Miller v. State

• Decision Date: 10 December 1919
• Docket Number: 47.
• Citation: 109 A. 104,135 Md. 379
• Parties: MILLER et al. v. STATE.
• Court: Maryland Court of Appeals

109 A. 104

135 Md. 379

MILLER et al. v. STATE.

No. 47.

Court of Appeals of Maryland

December 10, 1919

Appeal from Criminal Court of Baltimore City; Charles W. Heuisler Judge.

"To be officially reported."

Walter E. Miller and Harry T. Norris, alias Walter Argyle, were convicted of robbery, and from an order refusing a motion to strike out the verdict and sentences, they appeal. Affirmed.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER STOCKBRIDGE, and ADKINS, JJ.

Eugene O'Dunne, of Baltimore, for appellants.

Ogle Marbury, Asst. Atty. Gen. (Albert C. Ritchie, Atty. Gen., and Harry W. Nice, State's Atty., of Baltimore, on the brief), for the State.

ADKINS J.

Walter E. Miller and Harry T. Norris, the appellants, were tried by a jury and convicted of robbery on March 6, 1919. On the following day one of the counsel for traversers in a conversation was told by one of the jurors that during the progress of the trial he had gotten, outside of the courtroom, information about the bad record of Norris. On March 8, 1919, a motion for a new trial was filed, and also a motion in arrest of judgment, and among other reasons assigned was misconduct of the jury. This motion was heard by the supreme bench of Baltimore city April 30, 1919, all the jurors who sat in the case having been summoned as witnesses and nine of them examined. Another, called to testify, was returned non est. One of them, John G. Vineup, testified that Mr. Armstrong, one of the city detectives, told him, outside of the courtroom during the progress of the trial, that Norris had a pretty bad record. After the trial was over Armstrong told him more, but not during the trial. The conversation took place in the court corridor. Armstrong was an old friend. No other member of the jury was present. Do not remember having told any of the other jurors about it but might have done so. Armstrong was a witness in the case. Charles T. Baetjer testified that something was said in the jury room about Norris having a bad record, but this had no effect upon witness. Lewis M. Lambert heard one of the jurymen remark casually on the street that Norris had a bad record. Did not remember having heard it mentioned in the jury room. It made no impression on him. Thinks Diegelman was the juror who mentioned it on the street. Valentine J. Diegelman testified that the first he heard of Norris' bad record was after the trial. Did not tell Lambert during the trial because he didn't know it then; did not hear it mentioned in the jury room. Lambert later stated that Diegelman's recollection was correct.

Harry A. Echle heard nothing about the bad record until after the jury had reached their verdict in the jury room. They had hardly reached the jury room before there was a unanimous decision of guilty. There was not a single objection. The jury could have returned to the courtroom in three minutes if some of the jurors had not wished to smoke; and in the course of smoking and standing around the room somebody said, "'I hear Norris has a bad record.' That had no influence whatever, because we had decided the men were guilty immediately." The other jurors who testified either did not hear of the bad record at all, or not until after the verdict was agreed upon.

The supreme bench refused both the motion for a new trial and the motion in arrest of judgment by a vote of seven of the judges, including Judge Heuisler, who was the presiding judge at the trial of the case. Three of the judges filed a dissenting opinion. The fact that a dissenting opinion was filed only emphasizes the serious and careful consideration given to the application by the supreme bench.

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