DILLON v. STATE OF MARYLAND
No. 101, September Term, 1975.
Court of Appeals of Maryland
Decided May 4, 1976.
277 Md. 571
[No. 101, September Term, 1975.]
Decided May 4, 1976.
George E. Burns, Jr., Assistant Public Defender, for appellant.
Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee.
O‘DONNELL, J., delivered the opinion of the Court. LEVINE and ELDRIDGE, JJ., dissent and LEVINE, J., filed a dissenting opinion in which ELDRIDGE, J., concurs at page 588 infra. SMITH, J., concurs in part and dissents in part and filed an opinion concurring in part and dissenting in part at page 594 infra.
The question which we are here called upon to decide is: whether the appellant‘s motion for a mistrial should have been granted after the trial court, as part of its advisory instructions, read to the jury the “Declaration of Policy” set forth by the legislature as the preamble to
The appellant, Samuel Henry Dillon, following a jury trial in the Circuit Court for Montgomery County (presided over by Shure, J.), was convicted under counts 1, 5, 7 and 12 of a multi-count indictment. Count 1 charged the armed robbery on January 22, 1974 of the manager of a Seven-Eleven Store in Takoma Park, Maryland; the 5th count charged the use of a handgun, in violation of
We additionally note that during the course of the trial, no issue was raised by the appellant that a handgun had not been used in either of the robberies.2 Although he challenged his pre-trial identification, his defense was based upon an alibi for the times at which each of the robberies was committed.
In the course of its instructions, the trial court, after declaring: “what I say to you is advisory only, because you are the judges of the law and the fact in criminal cases,” and after explaining to the jury the various counts which remained in the case, further stated:
“There are also two counts involving the use of a handgun in the commission of a felony.
“With respect to the use of a handgun, which you must also consider, Counts 5 and 12, the legislature several years ago enacted this new law.
“They declared as part of the law, which I will read to you, Article 27, Section 36B, which reads, and I am quoting now, ‘Declaration of Policy.’ —
“The General Assembly of Maryland hereby finds and declares that:
[(i)] “There has, in recent years, been an alarming increase in the number of violent crimes perpetrated in Maryland, and a high percentage of those crimes involve the use of handguns;
[(ii)] “The result has been a substantial increase in the number of persons killed or injured which is traceable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity;
[(iii)] “The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and
[(iv)] “Further regulations on the wearing, carrying and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens.
“Section (d) of this section is the section under which he is charged, and is entitled ‘Unlawful use of handgun in commission of crime.‘”
Immediately thereafter, the trial court read to the jury the provisions of
In taking exception to the “handgun” instruction, the appellant‘s trial counsel contended that “it was improper to read into the record the portion of the statute containing the handgun use;” he further asserted: “I believe that is not the law, that the jury should not be instructed on that as being part of the law. I think it unduly prejudices the jury to read into the record an editorial comment by the legislature on the purpose of the law.” The exception concluded with a motion for a mistrial, which the trial court denied.
The Court of Special Appeals affirmed the convictions in Dillon v. State, 27 Md. App. 579, 342 A. 2d 677 (1975) and found no “prejudicial effect resulting from incorporation of both sections (a) [the Declaration of Policy], and (d) of § 36B in the charge.” We granted certiorari limited to the question hereinbefore posed.
In Waletich, the defendant was convicted of transporting intoxicating liquor in violation of § 10303 of the South Dakota Code (1919). In the course of its instructions, the trial court told the jury that “all of the provisions of the intoxicating liquor laws of this state shall be liberally construed for the enforcement thereof, and that no shift, device, art, or contrivance whatever, which is used or practiced to evade the law, . . .” will avail or be of any benefit. Id. at 211, 213 N. W. at 22.
The Supreme Court of South Dakota, noted that “[t]his instruction was evidently taken from the provisions of sections 10235 and 10299, Rev. Code 1919.” In finding that it was “inappropriate,” insofar as it was given under § 10299, and that it was erroneous and prejudicial insofar as it was given under § 10235, that court stated:
“The charge here was unlawful transportation — not any offense arising under section 10299. In so far as it was given under section 10235, it seems to us that the instruction was clearly erroneous. That section is one of interpretation of the act and is addressed solely to the courts, and the jury has nothing to do with it. The instruction should not have been given.
“We are of the opinion that the portion of the instruction, which stated that the laws of this state especially direct that all of the provisions of the intoxicating liquor laws shall be liberally construed for the enforcement thereof, was not only erroneous, but constituted prejudicial error. We
think it must have impressed the jury that the liquor laws stand upon a higher plane than other criminal laws, and that it should be particularly astute to convict upon a charge of violating the intoxicating liquor laws as compared with the violation of other laws.” 51 S. D. at 212, 213 N. W. at 22. (emphasis added).
In Locks, the defendant, the operator of a “hobby shop” which sold “girlie” magazines, was convicted, in violation of an Arizona statute (A.R.S. § 13-822, subd. A), with contributing to the delinquency of a minor when he solicited him to look at “some of the magazines.” In instructing the jury, the trial court read to them § 13-827, subd. A, which provided: “This article shall be liberally construed in favor of the state for the protection of the child from neglect or omission of parental duty . . . and also to protect children of the state from the effects of improper conduct, acts or bad example of any person which may be calculated to cause, encourage or contribute to, the dependency or delinquency of children . . .” After adverting to the principle that the proper interpretation of a statute is a question wholly for the court, and not to be submitted to the jury, the Supreme Court of Arizona, in reversing the conviction, stated:
“In the instant case in reading A.R.S. § 13-827, subd. A to the jury the trial court impliedly invited the jury to construe §§ 13-821 and 13-822 by giving to those sections a liberal meaning in favor of the state to protect the children of the state from any person whom the jury might believe had improperly connected himself in a fashion to encourage the delinquency of a child. No more roving unrestrained authority to convict the defendant of the crime charged could possibly have been authorized, an authority unrestrained by any of the other accepted modes for the determination of the meaning of the language used in a statute.
“While we have construed the language of §§
13-821 and 13-822 as being broad enough to sustain a conviction for the crime charged we, of course, can not say with certainty that under the instructions this was the basis for the jury‘s verdict. What liberal concepts the jury attached to the language of the legislature to protect children is impossible to tell. Of what it in fact convicted the defendant is unknown.” 94 Ariz. at 138, 382 P. 2d at 244. (emphasis added).
As we see it, the holdings in both State v. Waletich, supra, and in State v. Locks, supra, are here distinguishable. There was no suggestion from so much of the trial court‘s instructions as set forth the legislative “Declaration of Policy” when
In Commonwealth v. Sansone, 252 Mass. 71, 147 N. E. 574 (1925), the defendant, convicted of “so driving an automobile that the lives and safety of the public might be endangered,” took exception to that portion of the trial court‘s instructions to the jury, when it read from an earlier appellate opinion, which had upheld the statute under which the defendant was charged. The trial court, in pertinent part, had instructed the jury as follows:
” ‘The statute as thus construed does not amount to a prohibition of the use of motor vehicles. It is simply a regulation of their use. The safety of the
public from injury and loss of life through the operation of motor vehicles well may have been thought by the Legislature to be of such supervening importance as to warrant the enactment of such a statute. It is a matter of common knowledge that many lives are lost and many persons injured through the operation of motor vehicles on public ways. Any rational statute designed to diminish this appalling impairment of human usefulness and happiness is within the power of the General Court under the grant in the Constitution to enact all manner of reasonable and wholesome laws. . . .‘” 252 Mass. at 72-73.
In holding that the instruction did not constitute error, the Supreme Judicial Court of Massachusetts stated:
“The exception of the defendant to a part of the charge in which the judge quoted from the opinion in a decided case must be overruled. Commonwealth v. Dow, 217 Mass. 473, 483.3 This exception was taken to a portion of the charge which covered nearly a page of the printed record, and which in its main features stated the principles of law applicable to the facts of the case. . . . It is not error for the trial court in the course of a charge to state the legislative purpose in enacting the statute upon which the indictment is based.” 252 Mass. at 75, 147 N. E. at 575.
This view was restated by that court in Commonwealth v. Brunelle, 361 Mass. 6, 277 N.E.2d 826 (1972), in a case where the defendant was convicted of having “use[d] an instrument upon the body of a woman . . . with intent to procure an abortion,” in violation of General Laws c. 272, § 19. In the course of his charge to the jury, “the trial judge
“A judge may inform a jury about the legislative purpose of a statute, if he does so accurately. See Commonwealth v. Sansone, 252 Mass. 71, 75. The purpose behind this statute, on its original enactment, is not certain and some reasons for continuing it have become increasingly controversial. The trial judge would have been wiser to have avoided entirely the risk of prejudice from a wholly unnecessary remark. ‘The test of the charge,’ however, ‘is the impression created by it as a whole.’ See Commonwealth v. Kelley, 359 Mass. 77, 92. See also Commonwealth v. Pinnick, 354 Mass. 13, 15. So viewed, and in the context of otherwise proper instructions on relevant legal issues, the remark was harmless in the circumstances of this case.” 361 Mass. at 12, 277 N.E.2d at 831.
The same view was adopted in People v. Deibert, 117 Cal. App. 2d 410, 256 P. 2d 355 (1953), where the defendants were convicted of contributing to the delinquency of minors by selling them intoxicating liquor. In the course of its instructions, the trial court told the jury that “the basic purpose of the Juvenile Court Law is to safeguard children and all other persons under the age of twenty-one years from those influences which tend to cause or encourage them to become delinquent.” Id. at 422, 256 P. 2d at 362. In holding that such an instruction, spelling out the “purpose” of a statute was not error, the court stated:
“While a judge is not bound to instruct on the history, object, or purpose of a law, it is proper to add to the knowledge of the jury on the subject at hand, as an aid to their deliberations, a correct statement of the purpose of such law in explanation of the instructions which follow. See People v. Calkins, 48 Cal. App.2d 33, 36, [119 P.2d 142]; 24
Cal.Jur. pp. 846-847.” 117 Cal. App. at 422, 256 P. 2d at 363.
We think that the “Massachusetts view,” as adopted by the Court of Special Appeals — as well as the view expressed by the California courts — are here particularly applicable in view of the provisions in
Under “our almost unique Constitutional provision any instructions on the law which the [trial] court may give” are purely advisory and the jury must be so informed. Schanker v. State, 208 Md. 15, 21, 116 A. 2d 363, 366 (1955). As observed in Jackson v. State, 180 Md. 658, 667, 26 A. 2d 815, 819 (1942), “[t]he judge may tell [the jury] what he thinks the law is, but he must tell them it is merely advisory and they are not bound to follow it, [but] any erroneous advice or opinion given or expressed by him will be ground of reversal.” These principles, so well implanted, supplied the bases for Rule 756 b, which provides that “[t]he court shall in every case in which instructions are given to the jury, instruct the jury that they are the judges of the law and that the court‘s instructions are advisory only.”
Our predecessors in Slansky v. State, 192 Md. 94, 63 A. 2d 599 (1949), pointed out that a trial judge, in instructing in a criminal case, “should be careful to couch the instruction in an advisory form, so that the jury are left free to find their verdict in accordance with their own judgment of the law as well as the facts. When such an instruction is given, it goes to the jury simply as a means of enlightenment, and not, as in civil cases, as a binding rule for their government. Broll v. State, 45 Md. 356 [(1876)]; Swann v. State, 64 Md. 423, 1 A. 872 [(1885)]; Dick v. State, 107 Md. 11, 68 A. 286, 576 [(1907)].” 192 Md. at 107, 63 A. 2d at 604. (emphasis added).
Since, in a criminal case, “the jury [is] not bound to abide by the interpretation of the court of the meaning of a law, but [is] free to construe and apply it according to their own
In counsel‘s argument to the jury, “as Judges of Law,” it has been held permissible to refer to, and to read to the jury from a legal textbook, Jackson v. State, supra, at 667, 26 A. 2d at 819; Hardison v. State, 226 Md. 53, 61, 172 A. 2d 407, 411 (1961); to read from opinions of the Court of Appeals, even if the opinion be in the same case in a former appeal, insofar as the opinions relate to questions of law, Brown v. State, 222 Md. 290, 302, 159 A. 2d 844, 850 (1960); and to refer to nisi prius decisions, directly relevant to the interpretation of a statute where there was no appellate opinion on such issue of law. Phillips v. State, 6 Md. App. 56, 58-59, 250 A. 2d 111, 113 (1969).
As the Court of Special Appeals pointed out in Hamilton v. State, 12 Md. App. 91, 98, 277 A. 2d 460, 464 (1971), aff‘d, 265 Md. 256, 288 A. 2d 885, cert. denied, 409 U. S. 1006 (1972), citing Schanker v. State, supra,
It is without question that a trial court may read to the jury the applicable provisions of those statutes which pertain to the crime or crimes charged, and advise the jury that the legal effect of the evidence admitted at the trial is to undertake to bring the accused within the operation of such penal statutes. See Adams v. State, 200 Md. 133, 142, 88 A. 2d 556, 560 (1952); Slansky v. State, supra; Vogel v. State, supra. See also Parker v. State, 7 Md. App. 167, 184, 254 A. 2d 381, 391 (1969), cert. denied, 402 U. S. 984 (1971). See as well State v. Saul, 258 Md. 100, 104, 265 A. 2d 178, 180 (1970), affirming Saul v. State, 6 Md. App. 540, 252 A. 2d 282 (1969) (where the trial court sent a photostatic copy of a statute to the jury in the course of their deliberations). Counsel may similarly read to the jury those statutory provisions which they believe relevant to their side of the case; and obviously, in their advocacy, are entitled to argue to the jury as to the applicability vel non, of such statutes to a defendant‘s conduct.
All the trial court‘s instructions were prefaced with the admonition that they were “advisory only.” In relating the legislature‘s “Declaration of Policy” to the jury, the trial judge read verbatim subsection (a) (i), (ii), (iii) and (iv) as literally set forth in
Although, as the appellant contends, a preamble basically forms no part of a statute, the recitals set forth by the legislature in a preamble may be resorted to as an aid in construction of a statute. Clarke v. County Commr‘s, 270 Md. 343, 349, 311 A. 2d 417, 421 (1973); National Can Corp. v. Tax Comm‘n, 220 Md. 418, 439, 153 A. 2d 287, 300 (1959), appeal dismissed 361 U. S. 534 (1960); Gibson v. State, 204 Md. 423, 432, 104 A. 2d 800, 804 (1954). See also Hammond v. Frankfeld, 194 Md. 487, 491, 71 A. 2d 482, 483 (1950). Since, under
This concept is here applicable with even greater force when the apparent dichotomous nature of the two sets of charges submitted to the jury for its verdict is considered. The appellant was charged in counts 1 and 7 with the felony of robbery “with a dangerous and deadly weapon, to wit, a pistol,” in violation of
The “dominant purpose” as disclosed from the language in all of
Since it is incumbent upon a trial court, in a criminal case, when requested pursuant to Rule 756 b, to give an advisory instruction on every essential question or point of law supported by the evidence, Hardison v. State, supra; Bruce v. State, 218 Md. 87, 97, 145 A. 2d 428, 433 (1958); see also
Even though, as the Massachusetts court opined in Commonwealth v. Brunelle, supra, the trial judge may “have been wiser to have avoided entirely the risk of prejudice” in reading verbatim the preamble of the statute, and may have, with greater deftness, undertaken to remove from the minds of the jury any apparent confusion concerning the identity of the charges set forth in the separate counts, we do not find that a recitation of the legislature‘s “Declaration of Policy” constituted error. Although we do not encourage such a practice, the recitation of the “Declaration of Policy” did no more than relate the purposes behind the enactment of the statute upon which counts 7 and 12 were based, Commonwealth v. Sansone, supra, the preamble was accurately stated, Commonwealth v. Brunelle, supra, and was an aid and means of enlightenment to the deliberations of the jury as judges of the law, in construing the provisions of
Assuming arguendo that the recitation of the provisions of
Nor do we see any prejudice from the reference in the “Declaration of Policy” to the fact that (i) there had been an alarming increase in the number of violent crimes involving the use of handguns, (ii) there had been a substantial increase in the number of those killed or injured traceable to handguns in criminal activity, and (iii) the laws currently in force have not been effective in curbing the use of handguns. Such recitation, although not founded upon any evidence presented at the trial, was a verbatim statement of the policy considerations adopted by the legislature in enacting the statute. The jury was in no way thereby misled, nor were they being acquainted with any data other than that which was within their common knowledge from their daily exposure to the communications media. See Wilhelm v. State, 272 Md. 404, 326 A. 2d 707 (1974), where, in connection with finding that a prosecutor‘s reference, in closing argument, to the number of murders which had been committed “was but a direction by him to the jury of a fact that was within their common knowledge,” we pointed out:
“Jurors may be reminded of what everyone else knows, and they may act upon and take notice of
those facts which are of such general notoriety as to be matters of common knowledge. State v. Adams, 1 Ariz. App. 153, 400 P. 2d 360, 362 (1965), citing United Verde Extension Mining Co. v. Littlejohn, 279 F. 223 (9th Cir. 1922); and 53 Am. Jur. Trial § 481 (1956).” 272 Md. at 439, 326 A. 2d at 728-29.
Conceding that the trial court may have been in error — although we have found to the contrary — any such error must be considered “harmless.” In Dorsey v. State, 276 Md. 638, 659, 350 A. 2d 665, 678 (1976), we recently pointed out that error is “harmless” where a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict to the prejudice of the appellant. As we earlier pointed out, it was undisputed in the trial court that robberies had taken place on the dates charged; there was no contradiction or dispute in the evidence that the perpetrator of the robberies had been armed with a handgun. The sole issue for the jury was the identity of the robber. In our view, so much of the trial court‘s instructions, as set forth the “Declaration of Policy” proclaimed by the legislature in enacting the statute, played no role whatsoever, to the prejudice of the appellant, in the rendition of the jury‘s verdicts.
We find no intimation whatsoever in our independent review of the record that there was any suggestion in any of the trial court‘s instructions that “it would be particularly astute [for the jury] to convict.” We think that the appellant‘s contention in this regard is fanciful.
In connection with the denial of the appellant‘s motion for a mistrial predicated upon the court‘s instruction, we stated in Wilhelm v. State, supra:
“A request for a mistrial in a criminal case is addressed to the sound discretion of the trial court and the exercise of its discretion, in a case involving a question of prejudice which might infringe upon the right of the defendant to a fair trial, is reviewable on appeal to determine whether or not
there has been an abuse of that discretion by the trial court in denying the mistrial. Basiliko v. State, 212 Md. 248, 260-61, 129 A. 2d 375, 381 (1957). The decision by the trial court in the exercise of its discretion denying a mistrial will not be reversed on appeal unless it is clear that there has been prejudice to the defendant. See Lusby v. State, [217 Md. 191, 141 A. 2d 893 (1958)].” 272 Md. at 429, 326 A. 2d at 723.
Since we have concluded that there was no error when the trial court read the legislature‘s “Declaration of Policy” to the jury, and thereby no prejudice to the appellant, we hold that there was no abuse of the trial court‘s discretion in denying the motion for mistrial.
Judgments of the Court of Special Appeals affirmed; costs to be paid by appellant.
Levine, J., dissenting:
Because in my view it was erroneous and prejudicial to have included in the jury charge the “Declaration of policy” contained in
While there may be nothing inherently wrong with the inclusion of a statement of legislative purpose in jury instructions, neither does such matter, even when stated in a preamble or “Declaration of policy,” bear the special stamp of validity which the majority seems to accord it here in adopting what it calls the “Massachusetts view.” Rather, an instruction concerning legislative purpose should be treated like any other, the question being in each case whether, under the circumstances, the instruction is calculated to advise the jury as to the law and enable them to apply it to such facts as they find to exist in a given case. When unnecessary, irrelevant or otherwise erroneous matter is included in an instruction, the question becomes whether, considering the charge as a whole, the erroneous matter was
The “legislative facts” contained in the “Declaration of policy” read to the jury here were totally irrelevant to the issues raised at trial and, as the majority concedes, formed no part of the substantive crime with which the defendant was charged.
“Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor. . . .”
The indictment charged armed robbery and use of a handgun in the commission of a felony. The first issue for the jury to consider, therefore, was whether the defendant had committed the crime of armed robbery. A decision against the defendant on that issue raised the single additional issue, and the only question which should have been put to the jury in the charge, whether in committing the armed robbery the defendant had used a handgun.
Though the act proscribed by
A possible explanation for including the “Declaration of policy” in the charge, as pointed out by the majority, is that the trial judge may have felt it necessary to clarify an apparent dichotomy in the crimes charged. Even assuming, however, that the majority is correct in observing that a jury might, under the circumstances, perceive some ambiguity in the separate charges of armed robbery and use of a handgun in the commission of an armed robbery, and conceding the necessity for clarification, the instruction actually given was nonetheless unjustified. The desired clarification could have been accomplished quickly and simply by stating that these crimes were considered sufficiently dangerous to be deemed separate offenses and that conviction for both, if warranted by the facts, was possible. See People v. Nicoll, 3 App. Div. 2d 64, 158 N.Y.S.2d 279, 295 (1956).
The assertion by the majority, citing Wilhelm v. State, 272 Md. 404, 326 A. 2d 707 (1974), that there could be no prejudice here because the “facts” recited were “common knowledge” is simply not a sufficient answer. These “facts” were not facts at issue in the case and were, therefore, patently irrelevant. Moreover, if these “facts” were within the common knowledge of the jury, the only purpose served by reciting them would be to emphasize them by repetition, thereby attributing to them even greater weight than they would otherwise have had, magnifying the prejudice and further misleading the jury. See Ager v. Baltimore Transit Co., 213 Md. 414, 423, 132 A. 2d 469 (1957). Created was a real possibility for the jury to conclude that it would “be particularly astute to convict” the defendant of the crimes charged. State v. Waletich, 51 S. D. 209, 213 N. W. 21, 22 (1927). Such apparent “roving unrestrained authority to convict the defendant” was condemned by the Arizona
It is likewise insufficient to assert that the “Declaration of policy” could have been read to the jury by the state‘s attorney. First, the premise that a prosecuting attorney could read such a statement to the jury is doubtful at best. It is improper for a prosecuting attorney to include in his remarks facts which are plainly inadmissible at trial. Clarke v. State, 238 Md. 11, 20, 207 A. 2d 456 (1965). This is particularly true where, as here, those remarks are “likely or apt to instigate prejudice against the accused.” Contee v. State, 223 Md. 575, 584, 165 A. 2d 889 (1960). The “legislative facts” contained in the “Declaration of policy” were plainly irrelevant to the issue whether the defendant in this case committed the acts charged in the indictment. See Dorsey v. State, 276 Md. 638, 643-46, 350 A. 2d 665 (1976).
Here, however, the prejudice arising out of the presentation of these extraneous “facts” contained in the “Declaration of policy” is exacerbated by the fact that they were recited not by the prosecuting attorney, but rather by the trial judge. Thus, the remarks were accompanied by the imprimatur of the court, adding to the weight given these facts by the jury. Hardison v. State, 226 Md. 53, 62, 172 A. 2d 407 (1961); see Commonwealth v. Moyers, 280 S.W.2d 513, 515 (Ky. 1955).
Nor is the charge here saved by the fact that the § 36B “Declaration of policy” has been treated in a judicial opinion. While it may be proper in some cases for the court to read to the jury from appellate decisions, such a practice is not favored. In fact, this Court has on more than one occasion held that it was inappropriate to include in jury instructions quotations from appellate decisions. See, e.g., State v. Grady, 276 Md. 178, 186, 345 A. 2d 436 (1975), and cases cited therein.
The final point made by the majority concerns Maryland‘s unique constitutional provision,
But whatever the merits of the principle espoused by the majority in a proper case, and leaving aside questions of the validity of
There being no problem of construction or application of the statute in this case, no other use of the “Declaration of policy” by the jury was proper.
Nothing in the foregoing, I suggest, is in conflict with the cases cited by the majority as establishing or following the “Massachusetts view.” In fact, I doubt the existence of a “Massachusetts view,” such as described by the majority and the Court of Special Appeals, which holds that in all cases it is proper for the court to include in its instructions a statement of the legislative purpose in enacting the statute. In Commonwealth v. Sansone, 252 Mass. 71, 147 N. E. 574, 575 (1925), apparently the origin of the “Massachusetts view,” the court simply stated, without discussion, that it was not error for the trial court to state the legislative purpose. There, it appears that the trial court was attempting to give meaning to a statute which proscribed “so driving an automobile that the lives and safety of the public might be endangered,” id. at 574, this apparently only to dispel any notion that all driving might be in violation of the statute.
The second Massachusetts case, Commonwealth v. Brunelle, 361 Mass. 6, 277 N.E.2d 826, 831 (1972), while citing Sansone, makes it clear the court was deciding that the instruction at issue, which included a statement of the legislative purpose, was harmless when considered in light of all the circumstances of the case and the charge viewed as a whole. It is significant that the Massachusetts court, like the majority here, noted that the statement of the legislative purpose was “wholly unnecessary” and that it would have been wiser if the court had omitted it from the charge. And finally, the charge in People v. Deibert, 117 Cal. App. 2d 410, 256 P. 2d 355, 362 n.1 (1953), the last case cited by the majority, was, in context, wholly innocuous. All the trial court said there was “that the basic purpose of the Juvenile Court Law is to safeguard children.”
In sum, I question the existence of a “Massachusetts view” which permits the trial court in all cases to state to the jury the legislative purpose in enacting a statute. Rather, such an instruction must be tested by the same standard as any
Judge Eldridge authorizes me to say that he concurs in the views expressed herein.
Smith, J., concurring and dissenting:
I concur in the result and in so much of the opinion of Judge O‘Donnell as considers the error here to be harmless beyond a reasonable doubt under Dorsey v. State, 276 Md. 638, 659, 350 A. 2d 665 (1976). As to the propriety of that which was done by the trial judge here, however, I concur fully with the views expressed by Judge Levine.