State v. Coblentz
| Decision Date | 17 October 1935 |
| Docket Number | 42. |
| Citation | 185 A. 350,169 Md. 159 |
| Parties | STATE v. COBLENTZ. |
| Court | Maryland Court of Appeals |
Appeal from Criminal Court of Baltimore City; George A. Solter Judge.
On motion to vacate and set aside a former opinion.
Motion overruled.
For former opinion, see 169 Md. 159, 180 A. 266.
Herbert R. O'Conor, Atty. Gen., and Charles T. Le Viness, 3d Asst. Atty. Gen. (James Clark, Asst. Counsel, of Ellicott City, on the brief), for the State.
Leo Weinberg, of Frederick, for appellee.
On behalf of the appellee it is moved that the opinion and decision entered in this case be vacated because of disqualification of one of the judges and an equal division of opinion of the remaining qualified judges, with the result that the judgment below in the appellee's favor would stand affirmed. The motion comes as an afterthought, for at the argument of the case, and up to some time after the decision, no objection to the court as constituted appears to have occurred to the appellee. And that fact alone might render it improper to consider the motion now. But there was clearly no disqualification.
In the first of the appellee's cases to be tried and to be brought before this court (164 Md. 558, 166 A. 45, 88 A.L.R 886), Judge Sloan, in the circuit court for Allegany county, had sat as one of the triers of fact, without a jury; and he, accordingly, took no part in the hearing and decision of the case on appeal. That case was upon an indictment found originally in Howard county, on a charge of accepting a deposit of money in a banking institution when the institution was known by the accused to be insolvent. And the present motion states that on the trial the judges found against the defendant on questions of fact, similar to questions which would hereafter be decided in this case, upon a trial. Although the present case, on the third indictment, was not one with which Judge Sloan had any connection below, and is on a charge of violating a different statute, still his having previously decided against the defendant questions of fact similar to those which would hereafter be decided in this case on a trial are thought to have disqualified him for taking part now in the review of the decision of the criminal court of Baltimore on the question of res judicata raised before it.
The objection is based on the constitutional provision that "the Judge who heard the cause below shall not...
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