Henderson v. Warden, Md. Penitentiary

• Decision Date: 12 February 1965
• Docket Number: No. 96,96
• Citation: Henderson v. Warden, Md. Penitentiary, 206 A.2d 793, 237 Md. 519 (Md. 1965)
• Parties: James William HENDERSON v. WARDEN, MARYLAND PENITENTIARY. Post Conviction
• Court: Maryland Court of Appeals

Page 519

237 Md. 519

206 A.2d 793

James William HENDERSON v.WARDEN, MARYLAND PENITENTIARY.

Post Conviction No. 96.

Court of Appeals of Maryland.

Feb. 12, 1965.

Before PRESCOTT, C. J., and HAMMOND, MARBURY, SYBERT, OPPENHEIMER, and BARNES, JJ.

HAMMOND, Judge.

The applicant for leave to appeal, James William Henderson, makes three contentions.The first is that his constitutional rights were violated in his trial in September 1958 as a third time violator of the narcotics law, because his two earlier convictions were revealed to the jury to his prejudice.The second and third are illegal arrest and illegal search and seizure.

In arguing his first point, Henderson relies on Lane v. Warden(4th Cir.), 320 F.2d 179, in which it was held that, as a constitutional matter, a fair trial on narcotics charges had been precluded in a Maryland court by reading to the jury those parts of the indictment, to which Lane had unsuccessfully demurred, which set forth his prior convictions on similar charges.On direct appeal this Court had reached a contrary conclusion in Lane v. State, 226 Md. 81, 172 A.2d 400, as had Judge Chesnut in the United States District Court for the District of Maryland, in rejecting Lane's petition for habeas corpus.See207 F.Supp. 780.¹

Whether the Fourth Circuit in Lane was correct in its holding that the former Maryland practice in multiple offender cases, of reading the indictment containing the allegations of prior convictions to the jury and trying the current charge and the issue of previous offenses together, was constitutionally invalid, as distinguished from unwise or unjust as a matter of policy, would seem to be at least fairly debatable in light of the contrary views of other Courts, including: (a) Judge Chesnut' opposite view; (b) the observation of the Ninth Circuit in a footnote in Pike v. Dickson, 9 Cir., 323 F.2d 856, 860, in re certain aspects of a fair trial,--'We do not find occasion here to indicate whether we would approve the result reached in the Lane case, upon its facts'; (c) the observation of the Supreme Court in a footnote in Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168, relied on in Lane for the proposition that 'evidence or allegations of prior crimes are inadmissible at a criminal trial either to establish guilt or to show that a defendant would be likely to commit the crime with which he is charged.'(p 181 of 320 F.2d)(in note 8 of page 475 of 335 U.S., on page 218 of 69 S.Ct., the Supreme Court indicated qualifications of this general rule, saying: '* * * as when a prior crime is an element of the later offense; for example, at a trial for being an habitual criminal'); and (d) the opinion of Judge Hutcheson for the United States Court of Appeals for the Fifth Circuit in Breen v. Beto, 341 F.2d 96, filed January 28, 1965, where Judge Hutcheson said:

'In support of his contention [the same contention Henderson makes], appellant cites and strongly relies on Lane v. Warden, 320 F.2d 179(4th Cir.1963).This court has never so held, and under the controlling Texas statutes and the authorities we are not disposed to adopt or follow the cited opinion.On the contrary, we are of the firm view that that case was not well decided and that the correct view of the law is otherwise.'

Even if we assume Lane to be correct on its holding on constitutional grounds, we think it is distinguishable and should be distinguished from the case now before us.In Lane the accused objected to the indictment containing the reference to his earlier transgressions.In the present case it is agreed that Henderson had stipulated with the State that he had been found guilty in 1948 in the Criminal Court of Baltimore of narcotics violation and sentenced to eighteen months, and similarly in 1953 had been sentenced to five years and that it would not be necessary for the State to prove the allegations of the two prior convictions as they were stated in the indictment.

The transcript shows that after opening statements to the jury this stipulation was read in open court.Henderson says the prior offenses were referred to by the State's attorney in his opening argument.If they were, it is apparent that the stipulation had been agreed to before the argument began, and no objection to the references was made and no repudiation of the stipulation was attempted.The indictment went into the jury room with the jury but, in view of his...