O'Donnell, J., dissenting:

I agree, as pointed out by the majority, that a lack of rational compatibility between verdicts announced by a jury under an indictment containing two or more counts, usually referred to as "inconsistency," has generally been rejected as a basis for reversing the conviction of an otherwise guilty defendant. I must dissent, however, from the application of that principle to the guilty verdict entered under the eighth count in the indictment returned against the petitioner which charged that he and one Bobby Wilson, on December 23, 1972, "unlawfully did use a handgun in the commission of a crime of violence as defined in Art. 27, § 441 of the Annotated Code of Maryland, etc."

In the landmark case of Dunn v. United States, 284 U.S. 390 (1932), which has been followed by this Court in Leet v. State, 203 Md. 285, 294, 100 A.2d 789, 793-94 (1953), in Ledbetter v. State, 224 Md. 271, 273, 167 A.2d 596, 597 (1961), and in Johnson v. State, 238 Md. 528, 542-43, 209 A.2d 765, 771 (1965), the petitioner was indicted in three counts charging (1) the maintenance of a common nuisance by keeping intoxicating liquor for sale at a specified place, (2) unlawful possession of intoxicating liquor, and (3) unlawful sale of such liquor. The jury acquitted Dunn on counts 2 and 3 and found him guilty of maintaining a common nuisance. In rejecting the contention that the verdict was inconsistent because it negated possession and yet affirmed the nuisance, upon proof of identical evidence, the Supreme Court in Dunn pointed out the government's contention that even though "the jury seem[ed] to have believed the defendant was elsewhere at the time of the alleged sale and did not make it, the verdict is not necessarily inconsistent, for some third person, with defendant's knowledge, may have been doing business on the premises, and if so they were a nuisance, and the defendant was guilty although he neither possessed nor sold intoxicating liquors upon them [the premises]; . . ."

In affirming the conviction on the nuisance count Mr. Justice Holmes, for the Court, stated:

"Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. Latham v. The Queen, 5 Best Smith 635, 642, 643. Selvester v. United States, 170 U.S. 262. If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold. As was said in Steckler v. United States, 7 F.2d 59, 60:

`The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.'" 284 U.S. at 393.

In Leet v. State, supra, the appellant was charged in a two count indictment with (a) willful failure to file a state income tax return for the year 1951, and (b) willful failure to pay the state income tax for the same year. The jury acquitted him on the count charging "willful failure to pay the income tax" and convicted him for failing to file his tax return.

In rejecting the appellant's contention that the verdict could not stand because of "inconsistency," this Court, after first observing that from the testimony "it is reasonable to believe that the jury may have concluded that the appellant was willful in failing to file his return but that his failure to pay the tax was not willful," and after pointing out that under the holdings in Heinze v. State, 184 Md. 613, 617, 42 A.2d 128, 130 (1945), a general verdict of guilt on an indictment charging two inconsistent counts (larceny and receiving stolen goods, both involving the same property) would be declared invalid, adopted the rationale of Dunn in affirming his conviction.

The rule that "[e]ach count of an indictment is regarded as if it were a separate indictment, and the inquiry is whether the evidence is sufficient to support the conviction on that count without regard to the disposition of the other counts" was applied in Williams v. State, 204 Md. 55, 64, 102 A.2d 714, 718 (1954), in sustaining the conviction of Williams for assault upon police officers even though the charge of disorderly conduct for which the officers undertook to arrest Williams had been "stetted."

Though applying the rule in Ledbetter v. State, supra, where the jury convicted the appellant of murder in the first degree but acquitted him of robbery, the Court pointed out that although the two verdicts were not consistent, "in the jury's mind they may well have resulted from a planned consistency," since the trial judge had instructed them that any murder committed in perpetration of or attempt to perpetrate any robbery was murder in the first degree, and that "[t]he jury could have concluded without being completely illogical that appellant attempted to rob the victim but did not personally succeed, and acquitted him of robbery, while finding him guilty of murder under the evidence because, . . . he was `acting in a common design or purpose' with his three companions and therefore was `responsible for everything done by his confederates which reasonably follow in the execution of that design'. . . ." 224 Md. at 274-75, 167 A.2d at 598.

In Johnson v. State, supra, although recognizing an assault to be "an essential element of both rape and kidnapping" this Court held that the acquittal of the appellants on a count in the indictment charging assault was not inconsistent with verdicts of guilty of both rape and kidnapping.

Judge Oppenheimer, who delivered the opinion for this Court in Johnson, stated:

"We have held that inconsistent verdicts of guilty under different counts of the same indictment, when both counts depended upon the same alleged acts, cannot stand. Tucker v. State, 237 Md. 422, 425, 206 A.2d 691 (1965)[] and cases therein cited. When there has been a conviction by a jury on one count and an inconsistent acquittal on another count, we have held that the conviction may stand. Ledbetter v. State, 224 Md. 271, 167 A.2d 596 (1961); Leet v. State, 203 Md. 285, 293-294, 100 A.2d 789 (1953) and cases therein cited. In these cases, we followed Dunn v. United States, 284 U.S. 390 (1932), [footnote omitted] in which Justice Holmes, giving the opinion for the majority of the Court, said `[t]hat the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.'" 238 Md. at 541-42, 209 A.2d at 771.

After quoting from Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925), Judge Oppenheimer noted that in Sealfon v. United States, 332 U.S. 575 (1948), an acquittal by a jury on a charge of conspiracy to defraud the United States [by presenting false invoices and making false representations to a ration board] was held to preclude a subsequent prosecution for commission of the substantive offense [aiding and abetting the uttering and publishing of the false invoices, which were introduced in the conspiracy trial]; and found the holdings in United States v. Maybury, 274 F.2d 899 (2d Cir. 1960), to be distinguishable.

In Sealfon v. United States, supra, in holding that the doctrine of res judicata was applicable to criminal as well as civil proceedings and operated "to conclude those matters in issue which the verdict determined though the offenses be different," the holdings in Dunn were neither cited nor distinguished.

In Maybury the defendant was charged in a two count indictment (a) with forging a check and (b) with uttering the check with intent to defraud the United States. Following a nonjury trial in the United States District Court he was acquitted on the first count and convicted under the second. On appeal the majority of the Circuit Court of Appeals held that on the facts, the holdings in Dunn were inapplicable, and that the defendant's acquittal on the first count was "inconsistent" with his conviction on the second count.

As observed in Johnson, the conviction in Maybury "was reversed, not only because the inconsistent verdicts were given by a judge, but because the appellate court could have no confidence in the judgment of conviction when the judge, by his acquittal of the defendant of one crime, appeared to have rejected the only evidence that would support his conviction of another." 238 Md. at 545, 209 A.2d at 773.

A number of courts have held that reversible inconsistency may result if the same evidence was relied upon by the prosecution in support of all counts in the indictment and where the verdict acquitting the accused on one count negates the existence of an essential element to the proof of the crime charged in another count on which he was convicted. See DeSacia v. State, 469 P.2d 369 (Alas. 1970), where a verdict of conviction of manslaughter for the death of a passenger in a motor vehicle was held "irreconcilably inconsistent" after the defendant had been acquitted on the charge of manslaughter of another passenger in the same vehicle; Ex Parte Johnston, 3 Cal.2d 32, 43 P.2d 541 (1935), where the defendant, charged with illegally selling stock and conspiracy to illegally sell it, was acquitted of making the illegal sale, but convicted on the conspiracy count. The Supreme Court of California reversed, holding that the defendant could not be convicted of conspiracy where he was found not to have committed the overt acts necessary to prove the conspiracy. In accord are People v. Andursky, 75 Cal.App. 16, 241 P. 591 (1925) (holding reversible error the conviction of the defendant on a charge of rape of a 15-year-old female where he had been acquitted of the statutory crime of having sexual intercourse with the female); and People v. Powell, 50 Cal.App. 436, 195 P. 456 (1920) (holding that a conviction for receiving a bribe by a police officer could not stand where he was acquitted on a count charging him with extorting money and the only evidence submitted was that he had obtained money by the use of threats).

In Kuck v. State, 149 Ga. 191, 99 S.E. 622 (1919), a conviction was reversed where the defendant was convicted of unlawfully selling liquor, but acquitted of possessing the same liquor, on the same day, at the same time, and in the same place, the court noting that "one can't sell what one doesn't possess." In People v. Pierce, 40 A.D.2d 581, 334 N.Y.S.2d 410 (1972), while recognizing that "[i]t is well established that each count in an indictment is to be treated as if it were a separate indictment, and consistency in verdicts is unnecessary," citing Dunn v. United States, supra, the court, in holding that a conviction for the illegal sale of drugs must be reversed since the jury acquitted the defendant of possession of the same drugs on proof of the exact same facts, stated: "`[w]hen the indictment charges two crimes, each of which has identical elements, a finding of guilty on one but not on the other is truly repugnant, as opposed to being merely inconsistent.'"

See also Annot., Criminal Verdict — Inconsistency, 18 A.L.R.3d 259, 281-283 (1968).

The holdings in Dunn v. United States, supra, were reached on the major premise that "if separate indictments had been presented against the defendant [representing each separate count charged in a single indictment], and he had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other." In Williams v. State, supra, we stated it slightly differently when we said, "[e]ach count of an indictment is regarded as if it were a separate indictment and the inquiry is whether the evidence is sufficient to support the conviction on that count, without regard to the disposition of the other counts," yet applied the same rationale from Dunn. In view of the holdings by the United States Supreme Court in Ashe v. Swenson, 397 U.S. 436 (1970), and in Simpson v. Florida, 403 U.S. 384 (1971), both subsequent to Benton v. Maryland, 395 U.S. 784 (1969), in each of which it was held that the doctrine of "collateral estoppel" constitutionally foreclosed the relitigation of an issue tried in another trial, I have grave reservations about the continued constitutional viability of the test enunciated in Dunn v. United States, supra, and articulated in a different manner in Williams v. State, supra. See United States v. Fox, 433 F.2d 1235, 1239 (D.C. Cir. 1970), concurring opinion by Bazelon, C.J.

In Ashe, supra, the petitioner had been acquitted on a charge of robbing Knight, one of six participants in a poker game. Subsequently he was brought to trial and convicted of having robbed Roberts, another of the players. The Supreme Court, holding that the jury in the first trial, by their acquittal, had determined that Ashe was not one of the robbers, the State of Missouri, under the doctrine of "collateral estoppel" was constitutionally foreclosed from relitigating the issue of that robbery in another trial. In Simpson, supra, the petitioner's conviction of armed robbery of a store manager was reversed because of an erroneous jury instruction. Upon his retrial he was acquitted. Thereafter he was charged and convicted of the armed robbery of a customer who had been in the store with the manager. In applying the holdings in Ashe v. Swenson, supra, the Court held that Florida was "collaterally estopped" from having tried Simpson the third time.

Treating the eighth count in the petitioner's indictment, upon which he was found guilty, as a "separate indictment," on which he might have been entitled to a trial separate from the trial on the robbery and attempted robbery counts, it would follow, under the holdings Ashe v. Swenson, supra, and Simpson v. Florida, supra, that his acquittal on those robbery counts — as occurred in this case — would have collaterally estopped the state from thereafter trying him, upon the same evidence, for using the handgun in the commission of the same robbery, as charged in a count as if it were "a separate indictment." Similarly, had the trial judge granted the petitioner's motion for new trial following the jury verdict of guilty on the eighth count, the state, it seems to me, would have been collaterally estopped to relitigate that eighth count.

Assuming, however, that the rule promulgated in Dunn, as endorsed by us and engrafted on our earlier decisions, still retains a constitutional viability, its application to the eighth count in the petitioner's indictment is inappropriate from the very nature of the statute which proscribes the conduct charged in that count.

When the General Assembly, by Ch. 13 of the Acts of 1972, enacted a completely new "handgun law," it set forth in its declaration of policy that there had been "an alarming increase in the number of violent crimes perpetrated in Maryland, and a high percentage of those crimes involve the use of handguns." See Maryland Code (1957, 1971 Repl. Vol., 1974 Cum. Supp.) Art. 27, § 36B(a) (i). (Emphasis supplied.)

Section 36B (d) is captioned " Unlawful use of handgun in commission of crime." It provides, as the majority point out, that a separate misdemeanor is committed by "any person who shall use a handgun in the commission of any felony or any crime of violence . . . ." The statute further provides that "in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor," one adjudged guilty shall be sentenced mandatorily to a minimum sentence of five years. The statute does not provide that the penalty shall be in addition to any other sentence which " may be imposed," but is clear in its language that the sentence mandated under the section shall be a sentence in addition to that imposed for the felony or "crime of violence."

As I see it the Legislature clearly intended that the offense prohibited by Art. 27, § 36B(d), "the use of a handgun in the commission of crime" was one chargeable only when combined with a charge of having also committed one of the delineated crimes, i.e. the commission of "a felony" or one of the defined "crime[s] of violence" (as specified in Art. 27, § 441(e)) and that the section is applicable only when a defendant is also charged and convicted of committing such a "felony" or one of the enumerated "crime[s] of violence."

I disagree with the view expressed by the majority, when it accepts the argument on behalf of the appellee, that "an individual on trial for the handgun charge does not necessarily need to have been separately accused of the commission of a felony or crime of violence in an additional count or indictment before he can be charged with or convicted of the crime established in section 36B (d)." I think the legislative intent was otherwise.

The way I read the statute the charge placed against the petitioner in the eighth count of his indictment could not, as a count, be treated as if it were "a separate indictment"; that being so, the rationale of Dunn v. United States, supra, and the rule stated in Williams v. State, supra, appears wholly inapplicable.

This conclusion is strengthened by the punishment provision in the statute requiring that the punishment shall be in addition to the sentence which shall be imposed for the commission of the crime in which the handgun was used.

At argument it was conceded on behalf of the appellee that the corpus delicti of an offense charged under § 36B (d) requires proof beyond a reasonable doubt of both the commission of "a felony" or one of the listed "crime[s] of violence" and that a handgun was used in the commission of such a felony or crime.

At the close of the evidence offered by the state the trial court granted the petitioner's motion for judgments of acquittal on the sixth and seventh counts of the indictment charging respectively larceny and receiving stolen goods. When at the close of all the evidence the trial court, upon the petitioner's motion, directed the entry of judgments of acquittal on the second (attempted armed robbery) and fourth (assault with intent to rob) counts, and the jury then by their verdict acquitted the petitioner of armed robbery (first count), robbery (third count) and assault and battery (fifth count), there was removed from the case one of the essential elements of the corpus delicti required to establish a violation of § 36B (d). When the jury thus acquitted the petitioner of the only felony or "crime of violence" mentioned in the testimony — the robbery of Robert Shaw — its verdict of guilt, upon the very same evidence, for the use of a handgun in the commission of the same crime for which he was acquitted was, as pointed out in People v. Pierce, supra, "truly repugnant, as opposed to being merely inconsistent."

I would reverse the judgment of the Court of Special Appeals as well as the judgment of the Criminal Court of Baltimore.

Judge Eldridge has authorized me to state that he concurs in this opinion.