Peters and Demby v. State , 187 Md. 7 ( 1946 )

After some hesitation I agree that the legislative mandate to "Review any reviewable errors" is applicable only to questions otherwise, by statute, made reviewable and not to any and every question which this Court without any statutory guide might hold to be reviewable. It may be, however, that this Act of 1945 makes such questions reviewable notwithstanding failure to object, except or take other technical action. It would accord with reason and justice and with provisions in other jurisdictions that a man should not be hanged for his lawyer's failure to object or except to clear prejudicial error.

There can be no doubt as to the power of the Legislature to add to the reviewable questions or to change the methods of review on appeals by the accused. The constitutional provision that the jury shall be the judges of the law and the facts is (a) a procedural provision and (b) a constitutional right of the accused of which he can not be deprived by the Legislature. A verdict of acquittal can not be made reviewable on motion for a new trial, on appeal or otherwise. State v. Rosen, 181 Md. 167,28 A.2d 829. But judgments of conviction may be, and from time to time, have been, made reviewable, at the instance of the accused, to such extent and in such manner as the Legislature may deem fit.

In Maryland from early times, unlike many other jurisdictions, the constitutional right of trial by jury could be, and now commonly is, waived by the accused even in capital cases. In this respect there is no difference between the right of trial by jury at common law or under the Constitution of 1776 and the right under the Constitution of 1851 and the subsequent constitutions containing provision that the jury shall be the judges of the law and the facts. This right may be waived without statutory provision for procedure. By such waiver the constitutional provision that the jury shall be the judges of the law and the facts ceases to be a constitutional right but (in the absence of other legislative provision) is applied by analogy, as a procedural provision, to trial judges sitting "as a jury," as if they were actually a jury. Thus both in jury and non-jury cases this Court has repeatedly held that even the legal sufficiency of the evidence of guilt is not reviewable by this Court on appeal in capital or other criminal cases. The Legislature has not made any other procedural provision for review of such questions;e.g., it has not made obligatory the exercise by trial judges, at the request of the accused, of the power to give advisory instructions. There is, however, no such thing as a constitutional right to hang a man — or be hanged — without evidence. The multitude of decisions of this Court involve no such perversion of constitutional principles.

In civil cases, both in Maryland and in the federal courts, an analogous situation long existed until changed by existing rules of civil procedure. The right of the jury to decide questions of law in criminal cases is no more sacred than the right to decide questions of fact in civil or criminal cases. In either civil or criminal cases when there is no jury at all, the right as a constitutional right necessarily ceases to exist and becomes by analogy a mere rule of procedure until supplanted by other legislative provision for procedure.

A constitutional provision, especially in matters of procedure, may have a different effect standing alone from the same provision in conjunction with statutory provisions. Ghinger v.Bachtell, 169 Md. 678, 182 A. 558. As Mr. Justice Holmes has said, a word may not have the same meaning in a constitution as in a statute. Towne v. Eisner, 245 U.S. 418, 425, 62 L. Ed. 372.

The following memorandum was filed on Motion for Reargument:

MARKELL, J., is of the opinion that under the recent Fourteenth Amendment decisions of the Supreme Court legally sufficient evidence of guilt is a requisite of due process and therefore this Court, notwithstanding its own previous decisions to the contrary, should now decide this Federal question (raised in the motion for reargument) as to the legal sufficiency of the evidence.