Bernard v. Warden of Md. House of Correction

• Decision Date: 21 November 1946
• Docket Number: 19.
• Parties: BERNARD v. WARDEN OF MARYLAND HOUSE OF CORRECTION.
• Court: Maryland Court of Appeals

49 A.2d 737

187 Md. 273

BERNARD v. WARDEN OF MARYLAND HOUSE OF CORRECTION.

No. 19.

Court of Appeals of Maryland

November 21, 1946

Supplemental Opinion Jan. 9, 1947.

Appeal from Baltimore City Court; W. Conwell Smith, Chief Judge.

Habeas corpus proceeding by Clarence B. Bernard against the Warden of the Maryland House of Correction. From an order refusing to grant a writ, applicant appeals.

Order affirmed and appeal from conviction disallowed.

William Curran, Atty. Gen., and J. Edgar Harvey Asst. Atty. Gen., for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS GRASON, HENDERSON, and MARKELL, JJ.

HENDERSON Judge.

The appeal in this case is from the refusal of Judge W. Conwell Smith, Chief Judge of the Supreme Bench of Baltimore City sitting in the Criminal Court, to grant an application for a writ of habeas corpus. The petition, filed in proper person and evidently prepared by the petitioner himself, alleged that in June, 1945, he was indicted in Anne Arundel County as a result of false testimony given to the Grand Jury; that subsequently he was tried and convicted, although no evidence or testimony was produced to prove that he violated any laws of the State; that the offenses with which he was charged were: riot, disturbing the peace, assault and battery, destruction of State property, and unlawful assembly; that he was taken into court after 42 days of cruel punishment, during which he was forced to drink water from a toilet stool and sleep on a cold floor; that prejudice and discrimination were used against him; that before sentence was passed the trial Judge asked if he had anything to say, and the appellant replied that no one had given evidence or testimony against him; that the trial judge then observed that he felt the petitioner might have had a hand in the riot because he was 'outstanding'; that after being returned to the House of Correction he was denied the right to speak to his counsel concerning the filing of an appeal; that within ten days from the date of his conviction he attempted to file a petition appealing his conviction, but that the warden destroyed the petition; and that the warden has attached false statements to his subsequent petitions for a writ of habeas corpus.

These allegations are amplified by the petitioner in his brief filed in this court in proper person. He does not specify any false testimony given to the Grand Jury or produced at the trial, but contends that the testimony produced was not sufficient to implicate him. He states that the only witness called by the State, Deputy Warden Steiner, testified that he saw the petitioner 'standing up with his hands on the gate' at the time of the disturbance. The alleged false statements of the Warden, attached to his petiton for a writ of habeas corpus, appear to have been summaries of previous applications for a writ, which are claimed to be inaccurate.

The application to Judge Smith was signed by the petitioner on March 7, 1946. On March 13, 1946, Judge Smith, through his bailiff, wrote to the appellant that:

'Judge Smith has received your application for writ of habeas corpus and he asks me to advise you that since he is presiding over Criminal Court this year he does not grant writs of habeas corpus. You should address your application to the judge of one of the law courts.'

The petitioner did not enter any appeal in the Baltimore City Court, from a denial of the writ, but communicated with one of the Judges of this Court. After some unavoidable delay, this Court directed that an appeal be entered and the record sent up, nunc pro tunc.

It appears from the record that the petitioner was sentenced to four years in the House of Correction on March 26, 1943, following a conviction on a charge of larceny, by Judges Woodward, Prescott and Schnauffer, in the Circuit Court for Montgomery County; that a serious riot occurred at the House of Correction on June 2, 1945; that on August 12, 1945, the petitioner was tried and convicted of riot and assault and given an additional sentence of five years by Judges Clark and Boylan, in the Circuit Court for Anne Arundel County; and that the petitioner was represented by counsel (Messrs. Rullman and Strauss) at the trial last mentioned.

The first question presented by this record is the propriety of Judge Smith's refusal to entertain the application for the writ on the ground that he was engaged in trying cases in the criminal court.

Section 1 of Art. 42 of the code provides: 'The court of appeals and the chief judge thereof shall have the power to grant the writ of habeas corpus, and to exercise jurisdiction in all matters relating thereto throughout the whole State. The circuit courts for the respective counties of this State, and the several judges thereof, out of court, the superior court of Baltimore City, the court of common pleas of said city, the circuit court and circuit court No. 2 of Baltimore City, and the Baltimore City court, and the judges of said several courts, out of court, and the judge of the court of appeals from the city of Baltimore, shall have the power to grant the writ of habeas corpus, and to exercise jurisdiction in all matters pertaining thereto.'

The first sentence of this section was held unconstitutional, in Sevinskey v. Wagus, 76 Md. 335, 25 A. 468, as an attempt to confer original jurisdiction upon the appellate court, but it was recognized that individual judges throughout the state possess the power, by virtue of their office, to grant the writ under section 6, Art. 4 of the Constitution. In State v. Glenn, 54 Md. 572, 594, it was held that this power could not be restricted by the legislature, territorially, and, by implication, it may be assumed that the legislature could not restrict the power of any individual judge to grant the writ. It does not follow, however, that the particular judge to whom an application is addressed is obliged to hear it under all circumstances.

This question has been considered by the Federal Court of Appeals of the 9th circuit, where by rule of court cases in the District courts are assigned in regular rotation. It was held that an application addressed to a particular judge could properly be transferred to another. It was pointed out that the practical operation of the rule tends to facilitate and expedite a hearing, and that the right of appeal prevents any injustice to the petitioner. Burall v. Johnston, 9 Cir., 146 F.2d 230, citing Wright v. Johnston, D.C., 49 F.Supp. 748, 749. See also the comment on these cases in 44 Mich.L.R. 305.

It has also been held in the Federal courts that although the appellate courts and judges possess the power to grant the writ, it will not ordinarily be exercised, because the orderly administration of justice requires that the District Courts should have the opportunity to pass on the question in the first instance. Sweetney v. Johnston, 9 Cir., 121 F.2d 445; United States ex rel. Bernstein v. Hill, 3d Cir., 71 F.2d 159; O'Brien v. Swope, 9 Cir., 106 F.2d 471. See also Ex parte Abernathy, 320 U.S. 219, 64 S.Ct. 13, 88 L.Ed. 3.

Cases in the courts of Baltimore City are not assigned in regular rotation, but the judges of the Supreme Bench serve by annual rotation in the various courts. All of the judges of the Supreme Bench are also additionally assigned to assist each and every judge in his special assignment. It has been the practice of the Supreme Bench, expressed in a resolution, that all applications for writs of habeas corpus be docketed in the Baltimore City Court, and brought before the judge to whom the application is addressed, sitting as of the Baltimore City Court. It has also been the practice for the judges assigned to the Criminal court not to hear such applications, because of the pressure and intensity of the work in that court. This practice likewise finds support in the fact that section 1, Art. 42 of the Code, quoted supra, omits any reference to the Criminal Court. Without conceding any binding effect to that omission, it may be taken as an indication of legislative approval of the practice.

Thus, while Judge Smith, by virtue of his office, possessed the undoubted power to hear the application, we are not prepared to hold that he was required to do so under the circumstances. We think it would have been better practice, however, to have referred the application to another available judge for immediate consideration and hearing, if it required a hearing, in order that the relevant facts might be developed prior to an appeal.

The appeal in this case, under section 3C of Art. 42, as enacted by ch. 702 of the Acts of 1945, is from 'the refusal to issue a writ.' Section 3B provides: 'the judge considering the case may, at his discretion, dismiss the petition or require it to be amended or otherwise amplified unless the application alleges facts sufficient, if true, to probably show that the applicant is illegally detained. The judge may, in his discretion, make such examination of public records as seems desirable to determine whether the writ should be granted.'

While, as we have said, we think Judge Smith should have referred the application to another available judge, rather than deny the application on the ground assigned, the denial can be justified, if the petition did not make out a prima facie case. Olewiler v. Brady, Md., 44 A.2d 807; State v. Glenn, supra. For the purposes of this case we shall assume that the application was not premature. Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392.

The petitioner's chief complaint is that he did not have a fair trial. The alleged fact that he was subjected to brutal treatment by the Warden would seem to have no bearing upon this issue. Whether habeas corpus is ever available...