State v. Warden of Baltimore City Jail

• Decision Date: 01 June 1909
• Parties: STATE EX REL. BAUM v. WARDEN OF BALTIMORE CITY JAIL.
• Court: Maryland Court of Appeals

73 A. 294

110 Md. 579

STATE EX REL. BAUM

v. WARDEN OF BALTIMORE CITY JAIL.

Court of Appeals of Maryland.

June 1, 1909.

Appeal from Baltimore Court of Common Pleas; Thos. Ireland Elliott, Judge.

Habeas corpus and certiorari by the State, on the relation of John Baum, against the Warden of Baltimore City Jail, to secure his release from jail. From an order directing his release, the state appeals. Affirmed.

Argued before BOYD. C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, THOMAS, and HENRY, JJ.

Eugene O'Dunne and Isaac Lobe Straus, Atty. Gen., for the State.

William C. Smith, for appellee.

SCHMUCKER, J. The appeal in this case is from an order of the court of common pleas of Baltimore city, passed upon a writ of certiorari, directing the release of John Baum from the Baltimore city jail. It appears from the record that Baum, a man 61 years of age, was arrested on January 3, 1900, between 10 and 11 o'clock at night, while at work in the engine room of the exhaust fan of the Philadelphia, Baltimore & Wilmington railroad tunnel on North avenue in Baltimore city. He was taken to the Northwestern Police Station and put in a cell. On the next morning he was taken out of the cell, and summarily tried by the magistrate, whose duty it was to sit at that station, for an alleged assault and battery in December, 1908, on Dorothy Bowers, a female child 11 years old, and was convicted and sentenced to 2 years' confinement in the city jail. On January 9th Baum applied to Hon. Thomas I. Elliott, sitting in the court of common pleas, for a writ of habeas corpus, and also for a certiorari requiring a return into that court of the assault and battery proceedings had before the magistrate. Both writs having been granted, and return made in response thereto, the hearing under the two writs was had at the same time in the court of common pleas. The case having been heard upon the returns to the writs and the testimony of witnesses, the learned judge below, being of the opinion that the magistrate had not lawfully acquired jurisdiction of Baum and of the offense for which he was tried, passed the order, as upon the writ of certiorari, for his release. From that order the present appeal was taken by the state.

It also appears from the record that, when Baum was brought to the station house, a charge was entered against him on the station house blotter of violation of article 27, § 369, Code Pub. Gen. Laws 1904, which makes the carnal knowledge of a female child under 14 years of age a felony, punishable at the discretion of the court by death or imprisonment in the penitentiary for life, or for a period of not less than 18 months; that entry was made by the lieutenant in charge of the station during the night when Baum was brought in, but, upon ascertaining from Dr. Caspari, who had examined the girl, that there had been no penetration of her person, the entry was stricken out, and in lieu of it was entered "Assaulting Dorothy Bowers aged 11 years." The formal entry upon the magistrate's docket of the charge upon which Baum was tried was "Assaulting and beating Dorothy Bowers age 11 yrs. on or about the month of Dec. 1908 in Baltimore city, state of Maryland." The magistrate testified that Baum was in fact tried upon that charge, after having first been informed what it was. According to the magistrate's testimony, when he arrived at the station house on the morning after the arrest, the sergeant in charge told him of the arrest, and of the request to Dr. Caspari to make a physical examination of the girl. He then went into his room, where he met Dr. Caspari, who informed him that he had examined the girl, and wanted to testify; that he was very busy, and wanted to get away. Baum was at once brought out of his cell, and the magistrate, after reading to him the charge of assault and battery, said to him: "You have a right to a court or jury trial, or to be tried here. Which do you want?" Baum replied: "I might as well be tried here, I have not done anything. I am Innocent." The magistrate replied "that it was not a question then as to whether he was innocent or guilty, but the question was where he wanted his case tried," whether before him or at the criminal court, and Baum replied that he wanted it tried there before him. Baum was not asked whether he wished to have counsel, or to have any witnesses summoned in his own behalf, or informed of his rights in that respect. The magistrate thereupon proceeded at once with the trial, calling Dr. Caspari as a witness for the state, who testified that he had examined the girl, and found no evidence of any entry or penetration of her person. Baum was then put back in his cell, where he was kept for about a half an hour, until the other witnesses for the state had arrived at the station house, when he was brought out again, and his trial concluded. The evidence appearing in the record was taken before the court under the habeas corpus and certiorari proceedings, but it is said to be that of the witnesses who testified before the magistrate; he not having reduced their testimony to writing. The only direct evidence touching the commission of the offense, was that of Dorothy Bowers, who testified that, when she visited Baum's room one day in December, he had improperly handled her person in the presence of another girl, whose name she mentioned. The other girl was not called as a witness, and Baum positively denied the commission of the alleged offense. Baum further testified that he knew nothing about law, and supposed, when he consented to have his case heard before the "squire," that the squire would then send it to the court for trial. We forbear any expression of opinion upon the guilt or innocence of the petitioner, Baum, as the only issue raised by the certiorari is that of the jurisdiction of the magistrate to try the case. Lancaster v. State. 90 Md. 215, 44 Atl. 1039; Kane v. State, 70 Md. 552, 17 Atl. 557; Gaither v. Watkins, 66 Md. 582, 8 Atl. 464; Williamson v. Carnan, 1 Gill & J. 196.

The counsel for the respective parties to this appeal have united in the request that, in passing upon the question of the magistrate's jurisdiction, we express our views upon the constitutionality of section 632 of the Baltimore city charter in so far as it professes to confer jurisdiction upon justices of the peace to hear, try, and determine cases of assault and battery. Another jurisdictional question arising upon the record is the sufficiency vel non of the alleged waiver of a jury trial by Baum, such a waiver being made, by the express terms of the statute, a condition precedent to the vesting of jurisdiction in the magistrate over the offense of...