RAKER, Judge.
Petitioner was convicted in the Circuit Court for Prince George's County on June 3, 1997 of assault and battery. We granted certiorari to answer the question whether "common law assault and battery was a cognizable crime in Maryland after October 1, 1996," the effective date of statutory assault, 1996 Laws of Maryland, Ch. 632. We shall hold that by this statutory enactment the General Assembly repealed the common law crimes of assault and battery.
I.
Petitioner, John W. Robinson, was charged by the Grand Jury for Prince George's County in a five count indictment with the offenses of child abuse, Count One, in violation of Maryland Code (1957, 1996 Repl.Vol., 1998 Supp.) Article 27, § 35C;
C.W. testified that sometime before her birthday
What we know is according to the indictment, the incident occurred sometime between September 7th of 1996 and October 30th of 1996. But C. can say it certainly happened before her birthday on the 30th of October, and it didn't come out during the testimony, but she has said to me in the past that it came after school. That is why the September 7th date ... and what we do know is that at some point, she told Anthony
At the conclusion of the State's case, Petitioner moved for judgment of acquittal on all counts. His counsel argued the following:
THE COURT: Which is Count 5.
THE COURT: They're one in the same.
[DEFENSE COUNSEL]: They are duplicitous.
THE COURT: I think we'll rectify that. [State's Attorney], does the State have a desire to not proceed as to Counts 4 and 5 at this point in time?
[STATE'S ATTORNEY]: Yes.
THE COURT: Thank you. [Defense counsel], anything else?
THE COURT: Do you care to address Counts 2 and 3?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Thank you.
[DEFENSE COUNSEL]: ... [W]e would submit on Counts 2 and 3.
The trial court denied the motion for judgment of acquittal as to Counts one, two, three and five. The defense proceeded with its case, calling the defendant and Detective Michael Olds as witnesses. At the close of all of the evidence, the defense again moved for judgment of acquittal on all counts. After hearing argument from the State, the court asked defense counsel, "Do you want to address Counts 2 and 3 and 5 by indicating anything other than what you said already?" Defense counsel responded, "No, Your Honor. We'll submit." The trial judge granted Petitioner's motion for judgment of acquittal on Count one, child abuse, but denied the motion with respect to all remaining counts, thus leaving Counts two, three and five for the jury's consideration. The court instructed the jury that the time of the acts relative to all three counts "concerned between the dates of September 7th, `96 and October 30th, 1996."
The jury returned a verdict of not guilty on the third degree sexual offense and the fourth degree sexual offense. The jury found Petitioner guilty of common law assault and battery. The court sentenced Petitioner to the Division of Correction for a period of ten years, with two years suspended, and five years probation upon his release from incarceration.
Robinson noted a timely appeal to the Court of Special Appeals. The intermediate court affirmed the judgment in an unreported opinion, holding "that common law assault and battery was and remains a cognizable crime in Maryland, except that from and after 1 October 1996 it is designated `second degree assault' unless accompanied by certain aggravating factors elevating the offense to a felony now designated as `first degree assault.'" We granted Robinson's petition for writ of certiorari to consider whether the Court of Special Appeals erred in holding that common law assault and battery was a cognizable crime in Maryland after October 1, 1996.
II.
In 1996, the Maryland General Assembly enacted Article 27, §§ 12, 12A and 12A-1, effective October 1, 1996. 1996 Laws of Maryland, Ch. 632. These statutes provide as follows:
(1) Creates a substantial risk of death;
(2) Causes serious permanent or serious protracted disfigurement;
(3) Causes serious permanent or serious protracted loss of the function of any bodily member or organ; or
(4) Causes serious permanent or serious protracted impairment of the function of any bodily member or organ.
(2) A person may not commit an assault with a firearm....
Petitioner contends that the 1996 Act abolished the common law crimes of assault and battery.
It is a generally accepted rule of law that statutes are not presumed to repeal the common law "further than is expressly declared, and that a statute, made in the affirmative without any negative expressed or implied, does not take away the common law." Lutz v. State, 167 Md. 12, 15, 172 A. 354, 356 (1934) (quoting 25 R.C.L. 1054). Where a statute and the common law are in conflict, or where a statute deals with an entire subject-matter, the rule is otherwise, and the statute is generally construed as abrogating the common law as to that subject.
This brings us to the construction of the statutes in the present case. It is a cardinal rule of statutory construction to give effect to the intent of the Legislature. Jones v. State, 311 Md. 398, 405, 535 A.2d 471, 474 (1988). To be sure, the language of the 1996 assault statutes contain no specific words of repeal or abrogation, nor is there any conflict between those statutes and the common law. We have determined, however, that the statutes as adopted represent the entire subject matter of the law of assault and battery in Maryland, and as such, abrogate the common law on the subject. The 1996 statutes are more than mere penalty provisions for the common law offenses of assault and battery. They created degrees of assault unknown to the common law, and while retaining the common law elements of the offenses of assault and battery and their judicially determined meanings, the statutes repealed the statutory aggravated assaults and created new offenses.
Perhaps ironically, some of the best evidence that the 1996 assault statutes comprise more than just penalty provisions for the common law offenses of assault and battery, and that they actually abrogated those common law offenses, derives from the fact that the statutes explicitly repealed and replaced the entire statutory scheme for aggravated assaults then existent, i.e., Assault with Intent to Murder, Ravish or Rob, Assault— Third Person Aiding One Being Assaulted, and Assault by Inmates, as well as the crime of Maiming. See 1996 Laws of Maryland, Ch. 632, § 1, at 3616-17 and 3629; Maryland Code (1957, 1992 Repl.Vol., 1995 Supp.) Article 27, §§ 11E, 12, 12A, and 384-86. The new statutes thus subsumed all previous statutory assault provisions as well as the common law into a single scheme and established a two-tiered regimen.
The dissent construes the 1996 assault statutes as merely establishing penalty provisions for different forms of common law assault and battery. Dissenting op. at 708. This interpretation ignores the critical fact that the new statutory scheme now incorporates within it all possible previous assault crimes—common law as well as statutory forms. Prior to October 1, 1996, if a person committed a criminal assault, that crime might have fallen under one of the aggravated assault provisions alluded to above. But not all criminal assaults committed prior to October 1, 1996 fit within the statutory scheme existing at the time. Those assaults that fell outside the statutory provisions could be prosecuted under the common law. The dichotomy between assaults that could fit within the statutory provisions, and those that could not, ended, however, on October 1, 1996. Whether an assault committed prior to the new statutes' effect fit within the former statutory scheme for aggravated assaults, or fell under the common law for simpler offenses, the same assault committed after September 30, 1996 cannot help but fit within one of the new statutory provisions. Any and all assaults, no matter how simple or aggravated, now fit within § 12A, second degree assault, or § 12A-1, first degree assault.
The 1996 assault statutes thus accomplished much more than simply "establishing the penalties for different forms of common law assault and battery." Id.
The legislative history of the 1996 assault statutes supports this conclusion. The 1996 Judiciary Committee's Bill Analysis of House Bill 749, cross-filed as Senate Bill 618, which the General Assembly enacted as Chapter 632 of the 1996 Laws of Maryland, recounts the origin of the legislation. As background information, the report notes that House Bill 749 was introduced at the behest of the Article 27 Revision Committee, a committee formed in 1992 by the President of the Senate and the Speaker of the House, and chaired by Chief Judge of the Court of Special Appeals, Joseph F. Murphy. 1996 Judiciary Committee, Bill Analysis, House Bill 749, at 2 (hereinafter, "1996 Jud. Comm. Bill Analysis, HB 749"). During the 1995 session, a bill to revise the assault laws was introduced at the request of the Article 27 Committee, but the measure failed.
The Senate Judicial Proceedings Committee's Bill Analysis of Senate Bill 618 indicates that "[a]lthough Senate Bill 618 retains the common law meanings of [`assault' and `battery'], it is clear under the bill that the term `assault' includes all aspects of the law on assault and battery." 1996 Senate Judicial Proceedings Committee, Bill Analysis, Senate Bill 618, at 3. In addition, this report states that "the Committee to Revise Article 27 felt that the current law on crimes related to physical injury should be in one place in the Code, rather than in several different places and in the common law." Id. (emphasis added). See also 1996 Jud. Comm. Bill Analysis, HB 749, at 3; 1996 Senate Judicial Proceedings Committee, Floor Report, Senate Bill 618, at 3; 1996 Senate Judicial Proceedings Committee, Floor Report, House Bill 749, at 3.
In addition to enacting the current assault statutes, Chapter 632 of the 1996 Laws of
Moreover, as precursors a year earlier to House Bill 749 and Senate Bill 618, House Bill 844 and Senate Bill 513 of the 1995 General Assembly very clearly expressed the same general purposes relevant to our analysis here. The Judiciary Committee's Bill Analysis of 1995 House Bill 844 described those legislative purposes as follows:
Id. at 1 (emphases added). See also 1995 Senate Judicial Proceedings Committee, Bill Analysis, Senate Bill 513, at 1; 1995 Senate Judicial Proceedings Committee, Floor Report, Senate Bill 513, at 1. Our review of the legislative history of the 1996 assault statutes leads us to conclude that the General Assembly clearly intended the statutes to encompass the entire subject of assault and battery and to abrogate the common law on the subject.
This Court reached a similar conclusion when we considered the consolidated theft statute as it related to the common law crime of larceny. In West v. State, 312 Md. 197, 539 A.2d 231 (1988), we concluded that the common law crime of larceny was abrogated by the enactment of the consolidated theft statute as it was "now subsumed in Maryland's consolidated theft statute, Md.Code... Article 27, Sections 340-344, which merge[d] all the formerly distinct larceny-like common law offenses, as well as the offense of receiving stolen property, into a single crime of theft." Id. at 202-03 n. 1, 539 A.2d at 233 n. 1 (citing Rice v. State, 311 Md. 116, 532 A.2d 1357 (1987)).
In Watkins v. State, 42 Md.App. 349, 400 A.2d 464, the Court of Special Appeals considered the question "whether the adoption of Article 27, Sec. 139, the statutory law of escape, abrogated the common law offense of escape." Id. at 352, 400 A.2d at 466. The intermediate court held that the Legislature intended to abrogate the common law, and the appellant's conviction on the common law offense of escape was a nullity. Id. at 354-55, 400 A.2d at 467-68. Judge Liss, writing for the court, reasoned:
Id. at 354, 400 A.2d at 467. Both the West court and the Watkins court were considering statutes, regarding theft and escape, respectively, that lacked an express repeal of the common law yet nevertheless held those statutes to abrogate the related common law offenses.
III.
Our inquiry does not end with the determination that as of October 1, 1996, the common law crimes of assault and battery are no longer cognizable in this State. The petition for certiorari presented a second question for our review: "Did the State fail to prove that the alleged offense occurred at a time when common law assault and battery was a cognizable crime in Maryland?" Petitioner argues that a court lacks power to render a verdict under a charging document which does not charge an offense within its jurisdiction proscribed by the common law or by statute. He points out that the only conviction in this case was for common law assault and battery, under a charging document alleging that Petitioner committed the charged crimes on or about September 7 through October 30, 1996. Since the State entered a nolle prosequi to the statutory second degree assault charge, the State was required to prove that Petitioner committed the crime before October 1, 1996, when common law assault and battery were still cognizable in Maryland. We agree.
"A claim that a charging document does not charge an offense may be raised at any time. Maryland Rule 4-252(c)." Townes v. State, 314 Md. 71, 74, 548 A.2d 832, 833 (1988). As Chief Judge Murphy pointed out, writing for the Court in Williams v. State, 302 Md. 787, 490 A.2d 1277 (1985):
Id. at 792, 490 A.2d at 1279 (citations omitted).
The crimes of common law assault and battery existed through September 30, 1996. Contrary to Petitioner's assertion that the circuit court lacked jurisdiction, we find that the indictment charging Petitioner with common law assault and battery on or about September 7 through October 30, 1996 was legally adequate to charge an offense and that the circuit court had fundamental jurisdiction
At trial, Petitioner did not challenge the court's jurisdiction; instead, he requested the trial judge to enter judgment in his favor on all counts. A criminal defendant may move for judgment of acquittal and when so doing, shall state with particularity all reasons why the motion should be granted. Maryland Rule 4-324. Petitioner moved for judgment at the close of the State's case and again at the close of all the evidence. Defense counsel argued to the trial court three bases for granting the motion for judgment of acquittal: duplicity, lack of specificity, and sufficiency of the evidence. He was wrong on the first two grounds, but partially correct on the third ground. As we have indicated, the indictment was not duplicitous: no one count of the indictment charged more than one substantive offense.
As to sufficiency of the evidence, the Court of Special Appeals treated Petitioner's central claim, that the State failed to prove that the offense upon which the jury convicted him occurred at a time when common law assault and battery were cognizable crimes in Maryland, as a "sufficiency of the evidence issue." The intermediate court summarized Petitioner's argument as follows: because the State could not pinpoint whether the act occurred before the new statutes took effect, the evidence was insufficient to convict him of common law assault and battery.
The State's evidence as to the time of the incident consisted of C.W.'s testimony that Robinson assaulted her sometime before her birthday on October 30th and Anthony's testimony that sometime between the beginning of the school year, September 7th, and C.W.'s birthday, C.W. told him that "something happened" to her. Petitioner testified that he recalled an incident from one Sunday in "the end part of September." C.W. emerged from the bedroom while her father was in the bathroom and asked Petitioner who had put her to bed, to which Robinson responded, "Your father." According to Petitioner, C.W.'s father returned from the bathroom and confirmed to C.W. that he was the one who had put her to bed. Based on this evidence, the jury could have concluded that Petitioner committed the alleged assault on C.W. prior to October 1, 1996. The evidence was therefore sufficient to support Petitioner's conviction of common law assault and battery until September 30, 1996. See State v. Albrecht, 336 Md. 475, 479, 649 A.2d 336, 338 (1994) (Evidence is sufficient to support a conviction on appeal if, "`after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979))).
The real weakness of the State's only remaining strand of its case against Petitioner on the assault and battery charge lies not in any jurisdictional defect in the indictment or in the sufficiency of the evidence as related to the time period from September 7th through September 30th. Rather, the remaining problem resides in trial error, in that the court permitted the jury to speculate whether the criminal act occurred after or before October 1st. If the jury convicted Petitioner of common law battery based upon conduct which occurred after September 30, 1996, Petitioner was convicted of a crime which was no longer an offense in Maryland. Accordingly, Petitioner's conviction must be reversed and the case remanded for a new trial on the charge of common law assault and battery with respect only to conduct committed prior to October 1, 1996.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY AND TO REMAND THE CASE FOR NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PRINCE GEORGE'S COUNTY.
Dissenting opinion by CHASANOW, J., in which CATHELL, J., joins.
CHASANOW, Judge, dissenting:
The majority holds that "the adoption of the assault statutes abrogated the common law crimes of assault and battery as of October 1, 1996." 353 Md. 683, 701, 728 A.2d 698, 706 (1999). I respectfully dissent.
If the common law crimes of assault and battery are abrogated by the statutory enactment of the three referenced assault statutes and if the common law crimes cease to exist, then the effect is to freeze common law assault battery as it was at the time it went out of existence and was replaced by the statutes. The best indication that this is not what was intended and the best indication
Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 12. It seems clear that the intent was to continue the common law crimes and the judicial development of assault and battery, rather than repeal or abrogate the common law crimes and have all new development of assault and battery a matter of statutory interpretation and ascertaining what the legislative intent was at the time the common law was abrogated.
A further indication that the legislature did not intend to subdivide common law assault and battery into two separate distinct statutory crimes, but instead intended to establish two different penalties for common law assault and battery can be found in § 12A-4(c), "Lesser included offense.—A charge of assault in the first degree also charges a defendant with assault in the second degree." The whole statutory scheme is consistent with enacting two penalties for all of the acts that constitute different forms of common law assault and battery. Every aspect of the legislation seems to contemplate continuation of the common law offense as well as ongoing judicial development of that crime. See, e.g., § 12A-3 stating: "A person charged with an offense under this subheading is entitled to assert any judicially recognized defense." The legislation under review is much more consistent with maintaining common law assault and battery, but establishing two penalties; one for the more aggravated degree and one for the lesser degree of the crime, and there is nothing to indicate an intent to create two new crimes and abrogate the common law offense.
The statutes at issue were intended to replace previous penalty sections covering aggravated assaults. Our construction of the replaced statutes has some relevancy to the construction of the new assault statutes. In Gleaton v. State, 235 Md. 271, 201 A.2d 353 (1964), the defendant argued that his ten-year sentence for common law assault was unlawful in view of the statutorily prescribed penalties for the statutory offenses of assault with intent to murder (fifteen years) and assault with intent to maim (ten years). This Court rejected that contention, noting that the penal limits for statutory assaults did not imply a legislative policy to limit the sentences for common law assault to not greater than those prescribed for statutory assault. Id. at 277, 201 A.2d 353. The Court stated: "Statutes in derogation of the common law are strictly construed, and it is not to be presumed that the legislature by creating statutory assaults intended to make any alteration in the common law other than what has been specified and plainly pronounced." Id. See also Roberts v. Warden, 242 Md. 459, 460-61, 219 A.2d 254, 255, cert. denied, 385 U.S. 876, 87 S.Ct. 156, 17 L.Ed.2d 104 (1966)(holding that creation of statutory assaults was not intended to make any alteration in common law other than what was specified and plainly pronounced). Additionally, as will be discussed, when construing similar statutes this Court has adopted a presumption that the legislature did not intend to abrogate the common law crime.
ANALOGOUS STATUTES
Where, as in the instant case, the legislature has taken a common law crime and subdivided it, creating statutory penalties for degrees of the crime, this Court has held that the common law crime is not abrogated by the statutory penalties. The primary examples are our first and second degree murder statutes, §§ 407-413. What we said in Hardy
39 Md. at 374.
301 Md. at 137-138, 482 A.2d at 481-82. Similarly when the legislature established penalties for robbery and robbery with a dangerous weapon by Md.Code (1957, 1987 Repl.Vol.), Art. 27, § 486 and § 488, this Court in several cases held that robbery retains its common law definition in Maryland, but that the penalties for armed and unarmed robbery are fixed by statute. See, e.g., Bowman v. State, 314 Md. 725, 729, 552 A.2d 1303, 1305 (1989); West v. State, 312 Md. 197, 202, 539 A.2d 231, 233 (1988).
In Grimes v. State, 290 Md. 236, 429 A.2d 228 (1981), we explained a primary difference between creating two statutory degrees of the same common law offense by two penalty statutes and creating two new statutory offenses, as well as the reason why the former construction is preferred. We said:
"The view that different statutory provisions may constitute the same crime, although in different degrees, has been taken by this Court with respect to certain common law offenses. Typically, this arises when the Legislature deals with a single common law offense and, without changing the basic common law elements of that offense, divides it for purposes of punishment because of the presence or absence of aggravating or mitigating factors. Thus, murder was one offense at common law, but, for purposes of punishment depending upon the presence or absence of premeditation and deliberation, the Legislature has classified it into two degrees. Similarly, robbery remains a single
Grimes, 290 Md. at 243-44, 429 A.2d at 231-32. The same reasoning we applied when construing the murder and armed robbery statutes ought to be applied to the analysis of the assault statutes.
THE RATIONALE OF THE MAJORITY
The majority acknowledges that "[i]t is a generally accepted rule of law that statutes are not presumed to repeal the common law `further than is expressly declared, and that a statute, made in the affirmative without any negative expressed or implied, does not take away the common law.' Lutz v. State, 167 Md. 12, 15, 172 A. 354, 356 (1934)(quoting 25 R.C.L. 1054)." 353 Md. at 693, 728 A.2d at 702. Why then does the majority reject this principle and hold that the common law crimes of assault and battery are abrogated by the statutes? It states:
353 Md. at 694, 728 A.2d at 703. Whenever it creates penalties for common law offenses, as in the assault statutes, as well as the murder and robbery statutes, the legislature obviously does not intend to leave loopholes or gaps so every statute establishing penalties for a common law offense is intended to cover "the entire subject matter" of the common law offense. In addition, every statutory scheme providing penalties for a common law offense divides the offense into degrees "unknown to the common law." Neither of the reasons cited by the majority justify departing from the presumption that, merely by establishing penalties for a common law offense such as murder and robbery, the legislature did not intend to abrogate the common law crimes. Indeed, if the reasoning in the instant case is followed, the Court has effectively overruled the many cases holding that murder and robbery still are common law crimes and retain their common law meaning.
When the instant case was heard in the Court of Special Appeals, a three-judge panel that included Chief Judge Joseph Murphy, the Chair of the committee that drafted the assault legislation, held that the statutes at issue merely provided penalties for common law assault and battery and did not abrogate the common law crimes. Its unreported opinion stated in part:
"[T]he language indicates a preference for retaining the common law by stating `[e]xcept as otherwise provided in this subheading, "assault" means the offense of assault, battery, and assault and battery, which terms retain their judicially determined meanings.' § 12(b)(emphasis added). While the language does not affirmatively retain the common law crime per se, the statute clearly intends to retain and
I agree with the analysis of the Court of Special Appeals and would, consistent with our prior decisions construing similar statutes, hold that in enacting the assault statutes the legislature intended to divide common law assault and battery into degrees and did not intend to abrogate the common law crimes. I would affirm Robinson's conviction.
Judge CATHELL has authorized me to state that he joins in the views expressed in this dissenting opinion.
FootNotes
"Multiplicity is the charging of the same offense in more than one count." Brown v. State, 311 Md. 426, 432 n. 5, 535 A.2d 485, 488 n. 5 (1988) (citing C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 2D § 142 (1982, 1987 SUPP.)). See also LAFAVE & ISRAEL, supra, § 19.2(e), at 457 ("A multiplicious indictment charges a single offense in several counts."). Arguably, if the State's contention that common law assault and battery was a cognizable crime after the enactment of statutory assault were correct, the indictment might be multiplicious. The defense's objection is thus more accurately characterized as multiplicity, i.e., that the State charged Petitioner with commission of the same criminal act in more than one count in the indictment. To the extent Petitioner was seeking a judgment of acquittal, or dismissal of the indictment, based upon such multiplicity, the court was correct in not granting such a request. See Brown, 311 Md. at 432 n. 5, 535 A.2d at 488 n. 5 (stating that multiplicity is considered pleading defect not fatal to indictment or information (again, citing WRIGHT, supra, § 142) and noting that some courts have held objection to multiplicious indictment or information waived if not raised before trial). See also LAFAVE & ISRAEL, supra, § 19.2(e), at 458 ("Multiplicity does not require dismissal of the indictment.").
The dissent is incorrect that the former aggravated assault statutes were merely penalty provisions. Also, the analogy to murder and robbery is inapposite. The common law does not include any offense known as "aggravated assault" or "aggravated battery." See R.M. PERKINS & R.N. BOYCE, CRIMINAL LAW Ch.2, § 2, at 158 (3rd ed.1982). The now repealed aggravated assault statutes were obviously more than mere penalty provisions: the offenses were unknown to the common law and were created by the General Assembly. See Williams v. State, 323 Md. 312, 322, 593 A.2d 671, 676 (1991) ("[T]he aggravated assaults ... are creatures of statute."). Furthermore, if the dissent were correct that in the new statutes the Legislature was simply assigning penalties and dividing the common law crimes of assault and battery into degrees, then the result would be that the common law would be replacing the statutory offenses of aggravated assaults. There is no authority nor precedent for this view. The 1996 enactment expressly indicates that this Act repealed former §§ 12 and 12A of Article 27 and enacted new sections in lieu thereof. See 1996 Laws of Maryland, Ch. 632, § 1, at 3616-17. See also Editor's note to current §§ 12 and 12A. Unlike the murder and robbery statutes analogized by the dissent, the 1996 assault statutes did not take a single common law crime, subdivide it, and create statutory penalties. On the contrary, the new assault provisions expressly repealed all former statutory aggravated assault offenses, as well as the crime of maiming, incorporated all forms of the crimes of assault and battery—whether under the former statutes or the common law, and established a bifurcated penalty scheme applicable to any and all possible assault offenses. We therefore consider our interpretation of the murder and robbery statutes inapposite to assault and are further persuaded of the Legislature's implicit intent to repeal the common law offenses of assault and battery.
Unlike the 1996 assault statutes, the 1809 division of the single common law crime of murder into first and second degrees under this State's statutory law for purposes of different punishments involved no revision of prior statutory law and hence those statutes acted solely as penalty provisions. See Gladden v. State, 273 Md. 383, 389-90, 330 A.2d 176, 180 (1974). Moreover, none of the murder statutes proscribes any act per se nor does any of the statutes add elements to the crime of murder that were unknown to the common law. Instead, each statute simply defines how different forms of murder shall be classified or punished. For instance, § 407 states in full, "All murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree." Meanwhile, § 412(b) provides that persons convicted of first degree murder, if at least eighteen years old and not mentally retarded at the time of the murder, shall be punished by death, life imprisonment without the possibility of parole, or life imprisonment.
Similarly, the original enactment of the robbery statutes, §§ 486 and 488, involved no substantive revision or repeal of any prior statutory offenses but rather only established different levels of punishment for the underlying common law offense. See Whack v. State, 288 Md. 137, 140, 416 A.2d 265, 266 (1980). Nor do the robbery statutes proscribe any act per se or add any elements to the crime of robbery. They merely state that persons convicted of the crime of robbery or robbery with a deadly weapon are guilty of a felony and are subject to certain penalties.
In stark contrast, the 1996 assault statutes, again, repealed and replaced prior statutory law while incorporating the common law; added elements to the crime of assault that are unknown to the common law; and expressly proscribed and set penalties for the commission of various types of assault. Finally, no succeeding amendment to the murder and robbery statutes has ever abolished the statutory scheme in place out of a preference for an entirely new and exhaustive scheme for the prosecution of such crimes, which is exactly the effect of the Legislature's 1996 revamping of the crimes of assault.
Comment
User Comments