dissenting in part, filed the following dissenting opinion, in which HorkEy, J., concurred.
The Maryland Court of Appeals has just held, for the first time in its history, that when one is accused of crime by an indictment, the State is entitled to have one count of the indictment assisted or enlarged by another count thereof, though there was no reference to, or incorporation of, the assisting count in the count that was aided or enlarged. In so far as the subject has been called to our attention (and our extensive personal research has developed nothing to the contrary) it is the first such holding in the entire United States or England. Such a ruling has a terrific impact upon the very vitals of some of the rudimental principles of the criminal law as it has been developed in these countries.
It is assumed, in writing this dissent, that any who desire to read it have read the majority opinion. At the outset, it seems appropriate to mention a few of the unusual features of the case. In the beginning, it looked like a rather simple one presenting three not unusually difficult questions for our determination; yet, the Court has spent many hours of deliberation in deciding these questions, and we still are not in agreement. The first question (all similar references are to the majority opinion unless otherwise noted) presented no difficulty, but the second and third have. When the original opinion was filed, the author of the present majority opinion agreed with the then majority on questions two and three, but two members of the present majority dissented on the grounds of those two questions. Daily Record, December 9, 1957. The present majority opinion means that those two members of the Court changed their positions on question two and the author thereof changed his on question three. This, with the original concurrence of all three on question one constitutes the present majority opinion.
It was unique at the reargument, which was held jointly with the reargument of McCoy v. State, 216 Md. 332, 140 A. 2d 689, in that counsel for both defendants and the representatives from the Attorney General’s office frankly stated in open court that they had read the original opinion in the Beard case, and could find no fault with It. Nothing new *322developed at the reargument, nor were new citations of authority offered. Practically all, if not all, of the citations in the present majority opinion were contained in the previous majority and dissenting opinions. Beard’s counsel confined his argument to what he claimed was unfairness in the procedure of allowing the jury to consider the question of previous convictions at the same time it was considering the question of guilt of the current offense. This was settled in the Maguire case many years ago. All three of the questions to be determined have given the writer little trouble, believing their solution properly lies in an application of the fundamental principles of the criminal law as established by adjudicated decisions of this Court.
I, wholeheartedly, concur in the result reached on questions one and two; but I am firmly convinced that the third question of going into one good count of an indictment to assist another good count without reference thereto in the count assisted, should be decided in accordance with the Becker, Watson and Briggs cases, all to be referred to later. It is universally recognized that it is elementary in criminal procedure that each count of an indictment must state a separate and distinct offense. It was said in Latham v. The Queen, 9 Cox’s C. C. 516, 520: “But where there are two counts in an indictment, they are to all intents and purposes two separate indictments * * This rule has been consistently upheld by this Court in such cases as Simmons v. State, 165 Md. 155, 167 A. 60; Imbraguglia v. State, 184 Md. 174, 40 A. 2d 329. Of course, one count may refer to matter in another count so as to avoid unnecessary repetition (no such attempt was made in the instant case), and if the reference be sufficiently full to incorporate such matter with that in the count in which reference is made, the validity of the latter count is not affected. P., W. & B. R. R. Co. v. State, 20 Md. 157, 163; Cohen v. State, 173 Md. 216, 220, 195 A. 532, 196 A. 819; Imbraguglia v. State, supra.
Before the majority decision herein, the following would seem to be a correct statement of the rule with reference to a charge that one is an habitual criminal or has been guilty of a previous offense, derived entirely from the adjudicated *323decisions. When a statute provides that under certain conditions a person shall be deemed to be an habitual criminal, or provides a heavier penalty for an offense if the accused has been previously convicted, and does not name the mode in which the accused shall be notified that he is charged as an habitual criminal or previous offender, such charge must be contained in the indictment. Maguire v. State, 47 Md. 485. (This is conceded by the majority — see the additional authorities named in their opinion. If a statute provided otherwise it would be unconstitutional, Goeller v. State, 119 Md. 61, 85 A. 954.) The preferable method of preparing the indictment is to charge the current offense in one count and the current offense plus the previous conviction (this also alludes to an habitual criminal charge) in another count; or it may be done by charging the current offense plus the previous conviction in one count alone, under which, by proper instructions from the court, the accused may be found either guilty of the current offense, alone, or he may be found guilty of the current offense and the jury may further specifically find the previous conviction as an historical fact, which would permit the heavier penalty. (This practice was specifically approved in McCarren v. U. S. (C. C. A. 7th), 8 F. 2d 113, 115 as well as the Maguire case, supra, 47 Md. 485. We were informed at the argument that this is the present practice in Baltimore City, and I know of no county where, prior to the majority opinion, a contention that one count of an indictment could assist another, without incorporation, would have been given serious consideration.) The accusation of being an habitual criminal or having committed a previous offense does not charge a separate crime or offense, but permits enlarged punishment for the current offense. Maguire v. State, supra; McDonald v. Massachusetts, 180 U. S. 311; Graham v. West Virginia, 224 U. S. 616. While bad pleading and not to “be followed by good pleaders” unless a statute or rule of court permits the same, some jurisdictions have permitted the previous offense to be placed in the indictment in a separate paragraph or “count,” provided the separate paragraph or “count’1 merely sets forth the previous conviction or habitual criminal charge, and *324is not a real and complete count in itself (which is the situation in the case at hand). Becker v. U. S., supra; Watson v. People (Ill.), 25 N. E. 567; State v. Briggs (Kan.), 145 P. 866; Smiddy v. Commonwealth (Ky.), 152 S. W. 2d 949; Rawlings v. Commonwealth (Ky.), 230 S. W. 529; Jones v. State (Neb.), 22 N. W. 2d 710; State v. Rigsby (W. Va.), 20 S. E. 2d 906; Goodman v. Kunkle (C. C. A. 7th), 72 F. 2d 334; Ex parte Kuwitzky (Neb.), 282 N. W. 396. This includes every case cited by the majority on this point; no case so cited went any further than the rule just stated and, even when going that far, stated that such indictments were “inexpertly drafted” and “should not be followed by good pleaders.” Becker v. U. S., supra, 36 F. 2d 473, relied on very heavily by the majority. The exact question presented in the instant case was presented to the Supreme Court of Illinois in Watson v. People, 25 N. E. 567. There the indictment was in four counts, the fourth of which may be disregarded because it was a mere duplication of the second. The first count charged burglary, the second also charged burglary, but without force in the entry, and the third charged the same burglary and alleged a prior conviction. When the case was tried, the penalty was to be fixed by the jury in accordance with statutory provisions under which a first offense was punishable by imprisonment for not less than one or more than twenty years, and a second offense was punishable by imprisonment for a fixed term of twenty years. The trial court instructed the jury that if it found that the defendant committed the crime charged in the first count and if it further believed from the evidence that he had been found guilty of the previous offense, then the jury should find the defendant guilty and fix the penalty at twenty years' confinement. The jury found the defendant guilty and fixed his penalty at 20 years. The Court stated:
“It is impossible to sustain this conviction without disregarding well-established rules of law applicable to criminal trials. As will be seen from the foregoing statement, the attention of the jury was specially directed to the first count of the indictment *325* * *, and they were directed to fix the prisoner’s term in the penitentiary at 20 years if they found he committed the crime charged in that count. It is true, it requires the jury to also believe from the evidence that the defendant had been previously convicted of the crime of burglary and larceny, and sentenced to the penitentiary, but it does not require that belief to be based on any charge made in the first count, or in fact in any count of the indictment. The first count does not charge a former conviction. It is an ordinary count for burglary, and, upon a conviction under it, the jury could fix the punishment at confinement in the penitentiary for any number of years, not less than 1, nor more than 20. It was therefore error to instruct it to fix the term absolutely at 20 years if the finding of guilty was based on that count. It is said, however, that the allegation of former conviction (contained in the 3rd count) may be referred to, and treated as a part of, the first count. This position cannot be maintained. By all the rules of criminal pleadings, where an indictment contains several counts, each count is to be treated as a separate charge, and must be complete within itself, except that for some allegations subsequent counts may refer to the first or former counts. Here, however, there is no attempt to make any allegation in the indictment a part of the first count, except that which expressly appears in it. It cannot be seriously contended that this indictment does not contain four separate and distinct counts, the third of which alone charges a former conviction. The pleader very properly put in these several counts, so that, if his proof failed to meet the third, he might convict on either the first or second. After the proof was in, he evidently intended to insist upon a verdict on the one charging the former conviction, but by mistake wrote ‘first count’ in his instructions instead of ‘third count.’ The effect of that mistake cannot be avoided by now attempting *326to make the first count charge that which it does not, and which manifestly it was not intended to charge.” (Emphasis supplied.)
At the time of the writing of the original opinion, I had not discovered the Watson case. After discovering the decision by that Court, one for which there is great and widespread respect, it was very gratifying to see how closely the previous majority opinion had paralleled the reasoning of that Court, as well as the Supreme Court of Kansas in State v. Briggs, 145 P. 866 and the Circuit Court of Appeals (3rd) in Becker v. U. S., 36 F. 2d 472, all of which are cited in the majority opinion. These are the only three cases that have come to our attention wherein the exact question under consideration has been raised. In the Briggs case, supra, the Supreme Court of Kansas arrived at the same conclusion that the Supreme Court of Illinois had in the Watson case, and for the same reasons; in the Becker case, relied upon heavily in the majority opinion, the Court recognized the soundness of the principles of law enunciated in the Watson and Briggs cases and held that the “paragraph” or “count” in the Becker case was not a “real count” in any sense of the word, so it could properly be treated as an “addendum” to the other counts. This case will be referred to later.
It should be remembered in considering the instant case that each and every count of the indictment was a real count, sustainable as against demurrer, and was not a “paragraph,” an “addendum,” a “footnote” or something that was labeled a “count” but in reality was not a count, such as were dealt with in many of the cases cited in the majority opinion.
The majority opinion states: “Cases in other jurisdictions agree with the Maguire case in holding that the prior offense is not an element of the current offense,” (emphasis supplied) and then cites several cases. This statement is accurate only to the limited extent that “current offense” is defined in that opinion. For instance, the prior offense is not an element of the current offense in the sense that the prior offense must be proved in order to sustain a finding of guilt of the current offense if there is to be no increased punishment; *327but in the sense that the prior offense or offenses will authorize an increase in the sentence (in this case it could have amounted to 10 and did amount to 5 years) upon conviction of the current offense, it is a very real element and ingredient in the power to punish. In fact, the Maguire and other cases cited at this point, with the exception of the Mellor case, simply hold that accusing one to be an habitual criminal or with having been previously convicted of an offense, does not of itself charge an offense. (In the present case, there has been no such contention.) That such holdings by those cases support the statement that “(c) cases in other jurisdictions agree with the Maguire case in holding that the prior offense is not an element of the current offense” seems, at least, doubtful when we quote from two of the cases cited by the majority opinion as sustaining the same. In Barr v. State (Ind.), 187 N. E. 259, 261 it was said: “whether the section intended to prescribe merely increased punishment for habitual offenders or create a new offense, * * *, the allegation of a prior conviction was a necessary element in the so-called felony; that the prior conviction was an element to be proved; but, ‘It was not, however, an integral part of the crime charged, in the sense that the defendant’s guilt or innocence of the first violation of the act had to be inquired into and determined by the jury.’ ” (Emphasis supplied.) In the Becker case, 36 F. 2d 472, 473, relied upon so heavily by the majority, we find: “the indictment, charging the accused of being a second offender, must set forth the fact of the prior conviction, as that is an element of the offense in the sense that it aggravates the offense described in the indictment, and authorizes the increased punishment.” (Emphasis supplied.) In still another case cited by the majority, though not at the particular place under discussion, People v. Sickles, 51 N. E. 288, the Court of Appeals of New York stated: “In such a case as this, the charge is not merely that the prisoner has committed the offense specifically described, but that, as a former convict, his second offense has subjected him to an enhanced penalty. In Wood v. People, supra, it was held that it was an essential ingredient of the aggravated offense, charged upon the accused, that the alleged *328felony was committed after a former conviction of an offense, and that the prior conviction entered into and made a part of the offense of which the accused was convicted.” In Massey v. U. S. (C. C. A. 8th), 281 F. 293, 298, that Court stated: “The statement of a prior conviction is regarded as a part of the description and character of the offense intended to be punished, and as an essential ingredient of such aggravated offense.” (Emphasis added.) Innumerable cases to like effect could be cited. I suggest that the prior offense is an element of the current offense in the sense and to the extent, and only in the sense and to the extent, that it authorizes increased punishment, which is an important factor when it can mean an additional 10 years’ confinement. It seems obvious that it must be an element in some sense; otherwise it would not be compulsory that it be in the indictment at all. But this Court has held many times, beginning with the Maguire case and it is conceded by the majority, that the averment of the previous offense must be in the indictment. I have mentioned this because the majority concede that it is vital to their ruling that the previous offense constitutes no element of the current offense charged.
This brings us to the vital and concluding portion of the discussion. The majority state: “Other cases adopting this view and supporting a result contrary to that of Watson v. People, * * * 25 N. E. 567 (no mention is made of the Briggs case, supra, 145 P. 866) * * * are,” and then cite seven cases, some of which are from the same jurisdictions. If I could agree with my colleagues who constitute a majority upon their analyses of these cases, I would be doing what I strongly suspect they are (This is a beautiful Sunday afternoon), and not writing this opinion. The following statement is made, fully realizing that each decision is reported and open to inspection by any interested party: There is not in any one of the cases cited a holding that the State, as was done in the case at bar, may go into another real count of an indictment and obtain aid for another complete count, either to allow increased punishment or otherwise, unless reference to, and incorporation of, the assisting count is made in the count assisted. The sum-total of the holdings amounts to *329rulings that when a person is charged with being an habitual criminal (in those jurisdictions that have such statutes and punish therefor upon conviction of the current offense) or with having committed a previous offense (for which a higher penalty is exacted if that person be convicted of a current offense), the charge of being an habitual criminal or that the previous offense has been committed does not constitute charges of distinct offenses, but merely permits an increased punishment if the accused be found guilty of the current offense; consequently, the habitual criminal charge or the charge of the previous conviction, although bad pleading, may be made in a separate paragraph or “count” (whatever it may be termed) in the indictment that alleges, alone, that the accused was an habitual criminal or a previous offender, not that the previous conviction could be alleged, as in the instant case, in a true count that charged a complete offense and that this allegation of the previous offense could assist another real count in justifying an increased punishment, without reference being made thereto in the latter. This last mentioned question was discussed and decided in the Watson, Briggs and Becker cases (and was discussed to a less degree in the Kunkle case) all supra, and those cases only.
I shall not attempt an analysis of each case cited by the majority; however, as they rely very heavily upon Becker v. U. S., supra, 36 F. 2d 472, and the opinion therein is quite short, a brief analysis of it seems appropriate. There, the first three counts of an indictment charged unlawful sales of liquor, the fourth unlawful possession of liquor, the fifth maintenance of a nuisance, and the sixth “count” a previous offense, alone. The jury found, as far as we are interested in the verdict, the defendant guilty on the 4th count and the historical fact, alleged in the 6th “count,” that the defendant had been previously convicted. He was sentenced as a second offender. The defendant raised the same question presented in this case, namely, that one count of an indictment cannot assist another unless incorporated in the latter. Our majority opinion quotes the Circuit Court of Appeals when dealing with this subject as follows: “We follow the defendant on the elementary principles of law that a count *330* * * is regarded in law as containing a complete statement of the cause of action or a complete charge of crime; that where an indictment contains several counts each count is treated as a separate charge as completely as though the several charges appeared in separate indictments, Watson v. People, 134 Ill. 374, 25 N. E. 567; State v. Briggs, 94 Kan. 92, 145 P. 866; that an essential element of a crime cannot be omitted, nor can the omission be supplied by intendment, implication, of recital * * *; and that infirmity in one count cannot be cured or its averments aided by another count * * *.” Here, their quotation ceases, but the very next sentence that completes a paragraph states: “In order to meet the question squarely, we concede that these rules apply to charging crimes under the National Prohibition Act (27 USCA).” The statement demonstrated that the Court realized the precise question presented, and was an acknowledgment and a sustaining of the soundness and the applicability of the rules enunciated in the Watson, Briggs, Simmons and Imbraguglia cases, all supra. It meant that the decision in that case (as the one in the instant case should have) turned upon whether the allegation of the previous offense in the 6th “count” was a real count or not. If it were a true count, under the elementary principles of the criminal law as restated in the Watson, Briggs, Simmons and Imbraguglia cases the defendant there could not be sentenced as a second offender. The Court then goes on to show that while the allegation of the previous offense was contained in a paragraph termed “Sixth Count,” the paragraph was not, in reality, a count at all. The opinion consumes much space in pointing out that it was not a true count, and, by the clearest implication possible, states that if this 6th “count” were a real count, it could not assist any other count in the indictment, and the defendant could only be sentenced as a first offender. Making what had already been made clear doubly certain of being clear, the Court states: “Not being a count in any sense and therefore not being used in aid of another count, we see no reason why it should not be taken for just what it is, an addendum to or a part of the other counts * * *.” (Emphasis supplied.) The opinion then concludes *331that even in going that far, “* * * we recognize that the counts were inexpertly drafted and should not be followed by good pleaders.” Our majority opinion not only fails to heed this advice, but goes the Becker decision one better. It holds that that case is authority, not only for the proposition that the previous offense may be alleged in a paragraph that is not a “count,” but for the ruling that one perfectly good count may be aided by another perfectly good count, without incorporation, something that the Becker opinion made crystal clear could not be done.
The requirement that each count in an indictment state a complete offense and not be aided by another without incorporation is not a mere technicality. It is a sound and salutary principle of criminal pleading with a time-honored background. All indictments are not simple: some contain many counts. In Simmons v. State, supra, 165 Md. 155, the indictment contained 18 counts. In many such cases and even in those more simple, it presents a real problem to come to the trial table prepared to meet the charges contained in the several counts; but to hold that an accused must come prepared to meet them, as well as any combination that may be derived from them, would seem to place an accused person in a dilemma never contemplated by the criminal law.
I fully realize that in an appellate court there is an occasional temptation to become peccant (meaning only transgressive) in relation to the doctrine of stare decisis, especially on questions not subject to review; however, I have a profound respect for that doctrine and keenly feel that it should be transgressed only for the most urgent and impelling reasons, never because of expediency or personal philosophy. Because I believe the majority opinion infringes upon the rulings of this Court in the Simmons and Imbraguglia cases, supra, (and any others like them) I am unable to concur in it. As the accused was charged with, and convicted of, being a second offender, I think he should have been sentenced as such.