Robb v. State

• Decision Date: 26 May 1948
• Docket Number: 161.
• Parties: ROBB v. STATE.
• Court: Maryland Court of Appeals

60 A.2d 211

190 Md. 641

ROBB v. STATE.

No. 161.

Court of Appeals of Maryland

May 26, 1948

Appeal from Circuit Court, Prince George's County; Charles C Marbury, Judge.

John E Robb was convicted of manslaughter by a motor vehicle and he appeals.

Appeal dismissed.

Walter L. Green, of Hyattsville (Vance V. Vaugan, of Brentwood Edward C. Bell, Jr., and Green, Whalin, Babcock & Bell, all of Hyattsville, and Ralph E. Day, of Washington, D. C., of counsel), for appellant.

J. Edgar Harvey, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., A. Gwynn Bowie, State's Atty., of Upper Marlboro, and Hervey G. Machen, Asst. State's Atty., of Hyattsville, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, and HENDERSON, J.j., and BAILEY, Circuit Judge.

COLLINS Judge.

This is an appeal by John E. Robb, appellant here, defendant below, from a judgment and sentence of twelve months in the Maryland House of Correction on the charge 'that he on the 13th day of March, 1947, at Prince George's County, Maryland, aforesaid, unlawfully, in a grossly negligent manner did kill and slay one Lewis Sylvester Carter,' in violation of Section 436A of Article 27 of the Code, 1947 Supplement. Under the authority contained in Article 52, Section 13 of the Code, 1947 Supplement, Acts of 1945, Chapter 845, he was brought before a Trial Magistrate for Prince George's County on the above charge and was called for trial. He was informed of his right to a jury trial, freely elected to be tried before the Trial Magistrate and waived a jury trial. A warrant containing the above charge was read to the defendant and he pleaded not guilty. The trial was held and witnesses testified. The case was argued by the State and by the attorney for defendant. The Trial Magistrate rendered a verdict of not guilty.

The State immediately thereafter appealed. Bond was taken for the appearance JJ., and BAILEY, Circuit Judge. of the Circuit Court for Prince George's County. The case was tried in that Court on December 3, 1947. In that court, through his counsel, appellant filed a plea of former jeopardy. The State filed a demurrer to the defendant's plea of former jeopardy. The court sustained the demurrer to that plea. Defendant pleaded not guilty and waived a jury trial. The case was heard by Judge Charles C. Marbury of the Circuit Court for Prince George's County, without a jury, and a verdict of guilty was rendered and sentence imposed as hereinbefore set forth. An appeal is taken to this Court from that judgment and sentence.

Article 52, Section 13, supra, giving the Trial Magistrate jurisdiction to try the case, provides in part: 'If after a trial before the Trial Magistrate either party shall feel aggrieved by his judgment there shall be a right of appeal within ten days to the Circuit Court for the county in which the alleged offense is charged to have been committed, * * *.'

Appellant contends that as he was in jeopardy at the time he was tried by the Trial Magistrate for Prince George's County on the charge of manslaughter by a motor vehicle, the trial and conviction in the Circuit Court for Prince George's County put him in 'double jeopardy' prohibited by Article 2 of the Declaration of Rights of Maryland, the Fifth and Fourteenth Amendments to the Constitution of the United States and the established rule of the common law enforced in Maryland, and that Article 52, Section 13, supra, authorizing the State to appeal from the decision of the Trial Magistrate, finding the defendant not guilty, is unconstitutional and against the established common law rule in Maryland insofar as it authorizes an appeal by the State and a trial de novo in the Circuit Court.

Appellant admits that there is no expressed provision in the Constitution of the State of Maryland, in words, barring double jeopardy. He contends, however, that the Declaration of Rights of Maryland is a part of the Constitution of Maryland and by reason of Article 2 of that Declaration, the provisions of the Constitution of the United States and the amendments to that Constitution, have been adopted as the basic law of the State of Maryland and are binding upon the Maryland courts, and therefore that the Fifth and Fourteenth Amendments to the Constitution of the United States are laws of this State.

Article 2 of the Declaration ofRights ofMaryland provides:

'The Constitution of the United States, and the Laws made or which shall be made in pursuance thereof, * * * are and shall be the Supreme Law of the State; and the Judges of this State, and all of the People of this State, are, and shall be bound thereby, anything in the Constitution or law of this State to the contrary notwithstanding.'

To hold that by reason of Article 2 of the Declaration of Rights of Maryland, the Federal Constitution and its amendments became the basis law of the State of Maryland in this sense would be to hold that all decisions of the Supreme Court of the United States, and all decisions and rules of the Federal Courts are binding upon the courts of this State on non-federal questions. There is no decision supporting this contention. To support this proposition the appellant relies on a statement made by this Court in the case of Friend v. State, 175 Md. 352, at page 355, 2 A.2d 430, at page 432, where it was said: 'The trial and conviction of the appellant, therefore, was valid in law provides the terms and provisions of the act were observed by the Justice of the Peace, and there is nothing in the record to the contrary, and a second trial for this same offense would be in violation of the common law and of our constitutional prohibition with respect to placing a person in double jeopardy, as to the same crime.' The reference in this quotation to 'our constitutional prohibition' was apparently a reference to Article 5 of the Declaration of Rights of Maryland which provides, 'that the inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that law * * *, subject nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State.' Day v. State, 7 Gill, 321, 322, 325. LaGuardia v. State, Md., 58 A.2d 913. The appellant also relies strongly on the case of Kepner v. United States, 195 U.S. 100, 114, 24 S.Ct. 797, 49 L.Ed. 117, 1 Ann.Cas. 655, has apparently been overruled by later cases in the Supreme Court.

That Article 52, Section 13, supra, giving the State the right to appeal from the Trial Magistrate to the Circuit Court is not a violation of the Federal Constitution is sustained by four late cases of the Supreme Court of the United States. Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; State of Louisiana et al., v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422; Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223. Bute v. People of Illinois, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986, decided April 19, 1948.

In the case of Palko v. Connecticut, supra, decided December 6, 1937, the accused on indictment for murder was found guilty in the second degree and sentenced to prison for life. The Connecticut statute permitted, with the permission of the judge, appeals by the State from rulings and decisions of any criminal court upon all questions of law arising at the trial of criminal cases. Under the authority of that statute, the State appealed to the Supreme Court of Errors of Connecticut. That Court found error and reversed the judgment and ordered a new trial. At the re-trial the accused raised the defense of former jeopardy and the violation of his rights provided for under the Fourteenth Amendment of the Constitution of the United States. These objections, having been overruled, the jury in the re-trial found a verdict of murder in the first degree and he was sentenced to death. This judgment and sentence was affirmed by the State Court. An appeal was then taken to the Supreme Court of the United States where the judgment was affirmed. The Supreme Court in that case, in affirming the judgment, through Mr. Justice Cardozo, pointed out that the execution of the sentence will not deprive the accused of his life without the process of law assured to him by the Fourteenth Amendment of the Constitution of the United States. The Court further said [302 U.S. 319, 58 S.Ct. 151]: 'We have said that in appellant's view the Fourteenth Amendment is to be taken as embodying the prohibitions of the Fifth. His thesis is even broader. Whatever would be a violation of the original bill of rights (Amendments 1 to 8) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule.'

In the very recent case of State of Louisiana et al., v. Resweber, supra, decided January 13, 1947, in concluding that the constitutional rights of the accused had not been violated, Mr. Justice Reed said that 'even where a state obtains a new trial after conviction because of errors while an accused may be placed on trial a second time, it is not the sort of hardship to the accused that is forbidden by the Fourteenth Amendment. Palko v. State of Connecticut, supra, 302 U.S. at page 328, 58 S.Ct. at page 153, 82 L.Ed. 288. As this a prosecution under state law, so far as double jeopardy is concerned, the Palko case is decisive.' [329 U.S. 459, 67 S.Ct. 375.]

In Adamson v. People of State of California, supra, decided June 23, 1947, the accused was convicted by a jury in the Superior Court of the State of California of murder in the first degree and sentence of death was affirmed by the Supreme Court of that State. Certain provisions of the California law were challenged in the state proceedings as...