Allen v. State
229 A.2d 446
Md. Ct. Spec. App.
1967
Check Treatment
Thompson, J.,

delivered the opinion of the Court.

On July 3, 1962, Willard Lee Allen, the appellant, walked into the Central Police Station in Baltimore City and stated that he had killed a woman in a motel on Route 50 in Baltimore County in the early morning hours of Sunday, July 1, 1962. He describеd the homicide and disposal of the body in considerable detail. At the request of the Maryland authоrities the Philadelphia police, the same afternoon, broke open the trunk of a rented Ford automobile parked on Market Street in that city and discovered the decomposеd body of a woman, bound and gagged and wrapped in a bedspread. A subsequent autopsy reveаled that the cause of her death was a combination of chloroform, alcohol, gasoline and carbon monoxide inhalation. Since the location of,the motel was in Baltimore County, Allen was removed there for trial.

He was indicted for murder on August 6, 1962; he was convicted on January 16, 1963. His motion for new trial being granted, he was retried on June 21, 1963, and convicted. The case was appeаled and on May 13, 1964, the Court of Appeals of Maryland reversed and remanded the case, Allen v. State, 234 Md. 366, 199 A. 2d 237. On April 1, 1965, the appellant was again tried and convicted. While ‍​​‌‌​‌‌​​​‌​​​‌​‌‌​‌‌​‌‌​‌​‌​​‌​‌​‌​‌​​‌​‌​​​​​​‍his appeal was pending from the third conviction, the case of Schowgurow v. State, 240 Md. 121, 213 A. 2d 475 was decided. As a result of this, the case was remanded for further proceedings on January 13, 1966. On Allen’s motion on January 19, 1966, indictment was dismissed and the -conviction set aside. He was rеindicted in Janüary, 1966, and his attorney’s pretrial motions were adversely decided by Judge Kenneth C. Proctor on March 4, 1966.

The first questipn presented is one whether the State of Maryland has jurisdiction to try the aрpellant.

The trial court refused to rule ‍​​‌‌​‌‌​​​‌​​​‌​‌‌​‌‌​‌‌​‌​‌​​‌​‌​‌​‌​​‌​‌​​​​​​‍on this motion until the con *252 elusion of all the testimony at the triаl for the reason that, although the finding of the body in the State of Pennsylvania created a presumption the killing took place in Pennsylvania, the State is entitled to rebut the presumption and the mattеr could not be properly decided prior to the conclusion of all of the testimony. Under Mаryland Rule 1085 this Court can decide a question of jurisdiction which has not been passed on by the trial court where jurisdiction cannot be conferred by waiver or consent of the parties. We hold, howеver, that on the facts of this case we are also unable to decide the question until the cоnclusion of all the evidence in the case.

The second question raised by Allen is whether or not the appellant has been denied a speedy trial under the Sixth Amendment to the Constitution of the United Stаtes and under Article 21 of the Maryland Declaration of Rights. The question of a speedy trial can be determined on appeal prior to the trial of the case, Jones v. State, 241 Md. 599, 217 A. 2d 367. We agree, however, with thе trial court that there has been no denial of a speedy trial ‍​​‌‌​‌‌​​​‌​​​‌​‌‌​‌‌​‌‌​‌​‌​​‌​‌​‌​‌​​‌​‌​​​​​​‍in this case because the delays were caused by reversals obtained by the accused.

In the case of Klopfer v. North Carolina, 87 S. Ct. 988, 386 U. S. 213, 18 L. Ed. 1, it was. held that the Speedy Trial Provision of the Sixth Amendment to the Constitution of the United States was applicable to the states through the Fоurteenth Amendment.

In the case of United States v. Ewell, 86 S. Ct. 773, 383 U. S. 116, 15 L. Ed. 2d 627 (1966) it was held that the passage of nineteen months, in a Federal case, between the original arrest and the hearings on later indictments replacing those that had been dismissed on mоtion of the accused did not violate the Speedy Trial Clause. The Court said: (86 S. Ct. at page 777)

“It has long been the rule that when a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retriеd in the normal course of events * * *. The rule of these cases, ‍​​‌‌​‌‌​​​‌​​​‌​‌‌​‌‌​‌‌​‌​‌​​‌​‌​‌​‌​​‌​‌​​​​​​‍which dealt with the Double Jeopardy Clause, has been thought wise because it protects the societal interest in trying peoplе accused of crime rather than granting them immunization be *253 cause of legal error at a previous trial, and because it enhances the probability that appellate courts will be vigilant to strike down previous convictions that are tainted with reversible error.”

In State v. Murdock, 235 Md. 116 at page 121, 200 A. 2d 666 at page 668 the Court of Appeals said:

“The right to a speedy trial guаranteed by the State and Federal Constitutions, even when it is properly demanded, is necessarily relative. Delays, depending upon circumstances, sometimes cannot be avoided. It securеs rights to an accused, but it does [not] preclude the rights of public justice * * *. And even where a defendant has made a proper demand for trial or has moved for his discharge or dismissal of the proceedings against him, this does not necessarily prevent a ruling that because of subsequent conduct he waived his right to a speedy trial. Annotation 57 A.L.R. 2d 342. Of course, the delay in completing a prosecution ‍​​‌‌​‌‌​​​‌​​​‌​‌‌​‌‌​‌‌​‌​‌​​‌​‌​‌​‌​​‌​‌​​​​​​‍must not be purposeful or oppressive.”

There is nothing in this record to indicate that the delay was purposeful or oppressive. Neither is there any indication that the accused ever made a demand for a speedy trial prior to the motion now under consideration.

The order refusing to dismiss the indictment is affirmed and case remanded for further proceedings.