Fountain v. State of Maryland

⁷⁸ Urner, J., delivered the opinion of the Court. In the course of the trial of the appellant for rape, in the Circuit Court for Talbot County, he filed a motion for a postponement of the trial on the ground that it could not be fair and impartial under the conditions then existing. The motion alleged and offered to prove, in substance and effect, that when the Court adjourned at 10 o’clock at night on the first day of the trial about two thousands persons were assembled on the Court House grounds, on which the county jail was also located, and while the appellant was being taken from the Court House to the jail through the crowd a determined effort, accompanied by personal violence inflicted upon him, was made to take him from the custody of the officers of the law and lynch him, this purpose being openly declared by members of the crowd, some of whom were armed with various weapons and provided with ropes; that the officers attempted to hold the crowd at bay with their pistols as it surged upon the porch of the jail while the appellant was pushed through the outer door of the building, and that, prompted by his fear and the immediate danger of lynching, he took advantage of an opportunity to escape in the dark through an open window, and was not retaken until two days later; that the fact of his escape was announced by the Court to tbe jury as a reason for the suspension of the trial until his recapture; and that a reward of $5,000 was offered by the Court for the rearrest of the appellant and his safe return to the courtroom. It was at the time of the resumption of the trial on the morning after the recapture of the accused that his motion just referred to was filed.

In addition to the allegations already summarized the motion averred that the defendant “by reason of the interruption, of the orderly procedure of the administration of justice due to mob violence actually perpetrated upon him while in the custody of the law and in the actual trial of his case (from which mob violence he attempted' to escape by flight because of insufficient protection of law), finds himself so prejudiced in the further progress of said case as to be utterly and hopelessly unable ⁷⁹ to receive a fair and impartial trial by any further action in the present so called trial and proceeding; and that the same amounts to a denial of due process of law, to a denial of all constitutional guarantee of a fair and impartial trial, or to the constitutional right of a jury trial.” It was further alleged that the defendant was confronted with the alternative of “being prejudiced before the jury by the announcement made to the jury, by the Court, that the defendant bad made bis escape from the authorities during the progress of the trial, from which tbe inference of guilt as a cause for flight may be drawn by the jury,” or of “rebutting said presumption by proof of flight from mob violence perpetrated upon him in the Court House grounds within five minutes of the adjournment of Court and while the jury was still in the box”; but that “by adopting the latter course be becomes prejudiced in tbe trial of said case, by injecting into the minds of the jury the intensity of the feeling of the populace surrounding the Court House, to such an extent that the jury itself becomes thereby intimidated and unable fully and freely to do its duty in. the premises, as it may see it, solely from the standpoint of the law and the evidence given under oath in open Court.” The application of the defendant for a stay of the proceedings was refused, and the trial was continued, resulting in his conviction and a sentence of death. The record contains a certificate of the trial Court, signed at the instance of the defendant’s counsel, as follows: “After tire case of State v. Isaiah Fountain had been assigned for trial on Easter Monday, April 21st, 1919, the court was desirous of knowing whether tbe case was to be tried on that day so as to make its arrangements for other work in the circuit or for sitting in the Court of Appeals, and to that end caused inquiry to be made informally of Mr. O’Dunne as to whether the ease was to be removed or not. “In response to a long-distance telephone call, Mr. O’Dunne came to Easton on Friday night, April 18th, and stated to the Presiding Judge of the Court that he ⁸⁰ brought with him an affidavit of removal signed by Isaiah Fountain and sworn to by him for the purpose of asking a removal. Mr. O’Dunne suggested that the case be removed to Baltimore City, but the Court declined to entertain the suggestion of removal to Baltimore City and said that in the event of the case being .removed it would not be sent out of the circuit; whereupon Mr. O’Dunne stated that he would therefore not file the affidavit of removal. “The circumstances under which the $5,000 reward -was offered were brought about by the escape of the defendant a few minutes after 10 P. M. on the night of April 21st, 1919, the Court having held a night session until 10 o’clock, and when the prisoner was removed from the court house room to the jail building in the Court House Square, a large concourse of people had assembled on the court house grounds, and certain threats of violence towards the prisoner were made by some of those assembled there, which resulted in his then and 'there escaping from the crowd, and from the officers who had him in custody. The next morning the Presiding Judge of the Court in the court room commented upon the disgraceful proceeding resulting in the escape of the prisoner, and offered a reward on behalf of the citizens of Talbot County of $5,000, for his capture and return unharmed to the custody of the Sheriff of Talbot County, and suggested to the Sheriff in open court the swearing in of all assembled who would volunteer as deputy sheriffs for that purpose.

Several hundred persons volunteered and were sworn in as deputy sheriffs, including Mr. O’Dunne, the prisoner’s counsel. “(In the afternoon before the prisoner was returned ■and before the occurrences hereinafter set out, the jury had retired with the bailiffs to another part of the town, where they ate and slept, out of sight and hearing of the occurrences now about to be stated.) “The prisoner was reported captured late in the afternoon of April 23 at a point in the State of Delaware, and as news of his capture reached Easton a large ⁸¹ crowd of people assembled at the Court House Square between the court house door and the jail door, both located on the same plot of ground enclosed by an irdn railing fence. As the news reached Easton that the defendant was about to be brought back to the jail by his captors in an automobile, addresses were made to the assembled crowd from the porch of the jail, in which the populace was exhorted to be peaceful and law-abiding and let the law take its course in an orderly fashion. Chief Judge Wm.

II

Adkins addressed the crowd along this line; also the Mayor of Easton, W. Mason Sheehan and Eugene O’Duune, the prisoner’s counsel, at the close of whose remarks the prisoner arrived and was safely conducted into the jail and back into the custody of the Sheriff without any interference on the part of the crowd. The Presiding Judge invited those who had been sworn in as deputy sheriffs and others who desired to be sworn in as deputy sheriffs to report to the court room across the open green; that he had further matters to communicate to them. The court room was quickly filled,) whereupon the Presiding Judge stated to those assembled that he desired to take them into his confidence to say that he had just been in communication with the Chief Executive 'Of the State, and that he was reliably informed that the present crowd in Easton was likely to he augmented that night by three or four thousand additional persons who it was expected would arrive in Easton some time that night. He asked those assembled whether they felt able and were disposed to take care of the situation in Easton that night, or whether they would prefer that he avail himself of the offer of the Governor to send the constituted legal authority of the State, to wit, a company of uniformed State Militia, augmented by an auxiliary force of policemen from Baltimore City, who could arrive there in machines during the night.

The matter being further discussed by various speakers, the sense of those assembled finally was that the court was asked to use ‘ its judgment for preserving law and order by the use of such power ⁸² and authority as it deemed expedient, including the use of the State Militia and an auxiliary police force from Baltimore City, with the result that between midnight and dawn a company of uniformed State Militia arrived at the court house, and was augmented by some 25 members of the Baltimore Police Force who came down by machine, in addition to the '15 members already there. On the arrival of the State Militia, they were stationed to guard the approaches to the court house and the jail and were placed as pickets on the inside of the iron rail fence around the court house plaza, and with drawn bayonets permitted no one to enter the Court House Square except those having official business with the court, and the