Summary
In Brinkley the Court said, "No court stenographer was present, but Judge Rollins filed on May 7th a full memorandum of the proceedings at the trial dictated from his bench notes...."
Summary of this case from Kennedy v. StateOpinion
[No. 87, September Term, 1960.]
Decided March 7, 1961. Certiorari denied, 368 U.S. 853.
CRIMINAL LAW — Failure Of Petition For Trial Upon Information To State Whether Crime Charged Was Felony Or Misdemeanor, Non-Prejudicial And Waived. Code (1957), Art. 27, § 592, provides, among other things, that an accused in a criminal case may file a petition or suggestion, setting forth that there is a criminal charge pending against him, that it is a misdemeanor or felony as the case may be, and that he wishes to waive his right to an indictment by the grand jury and that he seeks an immediate trial by the petit jury, or the court sitting as a jury, upon a criminal information filed by the State's attorney setting forth the charge or charges against him. Sec. 592 further provides that, upon the filing of said petition or suggestion, the State's attorney shall forthwith file a criminal information against such accused person, which shall be sufficient in form if it clearly apprises the accused of the crime or crimes with which he is charged. In the instant prosecution on an information, the accused's petition failed to state whether the charge against him constituted a felony or a misdemeanor. He had used a printed form of such a petition furnished him while a prisoner in the Cecil County jail which failed to include any statement with regard to the grade of the offense charged and to which no objection was made prior to or at the trial. The petition stated that the accused had been "arrested under a warrant charging him with the crime of larceny." The information charged a felony under Sec. 340, Art. 27, Code (1957) — Punishment for larceny to value of $100.00 or more — and appeared to be based in part upon Sec. 348 of the same Article — Horse, mare, gelding, etc., or motor vehicle — . The evidence showed that the accused had stolen an automobile. The accused contended that because his petition waiving indictment and for a speedy trial failed to state whether the crime charged against him constituted a felony or misdemeanor, as required by Sec. 592, the Court was without jurisdiction and his conviction was a nullity. This contention was held to be without merit. The Court pointed out, among other things, that the accused was well aware of the offense for which he was arrested and there was no prejudice to him from the defect in his petition and that he waived the defect by his failure to object to it at the trial. pp. 392-394
Decided March 7, 1961.
Appeal from the Circuit Court for Cecil County (ROLLINS, J.).
Ernest D. Brinkley was convicted of larceny of an automobile and he appealed.
Judgment affirmed.
The cause was argued before BRUNE, C.J., and HENDERSON, PRESCOTT, HORNEY and MARBURY, JJ.
William B. Evans, for appellant.
James O'C. Gentry, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, and J. Albert Roney, Jr., State's Attorney for Cecil County, on the brief, for appellee.
Ernest D. Brinkley, the appellant, was tried and convicted in the Circuit Court for Cecil County on a criminal information charging him with the larceny of an automobile therein described of a value in excess of $100, and was sentenced to ten years' imprisonment. He appeals.
The appeal is based upon the fact that the petition by which Brinkley waived indictment by a grand jury and requested a speedy trial upon a criminal information failed to include a statement called for by Code (1957), Art. 27, § 592 (which authorizes the filing of such a petition) as to whether the crime charged against him constituted a felony or a misdemeanor. It is contended that non-compliance with this statutory provision left the Circuit Court without jurisdiction to try the case and hence that the conviction is a nullity.
Brinkley's petition is on a printed form apparently furnished to him while a prisoner in the Cecil County jail. The form is evidently intended to comply with Sec. 592. It is in part ungrammatical (as to which no point is raised), and it fails to include any statement with regard to the grade of the offense charged. It is a form not to be commended, but no objection was made to it prior to or at the trial. The petition states that Brinkley had been "arrested under a warrant charging him with the crime of larceny." (The warrant is not in the record.) There is testimony indicating that Brinkley, while driving the car in Baltimore, had been arrested first on a minor charge, that the police then found that the car was on the "larceny sheet", and that after they had questioned Brinkley and obtained from him a statement to the effect that he had taken the car in Elkton, the Sheriff was notified and he returned Brinkley to Elkton, evidently on a charge of having stolen the car. There is nothing to suggest any surprise or prejudice when the information was filed charging him with an offense constituting a felony. The petition was dated April 7, 1960, and was filed in court the next day. On April 11th Brinkley was called for arraignment. He was without counsel and was financially unable to employ counsel. The court thereupon appointed an attorney to represent him, and Brinkley pleaded not guilty and elected trial by the court without a jury. He was tried on May 6th. No court stenographer was present, but Judge Rollins filed on May 7th a full memorandum of the proceedings at the trial dictated from his bench notes (cf. Jefferson v. State, 218 Md. 397, 147 A.2d 204; and Griffin v. Illinois, 351 U.S. 12, 20); and this memorandum is contained in the appellant's appendix. It includes a summary of the testimony of each witness and a statement of the court's reasons for imposing the sentence of ten years' imprisonment.
Following the entry of his appeal Brinkley wrote a letter to the Chief Judge of this Court complaining of his trial counsel, asserting his own innocence, and requesting the appointment as his counsel on appeal of another lawyer [who had recently successfully defended Brinkley in another trial for larceny]. The desired change of counsel was made, but the requested and newly appointed counsel failed to file a brief for the appellant within the time allowed therefor, offered no explanation or excuse for the delay and sought no extension. The appeal was dismissed by this Court on motion of the State. Subsequently, on request of the appellant, his appeal was reinstated, and new counsel (who represented him ably) was appointed. Brinkley wrote another letter, this time to the Clerk of this Court, stating a desire to confer personally with his new counsel, again protesting his innocence, and for the first time alleging that he was denied an opportunity to summon witnesses at the trial. This letter was forwarded to counsel, who thought (correctly, we believe) that the appeal would be heard on the record. No claim of insufficiency of the evidence is urged on this appeal — doubtless because of the testimony set forth in the memorandum of the trial court. Neither the sufficiency of the evidence nor the alleged denial of the opportunity to summon witnesses is before us on this appeal.
The information charges a felony under Sec. 340 of Art. 27 of the Code (1957) and appears to be based in part also upon Sec. 348 of the same Article. It is true that petty larceny constitutes a misdemeanor under Sec. 341 of that Article and that the general term "larceny" might refer either to a felony or to a misdemeanor. As we have stated above, the appellant was well aware of the offense for which he was arrested, and we can see no prejudice that might have resulted to him from the defect in the petition which is here under attack.
The purpose of Sec. 592 of Art. 27 is to afford a defendant a means of obtaining a speedy trial without awaiting a new term of court or the impaneling of a grand jury to indict him. See Heath v. State, 198 Md. 455, 85 A.2d 43. The right to indictment by a grand jury may be waived. Fisher v. Swenson, 192 Md. 717, 64 A.2d 124, and other cases annotated under this Section of the Code. This case was clearly within the jurisdiction of the Circuit Court, using that term as referring to the power to hear and determine a case involving the subject matter, and any irregularity in the proceedings due to the failure of the petition to specify whether the offense charged was a felony or a misdemeanor was waived by failure to object to it at the trial. Heath v. State, just cited. Cf. Jordan v. State, 219 Md. 36, 148 A.2d 292, where consent to be tried on a charge of "motor vehicle larceny" was held to warrant trial and conviction on a charge of receiving stolen goods consisting of the automobile alleged to have been stolen.
Judgment affirmed.