concurring in part and dissenting in part.
I concur in Part (1) of the opinion of the Court, but respectfully dissent from Part (2).
In order to put the issue, as I see it, in perspective, some additional facts should be stated. In the discussion between court and counsel of requested instructions, defense counsel asked that he be allowed to argue to the jury that the indictment included two offenses, those set forth in Md. Code (1957, 1976 Repl. Vol.), Art. 27, § 30 (b) and § 31A. This foundation for the proposed argument has been rejected. Defense counsel then contended that the defendant "has a right to any reasonable instruction which reasonably encompasses the facts of the case as proven; and, your Honor, I would combine that argument both that I be allowed to tell the jury about this other crime and § 31A and also that the instruction be given.” When the State argued that § 31A was not charged, that its injection into the case would be confusing, and that it would be improper to introduce penalties and severity levels of the different crimes, defense counsel stated that he proposed to "stop reading where [§ 31 A] says a misdemeanor or felony.” Thus, when the trial court denied defense counsel’s request, it in effect would not permit defense counsel to read from the Maryland Code the following: "Any person who breaks and enters the dwelling house of another is guilty of a [crime].”
In its instructions to the jury the trial court included the following passage:
The fact that the Defendant has been accused is no proof or is no evidence that he is in any way guilty of the crime with which he has been charged, and even if you should ñnd from the facts that he may be guilty of some other crime than that with which he is charged or for which he is indicted, that *697is not to be evidence of guilt in this matter.
[Emphasis supplied.]
Defense counsel, in his summation, just prior to concluding with a final reference to the reasonable doubt burden of proof, argued:
Now, the State has elected to charge the Defendant with this particular offense, and it has the elements that the State has shown you, and by their election to charge the Defendant with this particular crime, they have the burden of proving every element in this crime.
It may be that you feel that some other crime was committed, but, ladies and gentlemen, you can’t convict Mr. Hawkins of the crime of daytime housebreaking as charged because you feel there may have been other criminal acts he committed. You have to find that he committed this particular crime chosen by the State.
Where the trial judge is said to have erred was in excluding from the foregoing argument a reading of the elements of the crime set forth in § 31 A. The test for error by a trial court in restricting final argument of defense counsel is whether there has been an abuse of discretion. Eley v. State, 288 Md. 548, 556, 419 A.2d 384, 388 (1980). In my view, the facts here fall far short of meeting that standard. I fail to see how prohibiting the reading of the law of a crime which is not charged constitutes an abuse by the trial judge of the discretion vested in him to control the arguments of counsel. While "[t]here are no hard — and — fast limitations within which the argument of earnest counsel must be confined” and counsel are allowed "liberal freedom of speech,” the "arguments of counsel are required to be confined to the issues in the cases on trial. . . .” Wilhelm v. State, 272 Md. 404, 413, 326 A.2d 707, 714 (1974).
I have no quarrel with the proposition illustrated by cases like United States v. Roberts, 583 F.2d 1173 (10th Cir. 1978), *698cert. denied, 439 U.S. 1080, 99 S. Ct. 862, 59 L. Ed. 2d 49 (1979) and Turberville v. United States, 303 F.2d 411 (D.C. Cir.), cert. denied 370 U.S. 946, 82 S. Ct. 1596, 8 L. Ed. 2d 813 (1962). In those cases one defendant sought a new trial claiming prejudice resulting from the argument of counsel for a co-defendant. It was held to be proper for the co-defendant to have argued that the evidence established, or may have established, a lesser offense than the more serious offense which the co-defendant contended had not been proved. In the instant matter, defense counsel made such an argument. But here, counsel also sought to read the law of the lesser crime to the jury. In this respect People v. Flanders, 183 Colo. 268, 516 P.2d 418 (1973), is in point.
Flanders was an appeal from a conviction for attempting the statutory crime of burglary of a coin telephone. The defendant had been apprehended inside the telephone booth with a hammer and pry bar. There was debris on the floor of the booth and the telephone was damaged. Its coin box contained $2.10. As his defense the defendant asserted that he had not formed the intent to break into the coin box until he was inside of the booth and consequently was not guilty of attempted burglary as charged, but only of attempted theft. Requests for instructions on the distinction between felony and misdemeanor theft, and for permission to argue this distinction in closing argument, were denied. The Colorado Supreme Court found no error in this ruling because "[t]he degree of theft was not material to the charge of attempted burglary.” 183 Colo, at 269-70, 516 P.2d at 419. In the instant matter the Court has taken pains to demonstrate that Article 27, §§ 30 (b) and 31A constitute separate crimes. The elements of § 31A are not material to a charge of violating § 30 (b).
The role of a jury in a criminal trial in Maryland, as the judge of the law under Article 23 of the Declaration of Rights, does not make the trial court’s ruling in this case an abuse of discretion. In Stevenson v. State, 289 Md. 167, 179, 423 A.2d 558, 564 (1980), we said:
*699In fact, viewed affirmatively, the past decisions of this Court make it quite evident that the jury’s role in judging the law under Article 23 is confined "to resolv[ing] conflicting interpretations of the law [of the crime] and to deciding] whether th[at] law should be applied in dubious factual situations,” and nothing more. Dillon v. State, 277 Md. 571, 581, 357 A.2d 360, 367 (1976) .... [Emphasis in original.]
The "law of the crime” is the law of the crime charged and not that of some other crime which is not charged.
The issue in the case at bar was whether the State had established beyond a reasonable doubt every element of a violation of § 30 (b), including, here, the intent to steal. It was not whether the defendant had violated § 31 A. There is no contention that argument attacking the sufficiency of the proof of intent was restricted. When defense counsel sought to expand his argument from one of fact to one of law, concerning the elements of another crime, and the State objected, the trial judge had to rule on relevancy. In considering the relevancy of the proffered legal argument, the trial court made its judgment of the scope of the legal issues presented concerning the elements of crime by standing on the bedrock of the charging document. The Court today has unfortunately eroded that foundation and, more remarkably, has implicitly labeled reliance on that foundation an abuse of discretion. I see no abuse of discretion in a trial judge restricting legal arguments to the jury about the elements comprising one or more crimes to the elements of the crimes charged. Indeed, I am at a loss to determine what other standard the trial court should have applied here.
Chief Judge Murphy has authorized me to state that he joins in the views expressed in this concurring and dissenting opinion.