Motion to Dismiss or Affirm — Giles v. Maryland

Supreme Court brief1963

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©.

_ Office, Supreme Court, U.S. .

Tat Bae

MAR 18°1963 |

| : - }

JOHN § DAVIS CLERK.

IN THE |

Supreme Court of the United Sates

1 x .

_ Ocroner Tine, 1962.

oN 834.

STATE

-OF MARYLAND, |

0. ---+--

| Speen

JOHN G. bees AND JAMES V. GILES,.

"Appellants, 2

Vv.

Tuomas B. Finan,

’ Attorney General, ~

Rosert C. Murpuy,

Appellee.

\MOTION TO DISMISS OR AFFIRM

Deputy’ Attorney General,

Russet R. RENO, JR., |

_.. Assistant Attorney General,

1201 Maryland er s

Bank Building, .

Baltimore 2, Maryland,

| For

Appellee.

- The Daily Record Co., Baltimore 3, Md.

hye ae ..

TABLE oF CONTENTS

STATEMENT OF FACTS |

ARGUMENT: .. -° - . ; Esa eae

'-T. The question of whether Section 5 of Article -

XV of the Maryland Constitution | permitting

a jyry in a criminal case to be the judge: of

‘the law as well as of the facts) violates the

Federal Constitution ‘is insubstantial and un-

‘ worthy of oral argument before this Court --

II. The question of whether the failure ‘of the trial .

judge to give any instructions to the jury when

no request therefor was made by the Appellant

cannot be raised-in this appeal since it was not

properly iat in the So below

- -CoNcLUstoN ee Reig aoe | ,

TABLE OF CITATIONS —

Cases

Baker v. State, 2H. &-J.7 (1806) |

Beard v. State, 71 Md. 275, 17 Atl. 1040 | 1889) Ne

’ Bell v. State, 57 Md. 108 | 1881)

. Brown v. State, 40 Ga. 689 (1870)

Bute v. Illinois, 333 U.S. 640, 92 L. Ed. 986. (1948)

. Burris v. State, 218 ‘Ind. 601, 34 N.E. 2d 928° (1941) 12.

Bushel’s Case. Vaughan, 135 rC.P. 1,6 How. St. Tr.

999 (1670).

Chewning v. Cunningham, 368 U.S. 443, 82.'S. Ct.

498, 7 L. Ed. 2d 442 (1962) .

Commonwealth v. Anthes, 5 Gray 185 ( Mass. 1857)

ae | PAGF

" Questions Passaieres_ me NN |

Commonwealth v.. Castellana, 2 277 Pa. 117, 121 Atl

- —- 50 (1923) is ae

Commonwealth V. “MeMaaus: 143 Pa. 64 64521 Ath 1618-

1891 ee ae

ejarnette v. Commonwealth, 75 Va. 867 (1881, Kean: | Sale

_ Demby v. State; 187 Md.’7, 48 A. 2d 586 (1946)° - i]

Derman v. Staté, 1 Shannon 374, 3 Leg. Rep. 184

5 1898) “a

Dickens v. State; 30 Ga. 383 (1860) © * oe

Dorsey’s Léssee v. Hammond, I! H. & J. .190 (1803) 10

Fay-v. New York, 332 U.S. 261, 91 L. Ed.\2043 (1947) 12

Fisher v. People, 23,Ill. 283 (1860) pete ae

. Ford v. State, 101 Tenn. 454, 47 S.W, 703 (1898) ..

Franklin v. State, 12 Md. 236 (1858) ore 10, 14 #

Gardner. v. Michigan, 199 US: a, 50 L. Ed. 212°

, ce ee Ff

Gray v. State, 173 Md. 690, 195 Atl. 591 (1937) Baie.

Griffin v. Illinois, 351 US. 12, 76 S. Ct. 585, 100L.

‘Ed. 891 (1956) : 15

Harris v. "State, 7 Lea 538 (1881) ° Weer a ae

‘Hazel v. State, 221 Md. 464, 157 A. 2d 922 (1960) 25 -

‘Hudson ¢. North Carolina, 363 U.S. 697; 80-S. Ct.

1314, 4 L. Ed. 2d 1500 (1960) | 16

’ Irvin v. Dowd, 366 U.S. 747, 81 S. Ct. 1639, 6 L- Ed.

- « 2d 751 (1961) * . 20,22

Juretich v. ‘People, 223 Ill. 484, 79 N.E. 181 : 1906) 12,17

Kane v. Commonwealth, 89 Pa. 522, 527 (1879) . -11,13

Luery v. State,,.116 Md. 284, 81 Atl.681:(1911) — -14

Mallett v. North Carolina, 181 US. 589, 45 L. Ed. |

1015 (1901) ; as 12.

Millinix_v. People, 76 Ill. 211 (1875) ' 12

Nelson v. State, 2 Swan 482 (1852) - ahh 42

~ Nelson v. State, 224‘Md. 374, 167 A. 2d 871 (1961) 24

Pierce v. State, 13 N.H. 536 (1843) 19°

Presley ©. State, 224 Md. 550, 168 A. 2d 510 (1961) eS

iii -

Rex v. Shipley. 4 Douay 73. 21 Hivwell s State frials .

a 847 (1784) . asa

. ‘Schnier v: People. 23 nm 17 (1 g) e. me:

~Slansky v.. ‘State, 192 Md. 94, 63_A. 2d 599 (1949) 9 .

“ . Smith v. State,.106 Md. 39, 66 Atl. 6781907) 14.

- Sparf and Hansen v. United States, 156 U.S. 51/1895). * 20

State v. Buchanan,'5 H. & J..317 11821) = si(st*~=«i22*«2

State v. Buckley, 40 Conn. 246 (1873). - «11,17, 18

2 State v. Burpee, 65 Vt..1, 25 Atl. 964 (1892) >

_ State v. Fetterer, 65 Conn. 287, 32 Atl. 394 (1894) 11

State v. Gannon, 75 Conn. 206, 52 Atl. 727 (1902) 12:20

‘ State-v. Hoyt, 46 Conn. 330 (1879). es

State v: Main, 69.Conn. 123, 37 Atl. 80 (1897) ee)

State’ v.. McConnell, 32 Vt. 491 (1860) a ee

State v. Saliba? 18 La. Ann. 35° (1866 cy i

State v. Scott, 11 La. Ann. 429 (1856) ey

- State'v. Tally, 23 La. Ann. 677 (1871) = ssid

State v. Thomas, 41 Conn. 546 (1880) ce

State v. Wright, 53 Me, 328 (1865) 19, 20

rae. avons v. State, 266 Ind. 598, 82 NE. td 519 seen

2 » (1948) >

‘ “Swann v: State, 64 Md, 423, 1. Atl. 872 (1885 14

ee Swift wv. Staté, 224 Md. 300, 167 A. 2d 762 (1961) a

United States v. Battiste, 2 Sumner 243, Féd. Case

No. 14,545, 24 Fed. Case 1042 (C.C. Mass., 1835.) © 18

_ Vogel v. State, 163 Md. 267, 162 Atl. 705 (1932) . 14

Williams v. State, 10. Ind. 509;,' 1858) : 12

— Withers v. State, L, Shannon 276, 3 “~ Rep. {06 7

(1874) ; } ae

; ' Statutes’

Annotated Code of Maryland (1957 Edition):

_ Article 27, Sec. 593 . 15

Constitution of Maryland of 1851: .

Article V. Sec. 5. ieee ok re

‘ ~~ ° 5

° “

. .

a \

pe poet por me PAGE .

Constitution of Maryiand of 1864: .-— ide Saal

. Article XII, Sec.4 © N | 9

. Constitution of Maryland of 1867: es Sa ;

_.. Article XV,Sec.5 Lome * St OD

Constitution of the United States: "

Fifth, Amendment Ee

Sixth Ameniment: ss, Nereis ~~.

Fourteenth Amendment 2, 6, 8, 10, 12,20; 22,"

oe " Miscellaneous Gras ati

‘History of the American Bar — Warren (1911) sare. ae

‘ In the Trial of All Criminal Cases the Jury. Shall

Be the Judges of Law as ‘well.as of the Fact —

‘Debates on, 39 Md. St. Bar Ass'n n Rep. 71, 80, )

92, 104 (1934) ee

Juries as Judges of Criminal Law — Howe, 52 Harv. ra

L. Rev. (1939):

Page Seay - Ra va 10, 17

591 : 7 : 3s

a A ay ae

Juries as Judges of the Law: Should the Practice be

' Continued? — Prescott, Daily Record’ ( Legal

‘Newspaper of Baltimore) June 25, 1955 - ) 10

_ Jurisprudence — Dean Pound, Vol. 5, Sec. Aas: 3

Page 25 ° : A... eee

26 a | 21

28 nee | : 21

1 Md. L. Rev..175 (Note) (1987) ss 10,15

Maryland Rules of Procedure: res eine

Rule 719 . : 16

741 — : eae Jie ae

735: , rk can ie eae 15, 16

_ 3a ike 14,23

. od

? |

: i hee PAGE

Maryland's Antique Constitutional Thorn — Dennis, -

,92 Pa. L. Rev. 34 (1943)" , (100

Marytand’s Antique Constitutional Thorn ‘Revielind -

— Invernizzi, Daily Record (Legal ‘Newspaper.

of Baltimore ) June 21, 1960 - \e 10

- The Court of Appeals of Maryland, A History ace

: Carrojl T. Bond (1928) 13 *

“The Courts and The Press — Chesnut, 31 Md. St. Bar

Ass'n Rep..76 (1926) - ° 9

‘The J ury as Judges of Law.and Fact i in ‘Satine - —

The Limitation of the Right. of Appeal in Criminal _.

Cases — Smyth, 17 Harv. L. Rev. 317 ie 18

- Supreme Court Rules (Revised ) :

Rule 16 ac - . te 1

Trial by J ury:— A Two-Horse ‘Team or ‘One-Horse

Team? — Markell. 42 Md. St. Bar Ass'n Rep. 72

"(1937) | , 10 ©

Sener (1861) : sea _

_, Sec. 3095, p. 649 18

. 3 Wharton, Criminal Law, ‘7th. Ed. ret ree ae :

Sec. 3262 et seq. piste i S eeeestice)

| ae In-THe ees

_ Sepreme Court of the United States mia

> ron ea TERM, 1962 _

| No. or

JOHN G. GILES AND. JAMES v. GILES, |

: ; : nara,

Vv.

pote OF MARYLAND,

tS * Appellee. _

On APPEAL FROM THE Court oF APPEALS OF MARYLAND _

MOTION TO DISMISS OR AFFIRM

- Appellee, pursuant to Rule .16 of the Revised Rules of

. the Supreme Court of the United States, moves to dismiss

r _or affirm the appeal on, the ground that none of the ques-

( oi presented are substantial federal questiong and that -

east two of the questidns sought to be here reviewed are .—

-not properly before this court because they were not timely

or ee raised in the ne below. ‘€

.- . QUESTIONS PRESENTED

.. Whether the trial of the Appellants; for a capital

offense, under the pravisions of the Constitution of Mary-

_ land that the: jury are the judges of the law, denied to. —

the Appellants due process an equal protection..of the

. Oy

_ = process and equal | protection clauses of the Fourteenth :

——

i law, as guaranteed ‘by the Fourteenth Amendment to the A

‘ * Constitution of the United. States. gene

2. Whether, in the Appellants’ trial for a capital off offense,

* where no request for instructions was | made by court-’

appointed counsel, the failure. of the trial judge to ive .

any ‘instructions. whatsoever. to the jury on the applicable --

law rendered the, Appellants’ trial violative ‘of the dué

_Amendment.

3. Whether a state trial in a capital case is , violative

of the due process and equal protection clauses of the

Fourtéenth Amendment when the jury has the right to

determine the applicable legal principles as well as the

_* facts of the case, and whee the jury is given no instruc-

' tidns whatsoever by the trial court. er Sect the appli-

cable law. — : y

For the reasons indicated in rr aR ER FE of this

Motion, it is the. -position of the Appellee that questions

Nos. 2 and 3 above are, not — before this Court.

STATEMENT OF FACTS

‘On the night of July. 20, 1961, Joyce Roberts (age 16),

*her steady boy friend, Stewart ‘Foster . (age 21), and two |

other youths, George Trent and Billy Fellows, drove in

Trent’s car to an area near Rocky Gorge Dam in Mont-

gomery County to go swimming, arriving. between 11:00

and 11:30 P.M. By ‘previous arrangement, | they: were to

meet several friends there, including one of’ Joyce’s girl |

friends who was to bring Joyce's bathing. suit’ with her

(T. 71):* ‘Their friends failing to appear, and the hour

growing late, they started to leave and went but-a short .

distance when Trent’s car ran out of gas. Trent and Fellows

hitched a ride to Laurél to get gas, leaving Joyce ‘and

Foster to remain with the car. It was then close to mid-- 1

6 References i in this, forin | are to pages of the transcript of" testa-

mony taken at thé trial of the case.

‘ — - 3 . : ‘ e P : ; : : ‘ |

= . . 3 : | s

wa “The. area: inane they were parked was thickly

wooded, cig and very dark. tice ‘fs

Shortly dfter the departure of Trent’ lina Fellows, ; ee

observed three colored men, later identified as the nin

lants and Joseph Johnson, approaching the car. Alarmed °'

and frightened, Foster rolled up the car windo s and

locked éhe doors. The’ three men, standing together.. on

_ Foster's side of the car, first demanded money and cigar-.)

ettes, but Foster told them’ he had neither.” They then,

’ went to the rear of the car where one of the meh, fa the

presence ‘of the others, said, “Let's drag his fucking ass out

of there and get some of that pussy” (T. 109).

Thereafter, the men demanded that Foster turn Joyce over

to them (T..59). Foster.told them they would have to kill

him to get Joyce, in reply ‘to which one of the colored men

. Said, “Well, I will kill your fucking ass,” and another said

“Let's shoot. the son-of-a-bitch” (T, 34). Following this _

_exchange, the. men crashed rocks through the car win-

dows, shattering the glass, and reached inside’ to: unlock

’ the car door.: As to this state qf events, Foster. testified:.

___ “I was so scared and I said, ‘Joyce, make a run for it

_ and I will hold them back as long as I can’.” (T. 34).

Pursuant to this plan, Foster jumped from the car and

engaged Appellants and Johnson. He was immediately

_ struck in the face with a rock and knocked to the ground,

bloody and unconscious." ‘Joyce, in the meantime,, got out

of the far door of the car and ran into the woods, going

at about 30 feet when she tripped and fell. Out of breath and .

unable to run further, she lay quiet, trying ‘to hide in the

thick. underbrush (T. 60).

' After knocking Foster senseless, ‘Nieateie and John-

- gon separated and pursued Joyce into the woods. Appel-

lant Join Giles was the first to find her. He lay on top of,

2 her, so that she was unable to move, but did not call.to the

others (T. 61-62). During this time. Joyce could ‘hear

Appellant James Giles and Johnson beating through’ the .

bushes with sticks” looking for her, whistling and calling :

back and forth to each other. She pleaded with John.Giles

to let her go farther back into the woods so the other two.

_couldn’t find her, telling him that he could follow her: dater. -

_ As to this, Joyce testified: i

“I thought if I could get further away from him,

I could get way from all of them” (T. 62). | .

‘ Shortly thereafter, James Giles and Johnson found them

and (as Joyce testified) the three men begén “kissing me ‘

and’ everything, arid one of them reached for my zipper” ”

(T.. 63). ‘Joyce protested but was ‘told, “either you do ‘it

or we will do it” (T. 63). Com letely dazed (T.-63), alone

in the woods with three de onstrably> violent ‘colored — 3

men, with no one to yell’ to for help (T. 63), and afraid for

_ her very life (T: 87), Joyce complied by removing her own

shorts. She then withstood successive rapes, first by John

__ Giles, thert Johnson, and finally James Giles (T. 64): Dur- .*

ing the final attack, Joyce heard Foster call out that he |

. was going to get the police, but before she could : nswer she

heard him running off (T. 65).,

| pe eee

After regaining consciousness, Foster heard “Joyce

“whimpering” in the woods (‘T,.44). He made his way. to

"the home of Joseph Cunningham where the police were —

_ called. Within minutes, at approximately 12:55 A.M., Ser-

geant Duvall of the Montgomery County Police Depart-.

ment arrived on the scene. Appellants.and Johnson, upon

seeing the headlights of the police car, fled through the

woods (T. 65). Duvall’ and ‘Foster searched the woods,

finding Joyce lying on the, ‘ground, naked to the waist,

without shoes, sobbing, and in a semi-conscious ‘State, (T. |

65, 98, 94). Joyce jwas taken by ambulance to acd hospital

fF: . : ee 's \

and extinined. ‘The mation’ examination colied that

She had. abrasions of the skin over her shoulders, on her,

‘knees and legs; that fragments of earth and leaves were

adherent to her back: and that she had secretions in the _

vagina containing humerous spermatozoat — (T. 47-48).

" Appella James . Giles and Johnson were arrested

shortly after the crime, James Giles Having spent the night

hiding in the woods, and having been arrested at his home,

on the morning of July 21st (T. 113, 174). Appellant John:

Giles was arrested at a gas station on July 23rd, having

spent most of the intervening two days after the | trime alsq,

hiding in* the woods (T. 158). Joyce identified James.

Giles ata police line-up on July 21st and John Giles at a

_line-up held on ‘July 23rd as. two of the. men who had as-

Saulted her (T. 66). ~ are a

Following their -arrest, Appellants were intertdipated

) 2 by’ Officer Collins of ‘the Montgomery County Police De- °

partment and each gave a. verbal statement.. James Giles .

admitted that it might have been he who made the state-

| ment, “Let's drag his fucking ass out of there and -get,some |

of that pussy”. He further admitted throwing rocks at the.

car and chasing Joyce into the woods; that after he found»

Joyce, he argued with John Giles as to who would be ‘the’

- first to have intercourse with her; that he had intercourse

last, after John Giles and Johnson; and that he was having?»

- intercourse with.Joyce when he Saw. the police car arriving,

at which point | he got up and fee the woods (T. 108-

1137... ;

Aislin” John Giles, in n ‘his atdment- admitted his

presence at the scene.of the crime, admitted chasing Joyce

‘into the woods, but denied. that: he had intercourse. with °

her (T. 118-119). During his interrogation, he ‘was con-

- fronted with James Giles who, in his presence, stated that’ .

John was present at the car when the statement was made:.

“Let's get his fucking ass out of’ there and take some

Paes

oat

a : |

. pussy”. Appellant John Giles did not deny that he was

present when this statement was, -made (T.°112).

At the trial, John Giles testified that it was his brother

and Johnson who broke into the car; that the: reason for

‘breaking into the car was to prevent Foster, whg said he

-had a‘gun,‘from shooting them; ‘that he followed Joyce

into’ the wéods and although she insisted he have inter-

course ‘with her, he refused..-James Giles testified that he |

went into the woods only to look ‘for his brother, John,

- and not. for Joyce, but that she called him over, took her

clothes off, and he had intercourse with her. He testified

that he did notgknow whether or‘not John Giles had inter-

course with Joyce (T. 196).

At the close of testimony neither the State's Attorney

_nor Defense Counsel: made any request of the court that it

give instruction to the jury, and accordingly the court con-

fined its comments to the jury to informing it that it could

render ‘one of. three. verdicts — guilty, guilty without

capital punishment, or not guilty. Defense coufiSel re-

_.mained silent and made no objection to this instruction —

and made no effort to advise the-trial court that in their -

opinion the failure of the trial court to instruct the jury

as to the law applicable to the case constituted a violation -

_ of the due process and equal ‘protection clauses of the |

Fourteenth Amendment.

The jury found each Appellant guilty of rape and the ,

trial judge imposed the death penalty on each,

Thereafter the Defendants filed an appeal to the Court»

of Appeals of. Maryland — the highest court of the State

of Maryland — and their brief filed in that proceeding

‘raised, inter alia, ‘the followirlg issues:

‘Whether’ Appellants were denied due process _ and

equal. protection of law when. the jury exercised the

‘power given \ the Mitrytacia ‘Constitution to deter-

mine all the relevant legal principles, as well as the

‘facts of the case?” |

_ “Whether Appellants were denied due process and

equal protection of the law by the failure of the trial

judge to give the jury any advisory instructions what- — |

soever on ‘any of the relevant legal principles: before

it retuned the verdict of guilty with the death

penalty?” ;

In its Opinion. filed July 18, 1962, the Court of Appeals of

Maryland decided. the first issue quoted above on its merits

and determined that Section 5 of Article XV of the Con-.

stitution of the State of Maryland did not: violate the

“due process.and equal protection clauses of the Constitu-

tion of the United States.’

With respect to the second issue quoted above, the’ Court

of Appeals of Maryland, i in part (vi) of its Opinion, after

- noting that there was no‘objection by the Appellants ~at.

the trial of the ease’ to the failure of the court to give ~

; advisory instructions to the jury, stated that “. . . since,

there was no objection to the absence of an iniibinapticin.

there is nothing before us to review.” ‘The court. further

stated as follows:.

“Furthermore, even if it is gamamne that the defen-.

.. dants had a constitutional right to have ‘the jury in- .

structed as to the law, it is clear:that in a case such

as this, where they are represented by competent and

experienced counsel, even, constitutional rights may

be ‘waived by not asserting them.”

The Court of Appeals of Maryland thereupon affirmed

the judgments of the trial court. Appellants’ motion for

re-argument. was denied on September 19, 1962, and on

Deceenner 18, 1962, i etree filed the instant appeal.

ARGUMENT -

LL The. question. of ‘whether Section 5 of Article XV

of .the Maryland Constitution (permitting a jury in a

_ criminal casé to be the judge of the law as well. as of

the facts) violates the Federal Constitution is insubstantial |

and unworthy of oral argument before this Court.

The major argument contained in the Appellants’ Juris:

dictional Statement. in support’ of their contention that

Section 5 of Article XV of the Maryland Coristitution is _

_ in violation of the Federal Constitution is that although

the “jury as judge of the law as well as the facts” doctrine

was in full force and effect in many’ of the states of the

Union during the nineteenth céntury, all of these states

(with the exception of Indiana and Maryland) have since

rejected<the doctrine, thus somehow indicating a general 7

feeling that such a doctrine is. unfair and improper. .

Aside from the fact that: a general feeling that a legal

; doctrine is unfair does not in and of itself mean that it .

is- unconstitutional, . this argument of Appellants is. fal-

lacious since it is: predicated upon. the following erroneous

assumptions: .

(1) that the’ application of the * ‘jury. as ‘judge of the

law” doctrine as it ‘presently exists in Maryland is sub-

tially identical tq that doctrine as it existed inthe . |

nineteenth century in those jurisdictions which have re-

- jected it; and (2) that the various jurisdictions which have

‘rejected the. doctrine’ have done so because they felt it

to be inconsistent with the Fourteenth Amendment of the

Federal Constitution. . |

. As will be shown below the Maryland system as it pres-

ently exists relating to the doctrine of “jury as judge of

the law” had undergone such a tremendous change over

the last one ‘hundred years that. ‘it sea little if any

. resemblance to Y the mid-nineteenth century doctrine ‘which

was rejected by various other jurisdictions at that time.

The present Maryland system and its application, has far

‘more in common with thé systems now found in her :

sister states than with the “jury as judge of the law” Sys-

tem as it existed in both Maryland and a large number

of other -jurisdictions in the Jast century. These changes

-in the Maryland system have effectively removed any ob-

jections which might have been raised in the past relat-

ing to the question of the fundamental fairness of quch

a doctrine.

As will be further shown below most of the jurisdic-

tions which have réjected.the doctrine in its unmodified

form have not done so because of any fear that it violated

the due process and equal protection clauses of the Federal

Constitution; but rather because of numerous other unre-

‘lated reasons such as, for example, a realization that they

had been mistaken in their belief that the “jury as judge

of the law” doctrine Was a part of the common law of

. England. :

Section 5 of Article XV of the Maryland Constitution has

been a part of the organic law of the State of Maryland —

“for over one hundred years. It appeared as Section, 5 of .-

- Article’V of the Constitution of 1851, as Section 4 of Article

XII of the Constitution of 1864 and as Section 5 of Article

XV of the present Constitution which was adopted in 1867.

Its purpose, the political philosophy which it represents,

and its effects have been considered by the Court of Ap

. peals of Maryland on a number of occasions, Slansky v.

Stcte, 192 Md. 94, 63 A. 2d 599 (1949), Demby v. State,

187 Md. 7, 48 A. 2d 586° (1946), and cases wited therein,

and have been fully discussed by bench and bar. See"

‘Chesnut, The Courts one. The Press. 31 Md. St. Bar’ Ass'n.

"Rep. 7 76 (1926); Markell, Trial by Jury — Aten

Team’ or One-Horse Team?, 42 Md. St. Bar Ass’n. Rep.

72 (1937); Dennis, Maryland's Antique Constitutional

Thorn, 92 Pa. L. Rev. 34 (1943); Henderson, The Jury as

Judges of Law and Fact in Maryland, 52 Md. St. Bar Ass'n.

Rep. 184 (1947). See also, Debates on Subject “In The |

- Trial of All Criminal Cases The Jury Shall Be The Judges

Of Law As Well As Of The Fact”, 39 Md. St. Bar Ass'n.

Rep. 71, 80, 92, 104 (1934); Note, 1 Md. L. Rev. 175 (1937); _

Prescott, Juries as Judges of the. Law: Should the Practice

°be. Continued, Daily Record (Legal Newspaper of Balti-

more), Jume 25, 1955; Invernizzi, Maryland’s Antique Con-

stitutional Thorn Revisited, Daily Record (Legal News-,

paper of Baltimore), June 21,. 1960."

In Howe, Juries As Judges of Crtminal Law; 52 Harvard

L. Rev. 582 (1939), the decisions of the early American —

courts with respect to the function of the jury in a criminal

case’as judges of thé law are examined,.as are the opinions

of Jefferson, Adams and others and the debates of Congress

on the Sedition Act in 1798. It is pointed out that several

of the charges brought against Mr. Justice Samuel Chase

-in his’ impeachment proceedings in.1805 were founded

upon his alleged interference with the right of criminal

juries to judge the law. The main thesis of the author is to

‘show the techniques, adopted by various courts and states

‘in general, these writers agree that the constitutional provision

is Maryland's solution to an inherited problem which, in its early .

- days, revolved around the jury's right to disregard the law as ex-

pounded by the court as distinguished from its potver to. do so.. In

England, solution of the problem: was not had until the famous Dean

ef Asapah’s case, Rex.v. Shipley, 4 Douglas 73,21 Howell's. State

Trials 847 (1784). That the constitutional provision was declaratory

of the existing -Marylarid rule was established in Franklin v. State.

"+ 12 Md. 236 (1858). For earlier cases as evidence of the rule in

. Maryland ‘prior to the Constitution of 1851, see State o. Buchanan,

5H. & J. 317 (1821) ; Baker v. State, 2H. & J. 7 (1800) : Dorsey's

_ Lessee v. Hammond, | H. & J. 190 (1803).

in departing from what the author concludes was the great

weight of authority in this county, at first thought to be — |

- supported byautharity:i in England, namely, that in criminal

‘eases juries were judges of the law. Although the author

now. finds that by the great weight of authority at the

present day juries in criminal cases are restricted to judg-

ing the facts, this change was gradual and exterided well. -

into the period contemporaneous with the actual adoption —

of the Fourteenth Amendment.

For example, in states other than Maryland. it is found

_ that in Vermont the right of criminal juries to-judge the

law wag sustained in State v. McConnell, 32 Vt. 491 (1860)

and not changed until, State v. Burpee, 65 Vt. 1, 25 A... -

964 (1892). In Pennsylvania, that: right was recognized

~ in Kane v. Commonwealth, 89 Pa. 522 (1879) ° and there

was no definitive abridgement thereof until Commonw sealth

». Castellana, 277 Pa. 117, wal A, 50 (1923). Louisiana

aan the right in State v. Scott, 11 La. Ann. 429.

. (1856) and State v. Saliba, 18 La. Ann. 35 (1866). while -

modification of it began in State v. Tally, 23 La_Ann-677

(187])., In Georgia, the right was recognized in. Dickens

v. State, 30 Ga. 383 (1860) and not changed until Brown ~

>, State, 40 Ga. 689 (1870). In: Tennessee . that right was

pea in Nelson v. State, 2 Swan 482 (1852), Withers

v. State, 1 Shannon 276, 3 Leg. Rep. 106 (1874) and Derman

v. State, 1 Shannon 374, 3 Leg. Rep: 184 (1875) and not *—

changed until Harris y. State, 7 Lea 538 (18815, although

from some broad language in Ford v- State, 10! Téenh, 454, .

47: -S.W. 703 (1898). remnants of it still existed, Con-

necticut recognized the right in State v. Buckley, 40 Conn. = ;

246 (1873). State-v. Hoyt, 46.Conn. 330 (1879) and State

8: Thomas, 41 Conn. 546 (1880), while modification thereof

began in State v. Fetterer, 65 Conn. 287, 32 A. 394 (1894)

and continued in State ‘v. Main, 69 Conn. 123, 37 A. 80

e —s a .

1897) nnd State v. Gannosi,75-Conn. 206, 52 A, 727 (1902).

Similarly, in 'I 1 Tilincis, . the criminal jury. as judges of the: |

law w : rule recognized in Schnier v. People, 23 Ill..

JW ), Fisher v. People, 23 Ill. 283 (1860) and Miltinix

sm asic -v. People,: 76 Tit.211. (1875) while a modification of the

Dy ohat rule was recognized in Juretich Dv: _ People, 223 Hl. 484, a

79 N.E. 1814 1

. jury ’s right to judge ihe Jaw. outinant: as late as Williams é.

"yp. State, 10 Ind. 503 (1858), although the unrestricted right _

has now been modified. See Burris v. State, 218 Ind. —

34 N.E.. 2c 928 (1941). Steinbarger v. State, 266 Ind. 598.

82 N.E. 2d 519 (1948). ‘ :

Historically, therefore, the evidence is selena that

the Fourteenth Amendment was never. thought to prohibit

the jury in a criminal case from judging the law nor was.

it, intended to have that effect. The concept of equal pro-

, tection, due process of law of: the land does not dictate———

_____judge-made_Jaw- in-criminal cases. which a jury is bouhd

to follow, whatever may be said of the wisdom or desir-

ability of such, an effect. &

This Court has stated on’ a number of occasions in other’

instances that the- Fourteenth Amendment does not re-

quire uniform state administration: of criminal law. but

rather leaves-the states free to work out their own pro-

cedure. Fay-v. -New York, 332 U.S. 261, 91 L. Ed. 2043

(1947): Bute’ v. IUinois, 333 U.S. 640, 92 L. Ed. 986. (1948);

Gardner v. Michigan, 199 U:S. 325, 50 L. Ed. 212. (1905): |

Mallett. v. North Carolina, 181 US. 589. 45 L. Ed. 1015 .

oa (1901 ».

Whereas the jurisdictions noted above, with the excep-

_ tion of Indiana, chose outright rejection of the doctrine. -

“Maryland, beginning in the middle of the nineteenth cen-

tury. ee a process of judicial modification of the rule.

‘13

These modifications, in conjunction with, statutory and

constitutional changes.in Maryland .eriminal. pt es,

- have etfectively removed any objections which might pre-

viously have sda to the system. aes

In its most classic sense the ° ‘jury as judge of the am:

doctrine elevates the jury to the role of a judge in the

— —sense-that-all_decisions of a legal nature to be made dur-

fine the course of a trial are to be made by it. while the.

function of the judge is that of a referee whose primary

proceeded in an orderty-fashion. Such a system did not

_ work ‘badly in a community where a large percentage of

the Judges were laymen and, therefore, no better equipped

History of- the American Bar 449117 Kane v. Common-

—.

required to be lawyers, and. between 1790 and’ 1805 ahiy

one cut df three was required to be a member of the’ bar

See Carroll T. Bond, The Court: of: Appeals of Maryland.

A History (1928) pp. 88-107. Henderson- The Jury as Judge

mgt Law and F act in Maryland. supra.

In the latter - part of the nineteenth_century and early

part of the twentieth, -as the’ Maryland judiciary became

more sophisticated in the law. the ‘judicial and statutory

modifications/of the .rule¢ began. However, even in the

early part 4

of; Appeals was of the opinion that’ advisory instructions

were given almost conclusive. weight by the jury when it

noted in State v. Buchanan, 5 H. & J. 317, (Md. 1821) that

“juries, who though (by the laws and practice ofthe State)

they abi a right. to > judge both of the law and, of .the

et onsibilit ty was to keep order and to see that the trial :

to pass upon such matters than the’ jury. See Warren. -

wealth- 89 Pa. 522, 52 327 (1879): Howe, Juries as Judges of

Criminal Law, supra, at pe 91. In. Maryland, for example.

until 1790 none of the judges of the county courts were

Wega oe

f the nineteenth . century the Maryland Court :

M4 |

fact, in criminal prosecution should, and usually do, re-

spect the opinions and advice of judges, on questions of

law, and would seldom bé found to put themselves in

opposition to the decisions of the a ane tribunal |

of the state.” a

Salinas Whereas apparently. i in a number eo uri te ts

: _jury—was allowed. to pass upon the ionality of

xe “laws (see 3- Wharton, Criminat Law, 7th Ed. (1874) Sec.

et _seq-1;Maryland-in the case of Franklin v. State,

" 12 Md. 236°( 1858) held that only-the judge had this right.

= Smith v. State, 106 Md. 39, 66 Atl: 678 (1907), it was

held that the jury had no right to pass upon pre-trial

“motions. See also —_ .State, 173 Md. 690, 195 Ath. 591r--

(1937).

ay A In. Bell v. State, 57 Ma. 108 (1881) the court affirmed

o the existing practice of not permitting the jury~to pass

- upon the admissibility of evidence. See also, Vogel v. State,

163 Md. 267, 162 Atl: 705. (1932)..In Beard v. State, 71

Md. 275, 17 Atl. 1040 (1889) it was held that the court |

. could on its own motion, wher. it thought proper, instruct

the jury\as to the law, and now under Rule 756 of the

Maryland Rules of Procedure the court is required to in-

struct the jury pon motion of counsel, See also Luery

-v. State, 116 Md. 284, 81 Atl. 681 (1911). Of importance

_ to the accused was the knowledge that an erroneous in-

struction by the court, if Gbjected to was reviewable on

. appeal. See, for aay a Swann v. State, 64 Md. 423. 1

Atl. 872° 1885). 7 ee

The holding in Vogel v. State, supra, the principle of

which is now. incorporated in Maryland Rule 756e, was a

‘ significant step in making the constitutional provision less

» Vogel it: held that the trial court covfid

defer giving struction until the cunclusion of, the —

“ment and thus preclude counsel from arguing to the con-

The ‘aii inroad into the “jury as judge of the

law” doctrine was made in 1950 when Sectioh 5 of _Arti-

cle XV of the State Constitution was amended to give

‘the Court.of Appeals of Maryland the power to review the

sufficiency of the evidence offered by the State to obtain

_a-conviction.? Theretofore all reviews of criminal convic-

’ tions had been confined to appeals from demurrers to

the indictmen*, appeals from nit on the evidence; and

_ appeals challenging the correc of instructions to the

jury ‘see Note in 1. Md. / Rev. 175). To. implement this

constitutional amendment a statute, now codified as Sec-

tion 593 of Article 27.0f the Annotated Code of Maryland

' (1957 Edition’, was enacted permitting the trial court to

diréet_a verdict in favor of the Defendant when there

was insuffi cient evidence to sustain a copviction. “See, alsa

Rulé 755, Maryland Rules of Procedure.

_ Thus, whereas formerly this- State provided no safe-

guards against the act of a jury in ignoring the estab-.

lished law of the State of Maryland, now the acctised

may secure relief by means of a directed verdict in. the

"event that the jury chooses to apply ‘a more stringent.

rule of law. , The proteciion. to the Defendant afforded -

by this. newly established right has become even more

meaningful since 1950 in the light of the great strides which

have been made to assure to a criminal.defendant a. fair

tri7l and a right of. appeal. As a result of the decisions

of this court in cases such‘as. Griffin v. I!!inois, 351 U.S.

12, 76 S. Ct. 585,100 L: Fd. 891 ( 1956); Chewnrting v. Cun-

teil 368 US. 443, 82S. Ct. 498, °? Ed. 2d 442

" Fe T a diet ussion of the circumstances le ACN wp te the ratification

of this amendment see editorial ing 1) Md. LL. Rey. 319 01950)

“Criminal Procedure Reform Achicved in. M; ipydand. .

- (1962); and Hudson v. North Carolina, 363 U.S. 697, 80

‘16

S. Ct. 1314, 4 L. Ed. 2d 1500 (1960), the Maryland Courts

"row appoint counsel at the trial and appellate level in all

-is confinement in the penitentiary for five years or more, —

cases of even a mildly ‘serious nature. See’ Rule 719 of

the Maryland Rules of Procedure which requires appoint-—

ment of counsel in all cases‘ where: the | ‘possible penalty

and permits. the appointment of counsel in all other cases,

where the court after taking into account’ the complexity

‘of the Casey age, experience, and mental ability .of the ac-

cused; determines that counsel is needed. Stee

Criminal defendants have been quick to take advantage

of this newly expanded right to appeal. For example, in —

the 1955 term of the Court of Appeals of Maryland of

the 186 opinions rendered, 17 (9‘: )) represented‘ criminal

cases. By the 1961 term, out of 291 _tplaione rendered,

86 ( 29.6% i) répresented criminal cases.*

Thus the present day criminal defendant, tried before .

- the Maryland courts, has the safeguard of a directed ver-

dict (referred to as a judgment of acquittal — see Mary-

‘land Rule 755). at the trial level and a review on appeal

_of the sufficiency of the evidence used: to convict. him..

Consequently, if the jury, through its own definition of -

the law, finds the defendant. guilty. on the basis of evi-

“dence which, when viewed in the context of the existing

. law of the State of Maryland, is insufficient to convict,

fr. 5 :

3 S

° Annual Report 1961-62 Administrative Office of the Courts, State

of Maryland. Speaking of this increased case load of the Court of

Appeals, the Report, at p. 15,\states as follows:

‘Another table classifying the cases as to types reveals that . |

the bulk of the increase in the Appellate Coutt’s case load .was

--in law cases. It also indicates that. the number-of. criminal: ap-

peals is sti irting to level off after a constant year to year rise

since 1955. Almost three quarters of these appeals originated

in Baltimore City, the bulk of shem being fled: by indige nt «de-

fendants with costs paid by the Shate.”

then he may have this injustice remedied by the trial

“court, or on appeal._This-safeguard-insures that a criminal

_ . defendant will, at-the very. minimum, be tried by the

_ fixed law of this, state. ° tt

In the light of these recent inbesninivle: the present day

effect of having the jury as the judge of. the” law ‘as

well as the facts means that for the most part any devia-

tions from the existing law which the jury can safely

make are deviations in the favor of, rather than> to the

_ prejudice of, the criminal defendant.. Thus, whereas the

jury can no longer convict’on the basis ‘of insufficient evi-_

‘dence it can still.acquit even in the face of conclusive

evidence of guilt. It is apparent that even in the fast |.

century the prevailing opinion was that the “jury as judge |.

of. the law’ doctrine operated more favorably for. the ac-

cused than for the State. This is borne out by the fact

that by far the greatest number of cases raising the ques-

tion of the propriety of advisory as opposed: to binding |

jury instructions are appeals by- convicted defendants who

challenge the right of the judge to give binding instruc-

tions. See, for example, Juretich v. “People (Ill.j, supra:

Burris v. State (Ind.),: supra; State v. Buckley (Conn.),

supra and numerous of the other cases cited in Prof. Howe's

article in 52 Harv. L. Rev. cited supra. A case such as the

right of a judge to give advisory instructions only; is some~ |

-what of ananomaly. _-— _ eu |

Contrasting. the: ‘present Maryland ber, which has vir- ¥

tually emasculatéd the ‘ ‘jury as judge of the law” doctrine,

. \ with that, doctrine as it existed-during the last century

_ when it was rejected by many of the states shows that

Maryland, by attrition, has accomplished what other~juris-

dictions did by outright rejection. Shortly before the time

the federal courts first. began to reject the doctrine in

gs . 38 hare Strrad }

United States v. Battiste, 2 Sumner 243, Fed. Case No..

14,545, 24 Fed. Case 1042 (C.C. Mass.; 1835) Justice Chase

of the Supreme. Court. had announced on a number of

cases that the Supreme. Court had no authority to pass

-upoh the constitutionality of statutes, and in the words ~

of Wharton in “in Frie’s case stated that ‘The jury are .

to decide on the present and in all criminal cases both ,

the law and the facts, on their consideration.of the whole

ease.’ See 2. Wharton on Criminal Law, 5th Ed. (1861),

; Sec. 3095, p. 649 et seq.‘ As. late as 1873 Connecticut. per-

mitted juries to pass upon -the constitutionality of laws. .

See State,v. Buckley, supra. eee

In ‘Addition in the nineteeth and the eatly part of the

twentieth centuries appellate. review did not provide the

judicial safeguards against ¢rroneous jury actions which

‘are now available in Maryland, and thus the courts of

the last century had far more justification than now: for

rejection of the “jury as judge” doctrine. Dean Pound ‘in

his treatise Jurisprudence,’ Vol. 5, § 148 at p. 625, dis-

-*. cusses the appellate review procedures of the last century

and. describes the writ of error (the usual procedure) as

“cumbrous, dilatory, expensive, extremely technical, and

tied to the formal record so as often to review anything but

_ the case itself except as it could be gathered from the plead-

ings.” Commenting on ‘the general unavailability of ap-.

~ pellate review in criminal cases, Nathan A. Smyth in 1904,

in. an article, entitled “The Limitation ‘of the Right of

- Appeal in Criminal Cases”, 17 Harv. L. Rev. 317, manne:

at p. 319 as follows:

4 In the ‘words of W harton at p. 651: “No better illustration of

Judge Chase’s character can be found than in the fact, that‘in the:

very case where he thus recognized the power of the jury over the

law, he: succeeded, * by stopping counsel. when they undertook to

_ dispute the law he lard down; in raising a turmoil, whic h ended in

his. own ‘impeachment. *

v ‘ &

pellate review for the

_- . See for example, Conir

; Pierce v. State, 13 N.H.

Whether or not an.appeal is taken depends

very little on the chances of securing a reversal, very”.

greatly on the ability of the convict to pay counsel

fees. It costs to a

is certain, and the

of failure: A very

can afford Xe

Contraated with to

available to rich and

ants, In Maryland in:

available appellate rev

peal. The expense of counsel .fees

is a large contingent cost in:case

small number of convicted | parenes

eat bulk of the crtminal defend- .

he present : era, With effective and

ew,.coupled with the assistance of:

counsel at all stages and the right of a ditécted verdict

at trial, any capricious

and effectively dealt wi

any fear of the damag\

| when'the | jury; in the

theless brought batk: a

action of the jury maybe quickly

h: Consequently there is no longer

which might have formerly arisen

ace of insufficient evidence, never-

verdict of guilty , because. of an er--

e law. —

Y the decision of the courts of me

law” doc Po discloses that: in a great majority of red

cases ni reasons fof so doing do not include a "fear

thatthe trine is in v

21 Atl. 1018 (1891); S

jolation of the Federal Constitution. .

honwealth v. McManus, 143 Pa. 64,.

Jate v. Wright, 53 Me. 328 (1865);

i *

536 (1843); Dejarnette v: Common:

y's — appeal Lagat —

; ; ;

20 >, P

x) i

wealth, 75 Va. 867 ( 1881); State v. Coben: supra; Common-

-wealth v. Anthes, 5 Gray 185 (Mass. 1857). The very few .

cases which mention a possibility ofa conflict with the Fed-

-eral Constitution were, nevertheless, disposed of on an ade- -

quate non-federal ground. See State v. Burpee, 65. Vt. 1,

_ . 25 Atl. 964 (1892), and State v. Wright, supra. In many _

’ + eases the basis for the decision was that, since at common

law the juries had no power to judge the law, to permit

them to go so was inconsistent with ‘state statutory or -

constitutional provisions providing that so much of the

common law of England as was applicable to the local

‘situation and’ circumstance and was’ not repugnant to |

the constitution or. laws, ‘should be law. in the state,

or some similar type of pronouncement. See, for example,

State v..Burpee, supra; State. v. Gannon, supra, and cases .

"cited in Howe, Juries as Judges of Criminal Law, supra,

p. 596, et seq. Thus, although these cases indicate a dis-

satisfaction with the operation of a rule in the context

of the administration of justice. in a prior century, they

_ cannot be said to stand for the. proposition that the Mary-.

land constitutional provision, in the context of the present

Maryland criminal procedure, with its greatly enhanced |

safeguards, violates the Fourteenth enn of the Fed-

. eral Constitution.

Significantly the Federal Courts, when abhi the

“jury as judge of the law” doctrine‘ did not do so

upon the ground that. it violated the due process

* clause of the Fifth Amendment, but rather that it violated

| 6k. Fd. 2d 751 (1961).

the right, to a jury trial as, provided in the Sixth Amend-

ment. Sparf and “Hansen, v. United States, 156 U.S. 51

(1895). The Sixth Ameridment: insofar as it relates to

the right of an accused to a trial by jury is not applicable -

to the states. Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639,-.

4 ‘

4,3

» -

_ The Appellants suggest, at pages 22 and 23 of their

. Jurisdictional Statement, that the situation may. arise.

where, although there is sufficient evidence under the view

of the law which the court would take, the jury may have

.Tejected that view and found the facts in such a fashion

that, undér a correct view of the law, would compel an ac-

quittal but under .an incorrect view of .the law would .

result in a conviction. This possibility, however,. exists -

irrespective of whether the jury is given binding or merely:

_advisory instructions.* The practice of fining jurors for .

bringing in a wrong verdict was abolished long ago in”

England in Bushel’s Case, Vaughan 135 (.C.P.), 6: How:

St. Tr: 999 (1670), and has never found favor. in the-

United States and hence’ jurors have the power through

use of a general verdict to’ deal with tfe case as they

see fit irrespective of the type*instruction given them. If

jury lawlessness; in the’ situation which Appellants sug-

gest, is to be curtailed, the means of doing so is not by

requiring biriding as: opposed to’ advisory instructions, .

but. rather by requiring that the jury bring’ in a series

of special verdicts with respect to the various issues of

- fact’ which may be involved in the case. It is the general

verdict and not the advisory. instruction which is the real, . -

cause of the problem suggested by Appellants} That gen-

eral verdicts are a Cause of jury lawlessness is recognized -_

by Dean Pound in .Vol: 5 at p. 26 of his treatise where: ;

‘he notes as follows:

“As to the jury, there has beerr a steady ious

of means of minimizing their power Of dispensing with

. ‘Dean Pound: in his treatise on Jurisprude nce recognizes this

as a fact of life in the administration of justice when he notes in V ol.

5 at page 25 that the jury possesses “(t)he power to find. the faets int

such @ way as to-gompel a different re sult from that which the legal

rule, strictly agbhied. would require.” At ‘page 28 Dean Pound

describes that as one of a“. . . series of mitigating devices for

introducing discretion*into the (law's) applicati mn.

/ ; —

‘the law. Givirig up the ‘scintilla’ doctrine, direction

of verdicts, and putting special. questions to the jury

instead. of leaving the whole case to a general verdict,

have tempered jury lawlessness.” ,

~ Also, had the Appellants been genuinely concerned with.

the possibility suggested above, and had they felt that the

fault lay in the practice of advisory instructions, they had

the right, under Maryland criminal practice, to waive a

jury trial and elect to be tried by the court. See Rule 741

of the Maryland Rules of Procedure. Admittedly, although

the Fourteenth Amendment does not demand the use of |

jury trials in a state’s criminal procedure, if a state pro-

_ vides for one the actual. conduct of the trial must be in ac- :

cordance with the standards of Due Process. Irvin v. Dowd,

'. supra. However, in the instant case, unlike in Dowd, the

form of the trial was Rnown in advance to the Defendants

so that they’ could make an intelligent decision as to-

whether to elect a court trial. In’ Dowd, and the cases

cited therein, the’ elements of unfairness arose after the

selection had been made, and involved the matter of _

' whether or not the jurors could reach an impartial verdict.

The instant case is not one such as Dowd where ‘a state

holds out to an accused a procedure which, in its normal

"operation, is fair; and then, when’ the accused avails him-

_ self of it, conducts the procedure in such a manner as to

result in an unfair trial.’ Any unfair limitation contained

within the ‘Maryland: jury trial procedure; and it is re

spectfully submitted that there is no element of unfair-

ess in that procedure, is known to all defendants long

Crore trial and its’operation is uniform upon- them all.

If they wish to avoid it, they may do so by —— a

_ jury trial.

In suramary, as can ‘be seen from the above, the first

issue which i mae as seek to raise on ar when

. . ~ : =

. 7 -

. ° “

. 23

* viewed ‘in the context of present day Maryland ‘Criminal

¥ _ Procedure, is of no real_merit. Coupled ‘with this is the

fact that such-an-issue could arise in only . two states of

the United States and even then is not likely to be raised -

since the “jury as judge of the law” rule operates to the

favor of, rather than to the prejudi of, a criminal de-

fendant. Accordingly, it-is respectfully mitted that this: .

‘issue is. insubstantial in nature and en decision of the

Court of Appeals ef Maryland thereon should be sum-

marily affirmed.

«Il. The question of iethion the failure of the triat judge —

to give any instructions to the jury when no request there- '

for was made by the Appellant cannot be raised in this —-

appeal since it’was not properly preserved in the proceed-

ings below. . |

The Court of Appeals of Maryland, in part (vi) of its

Opinion held that it was not required to pass on- the merits

of Appellants’ contention that it constituted a denial of due

process and equal ‘protection of the laws for the judge not

‘to give the jury: any advisory instructions on the legal.

principles involved in the case. As reason for this, the

court determined that the failure of the Appellants during

| trial to either re st instructicns or to Gbject to the failure

of the court to give instructions ‘amounted to a waiver of

: the right to raise such an issue. _

Maryland Rule 756b of the Maryland Rules of Proceduré

states that the trial judge “may, and at the request of any ~“-

party ‘shall, give. such advisory instructions to ‘the jury as

‘may correctly state the applicable law .-. ’ ‘Thus had the

Appellants made such a request the ipiabvections would

. have been forthcoming. Rule 756c also provides that in

' the event no such request is made, the question-of whether

or not such instructions are. to be given is discretionary

with the judge.

In attempting to fathom the actiomof Appellants in fail-

_ ing to réquest instructions, the Court of. Appeals of Mary-

land in their opinion had this to say:

“Although there is nothing in the record to so indi:

cate, it may be assumed that the State’s attorney as

well as the defendants, who were represented by an

ae and experienced attorney, deliberately chose not

request instructions or object to the failure to give

them, in order to be in a position to argue the law of

the case to the jury without prior or subsequent in-

structions by the court contrary to what they antici- ;

_ pated arguing or had already argued to the jury.” ae

That Appellants’ counsel was able and qualified can hardly

be disputed in view of the fact that he:served in the capacity.

of an Assistant Attorney General of the State of Maryland |

from’ January 17, 1955, to,January: 8, 1957, and as the

‘Deputy Attorney General from January 9, 1957, to Janu-

ary 24, 1961. That he was familiar with matters of criminal

law. is evident from the fact that during his service in these

offices he participated extensively in the argument of

criminal cases before the Maryland Court of Appeals. See, -

for example,-Swift v. State,.224 Md. 300, 167 A. 2d 762

_ (1961); Nelson v. State, 224 Md. 374, 167 A. 2d 871 (1961);

\ and Presley v. State, 284 Md. 550, 168 A. 2d 510 (1961), to

name a a few of the more recent ones,

Accordingly, it carinot be kaid that the instant miineet i in-

vol a situation where the-accused, represented by ‘ex--

/ - periénced counsel, unwittingly permitted the commission

of cro and’ neglected to register an objection thereto.

Instead, an indicated by the above quoted excerpt from the ~

court’s Opinion, the proper assumption is that trial counsel

consciously did his best to ‘see that no instructions were

given for fear that once given they might. destroy any |

chance for acquittal which might exist. Such a trial tactic

, .would undoubtedly be wise in view of the fact that if the

court had given the jury isistructions their subject matter

would undoubtedly have included a statement inform-

ing the jury that under Maryland law the mere

fact that a victim submits. to intercourse is no. defense if

_ that submission: is induced by a fear or a realization that

rape is inevitable. See Hazel v. State, 221 1. 464, 157 A.

2d 922 (1960). - :

In the instant case all of the indications are that oak

respect to this issue the Appellants are tryiag to have

their cake and eat it too. It. would appear that during the:

course of the 'tria! below they deliberately refrained from

asking for jury. instructions in the hope. that the jury _

‘would adopt a construction of the law favorable to them,

while -now they are seeking to blame the aljeged unfair-

ness of their trial upon their own calculated inaction. If the

- situation was of their ewn making, they should not be per-.

mitted to profit from it.

CONCLUSION

In view of the above it is respectful ily submitted that the

question’ raised by Appellants relating to the constitu-

ee tionality of, (Section 5 of Article XV of the Maryland Consti-—

tution is not. a substantial federal question; ard d that the

question raised by Appellants relating to the act of the

trial court in not giving instructions to the jury were not

' preserved. by Appellants at the trial of the case and were

properly disposed of by the Court of Appeals of Maryland

on an adequate non-federal ground. ae

Respectfully submitted,

THOMAS B. FINAN,

Attorney General,

Rosert C. Murpny, sae

'- Deputy Attorney Generat,

Rwssecu R. Reno, Jr...

Assistant Attorney General, :

9°

For Appellee.

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