Womble v. State, 124

• Decision Date: 17 November 1969
• Docket Number: No. 124,124
• Citation: 258 A.2d 786,8 Md.App. 119
• Parties: James David WOMBLE v. STATE of Maryland. Post Conviction
• Court: Court of Special Appeals of Maryland

Page 119

8 Md.App. 119

258 A.2d 786

James David WOMBLE v. STATE of Maryland.

Post Conviction No. 124.

Court of Special Appeals of Maryland.

Nov. 17, 1969.

James David Womble, in pro. per.

Francis B. Burch, Atty. Gen., of the State of Maryland, William A. Linthicum, Jr., State's Atty., for Montgomery County, for appellee.

Presented to MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

ORTH, Judge.

The provisions of the general law relating to juvenile causes, Md.Code, Art. 26, §§ 51-70, as they previously existed and as amended by Chapter 432, Acts 1969, do not apply to Montgomery County, § 71. Juvenile causes in Montgomery County are covered by Art. 26, §§ 72-90 and jurisdiction of them is vested in two judges of the People's Court of Montgomery County, § 72. Pursuant to procedures prescribed by § 86(c), James David Womble, an adult, appeared before a judge of the People's Court of Montgomery County having jurisdiction of juvenile causes. He 'was charged in that Court with unlawfully and wilfully committing an act contributing to, encouraging or tending to cause a condition which would bring a child within the jurisdiction of the People's Court for Juvenile Causes * * *. Specifically, Womble was charged with keeping Kathleen M. Hammett, age 11, away from her home without the consent of her parents.' ¹ See §§ 76(f) and 78(b). Upon hearing, § 83, he was found guilty, find $100 and sentenced to imprisonment for six months; ninety days of the sentence was suspended and he was placed on probation for one year, § 79. He appealed from the judgment to the Circuit Court for Montgomery County as authorized by § 87(a) and under the provisions of that section the case was tried de novo. ² He elected a jury trial and was convicted on 10 July 1969. The docket entries as to sentence read:

'Traverser Sentenced to the Montgomery County Detention Center for a period of (6) six months, latter (90) ninety days of sentence suspended. Traverser, upon release, to be placed on probation under the Jurisdiction of the Maryland State Department of Parole and Probation for (12) twelve months. Special condition of Probation, that Traverser at own expense seek Psychiatric Treatment. Traverser to pay Circuit Court costs and lower court costs.'

He petitioned for a writ of habeas corpus to the United States District Court for the District of Maryland, Civil no. 21009, and the petition was dismissed on 14 August 1969 for failure to exhaust his available state remedies. On 13 August 1969 he applied to the Court of Special Appeals for a writ of certiorari which we denied by order of 15 August 1969. See Md.Code, Art. 5, § 21. ³ On 22 August 1969 he filed a petition for post conviction relief in the Circuit Court for Montgomery County and upon hearing relief was denied by order dated 30 September 1969 of Judge John P. Moore. He makes application for leave to appeal from that order. See Md.Code, Art. 27, §§ 645A(a) and 645-I.

One of the allegations of error stated in the collateral attack upon the conviction was:

'The State was allowed, over objection, to introduce evidence as to alleged perverted sex acts by the Petitioner which were irrelevant in this case and for which the Petitioner had been previously tried and acquitted. The Petitioner was not allowed to inform the jury that he had been acquitted of the charge of having committed such acts. The introduction of this evidence acted to the prejudice of the Petitioner and created a bias against him on the part of the jury that made a fair and impartial trial on the merits of the particular case impossible.'

The judge presiding at the post conviction hearing made two basic findings with regard to the allegation of error. He found: (1) the evidence as to the prior offenses was admissible; (2) the exclusion of the evidence of acquittal for those offenses afforded no ground for post conviction relief because: (a) it went only to the sufficiency of the evidence; and (b) it was no denial of due process of law.

(1)

It is well settled that proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged. ⁴ Wethington v. State, 3 Md.App. 237, 240, 238 A.2d 581. See Wentz v. State, 159 Md. 161, 164, 150 A. 278; Curry v. State, 117 Md. 587, 593, 83 A. 1030. 'The theory on which evidence of other offenses is excluded is that the jury may be misled into a conviction for an offense for which the defendant is not indicted, or that he may be prejudiced by the accumulation of offenses which he is not prepared to defend.' Wentz v. State, supra, 159 Md. at 165, 150 A. 278 at 280. However, as pointed out in Wethington, there are exceptions to this general rule. 3 Md.App. at 240-242, 238 A.2d 581. Within such exceptions, evidence of prior offenses is admissible, not because it is proof of another crime, but because of its relevancy to the charge upon trial. Cothron v. State, 138 Md. 101, 109, 113 A. 620. And see Berger v. State, 179 Md. 410, 20 A.2d 146. It appears from the discussion of the hearing judge in his memorandum accompanying the order that the evidence of the prior offense was introduced by the State to show the guilt of the applicant of the charge for which he was on trial. Apparently the hearing judge found the evidence to be within the exceptions to the general rule. He stated:

'Moreover, it is well established in our law that all evidence pertinent to the issue of motive or intent is admissible, including evidence relating to prior offenses. * * *

The evidence of the petitioner's prior alleged offenses is relevant in this case to show intent inasmuch as it helps to establish that the petitioner was wilfully encouraging a juvenile female to engage in conduct which would take her beyond the control of her parents and also indicates the basis for the parents' known objections to his association with their daughter. It is also relevant to show that the petitioner wilfully encouraged conduct on the part of an eleven year old girl which would constitute a temporary desertion of her home against the will of her parents.'

The record before us does not disclose whether the child who was the subject of the offense at the trial attacked by the proceedings before us was the same person involved in the prior offenses of which the applicant was charged. Nor does it reveal when those offenses were alleged to have been committed. But for the purpose of decision we assume, but we do not decide, that the evidence of the prior offenses was properly admissible and resolve this application for leave to appeal on the exclusion of the evidence of acquittal of those charges.

(2)

The hearing judge noted in his memorandum that the State 'conceded in these post conviction proceedings that it was error not to allow the petitioner to introduce evidence of his acquittal in the People's Court on charges previously brought against him.' ⁵ The hearing judge recognized that the exclusion was error. He cited Nolan v. State, 213 Md. 298, at 311, 131 A.2d 851, at 857, in which the Court said:

'Where the State has offered evidence to show the defendant's general plan or scheme by virtue of which the crime charged was committed, whether it was of similar offenses or otherwise, the defendant should be allowed to prove his acquittal in the former trial.'

But the judge reasoned that since Nolan also said that evidence of such acquittal was admissible 'for no other purpose than for the purpose of affecting the weight of the evidence against the accused', at 311, 131 A.2d at 857, and since 'questions relating to the sufficiency of the evidence are not matters which may be raised under the Post Conviction Procedure Act', the exclusion of the evidence afforded no ground for relief. We do not feel that the question as here posed was properly confined to a matter of the sufficiency of the evidence so as to enable a disposition of the matter on that ground. It is inescapable that it went to the fairness of the trial and should be considered in that context. The hearing judge further so considered it. But he rejected the argument that the exclusion of the evidence denied due process of law and found that the 'introduction of evidence of acquittal was not essential to satisfy the test of basic fairness imposed upon the states by the Fourteenth Amendment.' We do not agree. We note that the Court also said in Nolan that 'the trial judge was in error in rejecting such evidence (of acquittal), and the rejection would be grounds for a new trial.' 213 Md. at 311, 131 A.2d at 858. Faced with the fact that the jury had before it evidence that he had previously committed perverted sex acts, it was essential to the applicant's defense that he attempt to dispel the impact of that evidence...