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DELEGATE DORSEY: Mr. President,
my good friend Judge Henderson, for whom
I have the highest respect, said that over
100 years ago the Supreme Court of the
United States laid down the rule that in
federal courts the jury could not be the
judge of the law and the fact. Although
that decision was made over a hundred
years ago, this system has operated in
Maryland, and although the Supreme Court
has changed the procedure and asked the
courts many, many times and, indeed,
greatly in recent years, it has not yet
stricken down this system of justice which
has worked so well in Maryland.
Over 100 years ago. Bishop, who was
one of the great law writers — and his work
on criminal law is still regarded as one
of the greatest works ever written in this
country — in a section in one of the earlier
editions of that volume says: "No man
should be convicted if a public good will
not be done thereby." It is because of that
this system which we have had in Maryland
has permitted juries for over a hundred
years not to render a verdict on a techni-
cality where a judge would be bound to
lay down what would amount to a directed
verdict of guilty, but it has given to the
jury an opportunity to have the last say
and not to convict on a mere technicality.
I say this system has worked in Maryland
for over 100 years.
I agree with my good friend Judge Hen-
derson that there was little case law until
1950, when this section was changed to
permit courts to direct verdicts concerning
the defendant in criminal cases. This has
brought about a great deal of case law in
criminal cases since it was adopted in 1950.
I say, Mr. President —
THE PRESIDENT: You have one-half
minute.
DELEGATE DORSEY: I say that for
over 100 years this system has worked in
Maryland. There have been numerous at-
tempts to change it through the legisla-
ture, but it has prevailed, and I think that
this Convention should retain this section
of the old Constitution in the new one.
THE PRESIDENT: Delegate John Har-
grove.
DELEGATE HARGROVE: Mr. Chair-
man, I hate to disagree with my friend
Judge Dorsey, but I have tried a great
many criminal cases, as you probably
know, both in the federal court and the
state court, and this system does not work
very well. It is really a fraud on both the
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State and the defendant. A jury is given
whatever laws the state's attorney or the
attorney for the defendant desires to give
them; whichever side favors their position,
the jury is given.
I have not seen in all my experience —
and I have tried a considerable number of
jury cases — any twelve people brought
together, selected at random, who could
comprehend the law as it is today.
I would like to add to the list of people
who are condemning this constitutional
practice. In addition to Judge Henderson,
the former chief judge of the Court of
Appeals, I have a memorandum from Judge
Brune, who, although not speaking for the
Commission on Criminal Law, of which I
am a member, clearly states that this is an
anachronism and should be eliminated. I
can say as a member of that Commission,
which has been studying criminal law for
two years, that we did not take a vote
simply because the Constitutional Conven-
tion Commission did not put this anachro-
nism in the draft, and therefore we felt
it should be put to rest. There were only
two people on that Commission who de-
sired this to remain in the constitution, of
some twelve or fourteen people on the
Commission.
I would like to make one more statement.
The other day it was said that in the fed-
eral courts the judges can direct a verdict
of guilty. I served in those courts for close
to several years, as several members of
this delegation have, and I have never seen
that happen nor can it happen in the fed-
eral court.
The presumption of innocence and the
right to trial by jury is so strong in that
court no judge would dare direct a verdict
of guilty in the federal court. In my ex-
perience over many, many cases I have
never seen it happen, and I am sure that
there are other delegates here who served
in that body and know that it does not
happen. It just does not happen. We should
put this to rest. We voted on the seven
dates. We should reject the motion to re-
consider.
THE PRESIDENT: Delegate Mentzer.
DELEGATE MENTZER: I would like to
move the previous question.
THE PRESIDENT: The previous ques-
tion has been moved.
(The motion was duly seconded.)
THE PRESIDENT: T,he previous ques-
tion has been moved. All those in favor
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