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3783
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MARVIN MANDEL, Governor
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While it would, of course, have been preferable to
amend §412 to its pre-1975 form, eliminating the
reference to §616(a) and the limiting phrase "not
punishable by death," we do not believe that the failure
to do so either renders §412 meaningless or establishes
such a fundamental inconsistency between §412 and the
death penalty provisions of Senate Bill 106 as to create
significant legal or constitutional problems with respect
to murder prosecutions. Both the phrase "pursuant to
§616(a)" and the limitation of the applicability of §412
to persons indicted for murder not punishable by death
came into being as a consequence of the passage of
Chapter 252 of the Laws of 1975, Maryland's present death
penalty statute. The enactment of Chapter 252 also
marked the first occasion on which §616 was broken down
into two distinct subsections, one of which (§616 (b))
provided a form of indictment for murder in which the
State seeks the imposition of the death penalty and the
other of which (§616 (a)) provided a form of indictment
for all other murder or manslaughter. With the return to
the single form of statutory indictment for murder
embodied in §616 as contained in Senate Bill 106, and the
abandonment of the short-lived distinction as to the form
of indictment based upon whether the State seeks the
imposition of the death penalty, the raison d'etre for
limiting the application of §412 to statutory indictments
for murder not punishable by death disappears altogether.
Accordingly, we believe that the courts would ascribe no
substantive significance to the now anachronistic
references to §616(a) and murder "not punishable by
death" and that §412 would be held to apply to all
indictments for murder. As so construed, we perceive no
substantial inconsistency between §412 and the death
penalty provisions of Senate Bill 106.
Generally speaking, §412 deals only with the
establishment of degree and does not speak in any
specific terms to the particular sentence to be imposed
or the manner in which the sentence should be determined.
One exception to this general observation is the
provision in §412 that if a defendant is convicted by
confession, the court shall determine the degree of the
crime and "give sentence accordingly." If, as we have
suggested, §412 is construed as being applicable to all
murder indictments, there is an inconsistency between
its requirement that in a conviction by confession, the
court, as distinct from a jury, should impose sentence
and the provisions of new §413(b) that if the defendant
has pleaded guilty to first degree murder, the sentencing
proceeding should be conducted before a jury empaneled
for that purpose unless waived by the defendant. With
respect to that one inconsistency, we believe that the
later enacted provisions of §413(b) would control.
Alternatively, should §412 be construed as applying
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