Journigan v. State

• Decision Date: 09 November 1960
• Docket Number: No. 42,42
• Citation: 83 A.L.R.2d 1026,164 A.2d 896,223 Md. 405
• Parties: , 83 A.L.R.2d 1026 Haywood Earl JOURNIGAN and Ira Marvin Gardner, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 405

223 Md. 405

164 A.2d 896, 83 A.L.R.2d 1026

Haywood Earl JOURNIGAN and Ira Marvin Gardner, Jr. v. STATE of Maryland.

No. 42.

Court of Appeals of Maryland.

Nov. 9, 1960.

Leo Wm. Dunn, Jr., Hyattsville (Joseph A. DePaul, Hyattsville, on the brief), for appellants.

Clayton A. Dietrich, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., William L. Kahler, State's Atty., and Frank P. Flury, Deputy State's Atty., Prince George's County, Upper Marlboro, on the brief), for appellee.

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

HAMMOND, Judge.

Appellants, appealing after a conviction of robbery with a deadly weapon, first contend that the substitution of a judge during the course of the trial denied them a fundamental right to the presence of the same judge throughout the trial which they could not waive, as they had expressly purported to do, and then say that the privilege against self-incrimination was violated when a policeman was allowed to testify that an appellant would not try on a hat found at the scene of the crime.

Appellants went to trial on February 9, 1960, in the Circuit Court for Prince Georges County before Judge Fletcher and a jury. The testimony of three of the State's nine witnesses took all of that day, and the trial was set to resume on February 11. Judge Fletcher became ill and the case was continued until February 12. When it became known that Judge Fletcher could not again preside at the trial, counsel for the appellants talked to their clients and secured their agreement, willingly given, to have the trial continue with Judge Digges on the bench. When trial was resumed on February 12, it was stipulated in open court that the case was to proceed with the jury then empaneled, with Judge Digges substituting for Judge Fletcher as presiding judge, that neither side desired to make a motion for a mistrial and affirmatively requested that no mistrial be declared, that the court stenographer should read to Judge Digges, in the presence of appellants but without the presence of the jury, the testimony already taken, and that thereafter the case should proceed in the customary manner, with the remaining witnesses for the State and those for the defense giving their testimony from the stand. Judge Digges asked each of the appellants if he agreed to the stipulation entered into by his counsel and each replied that he did.

There is no claim of, and nothing to show actual prejudice to the appellants because of the switch in judges. Unless the presence of the same judge throughout the proceedings is essential to a fair trial in a fundamental or constitutional sense and, so, is a right which an accused cannot waive, it is apparent that the appellants have no basis for complaint on appeal after their voluntary and knowing consent to the substitution of judges and to the subsequent procedures of the trial.

Early in the common law it was the rule that an accused was not permitted to waive any right intended for his protection. In those days an accused could not testify in his own behalf and in felony cases he was not allowed counsel, the judge giving him such protection in this respect as he got; conviction of crime operated to outlaw and attaint the blood and to work a forfeiture of official titles of inheritance and thus affected the rights of third parties. As the conditions which justified the rule against waiver ceased to exist, waiver was allowed in more and more situations. Lately the law has taken as great pains to surround the accused with the means to effectively make his defense as the ancient law took to prevent that consummation. Now it is held generally that one accused of crime may waive almost every, if not every, constitutional right or privilege--among others a lawyer, a jury, confrontation of witnesses, and a speedy trial.

This Court has not yet gone full course. It has not permitted a waiver of the right of the accused to be personally present at all stages of the trial (a common-law right preserved by Art. 5 of the Declaration of Rights) even though counsel has agreed to the absence of the client, reiterating in Midgett v. State, 216 Md. 26, 37, 139 A.2d 209, 215, that the right 'is personal to the accused and cannot be waived by his counsel.'

Other courts have not felt this right to be so fundamental it cannot be waived. The Supreme Court in Frank v. Mangum, 237 U.S. 309, 338, 35 S.Ct. 582, 59 L.Ed. 969, 984, held that the presence of the prisoner when the verdict was rendered was not so essential that a rule of practice permitting the accused to waive it and to be bound by his waiver, offended due process in a capital case. See also Howard v. Commonwealth of Kentucky, 200 U.S. 164, 26 S.Ct. 189, 50 L.Ed. 421. The Court held in Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500, that in a non-capital case in a federal court when the accused is on bail, he may, after the trial has begun in his presence, voluntarily absent himself and thus waive his right to be present, leaving the Court free to proceed with the trial in like manner as if he were present. ¹

As late as 1915 the Court of Appeals for the Second Circuit held in Freeman v. United States, 227 F. 732, 759, that it was essential to the constitutional trial of a defendant charged with a felony that there be the continuous presence of a jury of twelve men and a judge, and that another judge could not lawfully be substituted during the progress of the trial for the one before whom it was commenced. The Court held that the defendant was entitled to trial by jury and that this meant a jury of twelve men presided over by a judge. It held that an accused could not waive a trial by jury in a felony case, and went on from there to decide that the jury and the judge must remain identical from the beginning to the end of the trial and that 'It is not possible for either the government or the accused, or for both, to consent to a substitution either of one judge for another judge, or of one juror for another juror. The continuous presence of the same judge and jury is equally essential throughout the whole of the trial.' ²

Fifteen years after Freeman, the Supreme Court in Patton v. United States, 281 U.S. 276, 293, 298, 50 S.Ct. 253, 256, 258, 74 L.Ed. 854, 860, 863, destroyed the very basis of that decision. In Patton a juror became incapacitated during the trial of an offense for which punishment could be imprisonment in the penitentiary, and by express stipulation the trial proceeded with eleven jurors. The Court agreed with Freeman that a jury trial means a trial by a jury of twelve and a judge but held that an accused in a serious case could waive the right to such a trial, altogether, or by consenting to trial by a number of jurors less than twelve. The Court found the decisive question to be whether the federal constitutional provisions for a jury trial established a tribunal 'as a part of the frame of government, or only to guarantee to the accused the right to such a trial.' The answer given to the question was this: '* * * we conclude that article 3, § 2, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so is to convert a privilege to an imperative requirement.' ³

Six years before Patton the Supreme Court, in United States v. Valante, 264 U.S. 563, 564, 44 S.Ct. 411, 412, 68 L.Ed. 850, 851, denied habeas corpus to one convicted in a district court in a trial in which it had been stipulated that the verdict might be received and sentence imposed by a judge other than the one who had presided at the trial. The contention of the prisoner was that the continuous presence of the same judge throughout the trial was a constitutional requisite which he could not waive. The Court said: 'Without intimating that there is anything of substance in this contention, it is clear that the error, if any was committed, did not go to the jurisdiction of the court or render the judgment void * * *.'

That the Freeman case had been in effect overruled was noted by the Second Circuit in Cahill v. Mayflower Bus Lines, 77 F.2d 838, 840, and by the Ninth...