Fountain v. State

• Citation: 107 A. 554,135 Md. 77
• Decision Date: 17 July 1919
• Docket Number: 39.
• Parties: FOUNTAIN v. STATE.
• Court: Court of Appeals of Maryland

107 A. 554

135 Md. 77

FOUNTAIN v. STATE.

No. 39.

Court of Appeals of Maryland

July 17, 1919

Appeal from Circuit Court, Talbot County; Wm. H. Adkins and Lewin W Wickes, Judges.

Isaiah Fountain was convicted of rape, and he appeals. Reversed, and new trial awarded.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON, and URNER, JJ.

Eugene O'Dunne, of Baltimore (James C. Mullikin, of Easton, on the brief), for appellant.

Ogle Marbury, Asst. Atty. Gen., and Albert C. Ritchie, Atty. Gen (Charles J. Butler, State's Atty., of Easton, on the brief), for the State.

URNER J.

In the course of the trial of the appellant for rape, in the circuit court for Talbot county, he filed a motion for a postponement of the trial on the ground that it could not be fair and impartial under the conditions then existing. The motion alleged and offered to prove, in substance and effect, that when the court adjourned at 10 o'clock at night on the first day of the trial about 2,000 persons were assembled on the courthouse grounds, on which the county jail was also located, and while the appellant was being taken from the courthouse to the jail through the crowd a determined effort accompanied by personal violence inflicted upon him, was made to take him from the custody of the officers of the law and lynch him, this purpose being openly declared by members of the crowd, some of whom were armed with various weapons and provided with ropes; that the officers attempted to hold the crowd at bay with their pistols as it surged upon the porch of the jail while the appellant was pushed through the outer door of the building, and that, prompted by his fear and the immediate danger of lynching, he took advantage of an opportunity to escape in the dark through an open window, and was not retaken until two days later; that the fact of his escape was announced by the court to the jury as a reason for the suspension of the trial until his recapture; and that a reward of $5,000 was offered by the court for the rearrest of the appellant and his safe return to the courtroom. It was at the time of the resumption of the trial on the morning after the recapture of the accused that his motion just referred to was filed. In addition to the allegations already summarized the motion averred that the defendant, "by reason of the interruption of the orderly procedure of the administration of justice due to mob violence actually perpetrated upon him while in the custody of the law and in the actual trial of his case (from which mob violence he attempted to escape by flight because of insufficient protection of law), finds himself so prejudiced in the further progress of said case as to be utterly and hopelessly unable to receive a fair and impartial trial by any further action in the present so-called trial and proceeding; and that the same amounts to a denial of due process of law, to a denial of all constitutional guaranty of a fair and impartial trial, or to the constitutional right of a jury trial." It was further alleged that the defendant was confronted with the alternative of "being prejudiced before the jury by the announcement made to the jury, by the court, that the defendant had made his escape from the authorities during the progress of the trial, from which the inference of guilt as a cause for flight may be drawn by the jury," or of "rebutting said presumption by proof of flight from mob violence perpetrated upon him in the courthouse grounds within five minutes of the adjournment of court and while the jury was still in the box," but that "by adopting the latter course he becomes prejudiced in the trial of said case by injecting into the minds of the jury the intensity of the feeling of the populace surrounding the courthouse to such an extent that the jury itself becomes thereby intimidated and unable fully and freely to do its duty in the premises, as it may see it, solely from the standpoint of the law and the evidence given under oath in open court."

The application of the defendant for a stay of the proceedings was refused, and the trial was continued, resulting in his conviction and a sentence of death.

The record contains a certificate of the trial court, signed at the instance of the defendant's counsel, as follows:

"After the case of State v. Isaiah Fountain had been assigned for trial on Easter Monday, April 21, 1919, the court was desirous of knowing whether the case was to be tried on that day, so as to make its arrangements for other work in the circuit, or for sitting in the Court of Appeals, and to that end caused inquiry to be made informally of Mr. O' Dunne as to whether the case was to be removed or not.

In response to a long-distance telephone call, Mr O'Dunne came to Easton on Friday night, April 18th, and stated to the presiding judge of the court that he brought with him an affidavit of removal, signed by Isaiah Fountain and sworn to by him, for the purpose of asking a removal. Mr. O'Dunne suggested that the case be removed to Baltimore city, but the court declined to entertain the suggestion of removal to Baltimore city, and said that in the event of the case being removed it would not be sent out of the circuit, whereupon Mr. O'Dunne stated that he would therefore not file the affidavit of removal.

The circumstances under which the $5,000 reward was offered were brought about by the escape of the defendant a few minutes after 10 p. m. on the night of April 21, 1919, the court having held a night session until 10 o'clock, and when the prisoner was removed from the courthouse room to the jail building in the courthouse square, a large concourse of people had assembled on the courthouse grounds, and certain threats of violence towards the prisoner were made by some of those assembled there, which resulted in his then and there escaping from the crowd, and from the officers who had him in custody. The next morning the presiding judge of the court in the courtroom commented upon the disgraceful proceeding resulting in the escape of the prisoner, and offered a reward on behalf of the citizens of Talbot county of $5,000 for his capture and return unharmed to the custody of the sheriff of Talbot county, and suggested to the sheriff in open court the swearing in of all assembled who would volunteer as deputy sheriffs for that purpose. Several hundred persons volunteered and were sworn in as deputy sheriffs, including Mr. O'Dunne, the prisoner's counsel.

(In the afternoon before the prisoner was returned and before the occurrences hereinafter set out, the jury had retired with the bailiffs to another part of the town, where they ate and slept, out of sight and hearing of the occurrences now about to be stated.)

The prisoner was reported captured late in the afternoon of April 23d at a point in the state of Delaware, and as news of his capture reached Easton a large crowd of people assembled at the courthouse square between the courthouse door and the jail door, both located on the same plot of ground, inclosed by an iron railing fence. As the news reached Easton that the defendant was about to be brought back to the jail by his captors in an automobile, addresses were made to the assembled crowd from the porch of the jail, in which the populace was exhorted to be peaceful and law-abiding and let the law takes its course in an orderly fashion. Chief Judge Wm. H. Adkins addressed the

...