JACKSON v. STATE
No. 119, September Term, 1957.
Court of Appeals of Maryland
Decided October 29, 1957
Motion for rehearing, filed November 9, 1957, denied November 19, 1957.
Dissenting opinion filed November 13, 1957.
We find it unnecessary to consider the questions raised by the appellants as to whethеr or not their demurrer was properly overruled and as to the sufficiency of the evidence to bind Mrs. Born as well as Mr. Born by the asserted extension agreement.
For the reasons set forth above we think that the bill should have been dismissed.
Decree reversed and bill of complaint dismissed, costs to be paid by the appellee.
Submitted on brief by William H. Jackson, pro se.
James H. Norris, Jr., Special Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, J. Harold Grаdy, State‘s Attorney for Baltimore City, Preston A. Pairo, Jr., and Joseph G. Koutz, Assistant State‘s Attorneys, on the brief, for appellee.
PRESCOTT, J., delivered the opinion of the Court.
This appeal has been instituted by William H. Jackson, who was convicted of forgery by a jury in the Criminal Court of Baltimore, and sentenced by Judge Carter to three years in the House of Correction.
He filed a brief in this Court, pro se, and assigns as “questions presented“, the following:
“1. Was it error for the trial judge to deny appellant‘s request for a postponement of the trial so that appellant could obtain witnesses vital to his defensе?
2. Was it error for the trial judge to refuse to allow appellant to conduct his defense without counsel?
3. Was it error for the trial judge to refuse to allow the attorney for the defense to withdraw?
4. The State‘s witnesses gave conflicting testimony.
5. The State‘s witness, Daniel Weinstein and the two police sergeants entered a conspiracy to deny appellant due process of law.
6. No proper identification was made of appellant by Mr. Weinstein.
7. Appellant‘s trial and subsequent conviction and sentence was brought about through illegalities from the outset.
8. The trial judge should have instructed the
jury as to methods (proper) used to identify persons accused of crime. 9. It was pointed out during the trial January 7, 1957, that the police officers and Mr. Weinstein, had appellant аccused of forgery, without first having appellant identified as the man who forged the check.
10. It was pointed out during the (January 7, 1957) trial, that appellant on November 24, 1956, was put in a cell alone at the Northeastern Police Station and Mr. Weinstein (there are twelve cells six on each side) sent to that cell to point out appellant.”
I
The appellant was indicted on December 7, 1956, and upon his arraignment on December 10th of that year, pleaded not guilty. On Dеcember 14, 1956, William H. Murphy, Esquire, of the Maryland Bar, entered his appearance for him. The appellant‘s case had been set for trial on December 17, 1956, and on December 15th, he received a letter from Elizabeth Helm, Judge Carter‘s secretary, stating that Judge Carter had requested her to inform him that his witnesses had been summoned. While it is not perfectly clear, a reading of the record indicates that these witnesses were Magistrate Schonfield and Sergeant Sudmeier, both of whom testified for the appellant. On December 17th, the case was continued, and thereafter was called for trial on January 7, 1957. At that time, appellant‘s counsel of record made a general objection to the court‘s refusal to continue the case, because “three witnesses whom he (appellant) regards as material to his defense are not present in court.” The court recessed until the afternoon, so that an attempt cоuld be made to obtain the defendant‘s witnesses. The record discloses that practically all, if not all, of them were produced, and they testified. During the course of the trial in the afternoon, the court asked appellant‘s lawyеr, “Do you have any other witnesses?” To which he replied, “Yes sir, I have two other witnesses, the witnesses who didn‘t appear this morning.”
II
The appellant‘s questions 2 and 3 relate to his attorney, so they will be considered together. He alleges that it was error for the court to refuse to permit him to conduct his defense without counsel. The record discloses that when the triаl was about to commence, counsel for the accused requested the court to permit him to withdraw from the case, stating there was a difference of opinion between counsel and the appellant concеrning the conduct of the trial. Due to the tardiness of the request, it was denied. However, the court instructed the attorney that where there was any disagree-
III
Questions 4, 5, 6, 8, 9 and 10 submitted by the appellant are aimed at the sufficiency of the evidence, i. e., alleged lack of proper identification of the accused, and conflict in the State‘s testimony; therefоre they, also, will be considered together. Neither the appellant nor his counsel requested an instruction for a directed verdict, consequently this Court cannot review the sufficiency of the evidence presented to the jury.
In question 8, the appellant alleges that the trial judge should have instructed “the jury as to methods (proper) used to identify persons accused of crime.” No objection or exception was made to the court‘s instruction to the jury, so this, too, we are not at liberty to pass upon.
The Attorney General suggests, that while the question is not raised by the appellant, this Court may deem it possible
We may note, however, that a transcript of the testimony was furnished appellant, at the expense of the State, for the purpose of this appeal; that counsel of his own selection, аlso at the expense of the State, was offered and accepted by the appellant; and thereafter appellant informed this Court that he did not desire to be represented by counsel.
Judgment affirmed, with costs.
BRUNE, C. J., dissenting in part, filed the following dissenting opinion.
I think, although I concede that the matter is by no means free from doubt, that the appellant did say enough in his brief to bring before us the question as to whether or not he, as an indigent defendant, should have been furnished, without expense to himself, with a copy of the transcript of his trial for use in connection with his motion for a new trial. In the City of Baltimore, a motion for a new trial in a criminal case goes from the Criminal Court to the Supreme Bench, and is heard customarily, I beliеve, if not invariably, by members of the Supreme Bench other than the Judge before whom the case was tried in the Criminal Court. The Rules of the Supreme Bench require that either copies of the full transcript or an agreed statement of еvidence relevant to the questions raised by the motion or a certificate of the trial judge with regard to such evidence must be filed.
The question of whether or not Griffin v. Illinois, 351 U. S. 12, was applicable to Jackson‘s motion for a new trial was fully considered by the Supreme Bench in the present case, and a majority of that Court held that it was not applicable. There was a vigorous (and to me, persuasive) dissent by Judge Oppenheimer, in which Judges Niles and Allen concurred. Although this Court ordinarily has no jurisdiction
In his brief the appellant stated that he had been denied a copy of the transcript, without expense to himself, for use on his motion for a new trial, and in the next sentence he asserted that he had been denied his rights from the beginning of the trial. This seems to me enough to present the point, even though it is true that the Griffin case question was not one of the numerous specific grounds upon which he expressly sought a reversal of the judgment.
Whether or not Griffin v. Illinois is applicable to motions for new trials made by indigent defendants in criminal cases in the City of Baltimоre, is a question of importance upon which an early decision by this Court would seem desirable.1 I am confident that counsel would have raised the question clearly on this appeal. It is, I think, unfortunate that the appellant finally elеcted to reject the assistance of counsel of his own selection, which had been offered him, without expense to him. That, however, was a matter of the appellant‘s own choice.