Maryland Law Review

Volume 5 | Issue 3 Article 6

Criminal Liability of Participants in Suicide - State v.

Williams

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Recommended Citation
Criminal Liability of Participants in Suicide - State v. Williams, 5 Md. L. Rev. 324 (1941)
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 MARYLAND LAW REVIEW [VOL. V

CRIMINAL LIABILITY OF PARTICIPANTS

IN SUICIDE
State v. Williams'
This note comments upon a trial court opinion rendered
in a non-jury criminal case. The defendant, an enlisted
man in the Army, was indicted2 for the murder of a woman
by means of carbon monoxide poisoning. Defendant and
deceased had been intimate friends for a number of years,
and on other occasions had discussed mutual suicide. Be-
fore the fatal act, defendant procured the hose which was
used in the death pact, wrote to deceased suggesting suicide
to her, and left a note for his commanding officer as to the
disposition of his personal effects in case of his death. A
few days later, while riding in defendant's car, defendant
and deceased both agreed to the suicide pact, and after
stopping along the roadside, both actively engaged in at-
taching the hose to the exhaust pipe and in closing all the
car windows. Defendant then turned on the motor, and
sitting side by side, the two lapsed into unconsciousness.
Some time later, defendant awakened and saw deceased
sitting on the running board in a completely unconscious
condition. He immediately tried to summon help to re-
vive her, but she had already succumbed to the poisonous
effects of the gas fumes.
At the trial, before a single judge, with the jury waived,
the State asked for a verdict of first degree murder, but
the Court found the defendant guilty of second degree
murder, giving him a five-year suspended sentence.8 No
appeal has been taken. The defense contended that there
1 Circuit Court for Anne Arundel County, Maryland, per Melvin, J. The
Baltimore Daily Record, November 27, 1940.
* The indictment made no mention of the suicide pact.
s The State had asked for a verdict of murder in the first degree, because
of the statute stating that "any kind of wilful, deliberate, and premedi-
tated killing shall be murder in the first degree." Md. Code (1939) Art. 27,
Sec. 475. However, the court found it to be second degree murder, stating
in the opinion that "every intentional killing is presumed to be murder
in the second degree, and that presumption holds unless and until the State
proves such circumstances as raise the degree to murder in the first
degree." The Court went on to say that "no such circumstances have been
presented, or could have been presented, to the Court which would raise
the degree of guilt in this case to murder in the first degree." The opinion
also remarked on the gentle demeanor and temperament of defendant in
the courtroom, stating that there was a complete absence of any malicious-
ness in his nature. This probably accounts for the suspending of the five-
year sentence which the defendant was given. The sentence of five years,
suspended, does not appear in the opinion, but appears among the docket
entries.
1941] STATE v. WILLIAMS 325

was no crime for which defendant could be convicted,

basing this claim on the ground that the common law
crime of suicide, or the attempt thereat, does not exist as
such in Maryland. But the Court held that defendant was
not indicted because of the suicide aspect of the case, but
on the theory that he actively participated in causing de-
ceased's death, independent of her own self-destruction. It
is pointed out in the opinion that there is no adjudication
in Maryland to serve as a precedent upon which to base
such a case as this, but a paragraph is quoted from Whar-
ton's Criminal Law which seems to give a clear and unani-
mous opinion of the legal authorities, to wit:
"Whoever is present, actually or constructively en-
couraging the violent and illegal death of another, is
responsible for such death, even though it was volun-
tarily submitted to by the deceased. Thus, if two per-
sons encourage each other to commit suicide jointly,
and one succeeds and the other fails in the attempt
upon himself, he is a principal in the murder of the
other."

Hence, the Court had no difficulty in finding the defend-

ant guilty of an offense which amounted to murder.
This would seem to be a sound result as it has often
been laid down by the courts and authorities that the vic-
tim's consent to a crime such as homicide or mayhem is no
defense, because, as a matter of public policy, society has
an interest in the person of each individual, and such acts
injure or tend to injure the community at large. 5 There
have been a few cases from other states which have held
with the rule laid down in the Williams case,". . . if two
mutually agree to kill themselves together, and the means
employed to produce death take effect upon one only, the
agreement to kill themselves is unlawful, and the survivor
is guilty of the murder of the one who dies."
It will be noted that in this case the Court was not re-
quired to rule definitely as to whether suicide itself was a
crime, since defendant was indicted on the theory that he
actively participated in causing deceased's death. How-
ever, the Court, by dictum, did point out that while suicide
is no longer punishable in this country or in England, it is
'1 WHARTON, CRIMINAL LAW (12th Ed. 1932) Sec. 575. See also CLARK:
& MARSHALL ON CRIMES (4th Ed. 1940) Sec. 247; Reg. v. Allison, 8 Car. &
P. 418 (Eng. 1838) ; HoCHHEImER, CRIMES (2nd Ed.) p. 381.
CLARK & MARSHALL ON CRIMES (4th Ed. 1940) Sec. 142.
6 13 A. L. R. 1262. See also Burnett v. People, 204 Ill. 208, 68 N. E. 505
(1903).
 MARYLAND LAW REVIEW [VOL. V

still regarded as unlawful and criminal, since it was a

crime by the common law of England, which has been
adopted in Maryland, and no statute has changed the rule.
Of course, in those states that recognize only statutory
crimes which have been defined by the legislature, and
where no mention is made of suicide in the criminal stat-
utes, it would have to be held that it is not a crime. In
Maryland, and in the majority of jurisdictions, suicide is
still without doubt an unlawful act, even though the act
itself is not punishable.
Getting back to the real problem presented by State v.
Williams, a Tennessee case is very much in point. In
Turner v. State7 defendant and deceased entered into a
compact by which they resolved on mutual self-destruc-
tion, and defendant, after shooting and killing deceased at
her request, became frightened and ran away. The Court
held that the fact that the deceased consented and that the
crime was in execution of a joint agreement, would not
remove the case from felonious homicide, and defendant
was found guilty of first degree murder. The Court said:
"Murder is no less murder because the homicide is com-
mitted at the desire of the victim. He who kills another
upon his desire or command, is . . . as much a murderer
as if he had done it merely of his own head. ' '8 It will be
noted that this case is very similar to the Williams case,
both in facts and in rule. Although there are very few
decisions on this particular point, it probably would be safe
to say that the law is fairly well settled in holding that
an active participant in a mutual suicide agreement is
guilty of the murder of the deceased party.
However, a more troublesome problem is raised if we
reverse the facts, and assume that the deceased party ar-
ranged the entire death machinery while the survivor did
nothing but consent to the suicide pact and submit to its
execution. What then is the criminal liability of such a
passive participant? There have been no cases on this
point, and as far as can be ascertained, no comments by
authorities or text-writers. But in a somewhat analogous
situation, it is a well-settled rule that where two persons
are engaged in the commission of a homicide, but one only
does the actual killing, the other is none the less a principal
in the second degree to the crime, and is vicariously guilty
of murder. "It is not necessary ... that physical aid
shall be given. It is enough to make one a principal in the
7119 Tenn. 663, 108 S. W. 1139 (1907).
-Ibid., 108 S. W. 1141.
1941] STATE v. WILLIAMS

second degree if he is present in concert with the actual

perpetrator of the offense . . ."I Even where the homi-
cide was unplanned, but was committed in the course of
the commission of some other felony, the passive partici-
pant has been held guilty as a co-principal. 1° From this, it
would seem that the passive participant in the execution
of a mutual suicide agreement is vicariously guilty of the
murder of the other party as a principal in the second
degree. Even although he did not actively participate in
the commission of the crime which was inflicted upon de-
ceased by the deceased himself, yet he counseled and ad-
vised such; and aided and abetted it by reason of the very
fact that he agreed to its being carried to completion, and
that he sat idly by and permitted it to occur-he is there-
fore guilty since there is no distinction between this and
the planned homicide set-up.
Hence, we have seen that the survivor of a suicide com-
pact is guilty of the murder of the other party as a prin-
cipal in the first degree, if he be an active participant, and
as a principal in the second degree, if he be a passive par-
ticipant. To go further into the suicide field, but away
from suicidal pacts, we are confronted with the question of
the responsibility of an encourager to a sole suicide. "One
who persuades another to kill himself, and is present when
he does so, is guilty of murder as principal in second de-
gree, or, if absent, he is guilty as an accessary before the
fact."" In People v. Roberts,'2 defendant, at the request
of his wife, an incurable invalid, mixed poison and placed
it within her reach, so that she could end her own life.
The Michigan court seemed to intimate that suicide was
not a crime in that state, but held defendant guilty of
murder by means of poison, within the meaning of the
statute, as deceased could have obtained the means of
taking her life in no other way. Again, in the case of
State v. Webb, 13 it was held that if one counsels another
to commit suicide, and deliberately assists him, he is guilty
of manslaughter in the first degree. Also, in Blackburn v.
State,4 suicide itself was held not to be a crime, but de-
fendant was deemed guilty of murder for providing poison
' CLARK & MARSHALL ON CRIMES (4th Ed. 1940) Sec. 167.
10 See Commonwealth v. De Leos, 242 Pa. 510, 89 A. 584 (1914), where it
was held that when a murder is committed by two persons acting in
concert, both are guilty even though the killing be the act of one only.
See also 70 A. L. R. 1134; State v. Orraye, 84 N. J. L. 556, 87 A. 121 (1913).
1" CLARK & MARSHALL ON CRIMES (4th Ed. 1940) Sec. 247.
12 211 Mich. 187, 178 N. W. 69, 13 A. L. R. 1253 (1920).
216 Mo. 378, 115 S. W. 998 (1909).
1493 Ohio St. 146 (1872).
 MARYLAND LAW REVIEW [VOL. V

for deceased who took it voluntarily with the fatal result.

In Burnett v. People,5 defendant was convicted of murder
in the lower court for having bought the morphine with
which his companion committed suicide. This was re-
versed on appeal for lack of evidence, but the court stated
that proof of persuading and procuring a person to take
poison which results in death will warrant a conviction of
murder.
On the other hand, however, Texas seems to take a con-
trary view. In Sanders v. State, 6 the defendant was held
not guilty of murder for inducing another to take poison
which resulted in the latter's death, if the latter knew the
character of the poison, and took it voluntarily. The court
said that the statute providing that if any person, with
intent to injure, cause another person to inhale or swallow
any substance injurious to health, he shall be deemed
guilty of murder if death results, was inapplicable when
the substance was taken voluntarily. But in another Texas
case, it was stated that if a party, knowing the purpose of
another to destroy her own life, at her request, prepares
and places the poison in her mouth, he is guilty of murder
in case of death. 7 So it would seem that such a case as
this comes within the Texas statute relating to death by
poison. However, Texas has abolished all common law
crimes, and only those defined by statute are punishable.
Hence other states which have similar statutory provisions
as to crimes in general, might likewise hold an accomplice
to a suicide not guilty unless the statute specifically made
such a crime.
Some of the cases holding guilty of murder one who
encourages another to kill himself are to be explained on
the theory of the vicarious guilt of an accomplice for the
suicide's own guilty self-murder; others seem to be based
on the idea that the encourager is himself the proximate
cause of the death and so a principal in the first degree,
especially where the suicide would have been unable to
procure the lethal means but for the assistance.
Although there are no cases on this problem in Mary-
land, it would appear that a person who advises, aids or
incites another to commit suicide would be found to be
guilty of the murder of the deceased as a principal in the
second degree, if he were present at the time of the act.
However, under the old common law, one who encouraged
16 Supra, n. 6.
1654 Tex. Cr. R. 101, 112 S. W. 68 (1908) ; see also, Grace v. State, 44
17 Cr. R. 193, 69 S. W. 529 (1902).
Tex.
Aven v. State, 277 S. W. 1080, 1083 (Tex. 1926).
1941] STATE v. WILLIAMS

the commission of the suicidal act, but was not present at

its execution was an accessary before the fact, but could
not be tried, because an accessary could not be tried until
the principal had first been tried and convicted. He there-
fore escaped punishment, as the principal was dead and
could not stand trial. Many jurisdictions, by statute, have
abolished this highly artificial distinction between prin-
cipal and accessary, and in such states, an accessary may
be tried before, at the same time, or after the trial of the
principal.' 8 In Rex v. Russell, 9 an old English case, it was
held that the defendant, who furnished the poison and
persuaded the deceased to take it, but was absent when it
was taken, could not be convicted because of the accessary
rule. It is probable that Maryland will follow the rule
laid down by the English court, as there is no statute which
abolishes this old rule as to the trial of accessaries. 20 On
the other hand, this common law obstacle to trying the
absent encourager to a successful suicide could be avoided,
particularly in the cases where the suicide could not other-
wise have obtained the lethal means, on the theory that
the encourager has proximately caused the death and so is
a constructive principal in the first degree, who can be
tried regardless of the survival of the suicide himself.
We come now to the consideration of the criminal re-
sponsibility of a person for an attempt on his own life, and
the correlative problem of his liability for injuring or
killing a bystander as a result of such attempt. Again,
there are no Maryland cases to cite as authority, and there
also is no mention of such in the Maryland Code. In
Corpus Juris it is stated that, "If the act of suicide fails to
accomplish its purpose, it constitutes an attempt to commit
suicide, which is unlawful and criminal, and both are of-
fenses at common law and under some statutes."'" At22
common law it was a misdemeanor to attempt suicide, 23
but this view has been criticized by some of the writers.
"8 McMahan v. State, 168 Ala. 70, 53 So. 89 (1910). Here the court said
that by statute, if the suicide be felo de se then, whether present or absent,
one contributing to the criminal result is guilty of murder. See also 13
A. L. R. 1263; Commonwealth v. Hicks, 118 Ky. 637, 82 S. W. 265 (1904).
19 1 Moody. C. C. 356 (Eng. 1832).
20 But see Md. Code (1939) Art. 27, Sec. 665. Has this section changed
the other distinction of the common law between principals and accessaries,
i. e., the rule that principal and aecessary are accused by different forms of
indictment?
2160 C. J. 997.
"2Commonwealth v. Mink, 123 Mass. 422 (1872).
23 See Larremore, Suicide and the Law (1903) 17 Harv. L. Rev. 331. In
this article it is suggested that suicide is usually the result of impulse.
temporary remorse, or discouragement, and that one who has suicidal
 MARYLAND LAW REVIEW [VOL. V
In State v. Carney,2 4 where a statute provided that all of-
fenses of an indictable nature at common law, and not pro-
vided for in or by any act of the legislature, should be mis-
demeanors and punishable accordingly, the Court said that
an attempt at suicide was a crime an an indictable offense,
since suicide itself was a felony at common law. However,
in State v. Campbell, 5 it was held that where an attempt
to commit suicide was not made unlawful by statute, it is
not an unlawful act. This was an Iowa case, and in that
state all the common law crimes have been abolished.
Hence, in most jurisdictions, and Maryland will probably
follow this view, an attempt to commit suicide is a criminal
act and is punishable as a misdemeanor, except in those
states which require every crime to be defined by statute.
The liability of one who unintentionally kills another
while attempting suicide depends upon whether the law of
the state makes the attempt itself criminal. In State v.
Lavelle," it was held that where a man, with a deadly
weapon, undertakes to take his own life, he is doing an un-
lawful act, since suicide is an unlawful act and a felony;
and if, in the commission or attempted commission of it, he
unintentionally takes the life of an innocent party, he is 27
guilty of murder. Again, in Commonwealth v. Mink,
the defendant was convicted of murder, even though the
attempt at suicide was not punishable under the statute,
since suicide itself was criminal. So we can see that in
those jurisdictions where attempted suicide is unlawful,
death to an innocent bystander as a result of the suicidal
attempt is murder and the attempter is criminally re-
sponsible.
However, in those states where such attempts are not
criminal, it has been held that one attempting to commit
suicide was not guilty of murder where another was shot28
and killed in a struggle to prevent the intended act.
Hence, since in all probability, the Maryland Court will
hold that an attempt to take one's own life is unlawful,
it follows that it might also rule that the attempter would

intent should merely be taken into custody until such emotions have sub-
sided. An actual attempt at suicide should not be deemed criminal or
punishable, because under our modern theory of punishment, the attempter
would not be deterred from repeating the act and also punishing the
attempter would not deter others. See also Mikell, 18 Suicide Murder?
(1903) 3 Col. L. Rev. 379.
2- 69 N. J. L. 478, 55 A. 44 (1903).
25 217 Ia. 848, 251 N. W. 717 (1933) ; see Annotation in 92 A. L. R. 1180.
2034 S. C. 120, 13 S. E. 319 (1891).
27 Supra, n. 22.

2-1State v. Campbell, supra, n. 25.

19411 LYNCH v. ROGERS

be criminally responsible for injury or death to a bystander

caused by the suicidal attempt.
So, as we have seen, there are no Maryland Court of
Appeals decisions on which to support the points that have
been developed with regard to the law of suicide, but, in
all probability, Maryland will follow the rules that have
been suggested, to wit, that either an active or a passive
participant in a suicide pact resulting in death to one only,
is criminally responsible for the death; that an accomplice
to a sole suicide, who is present at the time of the act, is
also criminally liable, while an absent accomplice could
not be brought to trial because of the accessary rule; that
suicide and the attempt thereat are unlawful, and there-
fore the attempter is criminally responsible for injury or
death to a bystander, which is the result of such attempt.

FURTHER CONCERNING ILLICIT COHABITATION

OF PARTIES AS AFFECTING CONTRACTS
MADE BETWEEN THEM
Lynch v. Rogers 1
Plaintiff-appellee brought an action in assumpsit against
defendant-appellant, administrator, for domestic services
rendered by the plaintiff to decedent during his life. At
the trial the defendant offered to prove that, during the
course of plaintiff's employment, she had borne an illegiti-
mate child by the deceased. The argument was advanced,
therefore, that the contract was based on immoral consid-
eration, and so should not be enforced. The Court of Ap-
peals held, in affirming the trial court, that if the bargain
was based on lawful consideration at the outset, and did
not at that time contemplate the illicit relationship, the
fact that such relationship subsequently ensued did not
prevent recovery.
For the second time in recent years the Court of Ap-
peals has been called upon to determine the effect of illicit
cohabitation between two parties as affecting contracts
made between them.2 Prior to the present case, the lead-
ing authority in Maryland was the equity case of Baxter v.
Wilburn.' There the plaintiff endeavored to secure spe-
1 Lynch v. Rogers, 177 Md. 478, 10 A. (2d) 619 (1940).
2 Baxter v. Wilburn, 172 Md. 160, 190 A. 773 (1937), noted (1938) 2 Md.
L. Rev. 291.
8 Ibid.