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 that the assault statutes are merely penalty statutes establishing the penalties for different forms of common law assault and battery can be found in the published committee note by the committee that drafted the statutes. It states:
“COMMITTEE NOTE (COMMITTEE TO REVISE ARTICLE 27)
Similar to the revision of the burglary law, the Committee has chosen to retain the judicially determined meanings of *706the terms ‘assault,’ ‘battery,’ and ‘assault and battery.’ The meaning of these terms has been extensively developed at common law and case law. See e.g., Lamb v. State, 93 Md.App. 422, 613 A.2d 402 (1992). Also, as with the burglary revision, the Committee does not intend to ‘freeze’ the meanings of these terms, but expects that they will continue to be clarified when appropriate in future case law.”
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 *707Md. 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 v. State, 301 Md. 124, 482 A.2d 474 (1984), is equally applicable to the instant case, including our prior discussion about the charging documents:
“In 1809, the General Assembly enacted a comprehensive codification of various common-law offenses. [Chapter] 139 of the Acts of 1809. This legislation, modeled on a 1794 Pennsylvania statute, divided the crime of murder, as known at common-law, into first and second degree murder. See Campbell v. State, 293 Md. 438, 441, 444 A.2d 1034, 1036 *708(1982). In a seminal decision interpreting this 1809 Maryland law, our predecessors stated that this law did ‘not create a new offense in distinguishing between murder of the first and second degrees. The design was to discriminate in awarding the punishment[,]’ Weighorst v. State, 7 Md. 442, 451 (1855), not to define new crimes. Davis v. State, 39 Md. 355, 373 (1874). Thus, from Weighorst to the present, we have consistently maintained that the 1809 Act did not abolish the common-law concept of murder, but merely divided it into degrees for punishment purposes. E.g., Campbell v. State, supra, 293 Md. at 441, 444 A.2d 1034; State v. Ward, supra, 284 Md. at 205, 396 A.2d 1041; Newton v. State, 280 Md. 260, 268, 373 A.2d 262 (1977); Gladden v. State, 273 Md. 383, 389-90, 330 A.2d 176 (1974); Stansbury v. State, 218 Md. 255, 260, 146 A.2d 17 (1958); Davis v. State, supra, 39 Md. at 374; Weighorst v. State, supra, 7 Md. at 451. That one may be charged with common-law murder in lieu of the shortened statutory form prescribed in § 616 of Article 27 is well-settled. State v. Ward, supra, 284 Md. at 200-01, 396 A.2d 1041; Wood v. State, supra, 191 Md. at 667, 62 A.2d 576. Equally well-settled is that one may be convicted of first-degree murder under an indictment charging common-law murder. Our predecessors originally noted this proposition in Davis v. State, supra:
“When, therefore, a person is indicted for murder, in the technical language of the common law, he is charged with a crime, which in its proper sense, includes all circumstances of aggravation, and as all minor degrees are included in the major, he is liable to be convicted of the inferior, as well as of the higher grades of that offense, and vice versa.’
39 Md. at 374.
Based on these principles an indictment charging common-law murder is sufficient to sustain a conviction for either first or second-degree murder or manslaughter. Evidence presented at trial and the verdicts will determine the level of criminal culpability and hence the punishment for the *709offense. Our research has not revealed any Maryland appellate decision that has questioned the validity of these principles.” (Footnote omitted)
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 common law offense, but the Legislature, in separate statutory sections (Art. 27, §§ 486 and 488) has provided greater punishment if a dangerous or deadly weapon is used. However, with regard to such offenses, the greater degree includes the lesser degree. The lesser degree of the same offense ‘must be treated as a lesser included offense,’ Sweetwine v. State, 288 Md. 199, 201 n. 1, 421 A.2d 60, cert. denied, 449 U.S. 1017, 101 S.Ct. 579, 66 L.Ed.2d 477 (1980), and cases cited. *710Because of the consistent holdings of this Court that §§ 32 and 342 are mutually exclusive insofar as they encompass storehouse breaking with larcenous intent, the two statutes could not constitute different degrees of the same offense as this Court has used that concept. Moreover, neither statute embodies a common law offense. Rather, the offenses embraced by the two statutes are legislative creatures.”
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:
“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.”
*711353 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 ‘[ejxcept 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 promote the common law that had evolved up to the time the statute was enacted. Moreover, there is no conflict whatever between the statutory definition of second degree assault and the common law offenses of assault, assault and battery, and battery. Unless aggravated to the greater offense of first degree assault by the use of a firearm or intent to cause serious physical injury, the common law *712offenses are second degree assault, for which the statute now provides a maximum penalty.
Reviewing the legislative history of this statute is also instructive. Although the records are scant, our review of the bill file does not indicate an intent of the legislature to abolish the common law offense of assault and battery. For example, 1996 Md. Laws, Chap. 632, the precursor to the present statute, states the act was drafted
‘[for] the purpose of revising and restating the laws concerning crimes involving physical injury and threatened physical injury; replacing provisions of law on assault with intent to commit certain offenses ...; establishing the crimes of first and second degree assault ...; repealing crimes related to mayhem and maiming; making stylistic, conforming, and substantive changes to statutory provisions that include references to assault-related offenses; ... repealing an obsolete reference; ... and generally relating to the law of assault and crimes involving threatened and actual physical harm. (Emphasis added).’
Letters and summaries within the bill file recite much of the same language.
What we find most persuasive is the legislature’s choice of wording with regard to the effect of this bill. For instance, the above section states the act was to revise, restate, or replace the common law and prior assault statutes laws, not to' repeal or abolish them. It does specifically repeal, however, the common law crimes of mayhem and maiming. Had the legislature intended on repealing the common law crime of assault in favor of the sections 12, 12A, and 12A-1, it clearly could have done so.
Notwithstanding the lack of apparent legislative intent to repeal common law assault and battery, the statute actually ‘moves up’ certain types of assaults to felonies, thus increasing the magnitude of the status of the crime and often the sentences imposed for certain particularly egregious acts. See Art. 27, § 12A. The result is not a repeal or removal of the common law crime; it reclassifies certain conduct and *713prescribes certain penalties for it. Therefore, the codification of this assault and battery statute really is more of a punishment statute than one attempting to supplant a common law crime.” (Footnote omitted).
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.