Gamble v. State

• Decision Date: 17 January 1933
• Docket Number: No. 64.,64.
• Citation: 163 A. 859
• Parties: GAMBLE et al. v. STATE.
• Court: Maryland Court of Appeals

163 A. 859

GAMBLE et al.

v. STATE.

No. 64.

Court of Appeals of Maryland.

Jan. 17, 1933.

Appeal from Circuit Court, St. Mary's County; W. Mitchell Digges and Wm. Meverell Loker, Judges.

Joseph Gamble and another were convicted of assault to kill, and, under same indictment, Roland Hamilton and another were convicted of assault and battery. From the judgment overruling defendants' motion in arrest, they appeal.

Affirmed.

Argued before BOND, C. J., and PATTISON, URNER, ADKINS, OFFUTT, PARKE, and SLOAN, JJ.

Philip H. Dorsey, Jr., of Leonardtown, and Joseph A. Wilmer, of La Plata, for appellants.

Wm. L Henderson, Asst. Atty. Gen. (Wm. Preston Lane, Jr., Atty. Gen., John H. T. Briscoe, State's Atty. for St. Mary's County, of Leonardtown, and Edward J. Edelen, State's Atty. for Charles County, of La Plata, on the briefs), for the State.

SLOAN, J.

The appellants, Joseph Gamble, Allison Wenk, Roland Hamilton, and Dudley Willett, were indicted by a grand jury in Charles county, the first count of the indictment charging them with assault to kill one Len Douglass; the second count charging assault and battery, to which they pleaded "not guilty." For cause shown the case was removed to St. Mary's county, where they were tried by a jury, and Gamble and Wenk were found guilty on the first count and Hamilton and Willett on the second. Motions for new trial and in arrest of judgment were filed and overruled, and it is from the adverse decision on the motion in arrest that this appeal is taken.

The grounds of the motion were that the "traversers were summoned to testify before the Grand Jury of Charles County in the investigation in which the indictment was found in this case and did testify in said investigation before the said grand jury, which found said indictment without waiving any rights or privileges they had, and without being informed of their constitutional rights and without being warned that their testimony might be used against them" and "because of other reasons appearing on the face of the proceedings."

Three questions are submitted for decision: (1) Is an indictment valid which is founded on the testimony of the accused? (2) Should the names of the prosecuting witnesses be indorsed on the back of the indictment? (3) Can these questions be raised by a motion in arrest of judgment?

There is nothing on the face of the indictment or in the record except the statement made in the motion in arrest that the accused, who are the appellants here, were the witnesses upon whose testimony the indictment was returned by the grand jury. It has been decided by this court that for errors not apparent on the face of the proceedings the question should be raised before pleading. In Byers v. State, 63 Md. 207, 210, it was said: "If matters alleged and shown by these affidavits and statement rendered the indictment substantially defective, he should have taken advantage of them by a motion to quash or to set it aside, before pleading not guilty, or by some form of proceeding other than a motion in arrest." See, also, White v. State, 143 Md. 535, 123 A. 58; McCurdy v. State, 151 Md. 438, 135 A. 161; Margulies v. State, 153 Md. 204, 137 A. 896.

But, assuming that objection to the sufficiency of the indictment, which was in the usual and approved form, had been taken before pleading, it could have been of no avail to the appellants. So far as this record shows they had not been charged with the offense for which they were subsequently indicted when they appeared before the grand jury. If they had thought they were in any danger of indictment, they could have declined to testify on the ground that their evidence might incriminate them. It was nobody's duty to inform them then, inasmuch as they had not been charged, to caution them that anything they might say would be used against them. They might have been compelled to obey the summons, but no power could compel them, against their will, to give evidence which might result in their indictment for the offense then being investigated.

The appellants contend that to convict them on an indictment founded on their evidence violates the right reserved to them by article 5 of the Amendments to the Federal Constitution, which provides that no person shall be compelled...