*1 for the of such quest entry appearance, orally open call, requirement, court. After a there is no preliminary rules, either in local be notified counsel general be are when a case will reached. The particular assignments in the at the on the preceding clerk’s office noon recess posted day, are to follow the supposed assignments. and counsel case, with notice
In the instant Mr. was chargeable Smith trial at the that the was at issue and would stand for case he entitled to may rely We assume that October term. call, did customary preliminary on notice be receive, his appearance after court directed even step take the unusual clerk did entered. the actual trial well advance of the defendants notifying was transmitted to date, message and was shown re- Mr. failure to We think carrier. Smith’s the insurance cannot attributed to the be appear or to message ceive circumstances. clerk under with costs. affirmed,
Judgment v. STATE FARRELL Term, 1956.] [No. October *2 Decided 13, May 1957. Motion rehearing or the opinion, for modification of filed 1957,
June denied June 1957. Bruñe, Corrins, J., before
The cause was argued C. Prescott, Henderson, Hammond JJ. Gosnell, I. for appellant.
William General, with Kaufman, Attorney Assistant Joseph S. Ferdinand, General, Har- J. Sybert, Attorney whom were C. Joseph City, old Baltimore Grady, Attorney State’s Polski, Attorneys, Kouts Norman Assistant G. State’s brief, on the for appellee. the Court.
Corrins, J., delivered *3 a and judgment Cornelius Farrell from appeal by This is rape. sentence to death for woman, 1956, 5, hereinafter referred On a white June T., fre- in south Baltimore
as Mrs. visited Tavern Sach’s there stayed testified that she by colored quented people. She bottles of beer. two hours and consumed seven about a owed her husband some went there to see who girl She could it back. left maybe and she she money thought get She along the a cab to home. While go walking tavern to get men, the de- including the she was attacked three street fendant, was struck and knocked jaw negro. She into a When garage. unconscious and lot behind dragged in the sexual she she the defendant engaged awoke found scream, un- was struck and knocked again, tried to act. She the attack she said she had neither seen conscious. Prior to her nor attackers. spoken and testified that he was the area Officer Williams went to and found investigate heard unusual and something two other on Defendant and lying ground. woman Defendant, the scene. his effort men were from running windows, but two was jumped through captured. escape, the woman was from bleeding When found officer There were no speak mouth and could not coherently. clothes on the lower her her part of did not body. She on glasses could see without them. The hospital records indicated she was beaten. The severely slide disclosed spermatozoa. Complete dis- penetration also closed.
The defendant testified woman was on sitting lot when he first saw As he her. came she up alley called him a “nigger” and asked him for a smoke and also asked him for a drink. He drink from got Tavern and Sach’s brought to her. then became romantic. She asked She him to hold glasses act, her and solicited the sexual n He accomplished. denied he struck her. He said blood on his clothes was blood from cuts sustained himby when he jumped windows. We must through conclude from the evidence that there was evidence to ample find that the defendant struck T. Mrs. sexual intercourse with her.
On cross-examination defendant admitted that had been a number convicted of times for as- conduct disorderly sault. record offered evidence that he had showed been convicted eighteen times for drunken disorderly conduct, once for carrying deadly weapon, and three times for assault. During cross-examination defendant also 8, 1955, admitted that May on been he had committed stayed Crownsville and there nine eight or months. Crowns- ville is under the supervision and control of the Department Code, Mental Hygiene, Article At 18. Section 22, 1956, the end of the trial on before verdict was June passed, court-appointed was asked: attorney “Anything *4 further, Mr. Gosnell?” This then followed. colloquy “(Mr. No, Honor, Gosnell) Honor, your except your this: I have had no that man been in In knowledge this Crownsville. fact, I didn’t know he had been even convicted before because he me that he told stuck to his he always story didn’t have In of the any convictions. view fact has been to Crowns- ville for nine I eight your months would ask that Honor examined, him fairness to him. I will (The Court) of, disposed have an examination made before the case is you All can be sure of that. (Mr. Gosnell) right. (The Court) No, your (Mr. Koutz) further from Anything State? Honor, there Court) Obviously only (The that is case. case, guilty. (Mr. the verdict is can be one this verdict Honor, I have him you the reason asked Gosnell) Your if the Honor is because your finding made examined before in- reason of guilty by insane it would be not man is found then, strike out your probably, Honor would sanity, doctor, Well, certainly but I am Court) verdict. (The heard, I think there is any from I don’t what have seen not, doubt, insane Í I know he is don’t get don’t whether but, is; I that he a medical that indicates get the impression if I the verdict. contrary to the can correct something always well, it out. sir. Gosnell) Very (Mr. Strike however, situation, is It a serious with Court) (The all the call for information presented I am one does further, can the man. Before I go any that I find out about him, Gosnell, I I want to thank for you representing Mr. case. very I told serious you, you appointed Yes sir. (Mr. Gosnell)
* * * I, for any any don’t see basis motions Court) frankly,
(The offense trial. course is capital to be filed for a new Of you I to direct that going this case am not case. it, any that there is basis for any file because I can’t see But, is going I will determine what such motion whatsoever. reports. after I all these other get in that respect to be done would, disposi- then be I may depending And it, to make of I would direct I determined finally tion I instead, crossed that bridge. but we haven’t appeal I, at this moment frankly, that possibility. about thinking file a you Along reason direct that motion. see don’t line, appeal, if it I then direct an justified, might the other to it.” when we bridge get but we will cross that trial three months after the September On sentence, the death before just imposing case, Gosnell, in this before I sentence impose “Mr. stated: to the of Ap- take an Court you appeal I want direct know At I we discussed the conclusion peals. trial; then, you a new felt as the matter motion for *5 it, And, recall that there no substantial basis for it. really was in concurred that but in of sentence frankly, view that I am about to I think be impose ought that the case to re- viewed Court of It Appeals. would probably occurred, in event, if been taken.” motion had
On the day same the sentence passed was the defendant’s filed attorney a petition which he alleged, other among things, after the following: he testimony completed found out for the first time that the defendant had formerly n been an inmate at Crownsville on one more Hospital State or occasions suffering from some mental disorder. Immediately he discovering requested that medical be report made defendant to which judge consented. 21, 1956, On September petitioner to appear was advised in the Farrell, criminal court for in the disposition case of at which time Farrell was sentenced death. Before to sentence passed the trial judge received a medical report petitioner set out the mental presumes condition He background Farrell. that he thereupon requested given be copy the medical or that be report he permitted to make a of the medical copy report take notes therefrom in order that he might have better of the knowledge mental condition defendant and be able the next decide step be taken. The trial had judge repeatedly refused this re- quest and also request refused see and make notes from the medical and has further report, filed the case a sealed envelope containing report this medical with notation not to be opened permission without presid- Court, I, ing Criminal Part judge, Baltimore City. petitioner further alleges again approached the that he be to see the requesting permitted and make and notes therefrom and use copies such denied, further request defense of Farrell. His has been al- has been the usual though procedure such cases that the with the report be filed record available for examination the defense counsel. Petitioner is unable to proceed in- with the Farrell telligently defense of without a copy per- medical mission examine the report. 17, 1956,
As on petition, a result December ap- *6 months the three after six after trial and months proximately sentence, following the wrote Gosnell Mr. the letter:
“You filed a to obtain of originally petition copy the in the above I to report medical case. declined I furnish with of informed you although a copy and, ex- you might my that I you inspect copy, as time, it to at to plained you customary that is not of that we release the medical obtain copies reports after report trial. is sealed and original case, course, and, the in of papers the would among be if available to Court of an Appeals inspection were I you desired. that Subsequently, suggested obtain a in that I ar- 30-day might extension order time be range for a when Dr. Guttmacher would for and to opportunity you available would have ' to findings. examine him with respect Again was to the violation of the rule that my idea avoid we with reference have followed generally reports. release of these medical because matters, I not other have pressure found in such and order possible arrange hearing, am delay, enclosing photo- avoid further static as you originally medical copy requested.” in sentence
The defendant’s stated this Court that attorney first without against of death was the defendant pronounced is silent if he had The record asking anything him say. State, In 123 Md. A. on this matter. Dutton this at some and discussed matter Boyd length Chief Judge sub- are uniform on the out that authorities not pointed are on the Maryland subject in there no statutes ject number greater He stated that as states. further many that in cases this capital penitentiary hold of authorities far as practice, be followed and such as should practice aware, most circuits was had been followed that when it is done the proper He also this" added State. noted in the record. He con- the fact so to have practice is that, reverse a although eluded the Court would not judg- ment for prisoner might this reason unless the omission, been in his injured by own judgment prac- tice should be in all cases in death adopted penalty which the may be in all in which the imposed ordinarily other cases may defendant be confined We are of penitentiary. that on this there point showing sufficient of prejudice to warrant a new trial.
The attorney for the
further
defendant
contends
medical
should
him
long
have been made available to
course,
verdict,
before he
it.
received
Of
after
trial court
may
inquire into
record of the
past
traverser
hear
evidence and receive
aggravation
mitigation
reports
*7
punishment.
In such
is not limited
investigations
inquiry
by the rules of evidence
the trial
is
judge
and
invested with
wide discretion in
the sentence to be
determining
imposed.
State,
Murphy v.
70,
239;
State,
184
A.
Md.
40
2d
v.
Walker
440,
186 Md.
47
Psychiatric
A. 2d 47.
at times are
reports
Show,
used for
State,
Balto. Radio
purpose.
Inc. v.
193
300, 328,
Md.
ported
that
it entered into the conviction. Under
was,
course,
the established rules it
competent after verdict
guidance
court’s
in
fixing
penalty. Murphy
State,
184 Md.
In this case it is evident did attorney defendant’s not know that the been in defendant had until Crownsville after the were pleas filed and until after took the defendant in stand his own defense. At notified that time his attorney the court that he would like a medical examination made order he of not might whether to file plea determine that, if guilty reason The trial stated insanity. “something received a medical which indicated are, to the out the We contrary”, he could strike verdict. verdict, therefore, of that this was a pend- tentative There- evidence as to the defendant’s mental condition. ing fore, such affect the tentative verdict might evidence which court, rules case' should be taken open subject n evidence, be should allowed attorney defendant’s n cross-examineon that issue. showing We read the as record the accused was sanity pri- as to the investigation that the the tentative whether showing purpose marily for sen- passing not for aid final and become should verdict doctor examining the conclusion true that It is tence. reason not have capacity defendant did not show did right between distinguish him to enable sufficient *8 of his consequences nature and the understand and wrong, 913; 575, Salinger A. State, 112 2d 206 Md. v. Thomas act. State, 907; 207 v. 623, Bryant A. 2d 206 Md. Supt., v. 502, by Dr. Gutt- made report, This 565, 115 A. 2d Md. been admitted to Crowns- macher, that defendant stated of 1955, was made diagnosis where during twice ville that the intoxication” to alcoholic due hallucinosis “acute upon effect very deleterious “had use alcohol of excessive cells”, a responsible agent. he was but that brain cortical his cross-examination what say to impossible it is n evidence on this have revealed might the defendant by offered be awarded new trial should that a opinion are of We issue. the defendant. a trial to determine authority given know of no
We
ap-
be filed or an
a new
should
motion for
whether
in
is con-
criminal cases
to
right
appeal
taken.
peal
5,
86,
Code, 1951,
the
parties,
Article
Section
ferred by
It is further
as
civil cases.
in the same manner
be taken
shall
execution
stay
in a criminal case
that no appeal
provided
shall make
for the accused
unless the counsel
sentence
of
5,
Article
taken for
Cf.
delay.
is not
appeal
oath that
Code, 1951, Article
12,
399, Acts of 1957.
Chapter
Section
Madison
89,
of review.
5,
scope
does not enlarge
Section
1, 9,
Nor does it shift
State,
Judgment trial, paid to be a nevo costs council by mayor city Baltimore.
Henderson, following dissenting opinion. filed the J., from the of this Court unable determine I am the trial court that re- was committed error what just I find none. It is judgment, reversal of the quires tentative, but verdict is tenta- every verdict said to revision subject remains in the sense tive sentence, at least within limits of prior trial court be the of the trier of facts duty I take it to jeopardy. double while the facts are fresh promptly render a verdict motion to continue the case if there had been a mind. Even curia, none, there sub would have the case or hold *9 358
been well within the trial court’s discretion to overruled it. Actually, counsel for the defense agreed to the rendition verdict, condition that the court would reconsider and strike it out if the report insanity. indicated The report did not so indicate. There was no breach of condition.
If the verdict had been deferred until after the was report received, it might have been error for the court to consider the report prior State, In verdict. Lowery Md. 314, 320, 321, it was that it argued was reversible error consider, trial court to verdict, read and prior medi- cal report ordered at the request of defense counsel a capital case. We said it was the better practice and preferable that such a report should not be “read him at all before or during trial”. we found no evidence in that record that the court read or considered the report prior to verdict. it cannot be Surely, error for the court in the instant case to have followed the approved practice. Counsel for the defense admitted this Court that he had ground no for a motion for new trial voluntarily abandoned such a motion.
It is settled law that the trial court the re- may consider sentence, port prior to even without cross-examination of the reporter. of this Court not opinion holds that was reversible error for the trial not to court have called on accused to make a further statement at the time of sentence. had, course, The accused taken the a full stand and made statement trial. during suppose that this would ruling counsel, also apply to defense it would although appear counsel was heard on that occasion. If we assume that the court should have furnished a to de- copy received, fense counsel as soon as was I do see how defense, un- helped would have since favorable. Dr. Guttmacher found that accused knew the was able wrong difference between right appreci- law, ate the of his acts. Under settled this is consequences substance, establish criminal In enough responsibility. that the accused had the expert requi- alcoholism, site to form a mentality, although impaired did, course, furnish a photo- criminal intent. The court *10 filed the petition counsel upon copy static counsel, letter to after sentence. In his immediately counsel to see offered to permit court stated that circumstances, Under these to the sentence. copy prior sooner. copy no the failure to furnish prejudice can find on and sentence There no motion to strike the judgment other ground. trial. On for a new remanded the case This Court has Guttmacher, entered, Dr. retrial, is if a plea insanity even on defense, plea hardly if called will support upon be incumbent it will not basis of his report, Thus, newly there be discovered unless sanity. to prove State the re- evidence, proffer, there is no suggestion of which verdict, if con- prior not be evidence put will port more no carry presumably to sentence would sidered prior event, In any set aside. in the trial now than did weight a sentence. we cannot review settled that is order court to for the trial salutary thing It a usual and is If we are now counsel. of defense request a report reversal, at the risk of trial court does so that a holding verdict, even the stand prior is on reporter put unless and the does insanity where there is no plea untena- defense, position quite I think such support confusing may prove in this case that the decision ble. I fear in other courts, unfortunate effect and have to the trial cases. STATE, et al.
SEAMAN ux. et use JETER Record) Appeals in One (Two Term, 1956.] [No. October