STATE of Maryland v. Richard Miles CHANEY
No. 131, Sept. Term, 1984
Court of Appeals of Maryland
Sept. 11, 1985
497 A.2d 152
In light of the basic facts found by Judge Fader, I would impose a sixty-day suspension in this case.
Jillyn K. Schulze, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellant.
Melissa M. Moore, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender and George E. Burns, Jr., Asst. Public Defender, Baltimore, on brief), for appellee.
Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY and McAULIFFE, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.
MURPHY, Chief Judge.
By indictment filed on August 1, 1977, the Grand Jury for Anne Arundel County charged that Richard Miles Chaney, on December 6, 1971, in said county
“did wilfully and deliberately, with premeditation kill and slay Elizabeth Ann Metzler, contrary to the form of the Act of Assembly in such case made and provided and against the peace, government and dignity of the State (
Common Law andArt. 27, Sec. 407 -410 ).”
Chaney made no objection before or during his trial to the legal sufficiency or form of the indictment. He was convicted by a jury of first degree murder and sentenced to life imprisonment. The Court of Special Appeals affirmed the conviction in Chaney v. State, 42 Md.App. 563, 402 A.2d 86 (1979), cert. denied, 286 Md. 745 (1979).
In a second post conviction petition, Chaney claimed that his conviction should be vacated because the indictment failed to charge a crime. The petition was denied, but on application for leave to appeal, the Court of Special Appeals, in an unreported opinion, agreed with Chaney and vacated the conviction. Relying upon Brown v. State, 44 Md.App. 71, 410 A.2d 17 (1979), the intermediate appellate court concluded that because the indictment did not aver that the offense was “murder,” and that it was committed with “malice aforethought,” it failed to charge a cognizable crime. It held that the trial court did not possess jurisdiction to try the offense and because the defect in the indictment was jurisdictional, the issue could be raised at any time. We granted certiorari to consider the important issue presented in the case.
Brown involved a charging document containing language which, as here, asserted that the accused willfully, deliberately and with premeditation did “kill and slay” the named victim on a specified date in Anne Arundel County. In that case, the Court of Special Appeals said that an indictment for murder, to be legally sufficient to charge that offense, must comply with recognized common law standards or be in conformity with the statutory formula approved by the legislature.1 As to the former, the court
Subsequent to Brown, we decided Williams v. State, 302 Md. 787, 490 A.2d 1277 (1985). There, we recognized that a court is without power to render a verdict or impose a sentence under an indictment which does not charge a cognizable offense within its jurisdiction proscribed by common law or by statute. We said that a claim that an indictment fails to charge or characterize a crime is jurisdictional and may be raised at any time. But in determining, for jurisdictional purposes, whether an indictment sufficiently charges and characterizes a crime, we made clear in Williams that merely because the charging document does not allege, expressly or by implication, every essential element of an offense does not necessarily mean that no
Murder is a common law offense in Maryland and is within the jurisdiction of the circuit courts of the State. Campbell v. State, 293 Md. 438, 444, 444 A.2d 1034 (1982); Gladden v. State, 273 Md. 383, 330 A.2d 176 (1974). Malice is, of course, an essential ingredient of murder; its presence, either directly or inferentially, must be established to sustain a conviction for the offense. Stansbury v. State, 218 Md. 255, 146 A.2d 17 (1958); Chisley v. State, 202 Md. 87, 95 A.2d 577 (1953).
The indictment in this case does not contain all the language set forth in
The test for determining whether the circuit court possessed jurisdiction over the offense charged in this case is not, therefore, whether the recital in the indictment that the killing was willful, deliberate and premeditated consti-
JUDGMENT REVERSED, WITH COSTS.
COLE, Judge, dissenting.
I cannot reconcile the Court‘s decision with the constitutional right of an accused under
I
The indictment here states that the accused “did wilfully and deliberately, with premeditation kill and slay” a named individual on a specified date in Anne Arundel County. The majority forthrightly acknowledges that this indictment omits the words “felonious,” “malice aforethought,” and “murder.” The Court further acknowledges, as it must,
At bottom, the only conceivable reason appellant could have been informed that he was charged with first degree murder is the parenthetical reference in the indictment to
Nor are the defects in these particular charging documents ameliorated by the citation of the statutory section, the violation of which the defendants were intended to be charged; reference to the criminal enactment does not supply the missing elements and satisfy the requirements of our constitution. It takes little imagination to foresee that the State‘s contention, if accepted, would obviate the necessity of alleging any material element of
the offense, for any distinction which might be drawn between supplying a crucial element by citation of the statute and supplying all essential allegations in this manner is so fine as to be well-nigh invisible.
Ayre v. State, 291 Md. 155, 166-68, 433 A.2d 1150, 1158 (1981) (footnote omitted; emphasis in original). Judge Digges went on to explain that although authority for each count charged is required to be furnished by the Maryland Rules, “[t]his reference exists as a matter of convenience to the parties and the court, and thus possesses no substance of its own.” Id. at 168 n. 9, 433 A.2d at 1158 n. 9. As applied to this case, Ayre therefore requires that we disregard the parenthetical citations to Maryland‘s murder statutes in determining whether the indictment has fulfilled its constitutionally mandated informative purposes. Consequently, I come to the Court‘s contention that the indictment reasonably apprised appellant that he was charged with “unlawful homicide.”
Once the indictment is stripped of these citations, the Court does not—and cannot—state that the indictment specifically informs appellant that he has been charged with first degree murder. Neither does the indictment specifically inform appellant that he has been charged with second degree murder or, for that matter, manslaughter. Appellant is therefore at a loss to determine from the face of the indictment whether he has been charged with murder or manslaughter. The Court does not pause to consider that “unlawful homicide” includes a comparatively large array of offenses (first degree murder, second degree murder, manslaughter) that differ as to essential elements and defenses. The imprecise—and I dare say incorrect—characterization of the offense of first degree murder in this case in no way informed appellant of that crime.
What seems to be at work in this case is an elusive standard for determining the sufficiency of charging documents in the context of
Most recently, in Jones v. State, 303 Md. 323, 493 A.2d 1062 (1985), the Court once again employed its common parlance approach in a case involving a constitutional challenge to the legal sufficiency of the statutory form of charging document for the crime of theft. The Jones Court stated that “[i]n common parlance, to steal is to take something that does not belong to you.” Id. at 340, 493 A.2d at 1070. The Court then concluded:
To steal property is to take it with an intent to deprive the owner of the rights and benefits of ownership.... In the context of
§ 344(a) , the word “steal” encompasses all categories of conduct by which theft can be committed under the five subsections of§ 342 . It plainly implies the element of scienter; it includes wilfullness and knowledge. To charge, as here, that the accused “did steal,” on a designated date, described personal property of a named victim of a specified value is properly to characterize the crime of theft under§ 342 and to sufficiently set forth those elements of the offense as fairly apprise the accused of the crime charged.
Id. at 340, 493 A.2d at 1070-71.
Against this backdrop of precedent, one searches today‘s opinion in vain to find reference to, let alone application of, the Court‘s newly minted common parlance approach. This
II
I have previously expressed my views concerning the sufficiency of charging documents at common law and under the statutory short forms, and I need not recount those views in detail today. See Delclef v. State, 303 Md. 344, 347, 493 A.2d 1073, 1074 (1985) (Cole, J., concurring); Jones v. State, supra, 303 Md. at 342, 493 A.2d at 1071 (Cole, J., concurring); Hall v. State, 302 Md. 806, 809, 490 A.2d 1287, 1288 (1985) (Cole, J., dissenting); Williams v. State, supra, 302 Md. at 794, 490 A.2d at 1280 (Cole, J., dissenting). Nevertheless, a few comments are in order.
As an initial matter, this case resembles Williams in several significant respects. First, the offenses purportedly charged in both cases are common law offenses. Second, in attempting to charge these offenses the State in both cases omitted an essential element and, in so doing, failed to charge the offenses at common law. Third, the State in both cases failed to comply substantially with the statutory short form for these common law offenses. A fuller expla-
For over a century this Court has required the State to include all the “essential” or “material” elements of the crime in the charging document so as to guard against a wrongful prosecution and to put the defendant on notice of what he is called upon to defend. See, e.g., Robinson v. State, 298 Md. 193, 202, 468 A.2d 328, 333 (1983); Deckard v. State, 38 Md. 186, 201 (1873); see also Williams v. State, supra, 302 Md. at 795-96, 490 A.2d at 1281-82 (listing cases). This Court has also stated in an unbroken line of cases that “malice aforethought” is an essential or material element of the common law offense of murder. See, e.g., Gladden v. State, 273 Md. 383, 388, 330 A.2d 176, 179 (1974); Faulcon v. State, 211 Md. 249, 257, 126 A.2d 858, 862 (1956); Chisley v. State, 202 Md. 87, 104-05, 95 A.2d 577, 585 (1953). Here, without as much as a backward look, the Court ignores this precedent and concludes that an indictment omitting the essential element of “malice aforethought” validly charges first degree murder.
The Court compounds its error by not recognizing the common law requirement that an indictment for murder must contain the averment that the accused “murdered” the victim. See, e.g., 4 W. Blackstone, Commentaries on the Law of England *307 (W. Lewis ed. 1922) (in an indictment for murder at common law “it is necessary to say that the party indicted ‘murdered,’ not ‘killed,’ or ‘slew,’ the other[.]“). Although I concede that the policy of modern courts has been to dispense with extremely technical early common law pleading rules, it nonetheless remains that a charging document must allege fully the essential elements of the offense charged. See State v. Wheatley, 192 Md. 44, 50, 63 A.2d 644, 647 (1949). In concert with this policy, it is plain to me that the indictment here is jurisdictionally defective because it omits the essential element of malice aforethought. In light of the indictment‘s failure to satisfy the common law requirements for alleging murder, the State must necessarily place exclusive reliance upon the
Nearly eighty years ago the General Assembly first enacted a statutory short form for murder. 1906 Md.Laws 248. This short form, now codified at
In any indictment for murder or manslaughter, or for being an accessory thereto, it shall not be necessary to set forth the manner or means of death. It shall be sufficient to use a formula substantially to the following effect: “That A.B., on the ...... day of ..... nineteen hundred and ....., at the county aforesaid, feloniously (wilfully and of deliberately premeditated malice aforethought) did kill (and murder) C.D. against the peace, government and dignity of the State.”
The indictment in the case sub judice does not track the statutory short form. Specifically, the indictment omits the words “malice aforethought,” “murder,” and “feloniously.” Because it is not necessary to use the word “feloniously” to charge a felony in a charging document,3 the issue narrows to whether the omission of “malice aforethought” and “murder” is fatal to the indictment. In my view, these omissions are fatal for the simple reason that no other language in the indictment conveys the meaning of those essential elements. As Chief Judge Gilbert wrote for the Court of Special Appeals in a case strikingly similar to the one here, “[m]issing from the indictment is that indispensable ingredient of murder—malice.... Malice, which may be express or implied, has been defined as meaning ‘the intentional doing of a wrongful act to another without legal excuse or justification.‘” Brown v. State, 44 Md.App. 71, 78, 410 A.2d 17, 22 (1979) (citation omitted; emphasis in original) (quoting Gladden v. State, supra, 273 Md. at 388, 330 A.2d at 179). Furthermore, “murder” is a term of art
This conclusion is fortified when one considers that
III
Upon the Court‘s adoption of its newly found common parlance approach in Williams, I forecast that the Court would eventually “sanction a murder conviction based upon an indictment omitting the essential element of ‘malice.‘” Williams v. State, supra, 302 Md. at 802, 490 A.2d at 1285 (Cole, J., dissenting). Today the Court in fact sanctions such a conviction, but does so under an approach that seemingly departs from that adopted in Williams. In so doing, the Court mocks its unwillingness in Ayre “to wash
Because the indictment in the instant case fails to characterize the offense of first degree murder, it is fatally defective and can thus be challenged by the appellant at any time. Accordingly, I would affirm the decision of the Court of Special Appeals.