Winkler v. State
| Decision Date | 17 November 1949 |
| Docket Number | 25. |
| Parties | WINKLER et al. v. STATE. |
| Court | Maryland Court of Appeals |
Irvin Winkler and others were convicted of conspiracy to disturb the peace in the Criminal Court of Baltimore City, Herman M Moser, J., and they appealed.
The Court of Appeals, Marbury, C.J., affirmed the convictions on ground that it was not affirmatively shown that trial was so unfair as to amount to denial of due process under Federal Constitution, so as to authorize Court of Appeals to examine evidence to determine its legal sufficiency.
I Duke Avnet, Wm. H. Murphy and Harold Buchman, Baltimore (Edgar Paul Boyko, Baltimore, on the brief), for appellants.
Kenneth C. Proctor, Asst. Atty. Gen. , for appellee.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
The Young Progressives of Maryland decided to test the policy of the Board of Recreation and Parks in Baltimore City in relation to interracial tennis playing in Druid Hill Park, a public park of that City, on July 11, 1948. This organization was interracial, numbering among its members both colored and white people of all religions and creeds. As a result of this decision, Stanley L. Askin, State Director, and one of the appellants here, wrote to the superintendent of recreation and notified him what was proposed. The superintendent of parks replied to this letter, stating that due to the Board's policy of segregation, permission could not be granted. Thereafter, on July 8th, a meeting was held with the superintendent, which was attended by Askin, by the executive secretary of the National Association for the Advancement of Colored People in Maryland, by Harold Buchman, one of the appellants, a member of the Bar and Director of the Progressive Party in Maryland, by the assistant Director of the Progressive Party, by two representatives of the Afro-American Newspaper, and by one of the members of the Young Progressives. The Superintendent, Mr. Hook, was informed that these parties felt that there was no law or regulation which prohibited them from having an interracial tennis game, that they felt it was their right to have such a game, and that they proposed to try this on July 11th. Requisite permits were obtained by those intending to play, and on July 11th those selected to test the question arrived on the tennis courts for which they had permits, claimed these courts, and began to play in mixed groups, white and colored, male and female. At the meeting of July 8th, Mr. Hook advised members of the group present that segregation was the Board's policy, although there was not rule. There was some question of forwarding a copy of the minutes to some one of the Young Progressive members, and it was suggested to Mr. Askin by Mr. Hook that the matter be tested by applying for a permit, and having it denied, and then going to court, but the members of the group replied that they would proceed in their own way. The booklet issue by the Park Board, containing rules and regulations with respect to the use of the public parks admittedly contained no statement that colored and white persons could not play tennis together in the public parks of Baltimore.
When playing started on July 11th, the captain of the Baltimore Park Police saw the mixed tennis games going on and a crowd of people, which he estimated at between 250 and 300, watching. He requested that this playing be stopped, and Mr. Buchman, who apparently was acting as advisor to the group, said they were not going to stop, and it is testified that he told the others to go ahead and play. Thereupon a number of policemen were called, and fortified with these additional officers, the request was again made that playing be stopped, and when this request was not complied with, the players were arrested. Some of the players sat down on the courts, and had to be removed bodily, and afterwards there was some disorder and name calling by some of the spectators. It does not appear that there was any disorder prior to the arrests. The occurrence mentioned took place at a time when a campaign was being conducted for the presidency of the United States, by what was known as the Progressive Party, headed by Henry Wallace. One of the chief contentions of that party was that segregation should be abolished. The Young Progressives were not officially allied with the Progressive Party, but the Progressive Party itself, according to Mr. Buchman, took official action supporting the test. Leaflets were sent out asking people to come, and generally distributed, and as a result of these leaflets, a number of spectators appeared. Some of these leaflets read as follows:
A number of indictments were found against the appellants here. Four (Collidge, Silverberg, Vestal and Swan) were indicted for violating the rule against disturbing the peace. Thirteen persons, including Askin and Winkler, two of the appellants, were indicted for violating a rule of the Board by engaging in interracial activities after they had been notified of a prohibition against such action. These indictments were brought in on July 14, 1948. Subsequently, in September, 1948, 22 defendants, including all of the appellants, were indicted for riot and conspiracy. This was the indictment known as 3086. The first count charged riot and the fifth count charged that the defendants 'unlawfully did conspire, combine, confederate and agree together and with each other unlawfully, riotously and tumultuously to assemble and gather together to disturb the peace.' The parties charged were tried on this last indictment before Judge Moser sitting in the Criminal Court of Baltimore City without a jury, and the seven appellants, all of whom are white, were found guilty on the first and fifth counts. A motion for a new trial was made, and was heard before the Supreme Bench of Baltimore City. A new trial was granted on the first count, and denied on the fifth count. Seven judges concurred in this action, and two dissented. Thereafter the seven appellants were sentenced to various terms in the House of Correction, and were fined, the sentences were suspended and they were placed on probation for two years. From these judgments, the appeal is taken here.
The defendants filed demurrers to the indictments and also a motion to quash. The only count on which defendants were sentenced was the fifth. That clearly charges a common law offense, that is a conspiracy to commit a crime. State v. Buchanan, 5 Har. & J. 317, 9 Am.Dec. 534; Wharton's Criminal Law, Vol. 2, Sections 1610 and 1620; Code 1947 Supplement, Article 27, Section 128. The other questions raised in the demurrers referred to the other indictments, which were not tried.
The motion to quash charged that the indictments were vague and also that they were improperly found because a stenographer or court reporter was in the grand jury room at the time of taking of testimony. We are unable to agree that count five is vague. With respect to the other contention, there is a local statute, Chapter 668 of the Acts of 1945, which authorizes the appointment of a stenographer for the purpose of taking and transcribing testimony before the grand jury in Baltimore City. The predecessor of this statute was referred to by this court in the case of Coblentz v. State, 164 Md. 558, 166 A. 45, 88 A.L.R. 886, in which an indictment was held invalid because a special prosecutor was in the grand jury room. The Court, in that case, clearly indicated that a stenographer could lawfully, under a statute, be in the grand jury room. We see no constitutional objection to such a statute.
The motion in arrest of judgment, besides being based on the grounds set out in the demurrer and in the motion to quash, is based upon four other grounds. First a variance between the indictments and the proof, second irregularity in the conduct of the trial, third an alleged prejudicial exercise of the trial court's discretion in permitting the State to try a subsequent series of indictments charging conspiracy and riot, rather than the earlier indictments charging alleged violation of rules and policy of the Board of Recreation and Parks, and fourth, alleged prejudicial error made by the Court in refusing to enter a 'not guilty' verdict after the State had entered a nolle pros in these earlier indictments.
Motions in arrest of judgment are confined to substantial errors intrinsic in the pleadings or the verdict, and apparent on the face of the record which cannot be the subject of a demurrer. Simmons v. State, 165 Md. 155, 167 A. 60. The first of the contentions cannot be raised on such a motion. Willie v. State, 153 Md. 613, 139 A. 289. The second is an attempt to show collusion and consultation among the witnesses for the State, because, after some of the officers who had testified left the court room, they talked to other officers who were to testify, and were...
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