Jefferson v. State, 64

• Decision Date: 22 December 1958
• Docket Number: No. 64,64
• Parties: Louis A. JEFFERSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 397

218 Md. 397

147 A.2d 204

Louis A. JEFFERSON v. STATE of Maryland.

No. 64.

Court of Appeals of Maryland.

Dec. 22, 1958.

Leonard S. Freedman, Baltimore (Stanley J. Schapiro, Baltimore, on the brief), for appellant.

E. Clinton Bamberger, Jr., Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., C. Osborne Duvall, State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HENDERSON, Judge.

The parents of a 14 year old boy complained to the police that the appellant, a school teacher 24 years of age, had committed an act of perversion with their child. The appellant was interrogated by and gave a statement to the police, in which he denied the offense. Thereafter, Sergeant Smith, of the Juvenile Unit of the Anne Arundel County Police Department, filed a petition in the Circuit Court for Anne Arundel County, sitting as a Juvenile Court, charging the appellant with the commission of certain wilful acts 'contributing to, encouraging and tending to cause the conditions which brought said child within the jurisdiction of this court, that is to say: that he contributed to the delinquency of a minor,' naming him, and praying the court to assume jurisdiction. Summons was issued for the accused and the boy in question. The matter came on for hearing before Judge Michaelson on January 9, 1958, the State being represented by the State's Attorney and the accused by counsel of his own selection. At the conclusion of the hearing the trial court passed an order placing the accused in the custody of Spring Grove State Hospital 'for psychological and psychiatric evaluation prior to passing sentence.' This order was rescinded on March 6, 1958, and on the same date the court passed an order sentencing the appellant to the House of Correction for two years from the date of trial, and further ordering 'that the said Louis A. Jefferson be transferred to Patuxent Institution for examination, treatment and a report, subject to the further order of this Court in the premises.' The appeal is from that sentence and order, under Code (1957), Art. 26, sec. 65. A recognizance bond was filed.

The case presents some unusual features. The appeal was entered by new counsel for the accused, who filed a petition in the lower court for extension of the time for transmitting the record to this Court, which was granted, alleging that no stenographic transcript of the trial had been made, and that the appellant and the State were attempting to prepare an agreed statement of facts. In due course, such a statement was prepared, and signed by the presiding judge, the State's Attorney, the appellant and his new counsel. This included a summary, in narrative form, of the testimony of the prosecuting witness, the testimony of another boy, 16 years of age, the father of the second boy, and Sergeant Smith, as well as the testimony of the appellant, and testimony of the father of the prosecuting witness in rebuttal. The statement does not disclose that any objections were made by the appellant's counsel at any point in the trial. A copy of the statement made by the accused to the police was offered in evidence through the witness, Sergeant Smith. The agreed statement of facts was forwarded to this Court, together with copies of the docket entries and other papers filed in the case. Thereafter, the Attorney General obtained, and forwarded to this Court, a statement signed by Judge Michaelson, in which he certified that he was the presiding judge when the appellant 'was found guilty of contributing to the delinquency of a minor.' He further certified that the testimony of that hearing was not recorded, that neither the defendant nor his counsel requested that the testimony be recorded, and that no objections or motions were made in the course of the hearing, by either the appellant or his then counsel.

The State filed a motion to dismiss the appeal, which was argued when the case was reached for hearing on the merits in this Court. We reserved a ruling on the motion at that time. The motion is based on the contention that in the absence of a transcript, particularly where such absence is due to the election of the appellant to dispense with one, this Court has no jurisdiction to entertain the appeal. It is pointed out that under Rule 826, subd. b of the Maryland Rules, an appeal to this Court 'shall be heard on the original papers. The term 'original papers' includes exhibits and the transcript of the testimony.' But Rule 826, subd. c2 provides: 'Instead of serving and filing a transcript of the testimony, the parties by written stipulation filed with the clerk of the lower court may, or upon order of the lower court shall file with the clerk of the lower court for inclusion in the record only such part of the transcript as the parties or the lower court may deem necessary for the appeal.' Rule 826, subd. e provides that approval of the lower court is not ordinarily required, 'except as provided in sections c2 or g of this Rule, but if any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by the lower court and the record made to conform to the truth.' Cf. Merchant v. State, 217 Md. 61, 64, 141 A.2d 487. Section g of the Rule provides that, under some circumstances at least, 'the parties with the approval of the lower court may prepare and sign a statement of the case showing how the questions arose and were decided, and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by this Court.' Such statement shall supersede, 'for the purposes of the appeal, all parts of the record other than the judgment from which the appeal is taken and any opinion of the lower court * * *.' See also Rule 828, subd. g, dealing with an agreed 'statement of undisputed facts', and authorizing summarization of disputed testimony, by stipulation, in the printed record extract.

In the light of the Rules cited, we think it is clear that, when agreed to by the parties and approved by the lower court, the original transcript may be dispensed with. Nor do we find anything in Rule 835 that would require a dismissal of an appeal under the circumstances. We may assume that if no substituted record had been procured, there would have been nothing for us to review, and the appeal would have had to be dismissed. The election of the accused to proceed without a stenographer might, in that situation, have been equivalent to a waiver of his right to a review of the evidence on appeal. See Banks v. State, 203 Md. 488, 102 A.2d 267. The same rule was applied in Newark Trust Co. v. Trimble, 215 Md. 502, 506, 138 A.2d 919, where it was noted that there had been no attempt by the appellant to obtain an equivalent of the transcript, a problem which was rendered more difficult in that case by the retirement of the trial judge almost immediately after the hearing. There was a strong intimation that a review might have been in order upon a substituted record approved by the trial court. The fact that the appellant in the instant case made no effort to obtain a stenographer did not bar him from obtaining a substitute by agreement of the State and the trial judge. The motion to dismiss is denied.

It is clear that the Circuit Court, sitting as a Juvenile Court, had jurisdiction to try 'any parent, guardian or any person over the age of 18 years for any wilful act or omission contributing to, encouraging or tending to cause any condition bringing a child within the jurisdiction of the court.' Code (1957), Art. 26, sec. 5o. Under sec. 55, an adult found guilty under sec. 53 may be punished by fine or imprisonment not exceeding two...