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3782
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VETOES
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contains no reference to or amendment of present §412 of
Art. 27. The principal thrust of §412 is to identify the
method for ascertaining the degree of the crime of
murder as to those persons indicted "pursuant to §616(a)
for a murder not punishable by death" upon return of a
verdict of guilty by the jury. Both subsections (a) and
(b) of §616, setting forth two distinct statutory forms
of murder indictments, are repealed by Senate Bill 106. 5
In their place new §616 is enacted which provides a
single form of acceptable indictment for all persons
charged with murder or manslaughter or with being an
accessory thereto, without making any distinction based
upon the degree of punishment which may be imposed. 6
You have asked if the continued existence of §412 in its
present form with its obsolete reference to §616 (a) would
affect the validity of Senate Bill 106 and present any
serious problems in its implementation.
We would first point out that §412 is a general
guilt determining statutory provision which has
historically been utilized to empower the jury to render
a verdict of either murder in the first degree or murder
in the second degree and implicitly to enable the court
to impose sentence accordingly. As is most clearly
pointed out in Blackwell v. State, supra, §413 does not
create a new crime nor does it affect the method by which
a determination of the degree of murder is made; rather,
in both its present and proposed forms, it is simply a
penalty statute applicable only upon a conviction of
murder in the first degree which would authorize the
imposition of one of two punishments for the offense of
murder in the first degree—-life imprisonment or death.
To a substantial extent, §412 may well constitute
surplusage since the crimes of murder in the first degree
and murder in the second degree are defined in §§407—411
of Art. 27. Although no mention is made of the crime of
manslaughter in §412, the jury may obviously return such
a verdict under the general form of murder indictment
specified in §616. That is to say, even without any
special statutory authority in §412, a jury may return a
manslaughter verdict on an indictment which includes all
three grades of homicide. The portion of §412 relating
to the court determination of the degree of the crime on
a guilty plea ("a conviction by confession") has been
specifically superseded by present Md. Rule 724 and new
Md. Rule 731e, effective July 1, 1977. Finally, our view
that the concluding language of §412 relative to petit
treason is surplusage was reflected in our decision to
retain no such language in new §412 or elsewhere under
the Administration Bill. In short, we believe that the
provisions of §412 are largely, if not entirely,
unnecessary to the procedural conduct of a murder trial
in Maryland, be it for a capital or non-capital offense.
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