Ruckle v. State, 158

• Decision Date: 07 February 1963
• Docket Number: No. 158,158
• Parties: Morris RUCKLE v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 580

230 Md. 580

187 A.2d 836

Morris RUCKLE v. STATE of Maryland.

No. 158.

Court of Appeals of Maryland.

Feb. 7, 1963.

Roland Walker, Baltimore, for appellant.

Thomas B. Finan, Atty. Gen., Harrison M. Robertson, Jr., Asst. Atty. Gen., William J. O'Donnell, State's Atty., and John W. Sause, Jr., Asst. State's Atty., Baltimore, for appellee.

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

HENDERSON, Judge.

The appellant was indicted in 1957, jointly with one Davis and one Midgett, on a charge of kidnapping. He was also separately indicted for armed robbery. The three defendants were all tried together. They were all convicted and Ruckle was sentenced to 15 years for kidnapping and 20 years for robbery, to run consecutively. He appealed, but later dismissed his appeal. Midgett appealed and secured a reversal on the ground that the trial court had improperly answered a question propounded by the jury out of the presence of the accused. Midgett v. State, 216 Md. 26, 139 A.2d 209. On March 9, 1959, Judge Allen granted a motion to dismiss the kidnapping indictment against Midgett. Both he and Ruckle were subsequently re-indicted, although it does not appear the old indictment or judgment against Ruckle was set aside at that time. After a retrial, Midgett was unsuccessful in a second appeal. Midgett v. State, 223 Md. 282, 164 A.2d 526, cert. den. 365 U.S. 853, 81 S.Ct. 819, 5 L.Ed.2d 817.

Meanwhile, Ruckle filed a petition for post conviction relief in which he was granted a new trial, on May 13, 1959, although he strenuously contended that he was entitled to a release and did not want a new trial. Leave to appeal was denied by this Court. Ruckle v. Warden, 220 Md. 683, 155 A.2d 69. On March 23, 1962, Ruckle was re-arraigned on the 1959 charge of kidnapping and the 1957 charge of robbery. He was specifically asked if he wanted a new trial, and replied emphatically that he did not and would never agree to one. The verdicts in the 1957 cases were then re-entered and he was sentenced to the same terms of imprisonment as were originally imposed. He appeals here.

The first contention is that because Ruckle filed a motion to quash the kidnapping indictment of 1959, he was entitled to a ruling thereon. If he had been willing to accept a new trial, it may well be that he would have been entitled to insist that the trial court rule upon the validity of the new indictment. But since he declined to stand trial again on that or any other indictment, and the trial court simply re-entered the verdicts upon the 1957 indictments, he cannot be heard to complain of the insufficiency of the 1959 re-indictment for kidnapping. That indictment is not before us on the present appeal, and we are not concerned with its sufficiency.

The appellant contends that if he had been tried anew he would have been placed in double jeopardy and deprived of a constitutional right. We have repeatedly held that the rule of double jeopardy is not a constitutional right. See Robb v. State, 190 Md. 641, 60 A.2d 211 and Moquin v. State, 216 Md. 524, 140 A.2d 914. We have also held that ordinarily where a former trial is set aside because the trial court has committed error, a new trial may be granted, without infringing upon the common law rule. Willis v. Warden, 220 Md. 692, 694, 154 A.2d 916 and cases cited. It was also pointed out in the Willis case that where a new trial is declined, a petitioner is not entitled to release. See also State v. D'Onofrio, 221 Md. 20, 26, 155 A.2d 643. That was also the holding affirmed by this Court...