Williamson v. State , 36 Md. App. 405 ( 1977 )

Lowe, J,

dissenting:

“ ‘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 himself. Even the common law of crimes makes no distinction in the punishment between a principal and an accessory, — the offence of each being a felony, of which the penalty was originally death. Likewise in morals, there are circumstances wherein we attach more blame to the accessory before the fact than to his principal; as, where a husband commands his wife or a master his servant to do for his benefit a criminal thing which, in his absence, is done reluctantly through fear or affection overpowering a subject mind.’ ” 1 Bishop, Criminal Law, 9th ed., § 673, as quoted in Watson v. State, 208 Md. 210, 218.

It is hardly conceivable that in the 20th Century, a court of last resort could so clearly recognize the utter purposelessness of so horrendously harmful a semantic distinction, yet must still recognize its viability. Worse yet is the fact that more than two decades have passed since this “pure technicality . . . [which] has no existence either in natural reason or the ordinary doctrines of the law ..,” was held up to ridicule in that case, and the Legislature has done nothing to correct it.¹ Nor did our own attempt at flagging this fictional foolishness in Agresti v. State, 2 Md App. 278, 281, elicit a statutory erasure of that common law blot upon jurisdictional reasoning, as has been accomplished in many, if not most common law jurisdictions. See 40 Am. Jur. 2d, Homicide §§ 28, 29; 21 Am. Jur. 2d, Criminal Law §§ 120-124; 22 C.J.S. Criminal Law, § 82; see also 95 A.L.R.2d 175, 178, 187.

This has caused us factually to distinguish and interpretatively whittle away at the rule, but such intellectual exercises hardly do justice to the judicial system. Because it was not the legislative branch but the common law judicial system that created the technical monster, I would no longer await the action of a Legislature which may well be too occupied with matters of state to clean up the jurisprudential cobwebs we have accumulated. The common law is a growing thing and when it outgrows old garments not only of no further use but of potential harm, they should be discarded.

Although we are bound by the opinions of the Court of Appeals and the rule of stare decisis, that Court is not:

“ 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,’ White v. King, 244 Md. 348, 354, 223 A. 2d 763 (1966).” Hearst Corp. v. St. Dep’t of A. & T., 269 Md. 625, 643-644.

There could be no case which cries out more for the obliteration of that distinction than the case at bar. The failure to do so gives rise to the hypothesis that a syndicate operator who hires his killings by a “hit man” while he lolls in the tropics, is not a “principal” involved in the murders that he has ordered, bought and paid for. The more practical difficulty may arise even upon retrial, where witnesses and evidence may no longer be available; or worse, where, as here, a retrial may not be available because the defendant has been found, on appeal, not guilty as a principal, and was not charged as an accessory. It is a fundamentally unfair to permit such traps to be laid for prosecutors as it would be to have them set for an accused. The concept of fair play which we recognize as a basic tenet of Anglo-American jurisprudence, Glickfield v. State, 203 Md. 400, 403, is not reserved solely for the accused. Society should share in it equally.

As to this case, while it offends me to be compelled factually to circumlocute an obstacle that should not exist, I find that both this Court and the Court of Appeals have done so in cases which strain far more than we would need in this case. In the past, we have strained to reverse, McBryde and Bland v. State, 30 Md. App. 357, as well as to affirm, Huff v. State, 23 Md. App. 211.

While we have held that a “principal differs from an accessory before the fact only in the requirement of presence”, Huff v. State, supra, 23 Md. App. at 215, and it is upon this distinction that the case before us now turns, the Court of Appeals has on at least one occasion not admitted to such a difference. In Vincent v. State, 220 Md. 232, 239, the Court said:

“It has long been held that whoever aids and abets the actual commission of a felony by some degree of assistance or encouragement, whether present at the place of perpetration or not, is a principal in the second degree.” (footnote omitted, emphasis added).

This case is one of only four cases cited in C.J.S. for the proposition that a principal in the second degree is one who aids and abets the commission of a crime “by some degree of assistance or encouragement, whether or not present at the place of perpetration.” C.J.S. Criminal Law § 85. It may very well be that the Court of Appeals has already taken the first step to obliterate the artificial distinction between a principal and an accessory before the fact. Even in Watson, supra, the presence or absence distinction is not recognized by the definition set forth at 217.

“An accessory before the fact is one who aids or abets the principal offender before or at the time of the commission of the crime.” (emphasis added).

Assuming, however, that this was oversight in Watson and in Vincent (since Vinsent did not discuss whether the defendant could have been an accessory before the fact instead of a principal), we note that the defendant there was held to be a principal in the second degree to armed robbery upon facts showing that he sat in the getaway car parked an unspecified distance, in an alley, from the gas station, he did not drive the car or plan the robbery, his job was to have a change of shirts ready for his confederates, to watch out for police, traffic signals and road conditions so that the group would stay within the traffic laws and not be picked up, to have the getaway car “ready”, and that his share of the loot was $5.00. There was no showing that he saw or could see the robbery from where he sat, or that he was to drive the vehicle to escape, but the Court said:

“While he was not actually present at the immediate place of the perpetration of the robbery, he was in close proximity and contiguity thereto rendering aid and assistance to those who were personally performing the hold up.” 220 Md. at 239.

No elaboration is needed to show that the complicity of Mrs. Williamson in this case was greater than Vincent’s, and that, awake or asleep,² it can be rationally inferred that she was so situated as to be able to assist Merrick.

In Butina v. State, 4 Md. App. 312, defendant argued that he was. an accessry before the fact, not a principal in the second degree. He was held the latter upon evidence which showed that he was the driver of the car whose occupants purchased a can of gasoline the night of the fire, that a similar car was seen at the scene of the arson, that he protested when he heard of the planned burning and was told to stop the car near the scene of the crime because the perpetrators had to go to the bathroom, that he saw a big flash when the building ignited, and that he drove the perpetrators away. Although, as gleaned from the opinion, there was no evidence that Butina actually watched his fellows set the fire, or indeed could even see them (as opposed to the house) as they set the fire, the Court stated as fact the inference that he was in “ ‘close proximity or contiguity’ in a position to assist if necessary or to watch or prevent interference or detection or to encourage the commission of the crime at the moment of its commission .. ..” The Court, in accepting this inference, obviously used the evidence which tended to show that appellant knew there would be a burning long before he said he was told of the pian, to infer that he would be willing or able to help. The inference in the case before us is not a fraction harder to sustain in view of appellant’s hiring of Merrick.

In Huff, supra, the defendant also claimed that he was an accessory before the fact rather than a principal in the second degree. The evidence showed that appellant and Gorkran had known eacii other at least three weeks before the robbery, were seen together the evening before the robbery, and soon before the robbery, that appellant hailed a cab which double-parked before the bank as Gorkran went in to rob it, and that he silently accepted a portion of the proceeds in the cab as it left the scene. The jury was allowed to use appellant’s prior association with Corkran in particular places and on particular occasions, and appellant’s silent acceptance of a share of the proceeds, to explain the nature of his presence at the scene, i.e., his intent in hailing the cab and waiting outside the bank. Quoting from Foster v. State, 11 Md. App. 40, rev’d on other grounds, State v. Foster, 263 Md. 388, this Court in Huff explained that the relation of the accused to the crime is for the jury to decide. Id. at 215. Thus, while the facts in Huff showing presence are somewhat stronger than in the case we here consider, the proximity of Huff to the scene was given a great deal of mileage on the basis of inferences taken from surrounding facts.

Finally, in McBryde, supra, it was held that defendants were principals in the second degree instead of accessories before the fact upon evidence that they were in a car which cased a store and, at a signal from a third party who had originally been in the car with them, drove the car into a nearby alley. Appellants could not see the store from their location, but it was inferred from the fact that appellants left the motor running that they were so situated as to be able to aid the actual robber:

“The state argues that because the appellants’ automobile was parked out of sight of the 7-Eleven store the appellants were not constructively present. This reads the definition of constructive presence too narrowly. The test is not whether the appellants could see the 7-Eleven store, but whether they were acting in concert with McLaughJan in furtherance of a common scheme and were so situated as to aid McLaughlan in his escape.” Id. at 360.³

This factual conclusion resulted in a reversal of the convictions as accessories before the fact, on the theory that a defendant cannot be convicted as an accessory upon facts showing he is a principal.

In this case it can certainly be inferred, from: the fact that appellant hired Merrick; the fact that appellant was only a few yards in space from the murder scene; the fact that appellant left the intoxicated victim in a vulnerable position; and the fact that appellant obviously knew of the impending murder attempt in July or August (a month before the actual murder) as evidenced by her two conversations with her brother on that night in which she effectively told him to mind his own business; that appellant was so situated as to be able to aid Merrick.

If semantics are needed, one who hires an agent or employee is that agent’s principal, but call her what you will — principal or accessory — appellant was as guilty of murder as he whom she hired to do the deed. I could not let a semantic distinction with no foundation of reason or purpose so hamstring society. Justice and fair play, procedural or substantive, should be jealously adhered to — but for society to be compelled to carry the expense of retrying this woman on the same facts, subjecting her to the same punishment, again providing her with a public defender, and undoubtedly another appeal, for what is precisely the same crime by a different epithet, is ridiculous. Worse yet if she cannot be retried. We begin to understand Mr. Bumble’s view of the law.

1 . But cf. Md. Code, Art. 27, § 6.

2 . Although, as pointed out by the majority, “there is nothing to show that she was awake at the time of the murder”, we also note that there was nothing to show she was asleep either.

3 . This logically follows, for the test is ability to help. Presence is not to be determined by mere contiguity of space. Wharton, Criminal Law and Procedure § 107.