delivered the opinion of the Court.
*707 The defendant in this criminal case, Lon Alec Lewis, was convicted as an accessory before the fact to the first degree murder of his wife and the second degree murder of his child. He was also convicted on two counts of solicitation to murder and three counts of conspiracy to murder. Several significant legal issues were raised on his appeal to the Court of Special Appeals. We issued a writ of certiorari prior to any proceedings in the intermediate appellate court.
The prosecution’s evidence showed that the defendant Lewis arrived at an agreement with a friend, Gene Meyer, whereby Meyer would kill the defendant’s wife and infant daughter in exchange for a payment of $3,000.00. In addition, Lewis agreed to kill Meyer’s wife and was to be compensated for that act. On September 23,1977, Lewis returned home in the evening to find the dead bodies of his wife and daughter lying in a pool of blood on the kitchen floor. The police were summoned to the home, and an investigation commenced.
As the result of a search of the defendant’s home several days after the crimes, a poem was found, suggesting to the police the possibility of the defendant’s involvement in the killings. Upon intensive questioning, the defendant ultimately confessed to his role in the murders. After his conviction by a jury in the Circuit Court for Prince George’s County, Lewis was sentenced to life imprisonment on the first degree murder count, a consecutive thirty-year term on the second degree murder conviction, concurrent twenty-year terms on the solicitation to murder counts, and a concurrent ten-year term on each of the conspiracy charges.
The defendant’s principal contentions on appeal are that:
(1) An accessory before the fact cannot be tried prior to the conviction and sentencing of the principal.
(2) A delay in presentment to a judicial officer following arrest violated Maryland District Rule 723 a.
(3) The State violated his Fourth Amendment rights in searching his house without obtaining either valid consent or a warrant.
(4) He was coerced into confessing in violation of his *708 Fifth Amendment right against compulsory self-incrimination.
(5) Under both double jeopardy principles and Maryland merger law, one cannot be convicted and sentenced for solicitation to murder where he is also convicted and sentenced on a charge of being an accessory before the fact to the same murder.
(6) An instruction to the jury, directing it that all of the other instructions are only advisory, and not mandatory, was erroneous under the circumstances here.
I.
At the trial, in the course of his argument upon a motion for judgment of acquittal, Lewis’s counsel contended that the State had failed to adduce proof that “there was a guilty principal ... and that he was convicted. This is an essential element of accessory before the fact.” The prosecuting attorney conceded that “technically we do not have a conviction as to Mr. Meyer. He is not truly convicted until he is sentenced. And then it becomes a conviction.” There was no formal proof during Lewis’s trial that the principal in the two murders involved, Gene Meyer, had been tried. However, it appears to be undisputed that he was tried and verdicts of guilty had been rendered prior to Lewis’s trial. On the other hand, it is clear that the principal was not sentenced until after Lewis was tried and found guilty.
In this Court, Lewis reiterates his contention that his two murder convictions were improper because, under the common law rule in force in this State, an accessory cannot be tried before a final judgment in the principal’s case, which means a verdict of guilty and sentence upon that verdict.
The State, at the outset, concedes that the defendant correctly sets forth the strict common law requirement concerning the trial of accessories. Referring to the “hypertechnical nature of the common-law requirement” and asserting that the common law rules on accessoryship “have become legal anachronisms which should be brought into line *709 with the realities of the administration of criminal justice today,” the State advances three alternate positions. Broadly, it argues that we should abolish the distinction between principals and accessories before the fact and “concomitantly dispense with the hypertechnical rules incident thereto.” As a middle ground, the State contends that mere evidence of the principal’s guilt should be sufficient to permit the conviction of the accessory. The State’s narrow position is that, at the very least, we should hold that a verdict of guilty returned against a principal is all that is needed before an accessory can be tried, and that a final judgment in the principal’s trial is not required.
Just last year, we pointed out in
State v. Ward,
Under orthodox common law principles, not modified by statute, it is clear that a final judgment of conviction in the principal’s case, which includes sentence of the principal, is an absolute prerequisite to trial of an accessory. In fact, an accessory could not even be arraigned until the attainder of the principal, which followed the final judgment.
1
As stated in Blackstone,
Commentaries on the Law of England,
p. 232 (1st ed. 1769), quoted by Judge Orth for the court in
State v. Magliano,
“ ‘By the old common law the accessary could not be arraigned till the principal was attainted, unless *710 he chose it: for he might waive the benefit of the law; and therefore principal and accessary might, and may still, be arraigned and plead, and also be tried together. But otherwise, if the principal had never been indicted at all, and stood mute, had challenged above thirty-five jurors peremptorily, had claimed the benefit of clergy, had obtained a pardon, or had died before attainder, the accessary in any of these cases could not be arraigned; for non constitit whether any felony was committed or no, till the principal was attainted; ..”
And as set forth in 1 Hale's Pleas of the Crown, pp. 623-624 (1st American ed. 1847):
“If A. B. and C. be indicted as principals, and D. is indicted as accessary to them all, D. shall not be arraigned till all the principals be attaint or outlawed----
“If the principal be attainted and hath his clergy, or be pardoned after attainder, the accessary shall be put to answer; but if the principal be only convict and hath his clergy, or be pardoned, or stand mute, or die in prison before judgment ... the accessary shall not be put to answer, for the principal was never attainted....”
See also 1 J.Bishop, Bishop on Criminal Law, p. 483 (9th ed. 1923); 3 J.Bishop, Bishop's New Criminal Procedure, pp. 1228-1229 (2d ed. 1906); 1 Encyclopaedia of the Laws of England, p. 84 (2d ed. 1906); Foster, A Report of Some Proceedings, 362-363 (1762); 1 E.McClain, The Criminal Law, p. 180 (1897); R.Perkins, Perkins on Criminal Law, p. 673 (2d ed. 1969); 2 J.F.Stephen, A History of the Criminal Law of England, p. 235 (1883).
Courts also have recognized the common law principle that an accessory cannot be tried until final judgment of conviction in the principal’s case.
E.g., Daughtrey v. State,
In State v. Duncan, supra, the defendant was indicted as an accessory before the fact to murder. Prior to the trial of the defendant, the principal had been tried and found guilty by a jury, but had not yet been sentenced. At the accessory’s trial, the conviction of the principal was admitted into evidence over the defendant’s objection that such evidence was improper because judgment had not been entered on the verdict. On appeal the Supreme Court of North Carolina agreed with this position and reversed the conviction, declaring: “Where the trials [of a principal and accessory] are separate, the attainder of the principal must precede not only the sentence of the accessory, but his trial.” As a basis for its holding the court quoted Lord Coke, 4 Rep. 43:
“ ‘That, if principal and accessory are, and the principal pardoned, or has his clergy, the accessory cannot be arraigned, for the maxim of the law is — ubi factum nullum, ibi fortia nulla; et ubi non est principalis, non potest esse accessorius. Then, before it appears there is a principal, one cannot be charged as accessory. But none can be called principal, before he is so proved and adjudged by the law, and that ought to be by judgment upon verdict or confession, or by outlawry; for it is not sufficient that, in rei veritate, there was a principal, unless it so appears by judgment of the law; and that is the reason that, when the principal is pardoned, or takes his clergy, before judgment, the accessory shall never be arraigned; for it doth not appear, by judgment of law, that he is principal, and the acceptance of the pardon or praying of the clergy, is an argument, but no judgment in law, that he is guilty. But if the *712 principal, after attainder, is pardoned, or has his clergy, then the accessory shall be arraigned, because it appears judicially that he was principal.’ ”28 N.C. at 103-104 .
Expressing its displeasure with the state of the law, the Supreme Court of North Carolina noted that other jurisdictions had enacted legislation to avoid this impediment to justice. However, the court refused to judicially change the law, declaring (
“Probably similar reforms may be found by the Legislature, to be necessary in our law____But the Courts cannot deny to ... [accessories] the benefit of the law, as it was anciently settled, until it shall be altered by the Legislature.”
The Supreme Court of Pennsylvania in
Commonwealth v. Minnich, supra,
was also faced with the identical issue as that now before us. There, the defendant was placed on trial as an accessory before the fact to murder, after the rendition of a guilty verdict against the principal but before sentence was imposed upon him. Applying the common law rule that an accessory cannot be tried until the principal has been convicted, the court was of the view that a jury verdict in and of itself is not a conviction as this term was used within the rule. The court reasoned that although the word conviction, as popularly understood, connotes simply a jury’s verdict, a different, technical meaning was attributed to the word at common law. The appropriate definition of the word “conviction” was set forth as “the ascertainment of the guilt of the accused and judgment thereon by the court, implying not only a verdict but judgment or sentence thereon.”
In
State v. Magliano, supra,
In light of the above, there can be no doubt that under the law as it existed at the time the defendant Lewis was tried, his trial was improper because the principal Meyer had not been sentenced. Even if we are inclined to now abolish or modify this procedural rule, as urged by the State, such modification should in our judgment be given only prospective effect. Although it might not violate constitutional requirements to now modify the common law rule and apply such change retroactively to validate the defendant’s unlawful trial, to do so may, in our view, impinge upon basic fairness.
Compare Dobbert v. Florida,
*714
Since the principal Meyer has now been sentenced, the common law rule governing the sequence of the trials would in no way preclude a trial of the defendant Lewis at this time. Consequently, our reversal of Lewis’s conviction will be accompanied by a direction for a new trial.
State v. Duncan, supra,
On the other hand, we agree with the State that we should now change the technical common law procedural rule mandating that an accessory cannot be tried before the principal is sentenced. The fact that this rule became part of the law of Maryland in 1776 does not preclude such change. Recently in
Pope v. State,
“[The common law] may be changed by legislative act as Art. 5 of the Declaration of Rights expressly provides. ... It may also be changed by judicial decision. ... We asserted in Ass’n of Taxi Oprs. v. Yellow Cab Co.,198 Md. 181 , 204,82 A.2d 106 (1951): ‘We have frequently held that it is our duty to determine the common law as it exists in this State....’ The doctrine of stare decisis does not preclude the exercise of this duty. We declared in White v. King,244 Md. 348 , 354,223 A.2d 763 (1966): ‘The doctrine of stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life.’ Accord, Hearst Corp. v. St. Dep’t of A. & T,269 Md. 625 , 643-644,308 A.2d 679 (1973).”
In our view, the common law rule precluding trial of an accessory until the principal is sentenced “has become unsound in the circumstances of modern life,”
id.
at 342, and therefore should be changed. In
State v. Ward, supra,
“ ‘This distinguishing of the accessory before the fact from the principal is a pure technicality. It has no existence either in natural reason or the ordinary doctrines of the law. For in natural reason the procurer of a crime is not chargeable differently from the doer; and a familiar rule of the common law is that what one does through another’s agency is regarded as done by hiinself____Likewise in morals, there are circumstances wherein we attach more blame to the accessory before the fact than to his principal;...’ ” (Quoting 1 J.Bishop, Criminal Law § 673, at 486-87 (9th ed. 1923)).
Whatever may have been the reason for the rule governing the sequence of the accessory’s and principal’s trials, that reason has long since disappeared. Where the evidence adduced at an accessory’s trial demonstrates beyond a reasonable doubt that a felonious homicide was in fact committed and that the defendant was an accessory to that crime, the defendant should not escape justice because there is yet no sentence in the principal’s case or the principal may have died before he could be tried.
Consequently, commencing with the date of our mandate in the instant case, the trials of accessories before or after the fact will not be precluded because the principals have not been sentenced or even have not been tried. Henceforth, as long as the evidence in the accessory’s trial is sufficient to demonstrate that a felony has been committed, the fact that the principal has not been convicted will furnish no defense to the accessory. 4
*717 II.
Although our reversal in this case rests upon the common law doctrine of accessoryship, the other matters raised on appeal by the defendant may come up again at his new trial. Therefore, for the guidance of the trial court upon retrial, we shall comment upon the defendant’s remaining contentions.
(a)
In
Johnson v. State,
The facts underlying this contention are as follows. The defendant voluntarily appeared at the police station for questioning on October 6 and October 7,1977. He was not in custody, was not deprived of his freedom in any manner, was free to leave the station at any time, and, in fact, did leave on several occasions throughout two days of questioning. Finally, in the early evening hours of October 7, 1977, the defendant orally confessed to his role in the killings. At that point, for the first time, the defendant was placed under arrest. For the next six to seven hours Lewis repeated in writing the substance of his prior oral confession. Immediately upon completion of his written statement, the defendant was presented before a judicial officer in Upper Marlboro, Maryland. The defendant argues that the six and one-half hour delay, for the purpose of having his oral confession reduced to writing, is net justifiable under the rule.
*718
We observed in
Johnson v. State, supra,
“[W]here the delay is less than the prescribed maximum, the rule anticipates that a determination as to the necessity and reasonableness of the delay will be made by courts on a case-by-case basis.”
Later, we set forth several circumstances which “might [be] include[d]” as “[e]xamples of necessary delay.” Id. at 329. That list, however, was obviously not intended to be exclusive. In our view, where the defendant has already orally confessed immediately prior to being arrested, a delay limited to six and one-half hours, for the sole purpose of reducing the oral confession to writing, is not unreasonable. Instead, it is designed to insure that what the defendant desires to relate is accurately recorded. This clearly serves the interests of both the State and the defendant.
(b)
The defendant next argues that his confession should be suppressed as the product of an illegal search.
See Dunaway v. New York,
Upon returning home on September 23, 1977, to the scene of the murders and finding the bodies of his wife and daughter, the defendant Lewis summoned the police to the house. The officers sought the defendant’s assistance, and Lewis was apparently anxious to cooperate with the investigation. Lewis was not initially suspected of being involved in the killings, but he was regarded by the police as a primary source of information. When Lewis was about to *719 go to Michigan to attend the funerals of his wife and daughter, the chief investigating police officer informed him that it would be necessary, as part of the investigation, for the police to enter the house in his absence and go “through personal papers and things like that.” Lewis did not expressly consent to this, but he also offered no objection. He then willingly arranged to leave his house key with a neighbor in order to give the police access to the premises. It was during the time Lewis was attending the funerals that the allegedly incriminating poem was discovered.
The defendant, in arguing that there was no consent to the search, relies upon
Bumper v. North Carolina,
(c)
The defendant confessed to his complicity in the murders of his wife and daughter after undergoing extensive questioning by officers of the Prince George’s County Police Department. One of the grounds for his motion in the circuit court to suppress the confession was that it was involuntary “in the traditional sense.”
See State v. Kidd,
Some of the facts underlying the claim that the confession was involuntary are undisputed. They are as follows. Beginning approximately two weeks after the death of his wife and daughter, the police requested that Lewis come to the police station for questioning. On October 6, 1977, the defendant voluntarily appeared at the police station and, after being fully advised as to his Miranda rights, underwent questioning off and on for a period of two days, during which time he was treated in a generally cordial manner. Lewis was not promised any benefits in exchange for talking. Up until the time the defendant made his statement, at about 6:00 p. m. on October 7, 1977, his freedom of movement was in no way restricted. At the end of questioning on the first day, Lewis went home to sleep and voluntarily returned the next morning. Intermittently throughout the two days of interview, the defendant was in a nervous and highly emotional state of mind; at several points during questioning he broke down crying. During the interrogation, the police officers asked Lewis if he would be willing to subject himself to a polygraph test in order to demonstrate that he had not been involved in the crimes. The defendant agreed to take the test, which was first administered on October 6, 1977, and then again on October 7,1977. After the first day of testing, although in no way under arrest, the defendant was accused by the police official administering the test of perpetrating the killings. Again after concluding the second day of polygraph testing on October 7, 1977, the defendant was accused of being involved in the crimes. At the same time, a police officer whom the defendant had not previously met falsely told the defendant that he was the “Captain” in charge of the investigation when in fact he was a corporal. It was in response to the accusations and questioning by this officer
*721 Lewis testified that he was told by a police officer that failure to take a lie detector test would essentially amount to an admission of his guilt. The defendant also claimed to have suggested to his interrogators that he desired to speak to an attorney. Finally, Lewis contended that the police told him that if he requested a lawyer he would be labeled a murderer. The defendant maintained that the police informed him that asking for a lawyer amounted to an admission of guilt. All of this testimony was contradicted by the police officers. They denied that any of these statements were made.
Although concluding that the defendant’s confession was voluntary, the trial court failed to resolve the factual disputes set forth above. On remand, if the same discrepancies in the testimony arise, the trial court should resolve them and clearly set forth its findings on the disputed matters.
We note that if the testimony of the police officers is believed, then, under the totality of the circumstances, there would be little basis for the argument that the confession was involuntary. However, if the trial court should accept the defendant’s version of the disputed facts, a much closer question will be presented. Particularly troublesome are the allegations of the police misstatements concerning requests for an attorney.
A degree of police deception to obtain a confession is tolerated.
See, e.g., Procunier v. Atchley,
On the other hand, there are limits to the type of police deception which will be tolerated without rendering a confession involuntary, particularly with regard to deception concerning constitutional rights.
See
the discussion in
Miranda v. Arizona,
In view of the uncertainty concerning the pertinent facts, we shall not now attempt to determine whether the State proved that the defendant’s confession was voluntary. To repeat, if the issue arises upon remand, the trial court should resolve the factual disputes and then, in light of the facts as found, make a determination as to voluntariness.
(d)
The defendant next contests the propriety of his being convicted and sentenced for both murder and solicitation to murder the same person. He argues that solicitation to murder merges into the crime of being an accessory before the fact to the same murder.
Most recently in
Brooks v. State,
“The required evidence is that which is minimally necessary to secure a conviction for each statutory offense. If each offense requires proof of a fact *723 which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes.”
The Court of Special Appeals, in
Cherry v. State,
“ 'The gist of this offense is incitement. In brief, the gravamen of the common-law misdemeanor lay in counselling, enticing or inducing another to commit a crime____’ ”
In
State v. Ward, supra,
“[0]ne 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.”
From these definitions it would appear that the crime of solicitation contains no element which is not also present in the offense of being an accessory before the fact. Thus, we hold that under the required evidence test, solicitation of murder merges into the offense of being an accessory before the fact to the same murder. On retrial, if the defendant is again convicted of being an accessory before the fact to the murders of his wife and daughter, he may not also be convicted of solicitation.
(e)
Under Art. XV, § 5, of the Constitution of Maryland,
*724
implemented by Maryland Rule 757 b, a jury in a criminal trial is instructed that it is the judge of the law as well as the facts, and that the court’s instructions are merely advisory.
See Dillon v. State,
Here, the defendant contends that by instructing the jury as to the law pertaining to the admissibility of confessions, and later telling them generally that the instructions are merely advisory, error was committed. In light of the instructions as a whole, we are not prepared to say that reversible error was committed. Nevertheless, we agree with the defendant that, since the jury’s consideration of the voluntariness of the confession involves a delegation to it to determine the propriety of admitting this evidence,
Dempsey v. State, supra,
Judgment of the Circuit Court for Prince George's County reversed, and case remanded for a new trial. Costs to be paid by Prince George's County.
Notes
. Attainder or attaint at common law way the eariinetion of one’s civil p.162(rev. 4th ed. 1968); Ex parte Garland, 71 U.S. (4 Wall)
. In Magliano, Judge Orth for the court discussed in detail the history of the common law rule precluding trial of an accessory until the principal is sentenced, the one limited statutory modification before 1776 (1 Anne Oh. 9 (1702) which would not help the State in the instant case), the recognition of the rule in Maryland, and the post-1776 statutory changes in England and the American states other than Maryland.
. Double jeopardy principles likewise pose no bar to retrial of the defendant. The decisions last year of the United States Supreme Court in Burks v. United States,
. In addition, under our rule-making authority, Art. IV, § 18A, of the Maryland Constitution, we shall consider the abolition generally of the technical procedural rules associated with the doctrine of aecessoryship. In this connection, we shall ask the Court’s Standing Committee on Rules of Practice and Procedure to study the matter and submit recommendations to us.