Beard v. State, 5

• Decision Date: 21 April 1958
• Docket Number: No. 5,5
• Parties: William Edward BEARD v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 302

216 Md. 302

140 A.2d 672

William Edward BEARD v. STATE of Maryland.

No. 5.

Court of Appeals of Maryland.

April 21, 1958.

Robert S. Heise, Annapolis, for appellant.

James H. Norris, Jr., Sp. Asst. Atty. Gen., and by Joseph S. Kaufman, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and J. Harold Grady, State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, Chief Judge.

The appellant, Beard, was tried in the Criminal Court of Baltimore on December 5, 1952, for violation of the narcotics law, was found guilty by the jury on four counts of the indictment against him and was sentenced on December 17, 1952, to fifteen years' imprisonment. He sought to appeal within the time allowed by law, but for some reason not fully explained there was delay on the part of the prison authorities in censoring and forwarding Beard's appeal. He later filed a petition for a writ of habeas corpus, which, after our holding in Beard v. Warden, 211 Md. 658, 128 A.2d 426, and a hearing in accordance therewith, resulted in this delayed appeal. At the above hearing Beard was represented by court-appointed counsel, and at his request the same counsel was appointed to represent him on this appeal. (He was represented by other counsel at his original trial.)

The indictment contained six counts. The first two charged, respectively, that Beard had possession and control of a narcotic drug on October 14, 1952; the 3rd and 4th counts recited, respectively, that he had been convicted of possession and control of a narcotic drug on November 24, 1950, and charged him with corresponding offenses on October 14, 1952. The 5th and 6th counts recited, respectively, that he had been convicted of possession and control of a narcotic drug on January 30, 1948, and charged him with corresponding offenses on October 14, 1952. The State conceded in this Court that there was but one offense committed on October 14, 1952, whether it was having possession or having control of a narcotic drug. We shall refer to that offense as the current offense and to the prior offenses by the respective years of the convictions or as prior offenses 'A' (1948) and 'B' (1950). Under the instructions of the trial court the jury disregarded the first two counts and returned no verdict thereon. It found the defendant guilty under the 3rd, 4th, 5th and 6th counts. No exceptions were taken to the charge.

The appellant challenges the validity of the sentence and also asserts that the delay in his appeal deprived him of the equal protection of the laws. His attack on the sentence is based upon the general form of the verdict and the absence of specific findings that he had been previously convicted of narcotic offenses, but the sufficiency of the indictment to sustain the imposition of a sentence upon the appellant as a third offender is also presented on the record before us and seems appropriate for consideration in accordance with Rule 739(g) of the Maryland Rules. We shall take up these questions in the following order: first, the equal protection of the laws; second, the verdict and lack of specific jury findings of past convictions; and third, the sufficiency of the indictment for the purpose stated.

This case was argued at the opening session of the present (September, 1957) Term of this Court and resulted in a considerable diversity of opinion on the questions pertaining to the verdict and findings and to the indictment. A motion for reargument was granted at the instance of the State, which sought reargument only on the third question, since this was the only one decided adversely to it by a majority on the original hearing. All questions were open when the case was reargued in January, 1958, together with McCoy v. State, No. 80, Md., 140 A.2d 689, which had originally been argued in November, 1957, and was reargued at the instance of the Court, since it presented, inter alia, some kindred problem. Long and intensive consideration of this case has produced some charges in views on the part of most of the present members of this Court (including the writer) who heard this case initially, but it has not produced complete unanimity of opinion. We now proceed to a discussion of the three questions above stated.

Equal Protection of the Laws.

The appellant contends that the delay in his appeal caused by the fact that Penitentiary officials did not censor and forward his appeal promptly has denied him equal protection of the law, which requires his release; and states that the equal protection clause is 'to protect every person within the State's jurisdiction against intentional and arbitrary discrimination.' Little quarrel can be had with this abstract statement, but here we do not have 'intentional and arbitrary discrimination.' There were unfortunate and somewhat inexplicable circumstances that prevented the perfection of the appeal. As soon as these circumstances were discovered, a delayed appeal was granted. But, even if we had a case where some individual or individuals had 'intentionally and arbitrarily' delayed the appeal, this, alone, under the circumstances of this case, would not entitle the appellant to his release, although, we have held, he would be entitled to a delayed appeal. In Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215, the Supreme Court granted certiorari on the petition of the warden from a decision of a District Court releasing a state prisoner on habeas corpus. The prisoner had been prevented from sending out appeal documents by state prison authorities, enforcing prison rules, until it was too late to take an appeal. Many years after the restriction was removed, the prisoner filed petitions for a delayed appeal, coram nobis and habeas corpus, which were denied. He then sought in the Federal District Court a writ of habeas corpus which was granted, the Court holding that 'there had been a denial of equal protection of the law for which the State provided no remedy,' and ordered the prisoner's discharge. However, the Supreme Court vacated the order and remanded the case to the District Court, stating on page 210 of 340 U.S., on page 264 of 71 S.Ct.:

'The Fourteenth Amendment precludes Indiana from keeping respondent imprisoned if it persists in depriving him of the type of appeal generally afforded those convicted of crime. On the other hand, justice does not require Indiana to discharge respondent if such an appeal is granted and reveals a trial record free from error. Now that this Court has determined the federal constitutional question, Indiana may find it possible to provide the appellate review to which respondent is entitled. The judgments of the Court of Appeals and the District Court are vacated and the case remanded.'

Lack of Specific Jury Findings of Past Convictions.

In cases such as this in which a more severe punishment may be, or is required to be, imposed for a current offense because of one or more prior convictions, it is, of course, a prerequisite to the imposition of the more severe penalty that the prior conviction or convictions be establisher. Maguire v. State, 47 Md. 485; Goeller v. State, 119 Md. 61, 85 A. 954; Kenny v. State, 121 Md. 120, 87 A. 1109; Hall v. State, 121 Md. 577, 89 A. 111; Robertson v. Warden, 212 Md. 646, 129 A.2d 90. See also Mazer v. State, 212 Md. 60, 127 A.2d 630.

The Narcotic Drug Act, under which the appellant was prosecuted, defines various offenses, among them (Code (1951), Art. 27, Sec. 346, now Code (1957), Art. 27, Sec. 277) having possession or control of a narcotic drug. Section 369 of Art. 27 of the 1951 Code (now Sec. 300 in the 1957 Ed.) prescribes penalties for violation of the Act. Its first sentence provides that anyone who violates any provision of the Act shall be fined not more than $1,000 and be imprisoned for not less than two nor more than five years. This section then provides that for a second offense, the offender shall be fined not more than $2,000 and be imprisoned not less than five nor more than ten years, and that for a third or subsequent offense, the offender shall be fined not more than $3,000 and be imprisoned not less than ten nor more than twenty years. (This Section contains other provisions not here material, including those under which a prior conviction under the laws of the United States or of any other State relating to narcotic drugs may serve as the basis for increased punishments for second, third or subsequent offenses.)

It is the settled law of this State that an indictment charging a defendant as a second or third offender must allege the prior offenses. See the Maguire, Goeller, Kenny, Hall and Robertson cases, supra. ¹ It also settled by these cases that the defendant's plea of not guilty puts in issue the fact of the prior conviction as well as the question of whether or not he is guilty of the current offense. ² There must be a determination of the guilt or innocence of the accused with regard to the current offense; and if he is found guilty of that offense, there must ordinarily be a specific finding by the jury on the historical fact of the previous conviction.

In this State, under the rule of the Maguire case and of the cases following it, if there is a general verdict of guilty on a count or indictment charging a current offense and alleging one or more prior offenses, the defendant can be sentenced only as for a first offense. The law in most of the States is otherwise, though there is said to have been some tendency in comparatively recent years towards the minority view. See Annotations, 58 A.L.R. 20; 116 A.L.R. 209, 234; 139 A.L.R. 673, 696. The rule of the Maguire case seems at variance with the usual rule in criminal cases that a general verdict of guilty is equivalent to a finding of guilt under each and every count. Cf. Berger v. State, 179 Md. 410, 415, 20 A.2d 146.

The question here presented is whether...