dissenting:
The Court holds that the amendment of the statement of charges was not a matter of form, but constituted a change in "the character of the offense originally charged.” In so holding, the Court characterizes Gray v. State, 216 Md. 410, 140 A.2d 643 (1958), as being "inapposite.” I believe that Gray controls the disposition of this case, and I therefore dissent.
In Gray, the appellant was charged with violating Maryland Code (1951), Art. 27, § 44 (a) (currently Maryland Code (1976 Repl. Vol., 1980 Cum. Supp.), Art. 27, § 36B) by a "state warrant,” which captioned the offense as "Concealed Weapon” and charged in the body of the warrant that the defendant:
" 'unlawfully * * * [carried] a deadly and dangerous weapon, to wit: Two ’38 Caliber Pistols. ’ ”216 Md. at 413 (italics in Gray case).
The warrant failed to include a necessary element of the offense, i.e., whether the defendant carried the weapon "concealed upon or about his person” or "openly with the intent or purpose of injuring any person in any unlawful manner.” The case was transferred to the circuit court after the appellant prayed a jury trial. Prior to Gray’s trial, the warrant was amended over his objection to include the words "concealed upon or about his person.”
As in the present case, the Court in Gray was required to determine whether the amendment of the charging document affected the character of the offense charged. We stated:
"The real question then is whether the amendment of the state warrant changed the character of the offense charged therein. We think it is clear *681that it did not. The heading or titling was sufficient to show that it was a 'concealed weapon’ warrant. It was so captioned on its face. Thus the warrant, even without amendment, actually informed the defendant of the charge against him in non-technical terms in that it set forth a charge that the defendant 'unlawfully carried’ two 'deadly and dangerous weapons.’ The amendment did not change the basic description of the offense. It merely specified the manner in which the defendant unlawfully carried the two pistols, that is, 'concealed upon and about his person,’ instead of 'openly with the intent and purpose of injury to any person in any unlawful manner.’ ” Id. at 416.
Because the warrant’s caption clarified the character of the offense charged in the body, we held in Gray that the subsequent amendment of the warrant did not change the character of the offense charged.
In the present case, the Court states that the criminal offense of resisting arrest requires an additional element beyond those elements necessary to prove the offense of resisting, hindering, or obstructing a police officer in the performance of his duties, namely, "resistance to a lawful arrest made by an officer of the law in the performance of his official duties.” That additional element was succinctly described by the caption of the statement of charges — the defendant was informed that he resisted arrest by a police officer who was acting in the lawful execution of his duties. Thus, when the charging document was corrected by amendment the description of the offense was not changed any more than it was changed in Gray. As in Gray, there is no inconsistency here between the caption of the warrant and its body. As in Gray, the language of the caption clarified the character of the offense charged in the body of the charging document. Clearly, the defendant, in preparing a defense, knew that he was charged with the common law offense of resisting arrest.
*682We indicated in Thanos v. State, 282 Md. 709, 387 A.2d 286 (1978), that the holding of Gray remains viable. We stated at 282 Md. 715:
"Insofar as Gray may suggest that a charging document, alleging a violation of a Code section which prohibits several different acts, may be amended to charge an act not alleged in the original document, especially after jeopardy has attached, we hereby specifically repudiate it. As for our holding on the actual facts in Gray, however, the decision retains its precedential value. In that case, the statute forbade both the wearing or carrying of deadly weapons concealed about one’s person and the wearing or carrying of such weapons openly with the intent to injure another. Md. Code (1951), Art. 27, § 44(a) (now codified, as amended, at Md. Code (1957, 1976 Repl. Vol.), Art. 27, § 36(a)). The warrant charged defendant with carrying a deadly weapon and was titled a 'concealed weapon’ warrant; it was subsequently amended, at the beginning of the trial, to add in the text of the warrant the words 'concealed upon and about his person.’ Two factors distinguish Gray from this case: In Gray the caption of the warrant showed that it was a 'concealed weapon’ warrant, and hence 'even without amendment, actually informed the defendant’ which of the two proscribed acts he was charged with, 216 Md. at 416, 140 A.2d at 646; the amendment 'did not change the basic description of the offense.’ Id. In addition, without evaluating its effect, we note that the amendment was made before jeopardy attached.” (Emphasis supplied.)
Gray should control this case in view of the similarity of facts and circumstances.