Banks v. State

• Decision Date: 08 January 1954
• Docket Number: No. 53,53
• Citation: 203 Md. 488,102 A.2d 267
• Parties: BANKS v. STATE.
• Court: Maryland Court of Appeals

Page 488

203 Md. 488

102 A.2d 267

BANKS v. STATE.

No. 53.

Court of Appeals of Maryland.

Jan. 8, 1954.

Harrison Banks, in pro. per.

H. Clifton Owens, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., and Hamilton P. Fox, Jr., State's Atty. Wicomico Co., Salisbury, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

Harrison Banks, a resident of Salisbury, but now confined in the Maryland House of Correction, has appealed here from his convictions by the Circuit Court for Wicomico County on two criminal informations charging larceny. Code 1951, art. 27, sec. 406, amended by Laws 1952, ch. 18.

On January 7, 1953, when defendant appeared in the People's Court for Wicomico County, he waived a preliminary hearing and was held for the action of the grand jury. On February 16 he filed with the Clerk of the Circuit Court a petition and suggestion in accordance with Code 1951, art. 27, sec. 679, as to each of the criminal charges pending against him, setting forth that he wished to waive his right to an indictment by the grand jury, and that he sought an immediate trial, without regard to terms of Court, upon a criminal information filed by the State's Attorney. Each of the informations contained three counts.

The first information charged: (1) that on December 22, 1952, defendant broke into the storehouse of Williamson & Son Company with the intent to steal certain property under the value of $100; (2) that he broke therein and stole one suede jacket of the value of $10, and one electric clock of the value of $15; (3) that he stole one suede jacket of the value of $10, and one electric clock of the value of $15.

The second information charged (1) that on December 20, 1952, defendant broke into the storehouse of Esso Standard Oil Company with the intent to steal certain property under the value of $100; (2) that he broke therein and stole one Royal typewriter of the value of $50; (3) that he stole one Royal typewriter of the value of $50.

The cases came on for trial before Judge Adkins on February 25. Defendant pleaded not guilty to both informations, and elected to be tried by the Court without a jury. At the conclusion of the first case, the Court found him not guilty on the first two counts, and guilty on the third count.

When the second case was called, the State's Attorney agreed that he would not offer any testimony as to the first two counts if defendant would change his plea to the third count from not guilty to guilty. Accordingly the docket entries show that he pleaded not guilty as to the first and second counts, but guilty as to the third count, and that the State declined to offer testimony as to the first and second counts.

As in the first case, the Court found defendant not guilty on the first and second counts, and guilty on the third count. In each case the Court sentenced him to the House of Correction for a term of 18 months, the sentences to run consecutively.

Defendant now contends that certain personal property seized in his home unlawfully was improperly admitted in evidence, and that the verdicts were contrary to the evidence. It is impossible to consider these contentions because there is no evidence in the record.

Before the first case was called, defendant was informed that no stenographer was available in court to take the testimony. Thereupon his attorney stated that they were willing to proceed without a stenographer.

There is no provision in the Federal Constitution or the Constitution of Maryland requiring that testimony in criminal trials shall be recorded stenographically or by mechanical means. Accordingly criminal trials have frequently been held in this State and in other jurisdictions without the taking of testimony by a stenographer.

One such trial was that held in the District Court for the Southern District of Florida in Ricard v. United States, 5 Cir., 148 F.2d 895, 896. In that case there was no request for a stenographic report of the trial. The bill of exceptions was made from memory, as such bills had traditionally been made. It was certified by the judge to be true and to contain all the material evidence in narrative form. The defendant complained on appeal that the judge erred in failing to provide a court reporter as required by Act of Congress requiring that one or more reporters shall attend at each session of the court and record either by shorthand or mechanical means all proceedings in criminal cases had in open court. At the time of the trial the qualifications and salary scale for the reporters had been fixed by the Judicial Conference as required by the Act, but the Congress had not made any appropriation for their payment, and there was no official reporter in the Southern District of Florida.

Judge Sibley, speaking for the Fifth Circuit Court of Appeals, in upholding the conviction, commented as follows: 'Notwithstanding the mandatory language of the Act above quoted, it is plain that no one will accept appointment and do the work of court reporter if there is no provision to pay him, and that the court cannot require the verbatim record of proceedings in criminal cases if there is no reporter whose duty it is to make it. It was not the intention or the effect of the Act to suspend the power of the district courts to try criminal cases till reporters could be secured. If there had been an official reporter in office, and his presence was insisted on, it may be that the court would have been bound to secure his presence. That question can wait till it arises. Here there was no official reporter. No request was made for a substitute, or any other action by the court. It was not error to proceed with the trial.'

The same situation appeared in the District Court for the Western District of Arkansas in Vickers v. United States, 8 Cir., 157 F.2d 285, 287. There also the defendant appealed on the ground that the District Court did not have a verbatim record of the proceedings made either by shorthand or mechanical means, as prescribed by Congress in the Act of 1944.

Judge Sanborn, speaking for the Eighth Circuit Court of Appeals, observed that Congress had authorized the appointment of reporters for the District Courts and directed that one of the reporters should record all proceedings in criminal cases had in open court; but at the time the case was tried no reporter had been appointed by the District Court, as Congress had neglected to provide the means for paying the salaries of court reporters. 'Hence,' he said, 'there was no reporter 'so appointed' and the court was unable to furnish one. * * * Obviously the Act had nothing to do with the jurisdiction of the district courts or the requirements of due process.'

Of course, the right of an accused to have the testimony at his trial reported stenographically may depend upon the language of a statute providing for a stenographer at criminal trials. For example, the Legislature of Oklahoma enacted a statute providing that the county stenographer shall take down in shorthand all testimony and proceedings during the trial in all civil and criminal cases. In Wiswell v. State, 14 Okl.Cr. 517, 173 P. 662, the Criminal Court of Appeals of Oklahoma held that, since the law was mandatory, any person charged with violating a penal statute is entitled to have the testimony in a trial before a court of record taken in shorthand by a court reporter, and upon proper demand is entitled to have the transcript of the proceedings for the purpose of taking an appeal, and that if this right is denied and a conviction results, a new trial will be awarded on appeal.

On the other hand, where there is no statutory provision giving an accused person the right to demand that the testimony at his trial shall be taken down by the court stenographer and transcribed for use in subsequent proceedings, the services of such a stenographer at his trial are within the discretion of the court, although the accused may be entitled to use the services of a private stenographer at the trial.

In 1908 the Legislature enacted a statute authorizing the Judges of the First Judicial Circuit of Maryland to employ a stenographer to serve in the respective Courts of that Circuit. The only statutory command to the stenographer is that he 'shall perform such duties as may be imposed upon him by the judges of said court or either of them, and shall be required to furnish type written or printed copies to the attorneys of the court as the court may prescribe and direct.' Laws 1908, ch. 437, Code P.L.L.1930, art. 23, sec. 21.

In the case at bar defendant waived any right to have the testimony in the trial taken by a stenographer. It is an unquestionable rule that where there is no constitutional or statutory mandate and no public...