Brack v. State

• Decision Date: 05 February 1947
• Docket Number: 50.
• Citation: 51 A.2d 171,187 Md. 542
• Parties: BRACK v. STATE.
• Court: Maryland Court of Appeals

51 A.2d 171

187 Md. 542

BRACK v. STATE.

No. 50.

Court of Appeals of Maryland

February 5, 1947

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

William F. Brack was convicted for disorderly conduct and disturbing the public peace, and he appeals.

Judgment affirmed.

William Curran, Atty. Gen., J. Edger Harvey, Asst. Atty. Gen., J Bernard Wells, State's Atty., and John C. Weiss, Asst State's Atty., both of Baltimore, for appellee.

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

COLLINS Judge.

This is an appeal by William F. Brack from a judgment and fine on June 20, 1946, in the Criminal Court of Baltimore City in the amount of $25 and costs on an indictment for disorderly conduct and disturbing the public peace on May 28, 1946. The case was tried before a jury. The appellant assigns as error (1) the failure of the Trial Court to grant a motion which he terms a motion for change of venue and (2) that the evidence was not legally sufficient to justify his conviction.

The motion is entitled 'Petition Requesting Change of Venue and Appointment of Counsel.' The motion filed in the Criminal Court of Baltimore City asks that some judge other than a member of the Supreme Bench of Baltimore City be assigned to hear the case in that Court because the petitioner has been subjected to various forms of injustice. He also asks that the Court appoint an attorney to represent him and specify the fee to be paid, which he is willing and able to pay.

In reviewing a motion, the Court will look to the real character of it and will not be misled by the mere titling in passing upon matters embodied in it. White v. State, 143 Md. 535, 540, 123 A. 58; Willie v. State, 153 Md. 613, 616, 139 A. 289; Quesenbury v. State, 183 Md. 570, 572, 39 A.2d 685.

By the Constitution of Maryland, Article IV, Section 8, and by Code (1939) Article 75, Section 109, in cases of presentment and indictment for offenses which are or may be punishable by death, the right of removal to another Court is absolute. In all other cases of presentment or indictment the accused is required to make it satisfactorily appear to the Court that the suggestion is true or that there is reasonable ground therefor. Jones v. State, Md., 45 A.2d 350.

By Chapter 772 of the Acts of 1943, Section 18A and by Chapter 796 of the Acts of 1943 ratified by the voters of this State at the election held on November 7, 1944, whereby Chapter 772 aforesaid became Section 18A of Article IV of the Constitution of Maryland, and Chapter 796 aforesaid became Section 13A of Article IV of the Constitution of Maryland, authority was first given in this State to assign judges from one circuit to another. Chapter 796 of the Acts of 1943 specified that the General Assembly provide by law for the assignment of judges and as no legislation has been enacted in furtherance of that section, the only authority for the assignment of judges from one circuit to another is provided by Chapter 772 of the Acts of 1943, Constitution of Maryland, Article IV, Section 18A, supra. That Section provides in part as follows:

'The Chief Judge of the Court of Appeals shall be the administrative head of the judicial system of the State. He shall from time to time require, from each of the judges of the Circuit Courts for the several counties and of the Supreme Bench of Baltimore City, reports as to the judicial work and business of each of the judges and their respective courts. He may, in case of a vacancy or of illness, disqualification or other absence of one or more judges of the Court of Appeals, designate any judge of any of the Circuit Courts for the counties or of the Supreme Bench of Baltimore City to sit in any case or for a specified period as a judge of the Court of Appeals in lieu of a judge of that court, and may designate, to sit as a judge of the Circuit Court for any county or of any Court or Courts of Baltimore City, either alone or with one or more other judges, in any case or for a specified period, any judge of the Court of Appeals or of any other Circuit Court or of the Supreme Bench of Baltimore City. In the absence of the Chief Judge of the Court of Appeals the provisions of this section shall be applicable to the senior judge present.'

Therefore, as the Supreme Bench of Baltimore City had no authority to assign a judge from some other circuit to hear the appellant's case in the Criminal Court of Baltimore City, the petition was properly refused.

In reference to the request for an assignment of counsel, according to the argument of appellant, an attorney consented, at the Court's request, to represent the appellant but he refused to accept those services. The matter of assignment of counsel was not argued in appellant's brief and apparently that point has been abandoned. However, the denial of the assignment of counsel in minor offenses such as disorderly conduct and disturbance of the public peace is not a denial of due process of law or of any other right of the appellant. Coates v. State, 180 Md. 502, 25 A.2d 676; Smith v. State, 180 Md. 529, 532, 25 A.2d 681; Betts v. Brady, 316 U.S 455, 62 S.Ct. 1252, 86 L.Ed. 1595.

It has been many times stated by this Court that the legal sufficiency of evidence in the weight of evidence in a criminal case is not before this Court on appeal and we therefore cannot pass upon that question, the jury being the judge of the law as well as the facts. Constitution of Maryland, Article XV, Section 5; Franklin v. State, 12 Md. 236, 249; Demby v. State and Peters v. State, Md., 48 A.2d 586.

In this case the appellee contends that the appeal should be dismissed for the reason that the appellant was arrested upon a warrant and when he appeared before the Justice of the Peace, he waived a hearing and asked for a jury trial. The papers were then sent to the Grand Jury of Baltimore City where the indictment in this case was returned. The appellee contends that there is no appeal provided by law from a judgment entered in the Criminal Court of Baltimore City in this case which originated upon a warrant where the accused, when brought before the Justice of the Peace, prayed a jury trial.

In the counties, with the exception of Baltimore City, Talbot, Harford, Montgomery, and Frederick Counties prior to the enactment of the Acts of 1945, Chapter 845, Sections 13 and 13A, under the provisions of Code (1939) Article 52, Section 13, conferring jurisdiction on Justices of the Peace, where a jury trial was prayed, the Justice of the Peace sent all papers and proceedings in the case to the Clerk of the Circuit Court who placed the case on the appeal docket and the accused was there tried in the Circuit Court on the information or warrant. It was held many times by this Court that in such cases where the accused is tried on the warrant or information in the Circuit Court, after praying a jury trial before the Justice of the Peace, the decision of the Circuit Court in those cases is final and there is no appeal to this Court. Rayner v. State, 52 Md. 368; Judefind v. State, 78 Md. 510, 28 A. 405, 22 L.R.A. 721; Green v.

State, 113 Md. 451, 77 A. 677; Hendrick v. State, 115 Md. 552, 81 A. 18; Norris v. State, 158 Md. 700, 150 A. 261.

After the decisions of this Court to the same effect in the very recent cases of Dail v. State, 183 Md. 682, 39 A.2d 752, and Dail v. Price, 184 Md. 140, 143, 40 A.2d 334, the Legislature by the Acts of 1945, Chapter 845 Sections 13 and 13A, supra, amended Article 52, Sections 13 and 13A and provided among other things that in the State of Maryland except in Baltimore City, 'except in cases of appeal from the judgment of the Trial Magistrate, the accused shall be entitled to an appeal to the Court of Appeals from the judgment of the Circuit Court.' Therefore,...