State v. Saul

Melvin, J.,

concurring in part and dissenting in part:

For the reasons stated by Chief Judge Murphy of the Court of Special Appeals in his dissenting opinion reported in Saul v. State, 6 Md.App., pp. 551-555,1 respectfully dissent from the holding of the majority that the lower court committed reversible error when, in defendant’s involuntary absence, it complied with the request of the jury for a copy of the provisions of Maryland Code, Article 59, Section 9 (a). Chief Judge Murphy at page 554 of his dissent said:

“None of the cases relied upon by the court in my judgment provide authority for its hold*109ing that merely sending a copy of the statute to the jury, vender the circumstances of this case, constituted a reinstruetion or further jury charge. I am furthermore of the view that the trial judge under Maryland Rule 558, applicable in criminal cases by reason of Rule 757, has discretion to permit the jury ‘upon retiring for deliberation’ to take with them into the jury room ‘such of the pleadings, granted prayers or written instructions * * * as the court may deem necessary for a proper consideration of the case.’ 1 think the trial judge was empowered by this Rule to send a copy of Article 59, Section 9(a) to the jury whether or not requested by them, as it was, in effect, one of the instructions previously given in the case to the jury, to which no exception had been taken. I think that in exercising his discretion under this Rule, the judge’s action would not constitute a ‘stage of the trial’ or a reinstruction under Young, requiring the presence of the appellant as a matter of law.
“The court states in its opinion that even if the submission to the jury of the copy of the statute was not an instruction but only a mere ‘communication’, there was still reversible error under Midgett and Young because the record does not affirmatively show that such communication was not prejudicial or had no tendency to influence the verdict of the jury. I believe the very provisions of the statute upon which appellant was relying to establish his claim of insanity could in no event be considered prejudicial to his case, and I also believe that mere submission of the statute to the jury, under the circumstances of this case, had no tendency ‘to influence the verdict of the jury’ in the sense that that phrase was intended to be applied in Midgett and Young.” (Emphasis added.)

However, I concur with the result reached by the ma*110jority, i.e., that the judgment of the Court of Special Appeals be affirmed. In my opinion the failure of the trial court to “direct the jury to render a special verdict on the sanity of the defendant at the time of the alleged crime” as required by Maryland Code, Article 59, Section 9 (b), was reversible error. For this reason alone I would affirm the judgment of the Court of Special Appeals remanding the cases for a new trial.