Pearlman v. State, 286

Decision Date05 July 1961
Docket NumberNo. 286,286
Citation226 Md. 67,172 A.2d 395
PartiesWilliam PEARLMAN, William Blank, Jerome Glass, Leonard Cohen and Blair Brown v. STATE of Maryland.
CourtMaryland Court of Appeals

R. Palmer Ingram and Edwin A. Gehring, Baltimore, for appellants.

Lawrence F. Rodowsky, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Saul A. Harris, State's Atty., Joseph G. Koutz, Deputy State's Atty., and E. Thomas Maxwell, Jr., Asst. State's Atty., Baltimore, on the brief, for appellee.

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

HAMMOND, Judge.

The five appellants were convicted after weeks of trial in the Criminal Court of Baltimore of conspiracy to defraud. They filed timely motions for a new trial which they sought to prosecute at the expense of the State as indigent persons, claiming that the transcript of testimony (required by the Supreme Bench rules before it will hear a new trial motion) would cost $6,000 and that they could neither pay that amount nor the fee of a lawyer. The State filed answers to their petitions, denying that the applicants were indigent, and testimony was taken before Judge Sodaro, who found the assets of three of the applicants were sufficient to enable them to pay the cost of the transcript and for counsel, that one had sufficient resources to employ counsel but not to pay for the transcript, and that the remaining one was indigent. He ruled, however, that in a case 'of a joint motion for a new trial, as in the case of a joint appeal,' the right to proceed at State expense was not available to any applicant 'if any party to the motion has funds or property.'

Each of the applicants petitioned this Court to allow an appeal from Judge Sodaro's order in forma pauperis, alleging that the denial of a right to proceed for a new trial as an indigent was a denial of due process and a final determination of a constitutional right which made the order denying that right appealable. We granted the appeals on an agreed statement of facts, and appointed counsel to brief and argue the case for the appellants, reserving the question of costs and fees.

Admittedly, there has been no judgment in the pending case and it is settled that an appeal in a criminal case is premature until after final judgment. Eggleston v. State, 209 Md. 504, 509, 121 A.2d 698; Kaefer v. State, 143 Md. 151, 22 A. 30; Dail v. Price, 184 Md. 140, 143, 40 A.2d 334; State v. Haas, 188 Md. 63, 51 A.2d 647; State v. Barshack, 197 Md. 543, 80 A.2d 32. The appellants argue that this rule prevailed between 1892 and 1957 when the right of appeal was conferred by statute expressly from a final judgment, and that Ch. 399 of the Acts of 1957, Code (1957), Art. 5, Sec. 12, gives a right of appeal to this Court 'from any conviction or sentence * * *' and so makes the law as it was before the passage of Ch. 506 of the Acts of 1892, when appeals in criminal cases were entered before the interposition of sentence. Chapter 399 of the Acts of 1957 also enacted Sec. 13 of Art. 5 of the Code, which provides that in criminal actions where sentence has been suspended by the Court, the defendant shall have a right of appeal 'under § 12 of this article in the same manner as if sentence or judgment had been entered in said action.' We think Sections 12 and 13 must be read together to mean that in a criminal case there is an appeal from any judgment and from any conviction where sentence has been suspended.

There has been applied through the years a corollary to the rule that there can be no appeal except from a final judgment. Action of a trial court which denies an absolute constitutional right, although seemingly interlocutory, will be reviewed by this Court without requiring the complainant to proceed to final judgment and then seek review of the challenged action on appeal from that judgment. The corollary is subject to the qualification that even though a constitutional right is involved, action of the lower court rightfully exercising discretion as to the functioning of the right will not be so reviewed. McMillan v. State, 68 Md. 307, 12 A. 8; Tidewater Portland Cement Co. v. State, 122 Md. 96, 89 A. 327; Lee v. State, 161 Md. 430, 433, 157 A. 723; State v. Cobourn, 169 Md. 110, 179 A. 512; Heslop v. State, 202 Md. 123, 126, 95 A.2d 880; Harris v. State, 194 Md. 288, 294, 71 A. 2d 36 (denial of a speedy trial). Civil cases applying the rule include Wright v. Hamner, 5 Md. 370; Griffin v. Leslie, 20 Md. 15, 19; Condon v. Gore, 89 Md. 230, 234, 42 A. 900; Elliott v. Larrimore, 203 Md. 526, 528, 101 A.2d 817. 1

The distinction was well summarized by Chief Judge Bond, for the Court, in the Lee case, supra, in which an immediate appeal was sought to review the appropriateness of the place of trial under the granting of a mandatory change of venue given the accused in a capital case. He said at page 433 of 161 Md., at page 724 of 157 A. 'In many cases it has been decided that a refusal to grant a removal when the Constitution gives an absolute right of removal, as it does in all cases on charges of capital crimes, amounts to a final judgment on the constitutional right, and is immediately open to review in this court on the record. * * * But only decisions on claims of such absolute constitutional rights have been held reviewable at once, and there has been a decision on the precise point that orders within the discretion of the lower courts are, on the contrary, not final orders within the meaning of the rules governing the jurisdiction of this court, and are therefore not immediately reviewable, if reviewable at all.'

Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, and Eskridge v. Washington Prison Board, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269, have established that as a constitutional right the states must afford destitute persons convicted of a crime as adequate appellate review as those who have money enough to buy transcripts and employ lawyers. This Court held in Johnson v. State, 219 Md. 481, 150 A.2d 446, and in Edwardsen v. State, 220 Md. 82, 151 A.2d 132 (in both of which the question was presented here in an appeal from the sentence and judgment), that as long as the Supreme Bench of Baltimore City, under its rules, will not hear a motion for a new trial in a criminal case without a transcript of the testimony at the trial, an indigent defendant who seeks a free transcript for use in presenting a motion for a new trial has the same constitutional right to one as a convicted person has in perfecting an appeal.

In the present case we have before us not only the correctness of the trial court's determination of fact that applicants for a new trial at State expense were not indigent persons, but the denial of an established constitutional right to applicants concededly indigent. The State does not contend that Judge Sodaro erred when he found two of appellants were unable to buy, or contribute to the price of, the transcript. The order appealed from admitted their indigency but denied their right to a free transcript on a basis of law which, if erroneous, denied them a clear constitutional right. For this reason we think the order was an appealable one. To hold otherwise would be to say that the indigent appellants must forego their motions for a new trial, submit to sentence, seek an appeal to this Court as indigents and, if refused, again attempt to appeal from the court's ruling to that effect. If successful, they would have to appeal again, on the merits. As a result of either the first or second appeal, the hearing of their motion for a new trial would be ordered. The need for such circuity of procedure should be avoided if possible. 2 It can hardly be doubted that a determination that one could not take an appeal as an indigent would be a final appealable order, since it would terminate the right to litigate further. 28 U.S.C.A. § 1291, gives a right of appeal from all final decisions of the District Courts of the United States. The Supreme Court held in Roberts v. United States District Court, 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed. 1326, that the denial by a Federal district court of a motion to proceed in forma pauperis is an appealable order under Sec. 1291. See also Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528.

Our holding that a denial to an indigent convicted of a crime of a constitutional right to a free motion for a new trial does not mean that every exercise of discretion or judgment by the trial courts in determining whether an applicant for a new trial motion is or is not an indigent person, or as to how much he can pay towards the cost of a transcript or a lawyer, is immediately appealable. The Supreme Court noted the distinction between denial of a right and exercise of discretion as to whether it is rightly enjoyed by an applicant in the Cohen case, supra, (which involved a denial of a motion to give security for expenses and attorney's fees), saying at pages 546-547 of 337 U.S., at page 1226 of 69 S.Ct. and at page 1536 of 93 L.Ed.:

'We hold this order appealable because it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it. But we do not mean that every order fixing security is subject to appeal. Here it is the right to security that presents a serious and unsettled question. If the right were admitted or clear and the order involved only an exercise of discretion as to the amount of security, a matter the statute makes subject to...

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    ...the requirement of a final judgment before there could be an appeal in a criminal case. See the discussions in Pearlman v. State, 226 Md. 67, 70-71, 172 A.2d 395, 396-397 (1961); State v. Floto, 81 Md. 600, 32 A. 315 (1895); Avirett v. State, 76 Md. 510, 25 A. 676 (1893); Ridgely v. State, ......
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