284 Md. 189, 396 A.2d 1041
On 28 April 1972, Harry Edward Brockman and David Victor Maness were charged in the Circuit Court for Prince George’s County with the premeditated murder of Gerald Joseph Godbout, Jr.1 Each later pleaded guilty to murder in the second degree under a plea bargain arrangement and was convicted on that plea.2
On 17 July 1974, James Edward Ward was indicted on five counts relating to the murder and an attempted murder.3 The third count charged Ward as an accessory before the fact, alleging that he unlawfully aided, counseled, and procured Brockman and Maness to commit the murder described as having been done feloniously, wilfully, and with deliberately premeditated malice aforethought.4 By 11 April 1978, only the third count remained pending against Ward.5
Ward moved to dismiss that count as defective, and the circuit court granted the motion.6 The State appealed the dismissal to the Court of Special Appeals, and the Court of Appeals of Maryland issued a writ of certiorari on its own motion before any decision by the intermediate court.7 Ward had previously been tried before a jury on the first, second, and third counts, resulting in convictions that were affirmed on direct appeal.8
Whether there may be an accessory before the fact of murder in the second degree?9
The common law of England received in Maryland permits accessories before the fact to murder.10 Murder was not divided into degrees at common law.11 Commentators confirm that there may be an accessory before the fact to murder in the second degree because the instigator may stimulate in hot blood or the perpetrator may act rashly with dangerous instrumentalities.12 Maryland Code art. 27 § 414 expressly provides punishment for being accessory to murder in the second degree.13
Yes. The rule recognizes that conduct accompanied by intent to do serious bodily injury without intent to kill constitutes murder in the second degree when death results.14 One who aids, counsels, or procures that conduct without presence at the perpetration is an accessory before the fact.15 Brockman and Maness were charged with premeditated murder of Godbout but each pleaded guilty to and was convicted of murder in the second degree under a plea bargain.
This established that the underlying crime was second degree murder to which an accessory before the fact could attach. The common law commentators rejected any exception for second degree murder.16 The statutory recognition of accessory liability confirms the rule applies directly to the convictions obtained in the Circuit Court for Prince George’s County.17
There may be an accessory before the fact of murder in the second degree.18
Whether the form of the third count of the indictment permitted Ward to be tried as an accessory before the fact of murder in the second degree?19
The statutory short form of indictment for murder, expressly made applicable to being accessory thereto, permits conviction of murder in the second degree even when the charging language describes first degree murder.20 Under the indictment the accused may be convicted of either degree or manslaughter.21 The General Assembly relaxed the formal common law requirements of indictment in homicide cases when it enacted Chapter 248 of the Acts of 1906.22
Yes. The third count used the statutory formula charging Ward with aiding, counseling, and procuring Brockman and Maness to commit the murder described with premeditated malice.23 That form allows trial and conviction for second degree murder as accessory before the fact.24 The third count remained pending on 11 April 1978 after the other counts were resolved.
The statutory formula upheld in prior cases directly authorized trial of Ward as accessory to the second degree murder for which the principals were convicted.25
The form of the third count of the indictment permitted Ward to be tried as an accessory before the fact of murder in the second degree.26
Whether Ward may be guilty of murder in the first degree as an accessory before the fact when his principals stand convicted of murder in the second degree?27
Under the common law rule that accessory before the fact sequitur naturam sui principalis, an accessory cannot be convicted of a higher crime or degree than the principal.28 The classification of murder into degrees left the common law concept of one crime intact while graduating punishment. Therefore the rule applies to degrees so that an accessory may not be convicted of first degree murder when the principals stand convicted of second degree murder.
No. The rule requires that the accessory not suffer greater punishment than the principal.29 First degree murder carried death or life imprisonment while second degree carried a maximum of thirty years.30 Brockman and Maness stood validly convicted of murder in the second degree after their pleas.31 Ward may not be convicted of first degree murder as accessory before the fact even though the indictment described premeditated malice.32
The State’s argument relying on Wharton was rejected because accessoryship before the fact remains a derivative status offense in Maryland rather than a substantive offense.33 This preserves the common law limitation on the degree of liability.
Ward may not be guilty of murder in the first degree as an accessory before the fact when his principals stand convicted of murder in the second degree.34
Whether the Circuit Court for Prince George’s County erred in dismissing the third count of the indictment?35
When an indictment charges accessory before the fact to murder in language that permits conviction of second degree murder and the principals have been convicted of second degree murder, the indictment is not defective as a matter of law.36 The accused is entitled to judgment of acquittal on any first degree theory.37
Yes. The court erred in dismissing the indictment because the third count validly charged a triable offense of accessory before the fact to second degree murder.38 The motion to dismiss was granted on 11 April 1978.39 The indictment allowed trial for the second degree offense consistent with the principals’ convictions.40
The prosecutor’s statements during argument did not constitute a nolle prosequi of the second degree theory.41 The case was therefore remanded for trial under the third count with Ward entitled to acquittal as a matter of law on first degree accessory liability.42
The Circuit Court for Prince George’s County erred in dismissing the third count of the indictment.43