Brinkley v. State

PER Curiam. 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, Sec. 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 ³⁹³ 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. 1 ³⁹⁴ The information charges a felony under Sec. 340 of Art. 27 of the Code (1957) and appears to be based in part