Duker v. State
| Decision Date | 12 May 1932 |
| Docket Number | 26. |
| Parties | DUKER v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from Criminal Court of Baltimore City; Joseph N. Ulman Judge.
Herman Webb Duker was convicted of murder in the first degree, and he appeals.
Motion to dismiss the appeal overruled, and order denying motion to strike out the judgment and sentence affirmed.
Argued before BOND, C.J., and URNER, ADKINS, DIGGES, PARKE, and SLOAN, JJ.
Hilary W. Gans and Emory H. Niles, both of Baltimore, for appellant.
G. C A. Anderson, Asst. Atty. Gen., and J. Bernard Wells, Deputy State's Atty., of Baltimore (Wm. Preston Lane, Jr., Atty Gen., and Herbert R. R. O'Conor, State's Atty., of Baltimore, on the brief), for the State.
Upon an indictment for murder, the appellant pleaded guilty, and after hearing the evidence, which was not disputed, the trial court found him guilty of murder in the first degree; and the propriety of that finding is not disputed. Sentence of death was imposed under the provision of the Code, article 27, § 403, that every person convicted of murder in the first degree shall suffer death or undergo confinement in the penitentiary of the state for the period of his natural life in the discretion of the court before whom such person may be tried. And the legality of the sentence is not, and cannot be, disputed. The appellant, however, subsequently filed in the trial court a motion to strike out the judgment and sentence on the ground that the trial court reasoned erroneously and drew unwarranted conclusions from evidence which it received to guide its discretion in determining which of the statutory penalties should be imposed. The evidence was upon a contention of the appellant's counsel that, while legally sane, and responsible for his acts, the appellant had deficiencies which required the selection for him of the more lenient sentence of life imprisonment. And it is contended that in its reasoning and conclusions upon this evidence the trial court abused the discretion imposed in it by the statute. The appeal is from an order overruling the motion, and on behalf of the state a motion to dismiss the appeal has been made in this court. The court is clear in its opinion that it is given no power to consider an objection such as that now made to the trial court's action.
The objection is not that the trial court failed to receive and consider any proper motion or contention, with the evidence on which it was grounded. Washington, B. & A. R. R. Co v. Kimmey, 141 Md....
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