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did, and that is the paper to which he
referred which was published in 1947.
Since this had been the subject of wide
publicity before, and the efforts to change
it which had been proposed by such eminent
authorities as Judge Markell, Chief Judge
Dennis and Judge Chesnut from the fed-
eral bench, all unavailing, my approach
was not to attack or make a frontal attack
on the amendment, which I would have pre-
ferred to do, but accepting the amendment
to point out the many feaures which prob-
ably would render all our criminal decisions
unconstitutional under the Fourteenth
Amendment. I proposed in my paper there-
fore that there be four different modifica-
tions. One involved the amendment of the
Constitution to permit the passing on the
sufficiency of the evidence by the trial
court and opening the case to appeal.
The second one was a mandatory rule of
court requiring the trial courts to give ad-
visory instructions on the law to the jury
so that that was absolutely mandatory on
his part and opening those instructions to
review on appeal.
DELEGATE JAMES (presiding): Thirty
seconds, Delegate Henderson.
DELEGATE HENDERSON: There were
several other matters which were accom-
plished there. For one thing, the rules of
court were amended to provide that this
did not apply as it had before to a judge
who was sitting without a jury. In those
ways we managed to close some of the
avenues so that the Supreme Court, even
though it had the appeal on certiorari, ~e-
f used to grant a hearing and has not yet
ruled on it.
I fully agree with Delegate Moser that
the time has come that this outmoded thing
which has outlived its usefulness and still
presents an element of constitutionality
under the Fourteenth Amendment should
be deleted.
DELEGATE JAMES (presiding): For
what purpose does Delegate Bothe rise?
DELEGATE BOTHE: My purpose was
to ask questions of Delegate Willoner at
such time as that is appropriate.
DELEGATE JAMES (presiding) : I be-
lieve this is a time for debate and a time
for questioning will come later.
Delegate Sollins, do you wish to speak
against the amendment?
DELEGATE SOLLINS: I have a ques-
tion of Delegate Moser.
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DELEGATE JAMES (presiding) : First
I want to recognize the people who wish to
speak for and against, and then we will
have a question period.
Does anyone wish to speak against?
DELEGATE BOTHE: The answers to
questions which I and perhaps other dele-
gates may wish to pose may bear on the
nature of the debate.
DELEGATE JAMES (presiding): Let
me recognize Delegate Dorsey and then
we will have the questions.
DELEGATE DORSEY: Mr. President
and ladies and gentlemen of the Conven-
tion, for one hundred years this provision
has been in the Constitution of Maryland
and in the administration of criminal jus-
tice in this state. It has worked well. I
have sat on both sides of the counsel table
as state's attorney and as defense counsel,
and I have never observed any miscarriage
of justice because a jury was the judge of
both the law and the fact.
For the last fifty years there have been
attempts made to take this provision out
of the Constitution of Maryland. All of
those attempts have failed. It was amended
so that the courts could pass on the suf-
ficiency of the evidence. I feel that that is
a good provision. I have said for one hun-
dred years it has worked in this State, so
why change for the sake of change.
I hope, ladies, and gentlemen, that this
amendment will fail.
DELEGATE JAMES (presiding): Dele-
gate Bothe, do you wish to ask a question
of Delegate Moser?
DELEGATE BOTHE: Delegate Wil-
loner.
DELEGATE JAMES (presiding): Dele-
gate Willoner, do you wish to yield?
DELEGATE WILLONER: I am always
glad to yield to a young lady.
DELEGATE JAMES (presiding) : Dele-
gate Bothe.
DELEGATE BOTHE: I might point out,
Mr. Chairman, that I do not believe this
provision was very thoroughly presented
when the Committee's Recommendation
came before the Committee of the Whole,
and for that reason, I would like an op-
portunity perhaps to ask more questions
than would otherwise be appropriate.
DELEGATE JAMES (presiding): Are
you asking Delegate Willoner a question?
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