Maryland Law Review (Обзор Законодательства Штата Мэриленд)

Maryland Law Review

VOLUME XXIII WINTER, 1963 NUMBER 1

A NEW CRIMINAL CODE FOR MARYLAND?

By JOHN M. BRUMBAUGH*

There has been considerable recent interest in fundamental revision of the criminal law of Maryland. In 1960 the Maryland Self-Survey Commission, originally appointed by Governor McKeldin, reported to Governor Tawes a Proposed Criminal Code. The Maryland State. Bar Association now has this question under consideration. This article will examine the need for a new criminal code and suggest how such a code may best be formulated.

Before what should be done can be decided, it is necessary to have in mind what now exists.

THE PRESENT MARYLAND CRIMINAL LAW

Analytically, the constitutions of the United States and the State furnish the starting point for Maryland criminal law. The federal constitution has considerable importance in indicating the limits of permissible state criminal procedure, but its bearing on state substantive criminal law is relatively slight. While it may strike down a state statute for vagueness or for infringement of some constitutionally guaranteed right, or may permit Congress to pre-empt a field and oust state legislation, the federal constitution remains in the background as far as the problems of substantive criminal law are concerned. Similar limiting safeguards in the Maryland constitution must be borne in mind, but the principal source of our law of crimes is Article of the Declaration of Rights, which provides in part:

"That the Inhabitants of Maryland are entitled to the Common Law of England... and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity; and also of all Acts of Assembly in force on the first day of June, eighteen hundred and sixty-seven; except such as may have since expired, or may be inconsistent with the provisions of this Constitution; subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State." So the basis of our criminal law is "the Common Law of England." In an early case an older version of the present Article 5 of the Declaration of Rights is described as having reference "to the common law in mass, as it existed here, either potentially, or practically, and as it prevailed in England at the time, except such portions of it as are inconsistent with the spirit of that instrument, and the nature of our new political institutions."

British and American judicial decisions and the writings of recognized authorities, as modified by early British and American statutes, provide the starting point for our present law." For our purposes, it is sufficient to note that this starting point is by its nature vague in its provisions and that there is no single authoritative or complete exposition of the contents of this early law. Apparently, the first attempt of our legislature to deal systematically with the law of crimes came in 1809.' The preamble to the resulting act states as a reason for the legislation that: "it frequently happens, that men resigning themselves to the dominion of inordinate passion, commit great violations upon the lives, liberties or property, of others, which it is great business of the laws to protect and secure, and experience evinces that the surest way of preventing the perpetration of crimes, and of reforming offenders, is by a mild and justly proportioned scale of punishments...."

The act is concerned primarily with the problem of punishment. In many cases the statute, when it deals with particular crimes, does nothing more than refer to a common law crime, without defining it, and announce a penalty. For example:

"Every person duly convicted of the crime of manslaughter shall be sentenced to undergo a confinement in the said penitentiary for a period not more than ten years, to be dealt with as hereinafter directed."

A second group of crimes is derived from common law offenses and builds on them by way of sub-division or extension of the common law idea. For example, without defining murder, the statute divides it into degrees:

"And whereas the several offences which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment; therefore, Be it enacted, That all murder which shall be perpetrated by means of poison, or by lying in wait, or by any kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate, any arson, or to burn any barn, tobacco house, stable, warehouse, or other out-house, not parcel of any dwelling-house, having therein any tobacco, grain, hay, horses, cattle, or goods, wares and merchandise, rape, sodomy, mayhem, robbery or burglary, shall be deemed murder of the first degree; and all other kind[s] of murder shall be deemed murder in the second degree ....The words between "arson" and "rape" illustrate an extension of the common law crime of arson for purposes of the felony-murder rule, and they reflect the statute's extension of arson-like crimes. Finally, there are some crimes which either were unknown to the common law or were so altered that fairly complete definition was required:

"Every person or persons duly convicted of willfully and maliciously stabbing, killing or destroying, any horse, mare, gelding, colt, ass or mule, not the property of such person, and not in the act of trespassing on his enclosures, shall undergo a confinement in the penitentiary house for a period not less than one year nor more than four years, to be treated as hereinafter directed."

Perhaps the most interesting thing about the statute of 1809 to the modern lawyer is its close resemblance to Article 27 of the Maryland Code today. A large number of provisions have survived in practically identical form.

Обзор Законодательства Штата Мэриленд

ТОМ XXIII ЗИМА, 1963 Г. № 1

НОВЫЙ УГОЛОВНЫЙ КОДЕКС ШТАТА МЭРИЛЕНД?

Джон М. Брамбо

В последнее время наблюдается значительный интерес к фундаментальному пересмотру уголовного законодательства штата Мэриленд. В 1960 году Мэрилендская комиссия по самоисследованию, первоначально назначенная губернатором Маккельдином, представила губернатору Тауэсу проект Уголовного кодекса Штата Мэриленд. Сейчас этот вопрос находится на рассмотрении коллегии адвокатов. В этой статье будет рассмотрена необходимость нового Уголовного кодекса и предложено, как лучшая формулировка  этого кодекса.