Bowie v. State
| Decision Date | 06 May 1964 |
| Docket Number | No. 313,313 |
| Citation | 234 Md. 585,200 A.2d 557 |
| Parties | Frank BOWIE v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
J. Richard Wilkins, Baltimore, for appellant.
John W. Sause, Jr., Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., William J. O'Donnell and William T. S. Bricker, State's Atty. and Asst. State's Atty., respectively, for Baltimore City, on the brief), Baltimore, for appellee.
Before BRUNE, C. J., and HAMMOND, HORNEY, MARBURY and SYBERT, JJ.
The appellant, Bowie, a negro man, was convicted in 1945 by Judge Moser, sitting in the Criminal Court of Baltimore without a jury, of sexual assault on a negro woman, and sentenced to life imprisonment. There was no appeal. In 1945 Bowie unsuccessfully sought habeas corpus from a Maryland judge on the grounds that he had been illegally arrested and that evidence had been erroneously admitted against him at his trial. Leave to appeal was denied in Bowie v. Warden, 190 Md. 728, 60 A.2d 185, this Court saying on the latter point that '[p]rocedural details (not fundamental), including rulings on evidence, cannot be reviewed on habeas corpus.'
In 1952 Bowie again tried, without success, to obtain relief by way of habeas corpus, this time on the claim of double jeopardy and of invalidity of one count of the indictment. In Bowie v. Warden, 201 Md. 648, 92 A.2d 449, Judge Markell, for the Court, in denying leave to appeal, said 'defects in an indictment and the defense of double jeopardy, if properly objected to at the trial, may be reviewed on appeal or on motion for a new trial, and not on habeas corpus.'
In 1961 Bowie filed a petition under the Post Conviction Procedure Act, claiming that he had been acquitted of rape, charged by the first count of the indictment against him, that he was convicted of assault with intent to rape under the second count of the indictment, but that the second count did not charge assault with intent to rape but, like the first count, charged rape. From these premises he argued that conviction on the second count put him in double jeopardy since he was acquitted on the first count. He claimed also that there was an inconsistency in the verdicts in that he was acquitted of rape under the first count and convicted of rape under the second count, and finally that if he was convicted of assault with intent to rape the conviction was illegal and unconstitutional since he was not charged in the indictment with that crime. Judge Manley found against him.
In granting leave to appeal and remanding the case for further consideration, Judge Henderson, for the Court said (p. 608 of 230 Md., p. 922 of 184 A.2d):
On remand, after a further hearing at which Bowie was represented by counsel appointed by the court, and consideration of argument of counsel, Judge Manley (1) found that the second count of the indictment charged rape, (2) ordered the clerk to strike from the docket the words between the parentheses in an entry made at the trial in 1945, reading and (3) said the evidence would have supported a verdict of guilty of either rape or intent to rape and that the statutes authorized the same penalty for both offenses. He held that the point of double jeopardy, having been finally litigated in the second habeas corpus case, could not be again raised, that it does not follow that a conviction on one count may not stand because of an inconsistent acquittal on another count, and that the contention that the second count was illegal and defective should have been made in the trial court and was not open for review under the Post Conviction Procedure Act. We granted leave to appeal.
A review of the facts is essential for a full understanding and correct decision of the case.
Bowie was charged by the Grand Jury in 1945 in the assault case in a four-count indictment. 1 The first count charged rape, the third count charged perverted sexual practice, and the fourth common assault. The second count, which in Baltimore in such cases has long been, and in 1945 was, by almost unvarying custom, if not unvarying custom, a count charging assault with intent to rape, read as follows in this case:
'And the Jurors aforesaid, upon their oath aforesaid, do further present that the said FRANK BOWIE, on the said day, in the said year, at the City aforesaid, in and upon one Nettie Graham, feloniously did make and assault with intent then and there, her, the said Nettie Graham, then and there violently and against her will, feloniously did ravish and carnally know, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.'
No challenge was made to the indictment and no question raised as to its meaning until 1961, some fifteen years after the Grand Jury returned it and the accused pleaded not guilty of the offenses charged in it, and thereafter was found guilty.
At the trial the prosecuting witness testified that as she was on her way home from work late at night, Bowie, at a lonely spot, struck her on the head from behind with a piece of iron pipe, raped her and committed perverted sexual acts upon her, and then robbed her. Almost immediate complaint was made to the police, who arrested Bowie several days later. The prosecuting witness picked him from a line-up of a number of men, and had no doubt of his identity at the trial. The physical evidence found by the police at the lonely place at which the victim told them the acts occurred supported her story. It was shown that Bowie had caused to be pawned a watch taken from the victim and received the proceeds. He confessed to the police that he had hit the woman with the iron pipe and robbed her but denied the sexual acts. On the stand he said he made the confession as to the assault and robbery to exonerate his friend who had pawned the watch for him because he was sure he, Bowie, could 'beat the rap' on the sexual charges.
At the conclusion of the testimony, Judge Moser found a general verdict of guilty and deferred sentence. He said to Bowie's counsel, a very experienced and very competent lawyer, who had been appointed by the court, that he had In criminal cases in Baltimore motions for a new trial are heard by the judges of the Supreme Bench other than the judge who sat in the case and the matter of the legality or adequacy of the indictment, as well as that of the verdict and the sentence, could have been raised and decided at that hearing.
A motion for a new trial was filed, as suggested. Several weeks thereafter, Judge Moser reopened the case, saying:
'This case was reopened on the instructions of the Court because certain representations were made to me by counsel for the defendant, and I felt those representations * * * might or might not affect the judgment of the Court, but in any event in a case as serious as this I wanted the defendant to have every possible leeway to put anything that would in any way affect his guilt or innocence or the degree of his guilt into the record. * * *' Judge Moser then, within the period during which he had the right to do so and at the express request of the accused and with the express consent of the State, in open court, struck out the verdict of guilty. Bowie's lawyer then produced testimony by a police officer to the effect that at the time of the complaint to the police by the victim, she had once said that Bowie had committed the perverted sexual acts and robbed her but that although she knew he had prepared to rape her and given indications he was going to do so, she was not sure he had done so. In questioning the policeman who was somewhat hazy in certain recollections on the point, Judge Moser made it clear that he had made up his mind, after the original finding of guilt of rape, to impose the death penalty. 2 He said:
At the conclusion of the testimony at the rehearing, Judge Moser requested argument of counsel 'from the standpoint of the kind of verdict possible in view of what has just occurred,' and at its conclusion announced his findings as 'guilty on the second, third and fourth counts, not guilty on the first,' and Bowie's counsel said: 'I formally withdraw the motion [for a new trial].' Judge Moser then said to Bowie:
In arguing that the first and second counts of the indictment charged the same identical crime, Bowie says in his brief:
'It is quite evident notwithstanding the recent order of Court striking out the words 'Assault to Rape, etc.' every person in the court, at the trial in an official capacity viz. the Honorable Judge, the State's Attorneys, the attorney for the accused and the Court Clerks thought that...
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