La Guardia v. State

• Decision Date: 19 May 1948
• Docket Number: 127.
• Citation: 58 A.2d 913,190 Md. 450
• Parties: LA GUARDIA et al. v. STATE.
• Court: Maryland Court of Appeals

58 A.2d 913

190 Md. 450

LA GUARDIA et al. v. STATE.

No. 127.

Court of Appeals of Maryland

May 19, 1948

Appeals from Circuit Court, Baltimore County; J. Howard Murray and Frederick Lee Cobourn, Judges.

James V. La Guardia, Delmar Eugene Foster, and Gilmer P. McArthur were convicted of rape, and defendants La Guardia and Foster appeal.

Affirmed.

Hamilton O'Dunne, of Baltimore, for appellants.

J Edgar Harvey, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and John Grason Turnbull, State's Atty. for Baltimore County of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

DELAPLAINE Judge.

James V. La Guardia and Delmar Eugene Foster, appellants, and Gilmer P. McArthur were indicted for rape, assault with intent to rape, and assault, and were tried jointly before two judges and a jury in the Circuit Court for Baltimore County. The court instructed the jury that they might render any one of five possible verdicts against each defendant: (1) guilty on the first count, (2) not guilty on the first count, guilty on the second count, (3) not guilty on the first count, guilty on the second count without capital punishment, (4) not guilty on the first and second counts, guilty on the third count, and (5) not guilty. The jury found all three defendants guilty on the first count, The Court sentenced La Guardia to be hanged, Foster to be confined in the Maryland Penitentiary for life, and McArthur to be confined therein for 21 years. La Guardia and Foster appealed, La Guardia in forma pauperis. Where a sentence of death is imposed, and the defendant appeals in forma pauperis, the Court of Appeals reviews any reviewable errors therein without regard to technical errors, defects or exceptions which do not affect the substantial rights of the parties. Laws of 1945, ch. 1068, Code Supp.1947, art. 5, sec. 88A; Demby v. State, Md., 48 A.2d 586, 591.

First. Appellants contend that the court should have instructed the jury that, if they should return a verdict of guilty on the first count, they had the right to qualify the verdict by adding the words 'without capital punishment.' In 1809 the Legislature enacted a criminal statute which prescribed the punishment for murder and rape in this State. Laws of 1809, ch. 138; Laws of Maryland, revised by Maxcy, 1811, vol. 3, 458, 460. In 1916 the Legislature reenacted the section prescribing the punishment for first-degree murder, so as to read as follows: 'Every person convicted of murder in the first degree, his or her aiders, abettors and counsellors, shall suffer death, or undergo a confinement in the penitentiary of the State for the period of their natural life, in the discretion of the Court before whom such person may be tried; provided, however, that the jury in a murder case who render a verdict of murder in the first degree, may add thereto the words 'without capital punishment,' in which case the sentence of the court shall be imprisonment for life, and in no case where a jury shall have rendered a verdict in manner and form as hereinbefore prescribed, 'without capital punishment,' shall the court in imposing sentence, sentence the convicted party to pay the death penalty.' Laws of 1916, ch. 214, Code 1939, art. 27, sec. 481.

In 1935 the Legislature re-enacted the section prescribing the punishment for rape. But in so doing, it did not give the jury the right to add 'without capital punishment' to a verdict of guilty, as it did in the case of murder. The rape section provides: 'Every person convicted of the crime of rape or as being accessory thereto before the fact shall, at the discretion of the Court, suffer death, or be sentenced to confinement in the Penitentiary for the period of his natural life, or undergo a confinement in the Penitentiary for not less than eighteen months nor more than twenty-one years; * * *.' Laws of 1935, ch. 284, Code 1939, art. 27, sec. 544.

Appellants rely on Section 13, which prescribes the punishment for assault with intent to have carnal knowledge of a female child under the age of 14 years, assault with intent to rob or murder, and assault with intent to commit a rape. The first two classes of assault are punishable by confinement in the Penitentiary, while assault with intent to commit a rape is punishable either by death or by confinement in the Penitentiary. Section 13, which was reenacted in 1943, contains the following proviso, patterned after the murder section: 'provided, however, that the jury before whom any person indicted for the crime of an assault with intent to commit a rape shall be tried, if they find such person guilty thereof, may add to their verdict the words 'without capital punishment', in which case the sentence of the court shall not exceed twenty years in the Penitentiary, and in no case where a jury shall have rendered a verdict in manner and form as hereinbefore prescribed, 'without capital punishment', shall the court in imposing the sentence, sentence the convicted party to pay the death penalty or to be confined for more than twenty years in the Penitentiary.' Laws of 1943, ch. 402, Code Supp.1947, art. 27, sec. 13.

Appellants contend that the clause beginning with the words 'and in no case' applies to every crime for which the penalty of death may be imposed. That contention is not tenable. The Act of 1943, as its title shows, does no more than reenact Section 13, sub-title 'Assault with Intent to Murder, Ravish or Rob.' Section 13 applies only to the classes of assault specified therein. It does not apply to other sections of the Code, especially in view of the constitutional requirement that every law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title. Md.Const. art. 3, sec. 29. A restriction in the title of an Act must either confine the operation of the Act to conform to that description, if that construction is possible, or render the Act void to the extent of the conflict. Buck Glass Co. v. Gordy, 170 Md. 685, 185 A. 886.

Second. Appellants urge that the verdicts of the jury in this case are invalid because one of the jurors was attended by a physician after the first day of the trial and before the testimony had been concluded. But as Chief Judge Alvey said in Stout v. State, 76 Md. 317, 25 A. 299, even in the trial of capital cases there are many occasions when in reason and from proper regard to the needs of humanity, it may become necessary to allow a temporary separation of the jury without necessarily breaking up the trial; otherwise protracted trials could seldom be brought to a final conclusion.

In the case at bar there was no suggestion that the juror, who suddenly became ill, was influenced in any way or even approached concerning the case. It was while the jurors were confined on the night of the first day of the trial that he suffered an attack of appendicitis; but after he was attended by the physician he recovered sufficiently to be able to attend court on the following day, when the trial was concluded. He heard all of the evidence and participated in the deliberations of the jury, and he was one of the panel that rendered the verdicts. The mere fact that he needed medical attention did not operate to the prejudice of the accused. We hold that temporary separation of a juror from the other members of the panel may be permitted for sufficient cause at any time, even in a capital case, when attended with such precautions and safeguards as will secure entire freedom from outside influence. Each case rests upon its own peculiar circumstances and is within the sound discretion of the trial court. The complaining party relying upon a violation of the rule against separation of jurors has the burden of showing that the protection intended to be afforded by the rule was lost; and the question is not reviewable by the Court of Appeals except where it is affirmatively shown that the complaining party has been prejudiced by the action of the trial court. We specifically hold that an emergency separation of a juror from the other members of the panel because of sudden illness, where the circumstances indicate that he had no communication with any outsider except a physician, is not such a separation as will invalidate the verdict. Haley v. State, 123 Miss. 87, 85 So. 129, 10 A.L.R. 462.

Third. It is finally contended that one of the trial judges committed error when he sent a communication to the jury during the course of their deliberations. The accepted practice of guaranteeing a public trial to an accused in this country had its origin in our English commonlaw heritage. The exact date of its origin is obscure, but it likely evolved long before the settlement of America as an accompaniment of the ancient institution of jury trial. In the recent case of ...