Brack v. Wells

• Decision Date: 20 December 1944
• Docket Number: No. 17.,17.
• Citation: 40 A.2d 319
• Parties: BRACK v. WELLS, State's Atty. of Baltimore City.
• Court: Maryland Court of Appeals

40 A.2d 319

BRACK

v.WELLS, State's Atty. of Baltimore City.

No. 17.

Court of Appeals of Maryland.

Nov. 1, 1944.

On Motion for Modification Dec. 20, 1944.

Appeal from Baltimore City Court; Samuel K. Dennis, Chief Judge.

Mandamus by William F. Brack against J. Bernard Wells, State's Attorney of Baltimore City, to compel state's attorney to present certain evidence to grand jury. From an order refusing the writ, applicant appeals.

Affirmed.

William F. Brack, in pro. per.

William C. Walsh, Atty. Gen., J. Edgar Harvey, Asst. Atty. Gen., and Thomas N. Biddison, Asst. State's Atty. for Baltimore City, of Baltimore, for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, MELVIN, BAILEY, CAPPER, and HENDERSON, JJ.

COLLINS, Judge.

The appellant, William F. Brack, filed in the Baltimore City Court an amended petition for writ of mandamus. He alleged in general that he was a citizen and taxpayer of Baltimore City; that the case of Stoudenmire v. Brack, previously decided in the Circuit Court of Baltimore City, was instituted because of solicitation and as a result thereof, Mrs. Stoudenmire holds a signed assurance that in the event the case is lost, the barrators will pay the court costs with no cost to her; that all of this is contrary to law and in violation of the statute against barratry. He further alleged that the testimony in that case was falsely given by a lawyer, since disbarred on other charges, in violation of the statute against perjury; that the case was instituted as a result of a conspiracy to defraud the petitioner of money and property; that the petitioner had presented the facts in the case to a magistrate in the Central Police Station who refused any action thereon; that evidence of all such acts in violation of law had been repeatedly presented to J. Bernard Wells, State's Attorney for Baltimore City, who has continuously refused to take any action thereon; that said refusal is arbitrary and capricious and in violation of his oath of office and his duty to uphold justice in this State and to maintain the integrity of Courts of Baltimore City. He asked that a writ of mandamus be issued directed to J. Bernard Wells, State's Attorney of Maryland for Baltimore City, commanding him to present such evidence fully and completely to the grand jury of Baltimore City. The Judge of the Baltimore City Court by an order refused the writ, and the appellant appeals to this Court from that order.

An affidavit by the applicant to a petition for writ of mandamus is required by Code, Article 60, Section 1. No affidavit was made by the petitioner to the application in this case.

The petition is lacking in the allegation of important facts necessary to constitute the crimes of barratry and perjury. Code, Article 27, Sections 14, 15; Hochheimer on Criminal Laws, 2d Ed., Section 269; Code, Article 27, Section 527; Hochheimer, supra, Section 404. In an application for mandamus all the facts necessary for the writ must be stated and proved or admitted on the record. Sudler v. Lankford, 82 Md. 142, 148, 33 A. 455; McCurdy v. Jessop, 126 Md. 318, 324, 95 A. 37; Potee v. County Commissioners of Anne Arundel County, 138 Md. 381, 113 A. 884.

The writ of mandamus is not granted ex debito justitiae. Where the duty which the respondent refuses to perform is not purely ministerial, the writ will not be granted nor will it be granted unless the right which the petitioner seeks to enforce is clear and unequivocal. Hall v. State Roads Commission, 171 Md. 449, 453, 189 A. 206; Buchholtz v. Hill, 178 Md. 280, 288, 13 A.2d 348; Walter v. Montgomery County, 179 Md. 665, 668, 22 A.2d 472. When an act rests by statute in the discretion of a person or depends upon personal judgment, the writ of mandamus will not lie. Devin v. Belt, 70 Md. 352, 354, 17 A. 375; Red Star Line v. Baughman, 153 Md. 607, 139 A. 291; Durkee v. Murphy, 181 Md. 259, 29 A.2d 253.

By the Constitution of Maryland, Article 5, Section 9, the State's Attorney shall perform such duties as may be law be prescribed. By section 33 of Article 10 of the Code, that officer is required to ‘prosecute and defend, on the part of the State, all cases in which the State may be interested.’ In such prosecutions of persons accused of crime, he must exercise a sound discretion to distinguish between the guilty and the innocent. He must be trusted with broad official discretion to institute and prosecute criminal causes, subject generally to judicial control. The office is one not purely ministerial, but involves the exercise. of learning and discretion. 42 American Jurisprudence, p. 245. As a general rule, whether the State's Attorney does or does not institute a particular prosecution is a matter which rests in his discretion. Unless that discretion is grossly abused or such duty compelled by statute or there is a clear showing that such duty exists, mandamus will not lie. 38 Corpus Juris, p. 623; Boyne v. Ryan, 100 Cal. 265, 34 P. 707; McLaughlin v. Burroughs, 90 Mich. 311, 51 N.W. 283; State v. Talty, 166 Mo. 529, 66 S.W. 361. There is no allegation in the petition in this case that such discretion was grossly abused, nor do the facts as set out constitute gross abuse of discretion. The statement that he acted arbitrarily and capriciously is a conclusion of the pleader.

It is well settled in this State that a writ of mandamus will not be granted where the petitioner has a specific and adequate legal remedy to meet the justice of the particular case and where the law affords other adequate remedy. Brown v. Bragunier, 79 Md. 234, 236, 29 A. 7; Hummelshime v. Hirsch, 114 Md. 39, 46, 47, 79 A. 38; Walter v. Montgomery County, supra, 179 Md. at page 668, 22 A.2d 472. He complains that the State's Attorney for Baltimore City has refused to take any action in this case presented to him and asks that he be compelled to present the case to the grand jury. The petitioner, himself, has a specific and adequate remedy to meet the justice of this case, and the law affords him other adequate remedy.

That other adequate remedy to which the petitioner is entitled is that of personally presenting his case to the grand jury of Baltimore City. Whether the petitioner should without formality present himself at the door of the grand jury room and ask to state his case or whether he should communicate with the foreman of the grand jury and ask for an opportunity to appear before that body is not for this Court to say. The members of the grand jury in their oath prescribed by the common law, in addition to other things, swore that they would diligently inquire and true presentment make of all such matters and things as shall be given them in charge or shall otherwise come to their knowledge. The inquisitorial powers of the grand jury are not limited to cases in which there has been a preliminary proceeding before a magistrate nor to cases laid before them by the Court or State's Attorney. Whatever may be the duties and powers of that important body in other jurisdictions, in Maryland those inquisitorial powers are broad, full and of a plenary character. Our predecessors, speaking through Judge McSherry in the case of Blaney v. State, 74 Md. 153, 156, 21 A. 547, 548, said: ‘However restricted the functions of grand juries may be elsewhere, we hold that in this state they have plenary inquisitorial powers, and may lawfully themselves, and upon their own motion, originate charges against offenders, though no preliminary proceedings have been had before a magistrate, and though neither the court nor the state's attorney has laid the matter before them. The peace, the government, and the dignity of the state, the well-being of society, and the security of the individual demand that this ancient and important attribute of a grand jury should not be narrowed or interfered with when legitimately exerted.’ In that same case and at the same reference is contained a very pertinent quotation as to the duties of the grand jury in language which cannot be improved upon here: ‘To them is committed the preservation of the peace of the county; the care of bringing to light for examination, trial, and punishment, all violence, outrage, indecency, and terror; everything that may occasion danger, disturbance, or dismay to the citizen. They are watchmen, stationed by the laws to survey the conduct of their fellow-citizens, and inquire where and by whom public authority has been violated or the laws infringed.” These broad inquisitorial powers of the grand jury in this State have been further affirmed in many other cases among which are: In re Report of Grand Jury, 152 Md. 616, 621, 137 A. 370; Coblentz v. State, 164 Md. 558, 566, 166 A. 45, 88 A.L.R. 886; Hitzelberger v. State, 173 Md. 435, 440, 196 A. 288. Under these broad inquisitorial powers the grand jury may, of course, investigate a case which the State's Attorney, in his discretion, has decided not to present to that body. Upon the proper functioning of the grand jury the lives, security, and property of the people largely depend.

For the reasons herein given the writ of mandamus was properly refused.

Order affirmed with costs.

On Motion for Modification.

COLLINS, Judge.

A motion has been filed in this case by the appellee to strike out paragraphs 6 and 7 of this opinion in which it was stated that the appellant was entitled to appear in person before the grand jury of Baltimore City and present his case to that body, for the reason that such paragraphs are not necessary for the purpose of a decision of the case and that the grand jury might be required to devote much of its time to complaints which are entirely devoid of merit and thus may be deprived of the opportunity of making thorough and painstaking investigations of matters which may be properly placed before them and interfere with the proper administration of justice. The authority relied on in the motion is the charge of Justice Field to Grand Jury, C.C.Cal. 1872, 30 Fed.Cas....