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with them and they do not have these tools
to help them decide the case.
Another reason for deleting it is that this
provision encourages inconsistency in re-
sults of criminal trials.
A final reason is that it does not mean
what it says because in fact the juries are
not really judges of the law in the true
sense as the amendment suggests, but this
has been somewhat curtailed in recent
years. If it were given literal meaning, it
is perfectly clear that it would violate the
equal protection and due process law in
the U.S. Constitution and therefore would
be void. There is absolutely no reason for
continuing this in the present day, par-
ticularly with all of the real protections
that the Supreme Court is now requiring
the states to afford criminal defendants.
We respectfully suggest that this archaic
provision is unnecessary and that it harms
the accused as much as it helps him.
DELEGATE JAMES (presiding;) : Does
anyone wish to speak against the amend-
ment? Delegate Willoner?
DELEGATE WILLONER: Mr. Chair-
man, when I spoke on this in presenting
the Majority Report, I indicated to the
body when I came down here that I
thought this provision was archaic and out-
moded until I began to do some research on
it and began to develop some questions
which I may add in discussing with Dele-
gates Bothe and Moser have not V-een satis-
factorily answered.
The case of Sharp and Hanson v. The
United States is a case of first degree
murder where the judge was precluded
from instructing or refused to instruct on
the issue of manslaughter. The Supreme
Court held that this was appropriate since
the evidence was only susceptible of one
interpretation, first degree murder, and
therefore a manslaughter instruction was
inappropriate.
We in Maryland do not follow that prac-
tice. I contend that when the Commission
took this out of the present Constitution,
they gave this absolutely no thought at all.
There is no research to explain why they
took it out or how it was taken out.
In the area of eminent domain, the Com-
mission proposal was such that we would
have had to add the off-street parking and
the urban renewal provisions of our present
Constitution to have it comply with the
rulings of the Maryland Court of Appeals.
This body should be well aware, when they
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are taking out this matter that they may
be substantially changing the law in this
State and they do not propose to tell us
how it is changed. I would agree that at
one time it was a thorn, as they called it,
a constitutional thorn. Judge Dennis wrote
a law review article on it. What he was
objecting to was that the State could not
appeal. That is a doctrine foreign to us
today; the State should have a right to
appeal. But the procedural provisions were
solved when the amendment permitting the
judges to determine the sufficiency of the
evidence was added to this provision. I
would read to you what Judge Henderson
said about this in 1947.
"At the 1947 session of the General As-
sembly the Junior Bar Association pro-
posed an amendment to this provision of
the Constitution eliminating the provision
that the jury shall be the judges of the
law, but the bill was defeated."
Possibly the proposal was considered too
revolutionary or drastic. Doubtless many
members of the General Assembly felt that
the provision has not outlived their use-
fulness. I am not disposed to disagree with
them. My quarrel is not with the provision,
but with the procedural practice derived
from it. Now as I understand it, and Judge
Henderson will correct me if I am wrong,
he did not like the procedure where you
could not agree or the judges could not
determine the sufficiency of the evidence,
and I agree with him in that regard. The
minority does not tell us the effect of it.
There has been no research which has been
developed which would tell what leaving;
this out would do to the law of Maryland.
DELEGATE JAMES (presiding): Dele-
gate Henderson, do you speak in favor?
DELEGATE HENDERSON: I do.
DELEGATE JAMES (presiding): The
Chair recognizes Delegate Henderson.
DELEGATE HENDERSON: Mr. Chair-
man and fellow members, since I have been
quoted or referred to by Mr. Willoner, I
feel that I must first try to make my posi-
tion perfectly clear.
In 1947 I became interested in this sub-
ject. At that time I was serving on the
Court of Appeals and I delivered a paper
on the subject before a law club and be-
came interested in the matter. Chief Judge
O. L. Marbury and Judge Markell who were
my colleagues on the court at that time
urged me and I was asked by the execu-
tive committee to make a speech before the
Bar Association at Atlantic City which I
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