Bright v. State

• Decision Date: 13 June 1944
• Docket Number: 13,10.
• Citation: 38 A.2d 96,183 Md. 308
• Parties: BRIGHT v. STATE (two cases).
• Court: Maryland Court of Appeals

38 A.2d 96

183 Md. 308

BRIGHT v. STATE (two cases).

Nos. 13, 10.

Court of Appeals of Maryland

June 13, 1944

Appeal from Criminal Court of Baltimore City; Eugence O'Dunne Judge.

Elmer Bright was convicted of receiving stolen goods, and from a judgment imposing sentences and an order overruling his motion to strike out the judgment, he appeals.

Appeal from order overruling motion dismissed, and judgment affirmed.

Lester H. Crowther, of Baltimore (Webster C. Tall and George W Della, both of Baltimore, on the brief), for appellant.

Wm. C Walsh, Atty. Gen., and J. Edgar Harvey, Asst. Atty. Gen. (J. Bernard Wells, State's Atty., and Thomas N. Biddison, Asst. State's Atty., both of Baltimore, on the brief), for appellee.

In case No. 10:

Webster C. Tall and George W. Della, both of Baltimore (Lester H. Crowther, of Baltimore, on the brief), for appellant.

J. Edgar Harvey, Asst. Atty. Gen. and Thomas N. Biddison, Asst. State's Atty., of Baltimore (Wm. C. Walsh, Atty. Gen., and J. Bernard Wells, State's Atty., of Baltimore, on the brief), for appellee.

In case No. 13:

Before DELAPLAINE, COLLINS, GRASON, MELVIN, BAILEY, and CAPPER, JJ.

In case No. 10:

Before DELAPLAINE, COLLINS, GRASON, MELVIN, and BAILEY JJ.

COLLINS Judge.

Elmer Bright was convicted in the Criminal Court of Baltimore City before the trial judge, sitting as a jury, on two charges of receiving stolen goods. He was represented at the trial by attorney Albert L. Sklar. Motions for new trials were heard by the Supreme Bench of Baltimore City and denied. Bright was then sentenced to the Maryland House of Correction for one year in each case, sentences to run concurrently. Appeals to this court were filed on December 10, 1943, within two days of imposition of sentence, by attorney Simon N. Silverberg then employed as his attorney. On December 22, 1943, twelve days after the appeals were taken to this court, the appeals were dismissed by order signed by the defendant and his then attorney, Simon N. Silverberg, and the defendant was committed to the Maryland House of Correction for one year.

On January 6, 1944, attorneys Webster C. Tall and George W. Della, later employed by the defendant, filed a motion to strike out the judgments in both cases. This motion recited that the judgments were defective because the defendant had been deprived of his right of appeal by improper actions of the court and defendant's former counsel; that after an appeal from the judgment had been entered to the Court of Appeals by Simon N. Silverberg, former counsel for the defendant, the said Silverberg dismissed and withdrew the appeal and claims that he did so because he was intimidated and threatened by the trial judge whereby the defendant was deprived of his right to have his case heard by the Court of Appeals of Maryland. He further recited in his motion the convictions as aforesaid and that he did not have a fair trial. He also set out in his motion that the trial court committed error of law which the defendant was entitled to have submitted to the Court of Appeals. The error of law which he charged was the refusal of the trial judge to allow the defendant to produce a magistrate; that the testimony of the magistrate was important to a proper defense as the evidence was entirely circumstantial and the question of credibility and veracity of oral testimony was important to the defendant, and the refusal thereof was prejudicial to the defendant's rights and interest. In the motion to strike out the judgment, he further asked the court that he be allowed to take testimony to sustain his allegations therein. Evidence was taken to support the motion. Bright testified in effect that he employed Mr. Silverberg to take an appeal for him and paid him a fee. He said that Mr. Silverberg told him that he was threatened by the court in a letter, that the appeal was not withdrawn at his request, that he wanted to continue the appeal, and that he did not know that the appeal had been dismissed until after it was done. He further said that he did not have a fair trial because a magistrate in the southern police station who was not summoned was not called to testify. He said that he was represented in the trial of the case by Mr. Albert Sklar who also represented him in the hearing on a motion for a new trial and that Mr. Sklar withdrew from the case because there was no appealable record, no exceptions, and no question of law and that he would not take the statutory oath that the appeal was not taken for the purpose of delay. Mr. Silverberg testified substantially that he was employed in the case on December 10, 1943, that he made the affidavit that the appeal was not taken for the purpose of delay. He said that he later had a conversation with the trial judge, Honorable Eugene O'Dunne, and was told by him, 'Do you know this is a matter that could be referred to the Grand Jury on the question of statutory perjury? Mr. Sklar, the trial lawyer for Mr. Bright, in my presence, has refused a substantial fee which had been offered to him to prosecute an appeal. He said he could not conscientiously make the affidavit that it was not taken for the purpose of delay.' He testified that the fee which he took from Bright was not taken with the promise of prosecuting an appeal but, among other things, to advise Bright whether, in his opinion, he was justified in prosecuting an appeal. Mr. Silverberg said he received the following letter from Judge O'Dunne which was offered in evidence.

'December 20, 1943.

'Simon N. Silverberg,

'Munsey Building,

'Baltimore, Maryland.

'Dear Sir:

'In State vs. Elmer Bright, No. 4493-4 receiving stolen goods, you filed an Appeal to the Court of Appeals of Maryland on December 10th and made the statutory affidavit that said appeal is not taken for the purpose of delay.

'You were not counsel of record in the trial of the case. When you approached me for some extension of time for bill of exceptions or record--or whatever your application to me was for, I told you were skating on thin ice; that Mr. Sklar had declined a good fee in refusing to prosecute an appeal because he said he could not conscientiously make the necessary affidavit to stay execution of sentence, there being no appealable question, no exception in the record and no demurrer or pleading to raise any law questions; and that the Court of Appeals could not pass on sufficiency of evidence as to guilt or innocence, or as to law applicable to facts in such record.

'I have checked the transcript today and find that Mr. Sklar is correct; there are no exceptions and no pleading to raise any law questions.

'I again remind you of your serious responsibility in the premises.'

He said that after examining the record, he felt there was sufficient to justify him in prosecuting the appeal. He further testified that after conversation with Mr. Webster C. Tall, one of his attorneys here, he advised him that he was sending Bright to his office and would cooperate in any way. He testified that he had withdrawn the appeal, not because he was scared of Judge O'Dunne, but because he thought, perhaps childishly, of the possibility of an indictment for statutory perjury. He said the withdrawal of the appeal was very much influenced by his conversation with Judge O'Dunne and by the letter he received from him. After this testimony was offered, the trial judge overruled the motion to strike out the judgment and from his action in so doing, an appeal was taken to this court on January 13, 1944, by Webster C. Tall and George W. Della, attorneys who made the affidavit that the appeal was not taken for the purpose of delay. After an appeal from the judgment was taken by the same attorneys on January 18, 1944, and the same affidavit made by attorney Webster C. Tall, the defendant was released from the Maryland House of Correction on bail.

The only ground here on which the appellant bases his motion to strike out the judgment is his contention that the trial judge influenced attorney Silverberg by threats of criminal prosecution to withdraw his appeal to this court. Article 5 section 86 of Flack's Code, Chapter 506 of the Acts of 1892, provides in part in reference to appeals: '* * * but no appeal in a criminal case shall stay execution of sentence unless the counsel for the accused shall make oath that the appeal is not taken for delay * * *.' It does not appear to this court that the nisi prius judge who hears the case below is a proper person to suggest to the attorney taking the appeal the possibility of criminal prosecution as a result of taking the oath that the appeal is not intended for delay. It has been almost uniformly the practice for trial judges in this State to expedite appeals under the proper rules provided therefor. The responsibility for seeing that proper action is taken against an attorney for violation of the oath for appeal certainly does not rest with the nisi prius judge before the appeal reaches this court. After the appeal is taken and the questions ruled on here, the determination should then be made as to whether the appeal was taken for the purpose of delay and whether the attorney, in taking such an appeal, has violated his oath. Chapter 316 of the Acts of 1872 provided in part in reference to appeals in criminal cases: '* * * and the party tendering such bill of exception, may appeal from such ruling or determination to the Court of Appeals; provided that the counsel for the accused shall make oath that such appeal is not taken for delay * * *.' In the case of Deckard v. State, 38 Md. 186, the only matters raised below were an exception to the ruling upon the admissibility of evidence and a judgment overruling a general demurrer to the indictment. On appeal the exception to the evidence...