Jones v. State

• Decision Date: 18 November 1957
• Docket Number: No. 43,43
• Citation: 136 A.2d 252,214 Md. 525
• Parties: Nathan JONES v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 525

214 Md. 525

136 A.2d 252

Nathan JONES v. STATE of Maryland.

No. 43.

Court of Appeals of Maryland.

Nov. 18, 1957.

Rehearing Denied Dec. 18, 1957.

Bartholomew B. Coyne, Washington, D. C. (John P. Moore, Silver Spring, on the brief), for appellant.

Theodore C. Waters, Jr., Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Blair H. Smith, State's Atty. and Thomas R. Brooks, Asst. State's Atty., Prince George's County, Upper Marlboro, on the brief), for appellee.

Before BRUNE, C. J., and COLLINS, ^* HENDERSON, HAMMOND and PRESCOTT, JJ.

HAMMOND, Judge.

We have here two appeals in one record. Nathan Jones was convicted of assault by a jury in the Circuit Court for Prince George's County as a result of having shot one Gilchrist in the leg as he was either being thrown out of, or trying to get back into, Jones' tavern. Jones was sentenced on November 8, 1956, to pay a fine and to serve a term of thirty days in jail. He paid the fine and served the sentence. On April 3, 1957, he filed a motion to set aside the verdict and for a new trial on the ground of newly discovered evidence which showed that witnesses for the prosecution had given perjured testimony at the trial.

The first appeal, which was noted in due time, is from the judgment and sentence. The payment of the fine and the serving of the sentence did not take away the right of appeal. Duncan v. State, 190 Md. 486, 58 A.2d 906. The second appeal is from the refusal of the trial judge some five months later to strike out the verdict.

In his trial, Jones did not move for a directed verdict either at the end of the State's case or at the end of the whole case. The legal sufficiency of the evidence therefore is not before us. Braxton v. State, Md., 135 A.2d 307; Briley v. State, 212 Md. 445, 129 A.2d 689. The trial court was not requested to, and did not, give any advisory instructions to the jury. No question of evidence is raised. It is mainfest that in the first appeal no question is presented for appellate review.

In considering the second appeal, it is to be noted that the testimony for the State and that for the defense presented diametrically conflicting versions of the occurrence, Gilchrist and other witnesses for the State contending that he was shot from the rear, and Jones and his witnesses saying that he was shot in self-defense as he lunged at Jones with his hand held so as to lead to the belief that he had a weapon in it. Appellant urges that the verdict should be stricken because the newly discovered evidence establishes (a) that the shot entered the front of Gilchrist's leg and went out the back, and not the other way around; and (b) that, according to the weather bureau records, no rain fell on the day of the shooting although Gilchrist testified that rain fell on his face as he lay on the ground after being shot. It is claimed that this shows perjury on the part of key witnesses for the State. Judge Digges denied the motion to set aside the verdict for two reasons, each of which, he found, deprived the court of the power to act: first, that the motion to strike was not made until after the expiration of the term in which it was entered; and second, that the motion was presented for decision at a time when an appeal was pending in this Court.

We think it is clear that the Circuit Court was without power to act on the motion to strike the judgment. Maryland Rule 625 provides that in civil cases, the court has full revisory power over judgments or decrees for a period of thirty days after their entry with revisory power thereafter only in case of 'fraud, mistake or irregularity', thus making the power of the court, during and after the period specified, the same as it used to be during and after the term in which the judgment was entered. There is no thirty day provision as to judgments in criminal cases and, as to them, the power of the court expires with the end of the term, absent fraud, surprise or mistake. Madison v. State, 205 Md. 425, 431, 109 A.2d 96 Coleman v. State, 209 Md. 379, 121 A.2d 254. In Tiller v. Elfenbein, 205 Md. 14, 21, 106 A.2d 42, Judge Henderson reviewed for the Court the cases in which, at the same time, there were both a motion to strike and an appeal to the Court of Appeals. He pointed out that in Dietrich v. Anderson, 185 Md. 103, 111, 43 A.2d 186, an equity case, and in the cases therein relied on--Eastern States Corp. v. Eisler, 181 Md. 526, 30 A.2d 867, and Collier v. Collier, 182 Md. 82, 32 A.2d 469 (in all of which the lower court was held to be without power to act), the appeal was still pending when the motion to strike came on for hearing. He noted also that in Giles v. DiRobbio, 186 Md. 258, 261, 46 A.2d 611, this Court held that the trial court properly dismissed a petition to strike a judgment on the ground of newly discovered evidence, because the appeal from the judgment was still pending when the motion was heard. The conclusion in Tiller v. Elfenbein was that '* * * the later cases do establish the rule that if the appeal is still pending when the motion to strike the judgment comes on...