Gall v. Brady

• Decision Date: 16 June 1941
• Docket Number: No. 1176.,1176.
• Citation: 39 F. Supp. 504
• Parties: GALL v. BRADY, Warden.
• Court: U.S. District Court — District of Maryland

39 F. Supp. 504

GALL v. BRADY, Warden.

No. 1176.

District Court, D. Maryland.

June 16, 1941.

G. Van Velsor Wolf, of Baltimore, Md., for petitioner.

Morton E. Rome, Asst. State's Atty., of Baltimore, Md., for respondent.

CHESNUT, District Judge.

In this habeas corpus case the petitioner, Merrill L. Gall, seeks release from the Maryland Penitentiary where he is confined in consequence of sentences in the Criminal Court of Baltimore following a plea of guilty to an indictment charging burglary, and a conviction after trial on another charge of burglary, the sentences being five years in the Maryland Penitentiary to run concurrently. The ground on which this court is asked to release him is that his trial and conviction lacked due process of law within the requirement of the 14th Amendment to the Constitution of the United States, which provides that no person shall be deprived of life, liberty or property by a State without due process of law. His particular contention is that his trial lacked due process in that the Judge of the court did not assign counsel for his defense at public expense because he was not financially able to secure counsel.

A number of recent decisions of the Supreme Court of the United States have discussed the importance of the assistance of counsel for defendants in both federal and State criminal prosecutions in relation to the due process of law which is required in federal cases by the 5th and 6th Amendments and in State cases by the 14th Amendment. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. ___; Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. ___; Holiday v. Johnston, 61 S.Ct. 1015, 85 L.Ed. ___, May 26, 1941.

The jurisdiction of this court to release State prisoners confined contrary to provisions of the federal constitution has not been challenged in this case. Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed 969; Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406. Prior to a few years ago applications to this court for the exercise of that jurisdiction were comparatively rare; but in the last few months there have been a number of applications to this court for release of Maryland State prisoners, mostly on the ground that counsel were not assigned for their defense by the State Court. Practically all of these applications originated in letters written from the Maryland Penitentiary to a Judge of this court and are in the nature of very informal petitions for the writ of habeas corpus. Where the facts alleged by the petitioner obviously constituted no proper basis for the issuance of the writ, the court has declined to issue it in accordance with the well established practice in habeas corpus cases. See Walker v. Johnston, 312 U.S. 275, 284, 61 S.Ct. 574, 578, 85 L.Ed. ___, where, in the opinion by Mr. Justice Roberts, it is said:

"It will be observed that if, upon the face of the petition, it appears that the party is not entitled to the writ, the court may refuse to issue."

In the present case the informal application made by the petitioner indicated the possibility of probable cause for judicial inquiry in a habeas corpus case, and in view of the pendency of a number of similar informal applications, but inconclusive in their content, I followed the practice which I noted had been adopted in at least two recent cases in the Supreme Court (Walker v. Johnston, 312 U.S. 275, 61 S. Ct. 574, 85 L.Ed. ___; Holiday v. Johnston, 61 S.Ct. 1015, 85 L.Ed. ___) of appointing a competent member of the Baltimore Bar, Mr. G. Van Velsor Wolf, to confer with the petitioner and prepare a formal petition if the facts seemed to justify it. Accordingly Mr. Wolf prepared a formal habeas corpus petition in accordance with the applicable procedure, see 28 U.S.C.A. §§ 451-466, on which the court signed a rule to show cause directed to the Warden of the Maryland Penitentiary. An answer was filed on behalf of the Warden and the case set for hearing on June 3, 1941. No traverse was filed on behalf of the petitioner but all parties treated the hearing as if a formal writ had been issued returnable on that day; and the case was heard on its merits on testimony submitted by both parties, the State of Maryland being represented by Mr. Morton E. Rome, Assistant State's Attorney of Baltimore City. The petitioner was brought into court by the Warden and he and all his witnesses were heard, together with all other relevant testimony submitted by the parties. From the testimony I find the following to be the facts of the case.

1. The petitioner was indicted in the Criminal Court of Baltimore on August 18, 1939 on two charges of burglary. Indictment No. 2998 charged in substance the burglary of the household of Addie M. Watkins on August 2, 1939, and the theft therefrom of some jewelry and money of the aggregate alleged value of about $400. Indictment No. 2999 charged the defendant with the burglary of the dwelling house of William S. Retchford on August 13, 1939, and the theft of a watch worth $20 and $2 in money. The defendant had been previously arrested on the charge, had been given a hearing before a police magistrate, and was in jail awaiting trial.

2. The Criminal Court of Baltimore is a court of record of general criminal jurisdiction. Maryland Constitution of 1867, Art. 4, § 30. For many years it has customarily sat in two separate divisions. See Jackson v. State, 87 Md. 191, 39 A. 504. It is presided over by one or more judges of the Supreme Bench of Baltimore City who are assigned thereto from time to time. Maryland Constitution, Art. 4. § 32.

3. The crime of burglary in Maryland is a common law felony, the penalty for which may be as much as 20 years in the Penitentiary. Md.Code 1939, Art. 27, § 32. But it is a matter of common knowledge that the ordinary charge of burglary for the purpose of theft and the theft of articles of comparatively small value do not generally entail severe sentences, at least in the absence of a bad prior criminal record. By Art. 27, § 37, burglary with explosives carries a maximum sentence of 40 years.

4. The docket entries of the two cases show that in both cases the defendant was arraigned on August 22, 1939, and pleaded not guilty; and that on August 29, 1939 the defendant was called for trial in case No. 2998 (which charged the theft of goods of greater value than in case No. 2999) the defendant pleaded not guilty and elected to be tried before the court without a jury, and on the same day was found guilty on the first count of the indictment and not guilty on the third count, and sentenced to five years in the Maryland Penitentiary concurrent with a similar term imposed in case No. 2999 in which the defendant pleaded guilty to the first count of the indictment.

5. The testimony in this case showed that when the defendant was arraigned on August 22, 1939 the court was presided over by the Honorable Eli Frank, and that the defendant then stated that he did not have counsel and asked the court to appoint counsel. The defendant says that he was informed by the Judge that it was not customary to appoint counsel in cases of this nature. Judge Frank, testifying as a witness, said he did not recall the particular case which had occurred nearly two years ago, but that it is possible the traverser's statement may have been correct in that it was not customary to appoint counsel at public expense unless the charge was of such a serious nature as to indicate the importance or necessity of doing so; and that the defendant was financially unable to procure his own counsel. It further appeared, however, that Judge Frank did not make any final judicial determination whether counsel should be appointed in the case but, after some inquiry as to whether the defendant could not obtain counsel at his own expense or with the assistance of his close relatives, some of whom were then present, the trial of the case was postponed for ten days to enable the defendant to obtain counsel. Some effort was made by the relatives to obtain counsel without expense to themselves but was not successful. The defendant himself remained in jail in the absence of furnishing bail.

6. During August 1939 the courts of Baltimore City were in vacation and juries were not present; but in order to afford speedy trials to prisoners in jail who wished to have their cases tried by the court without a jury or wished to plead guilty, one of the judges of the Supreme Bench sat one or more days during the week to take pleas and have court trials without juries. It is well known that defendants in criminal cases cannot be forced to trial against their will during the general summer recess of the Criminal Court when the Court sits without a jury only for the prompt disposition of cases of defendants who elect to be tried without a jury. In the ordinary course of holding the court during vacation, the defendant's case was again put down for disposition if he desired it, on August 29, 1939, at which time the Honorable Samuel K. Dennis, Chief Judge of the Supreme Bench of Baltimore City, was presiding in the court. In the meantime the defendant had been given the usual opportunity to have witnesses summoned, and he had availed himself of this right by summoning one or more witnesses. He said that before being called in court before Judge Dennis he had a conversation with the captain of the jail guard, and asked him to request Judge Dennis to appoint counsel for him. The guard did not testify in the case, and there was no evidence to show that any such request made by the prisoner was ever communicated to the Judge or any of the court officials. Gall also testified that he had some further conversation with the jail guard which was to the effect that he was advised by...