Wright v. State ex rel. Iser
| Decision Date | 13 November 1947 |
| Docket Number | 1. |
| Parties | WRIGHT, Warden, v. STATE ex rel. ISER. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Baltimore County; J. Howard Murray Judge.
Habeas corpus proceeding by the State of Maryland, on the relation of Lawrence W. Iser, against J. Leroy Wright, Warden of the Maryland House of Correction. From an order releasing Lawrence W. Iser, J. Leroy Wright appeals.
Order reversed.
J Edgar Harvey, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and John E. Raine, Jr., Asst. State's Atty., and John Grason Turnbull, State's Atty., both of Towson, on the brief) for appellant.
H. Richard Smalkin, of Towson (Smalkin & Hessian, of Towson, on the brief), for appellee.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.
The appellee, presently confined in the Maryland House of Correction, filed his petition with the Honorable J. Howard Murray, associate judge of the Third Judicial Circuit sitting in the Circuit Court for Baltimore County, praying a writ of habeas corpus to test the legality of his imprisonment under what he termed a faulty and therefore illegal commitment. The grounds related in the application were that he was sentenced on three separate charges, that the commitment does not specify for which charge he is serving his sentence, nor does it state whether his sentences are concurrent or consecutive. One of these charges is alleged to be violation of parole, and the petitioner states that he was never paroled. It is further stated that petitioner was with out due process because he was denied counsel, forbidden to call witnesses, and was refused the right to complete testimony on his behalf or to question the man appearing against him. It is further stated that petitioner's wife, who was sworn at the time of trial was refused the right to testify for him.
Judge Murray issued the writ upon these allegations. The record shows that the appellee was found guilty by the Magistrate for Juvenile Causes of Allegany County, of desertion and non-support of his wife and two minor children, and was committed to the House of Correction for six months. The petition appears from its composition to have been filed by the appellee without the benefit of counsel, but at the hearing below, appellee's present counsel represented him. It was agreed at the hearing in open court that on June 20, 1945, appellee was charged with desertion. He was found guilty, sentenced to eighteen months and paroled for two years. On September 12th he was brought back for violation of parole, found guilty and sentenced to six months. He was again paroled for two years. On November 1, 1946 another warrant was issued for violation of parole. He was found guilty, but it is not clear from the record whether this was for violation of his parole or upon a new charge of desertion and non-support. On this last finding, he was given the sentence which he now claims is illegal.
Judge Murray did not pass upon any of the specific allegations made in the petition for the writ. None of them was proved, and, in fact, no testimony was taken. His decision was based upon what he found to be a faulty commitment. He released the petitioner and the State took an appeal, which the Judge himself suggested. Appellee gave bond as provided by the statute, and the sole question before us is the legality of the detention of the appellee under the commitment in the record.
The pertinent part of this commitment is as follows: 'Whereas Lawrence Iser, hereinafter called the Traverser, after having been informed by me of his right to have a trial by a jury on a charge hereinafter mentioned * * * and having thereupon declared that he wished to waive his said right to a trial by a jury and abide by the determination of the said charge by me * * *.'
The statute under which appellee was tried is section 89 of Article 27 of the Annotated Code as repealed and re-enacted by Chapters 556 and 719 of the Acts of 1945. The Magistrate for Juvenile Causes in Allegany County is given concurrent jurisdiction with the Circuit Court by that statute to try cases involving desertion of wife or child. Section 13 of Article 52 of the Code as repealed and re-enacted by Chapter 845 of the Acts of 1945 provides that in such cases the Trial Magistrate (which in this case, by reference includes the Magistrate for Juvenile Causes) shall have jurisdiction 'provided, however, that the accused, when brought before any such Trial Magistrate, or [on] being informed by him of his right to trial by jury, freely elects to be tried before such Trial Magistrate.' It is contended (and was found by Judge Murray) that the commitment does not show a compliance with this statute, in that nowhere is it stated that the traverser 'freely' elected to be tried before the Magistrate.
The appellant, in his brief, states that he was tried under Section 374AA of Article 1 of the Code of Public Local Laws as repealed and reenacted by Chapter 976 of the Acts of 1945. This section states that any person charged with the violation of any of the three preceding sections shall have a right to trial by jury 'and if a jury trial is not freely waived' the magistrate shall provide for the appearance of the accused before the Circuit Court for Allegany County. The three preceding sections do not, however, authorize the Magistrate for Juvenile Causes to try a person for desertion and non-support of his wife, as well as his minor children. Section 374A, which is one of these sections, gives jurisdiction over the offense of failure to support a minor child, but as the offense charged against the appellee included non-support of his wife, it seems clear that the charge was brought under the Section 89 of Article 27, above referred to.
There can be no doubt that in the case of one tried before a magistrate the jurisdictional fact must affirmatively appear in the record of the magistrate's proceedings that the traverser was informed of his right to a jury trial and freely elected to be tried by the magistrate. State v. Stafford, 160 Md. 385, 153 A. 77. However, the statement of the magistrate to that effect may be rebutted in appropriate proceedings where differing facts are shown, and it appears that the action of the traverser was not at the prompting of his unfettered will. Danner v. State, 89 Md. 220, 42 A. 965; Baum v. Warden, 110 Md. 579, 73 A. 294. No attempt was made in the case before us to show the facts, or to contend that the choice of the appellee made before the magistrate was not his free and unfettered election. We have, therefore, only the record to consider, and the precise point before us is whether the magistrate's statement in the commitment is a sufficient compliance with the statute to give him jurisdiction.
There is no presumption in the case of an inferior tribunal that it has jurisdiction. Every fact required by the statute for that purpose 'must appear on the face of the proceedings, either by averment or by reasonable intendment'. Kane v. State, 70 Md. 546, 17 A. 557, 558. But the statement of the jurisdictional facts in the proceedings does not have to be in any specified form. Whether a traverser 'freely' elects or not, is not as we have shown, determinable by the opinion or conclusion of the magistrate. It is the first instance a legal conclusion from the statements in the commitment to be charged only if facts produced point to another result.
The Allegany County Magistrate did not give his opinion of the workings of the appellee's mind. He merely stated the facts. There were that the appellee, having been informed of his right to have a jury trial, declared that he wished to waive this right and to abide by the determination of the magistrate. The word 'freely' is not used, and the form of the certification is different in other respects from the wording of the statute. But it shows unmistakably that the accused was informed of his right to a jury trial and waived this right and elected to be tried by the magistrate. When the magistrate certified that the accused declared that he wished to waive his right, this statement of itself, implied that it was done freely. The word 'waive' means voluntary relinquishment. And the statement that the accused said he wished to abide by the determination of the magistrate imputes a free election to do so. Waiving the right to the one jurisdiction is a free election of the other. The only reasonable intendment is that the appellee acted of his own unfettered will. We have no right in the absence of anything to the contrary, to infer otherwise.
A substantial compliance with the statute is all that is required in indictments. Wentz v. State, 159 Md 161, 150 A. 278. Real intent must prevail over literal intent. State v. Boyd, 2 Gill & J. 365; State v. Petrushansky, ...
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