delivered the opinion of the Court.
The appellant, James Oliver Phillips, was indicted for escape from the Bаltimore County jail in violation of Md. Code, Art. 27, § 139 (1967 Repl. Vol.) (1968 Cum. Supp.). He was convictеd in the Circuit Court for Baltimore County by a jury, and was sentenced to the jurisdiction of the Department of Correction for one year.
The case was submitted tо the jury on an agreed statement of facts, which set forth that the appеllant was lawfully confined under sentence in the Baltimore County jail, that he was participating in a Work release program authorized by Md. Code, Art. 27, §§ 645K-645S (1967 Repl. Vol.), that he failed to return to the jail after leaving his place of employment on March 15, 1968, and that he was apprehended on March 22, 1968. The appellant’s defense was that Md. Code, Art. 27, § 645-0 was the controlling statute, rather than Art. 27, § 139.
After thе statement of facts was read, the court instructed the jury on the appliсable law. At the conclusion of the charge the following proceedings took place:
“(Mr. Wittstadt) I request that you so instruct the Jury that counsel in argument may refer to opinions of the other courts, relative to the other courts’ opinions as to the law.
“(The Court) If you read some other case in a сourt of last resort, then the Court will let you do that, and I’ll so tell them now.
“(Mr. Wittstadt) The only case I have is the case of State v. Barton, which was decided by Your Honor last week, which is identical to this case.
“ (The Court) And you want to refer to that ?
“(Mr. Wittstadt) Yes.
“(The Court) And my ruling is that you can not.” 1
*58 On this appeal, appellant’s sole contention is that the court erred in refusing to allow him to refer to the prior nisi prius decision of State v. Barton in his argument to the jury.
In those jurisdictions other than Maryland which allow or at one time allowed argument of law to the jury, in criminal cases, the general rule has been stated that it is proper to argue from reported casеs and from generally recognized textbooks. See,
e.g., People v. Lloyd,
As the Constitution of Maryland, Art. 15, Sec. 5, provides that the jurors are the judges of law as well as fact in criminal сases, and as the jurors are not bound by the instructions of the trial court, it has beеn held that it is permissible for counsel in argument to the jury to refer to a legal textbook,
Jackson v. State,
At the time оf trial in the instant case there were no opinions of the Court of Appeals, nor of this Court, speaking directly to the issue of law involved in appellаnt’s defense. There were, however, several
nisi prius
decisions directly involving it, and wе can see no reason why such relevant authority as
*59
existed in this State at thе time should not be brought to bear in assisting the jury in its determination of the matter. While we аre reluctant to reverse this case in view of
Shifflett v. State, 4
Md. App. 227 (1968), we feel constrained to do so because of the constitutional underpinnings of the contеntion here raised. Upon retrial, counsel, if he desires, must be permitted to refer to relevant prior
nisi prius
decisions, provided that he specifically idеntifies such decisions by the name of the case, the court in which tried, when decided, and by whom. The trial judge may always express dissent from counsel’s statement аs to the law, and the mere fact that the jury is informed that the court holds a different view of the law from that asserted by counsel, does not constitute prejudicial error, since differences between the court and counsel with regard to the law applicable to the case are left to the jury for dеtermination.
Wilson v. State,
Judgment reversed; case remanded for a new trial.
Notes
. The case of State v. Barton, No. 34130, Circuit Court for Baltimore County, concerning the same issue of lаw, had been tried *58 before the same judge, sitting without a jury, on May 1, 1968. In Barton the defendant was found not guilty of violating Art. 27, § 139 on the theory that Art. 27, § 645-0 was the applicable statute and provided the only sanction for walking away from a “work release” assignment.
It may be noted that at the time of trial of the instant case, May 10, 1968, there was little or no reported case law on the effect of Art. 27, § 645-0.
Shifflett v. State,