third offender upon his being found guilty by the jury of the current offense charged against him. We think that it is.
We entertain no doubt that the accused could have insisted that the historical facts of the prior convictions alleged and his identity as the person previously convicted be determined by the jury. There is a considerable divergence of views and of practice in different jurisdictions as to how and at what
In some jurisdictions—notably England and California—the question of prior convictions may not be submitted to the jury at all while it is considering the current offense, or may not be so submitted if the defendant admits to the court (as he may do out of the presence of the jury) the fact of the prior conviction and his identity as the person convicted. See 1 Wigmore, Evidence (3rd Ed.), § 196; Graham v. West Virginia, 224 U. S. 616, 56 L. Ed. 917, 32 S. Ct. 583.
The Graham case illustrates a still different practice under a state statute which permitted a prisoner sentenced to be confined in the penitentiary to be brought before a court of the county where the penitentiary was situated for the imposition of a heavier sentence if he were found to be an habitual offender. This was a wholly separate proceeding from the trial which resulted in the current incarceration of the accused. The facts of his most recent conviction and of his prior convictions were alleged in an information and these historical facts and the identity of the defendant as the person convicted were submitted to the jury. The statute was upheld.
In the absence of such statutes as those in England and California, it is generally held that a defendant cannot, by an admission before trial of one or more prior offenses, prevent the prosecution from proving such offenses. See Annotation, 91 A. L. R. 1478; People v. Sickles, 156 N. Y. 541, 51 N. E. 288. That case points up a difficulty of possible prejudice to the defendant, similar to that noted in Baltimore Radio Show, Inc. v. State, 193 Md. 300, 327, 67 A. 2d 497.
Neither the Maguire case, nor any of the cases in this State which have followed it, has presented the precise question as to the effect of an admission in open court of the historical fact of a prior conviction. People v. Sickles, supra, denied the right of a defendant to plead guilty to a part of an indictment and to preclude the State from proving it. This result was reached at least in part on the construction of certain sections of the New York Code of Criminal Procedure, of which we have no equivalent here.
The binding effect of an admission by a stipulation in open court, such as we have here, is generally admitted, and such an admission dispenses with the need for producing evidence in usual form to prove the fact so admitted. See 31 C. J. S., Evidence, § 381; 20 Am. Jur., Evidence, § 557; 2 Wharton, Criminal Evidence (12th Ed.), § 415; Godwin v. State, 74 A. 1101 (Del.). Wharton, op. cit., § 645, applies the general rule specifically to admissions of prior convictions, saying: “When the accused confesses the fact of the prior conviction, it is generally held that the state need not prove the fact, * * *”
Some courts have adopted the view that notwithstanding an admission by the accused of a prior conviction, there must still be a finding thereof by the jury. See State v. Cardwell, 60 S. W. 2d 28 (Mo.) and Murmutt v. State, 63 S. W. 634 (Tex. Ct. of Crim. App.). In the Cardwell case the penalty was to be fixed by the jury. Cases which follow this view make a distinction between a waiver of proof of a fact and a waiver of a finding by the jury of an admitted fact. Such a distinction would have force in a situation where the
The Supreme Court of Iowa has held that the admission in open court of a prior conviction dispenses not only with other proof of such a conviction, but also with the necessity of a jury finding of such conviction. State v. Ganaway, 55 N. W. 2d 325 (Ia.); State v. Shepard, 73 N. W. 2d 69 (Ia.). In the instant case the defendant made no effort to retract, repudiate or question his admission of his prior convictions. We agree with the views of the Supreme Court of Iowa in the Shepard case that it would be an unwarranted refinement of technicality which would serve no useful purpose, to hold that, in spite of the defendant‘s stipulation of record admitting two prior convictions, the jury must, nevertheless, pass upon them.
The scope of a waiver may be broad, and a waiver may extend to constitutional rights, including those relating to criminal proceedings. Authorities on this subject are legion. It will suffice to refer to Diaz v. United States, 223 U. S. 442, 56 L. Ed. 500, 32 S. Ct. 250, in which it was held that the right of confrontation of witnesses could be and had been validly waived.
Quite apart from the questions above discussed, this case may be distinguished from the Maguire case by the oral instructions which were given. The trial judge told the members of the jury that they “need not bother” about the first and second counts (which dealt only with the current offense). He then pointed out that the third and fourth counts charged possession and control of a narcotic drug and that these counts also charged the convictions under the 1950 indictment, and in like manner he explained the fifth and sixth counts as charging possession and control and as being related to the 1948 indictment. With the jury‘s attention thus focused on the prior offenses as well as the current offense, and with their having been told to disregard the first two counts charging the current offense alone, it seems that the verdict of guilty on each of the counts submitted to them
Sufficiency of Indictment for Sentence as Third Offender.
The indictment, as we have noted, coupled the 1948 offense and the current offense in one pair of counts and the 1950 offense and the current offense (offense “C“) in another pair. The question is whether A plus C and B plus C do or do not sufficiently inform the defendant that he is charged with having been convicted previously of A plus B and with having committed current offense C, so that, if he is found guilty of C, he is liable to punishment as a third offender. The difficulty arises from the nature of statutes, such as
The principal ground upon which the indictment is attacked as not sufficient to sustain a penalty for a third offense is that in no one count are prior offenses A and B and current offense C joined in one-two-three order. If A and B were elements of offense C, this objection would be of compelling
Watson v. People, 134 Ill. 374, 25 N. E. 567, is urged in support of this argument. There the indictment was in four counts, the fourth of which may be disregarded because it was a mere duplicatiоn of the second. The first count charged burglary, the second also charged burglary, but without force in the entry, and the third charged the same burglary and alleged a prior conviction. When the case was tried, the penalty was to be fixed by the jury in accordance with statutory provisions under which a first offense was punishable by imprisonment for not less than one nor more than twenty years, and a second offense was punishable by imprisonment for a fixed term of twenty years. The trial court instructed the jury that if it found that the defendant committed the crime charged in the first count and if it further believed from the evidence that he had been found guilty of the previous offense, then the jury should find the defendant guilty and fix the penalty at twenty years’ confinement. This instruction was held erroneous, since the allegation of a prior conviction formed no part of the first count either by direct allegation or by incorporation by reference. The Watson case was cited with approval in People v. Madden, 384 Ill. 313, 51 N. E. 2d 527, but was found not applicable.
The opinion in the Watson case does not go into any critical analysis of the reason for insisting that the count of the indictment upon which the sentence was based must contain an allegation of the prior offense. It simply applies the general rule of criminal pleading that each count must be com-
This problem was considered in People v. Sickles, supra, 156 N. Y. 541, 51 N. E. 288, where (at p. 290 of 51 N. E.) the majority opinion drew a distinction between an element of the second offense and an ingredient of the criminality of the defendant. There the main controversy seems to have been whether or not it prejudiced the defendant unduly to have the prior offense put before the jury in passing upon his guilt or innocence as to the current offense. Judge Bartlett dissented on the ground that it did so prejudice him. That question was determined by this Court in the Maguire and Goeller cases, above cited, in accordance with the view adopted by the majority of the New York Court оf Appeals in the Sickles case. It is one of the principal bones of contention in the McCoy case decided contemporaneously with this case.
In this State the Maguire case squarely holds—and there has been no departure from this holding—that “an averment of prior conviction does not charge an offense.” (47 Md. at 497.) This Court adopted the language of Lord Campbell in Reg. v. Clark, 20 E. L. & Eq. 582, that “it is only the averment of a fact which may affect the punishment. The jury do not find the person guilty of the previous offense; they only find that he was previously convicted of it, as an historical fact.” Judge Alvey said also at page 496: “* * * that if the party be proceeded against for a second or third offense under the statute” and the sentence be different or more severe in such case, “* * * the fact thus relied on must be averred in the indictment; for the settled rule is, that the indictment must contain an averment of every fact essential to justify the punishment inflicted.”
Cases in other jurisdictions agree with the Maguire case in holding that the prior offense is not an element of the
Other cases adopting this view and supporting a result contrary to that of Watson v. People, 134 Ill. 374, 25 N. E. 567, above cited at length, are Smiddy v. Commonwealth, 152 S. W. 2d 949 (Ky.), in which one count alleged first degree murder and another alleged prior convictions which might have served to increase the punishment if the defendant had been found guilty of a lesser dеgree of homicide than first degree murder; Rawlings v. Commonwealth, 230 S. W. 529 (Ky.), in which it was held not erroneous, though apparently unnecessary, to allege the current offense in one count and a prior offense in another; Jones v. State, 22 N. W. 2d 710 (Neb.); State v. Rigsby, 20 S. E. 2d 906 (W. Va.); Becker v. U. S., 36 F. 2d 472 (3rd Cir., 1929), cert. den., 281 U. S. 731, 74 L. Ed. 1147, 50 S. Ct. 246; Goodman v. Kunkle, 72 F. 2d 334 (7th Cir., 1934). See also Ex parte Kuwitzky, 282 N. W. 396 (Neb.), a habeas corpus case holding that although an habitual criminal might have been given a longer sentence as such under the first count charging a current offense, where the information contained a second count alleging prior offenses, he could not be validly sentenced on a plea of guilty to the second count which charged no offense.
The statement of the Circuit Court of Appeals for the Seventh Circuit in Goodman v. Kunkle, supra, seems particularly apt. The court was passing upon an appeal in a habeas corpus case where the defendant had been sentenced under an Indiana statute to life imprisonment as a third offender. The court said (at p. 336): “Habitual criminality is a state, not a crime. The so-called ‘count 3’ [reciting prior convictions] is not, in fact, a separate ‘count’ in the sense in which that term is customarily employed. Habitual criminal statutes, such as that of Indiana, do not create or define a new or indeрendent crime, but they prescribe circumstances wherein one found guilty of a specific crime may be more
In Jones v. State, supra, 22 N. W. 2d, at 712: “* * * not form or place in the information but substance is the thing which is of controlling importance in setting forth the aggravation of a charged offense which forms the basis for the penalties prescribed by the statute defining habitual criminal. It is proper to set out the aggravation either in the count charging the crime or in a separate count in the information.”
Becker v. U. S., supra, presented the question whether the sentence imposed upon the defendant as a second offender was lawful under the form of indictment there used. The indictment contained six counts or so-called counts. Each of the first five charged a current offense; the sixth alleged a prior conviction. The jury found the defendant guilty on two of the current offense counts and found that he had been previously convicted, as alleged in the sixth “count.” He was sentenced as a second offender. The Circuit Court of Appeals for the Third Circuit said in part (pp. 472-473): “We follow the defendant on the elementary principles of law that a count * * * is regarded in law as containing a complete statement of the cause of action or a complete charge of crime; that where an indictment contains several counts each count is treated as a separate charge as completely as though the several charges appeared in separate indictments, Watson v. People, 134 Ill. 374, 25 N. E. 567; State v. Briggs, 94 Kan. 92, 145 P. 866; that an essential element of a crime cannot be omitted, nor can the omission be supplied by intendment, implication, or recital * * *; and that infirmity in one count cannot be cured or its averments aided by another count * * *” Then, after quoting with approval from Singer v. U. S., 278 F. 415, 420 (3rd Cir., 1922), the rule that where a prior conviction is charged in the indictment, the prior conviction and the identity of the accused as the same person in each prosecution must be established at the trial, the court said at p. 473: “The essential fact of former conviction was pleaded in the indictment in this case and proved at the trial. It was pleaded not in thе count under which
To the extent that the Watson case and State v. Briggs, supra, cited along with the Watson case in the Becker case, on the one hand, and the Becker case (and others reaching the same conclusion as Becker), on the other, are inconsistent, we find the reasoning of the Becker case more persuasive on the question now before us and we prefer to follow it.
The Maguire case, 47 Md. 485, the Goeller case, 119 Md. 61, 85 A. 954, and Hall v. State, 121 Md. 577, 89 A. 111, all cited above, establish the rule that an indictment, in order to serve as the foundation for the imposition of increased penalties prescribed for a second or subsequent offense, must allege the prior offense or offenses, but none of those cases specifies how the information must be set out. Maguire upheld the practice of submitting the issue of a prior conviction to the jury along with the evidence of guilt on the current
Goeller emphasizes the constitutional right of the defendant under
An indictment in the same form as in this case was before this Court in Peachie v. State, 203 Md. 239, 100 A. 2d 1. There no attack was made on the indictment, and the judgment and sentence, which was for a third offense, were affirmed without comment on the form of indictment.
The question now before us is not whether the indictment is in the best possible form, but whether it is legally sufficient to apprise the defendant of all of the necessary facts upon which the increased penalties applicable to a third narcotic offense may be invoked against him. The precise form in which that information is given does not seem to us of much importance so long as all the necessary information is set forth in the indictment in clear and understandable terms. (Jones v. State, supra, 22 N. W. 2d 710 (Neb.)). Historical convictions A and B and current offense C are all set out in the indictment. The jury‘s verdict of guilty establishes the defendant‘s guilt as to the current offense; and we think that
* * *
We may add several observations. We find no constitutional requirement that an indictment allege a prior conviction or convictions in any particular manner or in any particular place, so long as any such prior offenses are clearly stated as the basis for increased punishment if the accused is convicted of the current offense charged against him. Neither do we find any constitutional requirement that the jury must pass on the accused‘s alleged prior convictions at the same time that it passes upon the alleged current offense. The court‘s instructions should cover the various possible verdicts, and in the absence of a binding admission by the accused of one or more prior convictions, they should call for special verdicts or findings as to the historical facts of any prior convictions which may be alleged. We trust that the Rules Committee will find it practicable to consider these matters and whether or not a change would be desirable in the rule of the Maguire case as to the effect of a general verdict of guilty where a prior conviction is alleged and a current offense is charged, in the course of its work on Rules of Criminal Procedure now nearing completion.
In accordance with the holdings stated in this opinion the judgment and sentence of the Criminal Court of Baltimore are affirmed.
Judgment and sentence affirmed, with costs.
The Maryland Court of Appeals has just held, for the first time in its history, that when one is accused of crime by an indictment, the State is entitled to have one count of the indictment assisted or enlarged by another count thereof, though there was no reference to, or incorporation of, the assisting count in the count that was aided or enlarged. In so far as the subject has been called to our attention (and our extensive personal research has developed nothing to the contrary) it is the first such holding in the entire United States or England. Such a ruling has a terrific impact upon the very vitals of some of the rudimental principles of the criminal law as it has been developed in these countries.
It is assumed, in writing this dissent, that any who desire to read it have read the majority opinion. At the outset, it seems appropriate to mention a few of the unusual features of the case. In the beginning, it looked like a rather simple one presenting three not unusually difficult questions for our determination; yet, the Court has spent many hours of deliberation in deciding these questions, and we still are not in agreement. The first question (all similar references are to the majority opinion unless otherwise noted) presented no difficulty, but the second and third have. When the original opinion was filed, the author of the present majority opinion agreed with the then majority on questions two and three, but two members of the present majority dissented on the grounds of those two questions. Daily Record, December 9, 1957. The present majority opinion means that those two members of the Court changed their positions on question two and the author thereof changed his on question three. This, with the original concurrence of all three on question one constitutes the present majority opinion.
It was unique at the reargument, which was held jointly with the reargument of McCoy v. State, 216 Md. 332, 140 A. 2d 689, in that counsel for both defendants and the representatives from the Attorney General‘s office frankly stated in open court that they had read the original opinion in the Beard case, and could find no fault with it. Nothing new
I, wholeheartedly, concur in the result reached on questions one and two; but I am firmly convinced that the third question of going into one good count of an indictment to assist another good count without reference thereto in the count assisted, should be decided in accordance with the Becker, Watson and Briggs cases, all to be referred to later. It is universally recognized that it is elementary in criminal procedure that each count of an indictment must state a separate and distinct offense. It was said in Latham v. The Queen, 9 Cox‘s C. C. 516, 520: “But where there are two counts in an indictment, they are to all intents and purposes two separate indictments * * *” This rule has been followed by this Court in such cases as Simmons v. State, 165 Md. 155, 167 A. 60; Imbraguglia v. State, 184 Md. 174, 40 A. 2d 329. Of course, one count may refer to matter in another count so as to avoid unnecessary repetition (no such attempt was made in the instant case), and if the reference be sufficiently full to incorporate such matter with that in the count in which reference is made, the validity of the latter count is not affected. P., W. & B. R. R. Co. v. State, 20 Md. 157, 163; Cohen v. State, 173 Md. 216, 220, 195 A. 532, 196 A. 819; Imbraguglia v. State, supra.
Before the majority decision herein, the following would seem to be a correct statement of the rule with reference to a charge that one is an habitual criminal or has been guilty of a previous offense, derived entirely from the adjudicated
“It is impossible to sustain this conviction without disregarding well-established rules of law applicable to criminal trials. As will be seen from the foregoing statement, the attention of the jury was specially directed to the first count of the indictment
* * *, and they were directed to fix the prisoner‘s term in the penitentiary at 20 years if they found he committed the crime charged in that count. It is true, it requires the jury to also believe from the evidence that the defendant had been previously convicted of the crime of burglary and larceny, and sentenced to the penitentiary, but it does not require that belief to be based on any charge made in the first count, or in fact in any count of the indictment. The first count does not charge a former conviction. It is an ordinary count for burglary, and, upon a conviction under it, the jury could fix the punishment at confinement in the penitentiary for any number of years, not less than 1, nor more than 20. It was therefore error to instruct it to fix the term absolutely at 20 years if the finding of guilty was based on that count. It is said, however, that the allegation of former conviction (contained in the 3rd count) may be referred to, and treated as a part of, the first count. This position cannot be maintained. By all the rules of criminal pleadings, where an indictment contains several counts, each count is to be treated as a separate charge, and must be complete within itself, except that for some allegations subsequent counts may refer to the first or former counts. Here, however, there is no attempt to make any allegation in the indictment a part of the first count, except that which expressly appears in it. It cannot be seriously contended that this indictment does not contain four separate and distinct counts, the third of which alone charges a former conviction. The pleader very properly put in these several counts, so that, if his proof failed to meet the third, he might convict on either thе first or second. After the proof was in, he evidently intended to insist upon a verdict on the one charging the former conviction, but by mistake wrote ‘first count’ in his instructions instead of ‘third count.’ The effect of that mistake cannot be avoided by now attempting to make the first count charge that which it does not, and which manifestly it was not intended to charge.” (Emphasis supplied.)
At the time of the writing of the original opinion, I had not discovered the Watson case. After discovering the decision by that Court, one for which there is great and widespread respect, it was very gratifying to see how closely the previous majority opinion had paralleled the reasoning of that Court, as well as the Supreme Court of Kansas in State v. Briggs, 145 P. 866 and the Circuit Court of Appeals (3rd) in Becker v. U. S., 36 F. 2d 472, all of which are cited in the majority opinion. These are the only three cases that have come to our attention wherein the exact question under consideration has been raised. In the Briggs case, supra, the Supreme Court of Kansas arrived at the same conclusion that the Supreme Court of Illinois had in the Watson case, and for the same reasons; in the Becker case, relied upon heavily in the majority opinion, the Court recognized the soundness of the princiрles of law enunciated in the Watson and Briggs cases and held that the “paragraph” or “count” in the Becker case was not a “real count” in any sense of the word, so it could properly be treated as an “addendum” to the other counts. This case will be referred to later.
It should be remembered in considering the instant case that each and every count of the indictment was a real count, sustainable as against demurrer, and was not a “paragraph,” an “addendum,” a “footnote” or something that was labeled a “count” but in reality was not a count, such as were dealt with in many of the cases cited in the majority opinion.
The majority opinion states: “Cases in other jurisdictions agree with the Maguire case in holding that the prior offense is not an element of the current offense,” (emphasis supplied) and then cites several cases. This statement is accurate only to the limited extent that “current offense” is defined in that opinion. For instance, the prior offense is not an element of the current offense in the sense that the prior offense must be proved in order to sustain a finding of guilt of the current offense if there is to be no increased punishment;
This brings us to the vital and concluding portion of the discussion. The majority state: “Other cases adopting this view and supporting a result contrary to that of Watson v. People, * * * 25 N. E. 567 (no mention is made of the Briggs case, supra, 145 P. 866) * * * are,” and then cite seven cases, some of which are from the same jurisdictions. If I could agree with my colleagues who constitute a majority upon their analyses of these cases, I would be doing what I strongly suspect they are (This is a beautiful Sunday afternoon), and not writing this opinion. The following statement is made, fully realizing that each decision is reported and open to inspection by any interested party: There is not in any one of the cases cited a holding that the State, as was done in the case at bar, may go into another real count of an indictment and obtain aid for another complete count, either to allow increased punishment or otherwise, unless reference to, and incorporation of, the assisting count is made in the count assisted. The sum-total of the holdings amounts to
I shall not attempt an analysis of each case cited by the majority; however, as they rely very heavily upon Becker v. U. S., supra, 36 F. 2d 472, and the opinion therein is quite short, a brief analysis of it seems appropriate. There, the first three counts of an indictment charged unlawful sales of liquor, the fourth unlawful possession of liquor, the fifth maintenance of a nuisance, and the sixth “count” a previous offense, alone. The jury found, as far as we are interested in the verdict, the defendant guilty on the 4th count and the historical fact, alleged in the 6th “count,” that the defendant had been previously convicted. He was sentenced as a second offender. The defendant raised the same question presented in this case, namely, that one count of an indictment cannot assist another unless incorporated in the latter. Our majority opinion quotes the Circuit Court of Appeals when dealing with this subject as follows: “We follow the defendant on the elementary principles of law that a count
The requirement that each count in an indictment state a complete offense and not be aided by another without incorporation is not a mere technicality. It is a sound and salutary principle of criminal pleading with a time-honored background. All indictments are not simple: some contain many counts. In Simmons v. State, supra, 165 Md. 155, the indictment contained 18 counts. In many such cases and even in those more simple, it presents a real problem to come to the trial table prepared to meet the charges contained in the several counts; but to hold that an accused must come prepared to meet them, as well as any combination that may be derived from them, would seem to place an accused person in a dilemma never contemplated by the criminal law.
I fully realize that in an appellate court there is an occasional temptation to become peccant (meaning only transgressive) in relation to the doctrine of stare decisis, especially on questions not subject to review; however, I have a profound respect for that doctrine and keenly feel that it should be transgressed only for the most urgent and impelling reasons, never because of expediency or personal philosophy. Because I believe the majority opinion infringes upon the rulings of this Court in the Simmons and Imbraguglia cases, supra, (and any others like them) I am unable to concur in it. As the accused was charged with, and convicted of, being a second offender, I think he should have been sentenced as such.