State ex rel. Murray v. Swenson
| Decision Date | 03 November 1950 |
| Docket Number | 8. |
| Citation | 76 A.2d 150,196 Md. 222 |
| Parties | STATE ex rel. MURRAY v. SWENSON, Warden. |
| Court | Maryland Court of Appeals |
Edgar Paul Boyko, Baltimore, for appellant.
Kenneth C Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., J Bernard Wells, State's Atty., Baltimore City and Edwin A Gehring, Asst. State's Atty., Baltimore City, Baltimore on the brief), for appellee.
Maryland Civil Liberties Committee, Inc., Amicus Curiae.
Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.
In 1923 James T Murray was convicted of murder in the Criminal Court of Baltimore and was sentenced to life imprisonment in the Maryland Penitentiary. In December, 1941, Governor Herbert R. O'Conor granted him a pardon subject to the following conditions: (1) that he would remain under the supervision of the Director of Parole and Probation for the period of three years, (2) that during this period he would conform to such rules of conduct and propriety as are customarily imposed upon paroled prisoners, and (3) that upon any material breach of any such rule the pardon would be declared null and void, and he would be required to return to the penitentiary to serve the unserved portion of his sentence.
On June 17, 1942, the pardon was revoked by Governor O'Conor, and Murray was returned to the penitentiary. In December, 1949, Murray, then 54 years old, applied to Judge Herman M. Moser in the Baltimore City Court for a writ of habeas corpus. From an order remanding him to the custody of the warden of the penitentiary, he has brought this appeal.
It appeared at the hearing below that appellant, after he was pardoned, went to Youngstown, Ohio, to live in the home of his sister, Mrs. Olive Matz, who agreed to act as his sponsor. He obtained employment as an electrician. Quarrels soon arose between him and his sister. He claimed that, while he was in the penitentiary, she disposed of some furniture which he had inherited from his mother and took his share of his mother's insurance. After repeated arguments with his sister, he planned to leave her home and live elsewhere. His sister objected, saying: 'If you do, you go back to the penitentiary.' Nevertheless he left, and his sister notified the Department of Parole and Probation in Annapolis, making the complaint that he had been molesting her two-year-old daughter. Appellant testified that his sister, however, continued to urge him to return, and that he consented to do so.
On June 17, 1942, the Department of Parole and Probation asked Governor O'Conor to issue a warrant authorizing appellant's return. The Department said that it had received disturbing reports, but acknowledged that there had not been obtained 'any positive proof' of his delinquency. In accordance with the request, the Governor signed a revocation of the pardon. The Department sent James A. Kavanaugh, a parole officer, to Youngstown to bring appellant back to Maryland. He called to see appellant's sister, and after talking with her he requested appellant to come with him to Baltimore. The officer did not tell him the nature of the complaint, but merely informed him that the Director of Parole and Probation wanted to talk to him. The officer testified that he accompanied him to Baltimore with absolutely no objection. They arrived in Baltimore on June 21, and appellant was held overnight in a police station. On the following morning he was brought before the Director of Parole and Probation, Herman M. Moser, who afterwards became an Associate Judge of the Supreme Bench of Baltimore City, and who heard the case below. The Director informed appellant of the charges against him. Appellant denied the charges, but was taken back to the penitentiary under the Governor's order issued five days before.
The Director requested Dr. Manfred S. Guttmacher, chief medical officer, to examine appellant. Dr. Guttmacher reported on June 23, after making a quick examination, that he 'might be suffering from general paresis.' He conjectured that the alleged conduct might well be symptomatic of mental deterioration, but he admitted that there was no objective evidence. Some time later the Director requested Dr. J. G. N. Cushing to make a more complete medical and psychiatric examination. Dr. Cushing found that appellant did not have paresis, and was probably incapable of the misconduct of which he had been accused.
Appellant alleged that he made several efforts to induce the Department to correct its mistake, but no further action was taken. His attorney suggested that this may have been due to 'the well-known administrative reluctance to admit gross errors of judgment.' In any event, when it appeared that the Department had no intention of making any further investigation in Ohio, he applied for a writ of habeas corpus. Appellant's attorney explained that he purposely took the case before Judge Moser because of the fact that he was the Director in 1942 and was personally familiar with the details of the case. The records of the Department do not show the specific nature of the complaint, or who made it; they show only that there was a complaint by telephone and that the parole officer was sent to Ohio to bring appellant back to Maryland.
Judge Moser, in remanding appellant to the penitentiary, stated that in his view the important thing in the case was not so much the complaint of appellant's sister as the report of Dr. Guttmacher, which showed that appellant was not a safe person to be on parole.
Petitioner declares positively that he did not commit 'any criminal act or any act which would reflect upon his character or integrity' while on parole. He, therefore, contends that the Governor's order revoking his pardon without giving him an opportunity to be heard deprived him of due process of law.
In England at common law, when a complaint was made that a convict conditionally pardoned had violated the conditions of the pardon, a warrant was issued for his arrest and he was committed to jail until he could be brought before the court for a hearing. An order was then issued by the court, and he was brought before the court to show cause why execution should not be awarded against him on his original sentence. The record of the conviction was then produced. If he pleaded that he was not the person convicted, a jury was impaneled to try that issue. If the jury found that he was the same person, then he was allowed to be heard on any matters relating to the charge that he had failed to abide by the conditions of the pardon. It was permissible for him to present any evidence that might serve as an excuse for nonperformance of the strict terms of the conditions. For example, when a convict had promised to leave the jurisdiction, he could present the excuse that he did not have a reasonable time in which to leave, or that he had been unavoidably delayed in leaving on account of his sickness or the sickness of some member of his family. If the court was of the opinion that such impediments amounted to a valid excuse, he was discharged from custody. If the court was in doubt as to the disputed facts, it was sometimes the practice to obtain the verdict of a jury. While the court had the right to call a jury for this purpose, the prisoner was not entitled to a jury as a matter of right. The only issue for which the prisoner could demand a jury was whether he was the same person who was convicted. The reason for that rule was that, if it were otherwise, a person might be imprisoned who had never been tried by a jury.
So, in the year 1893, when there was no statute in Minnesota providing for the revocation of conditional pardons, the Supreme Court of that State held that a convict who had been granted a conditional...
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