Glickman v. State

Bailey, Circuit Judge, by special assignment, delivered the opinion of the Court. Two indictments were returned by the Grand Jury of Baltimore City against the appellant, Glickman. The first indictment, No. 80503, contained six counts, charging various violations of the statute against disturbing ⁵¹⁹ the public peace and disorderly conduct. The second indictment, No. 30504, contained a single count, charging an assault on one Hubert Lilly.

Both offenses were alleged to have occurred on October 9, 1947. The cases were tried together before a jury in the Criminal Court of Baltimore City. The jury rendered a verdict of guilty under the sixth count of the first indictment, which specifically charged that the appellant “unlawfully and wilfully did hinder and obstruct the free passage of certain persons then and there passing by and along a certain public street and highway in the said City.” Upon this verdict sentence was suspended generally. In the second case the verdict of the jury was guilty and the appellant was sentenced to be confined in jail for 10 days and to pay a fine of $50 and costs.

He has appealed from the judgments in both cases. The alleged offenses occurred during a strike by the Industrial Union of Marine and Ship Workers of America. A picket line of more than thirty pickets was maintained before the main gate at the yards of The Patapsco Scrap Company. The appellant was a national representative of the union, in charge of social service work in Baltimore.

On October 9, 1947, he was on the scene of the picket line as an observer of the line and traffic conditions and for the purpose of taking motion pictures of the strike activities. About 8 o’clock in the morning Lilly, a boy of eighteen, having received a telegram from the company, was reporting for work. Sergeant Helmer, a policeman on strike duty at the scene, testified to the incident as follows: “This young man at that time came up to me, or was brought to me by a policeman, said he wanted to go through the picket lines. Just then Mr. Glickman came along and said, can I talk to him.

I said, yes if he wants to talk to you you can talk with him. He talked with him for a few minutes, and I overheard what he said. He said, you can not go through that line. When I heard him say that I walked up to this boy.

I thought he was being annoyed. I went up to him and said, Young man, do you want to talk to this ⁵²⁰ man or don’t you. He said I don’t want to talk with this man, I want to go to work. I said, go on, and no one will molest you.

He started on through the picket line, and Mr. Glickman ran behind him, and grabbed him, and as he did that I ordered his arrest and he was locked up.” Prior to the passage of Chapter 608, Acts of 1927, amending Section 577, Article 27, of the Annotated Code, 1924, this Court held in Symington III v. State, 133 Md. 452 , 105 A. 541 , that a general suspension of sentence was in legal effect and meaning the suspension of judgment and that from such a suspension of judgment no appeal would lie. Section 577, as amended by Chapter 608, Acts of 1927, is now codified as Section 680, Article 27, Annotated Code, 1939, and expressly provides that in all cases where sentence has been suspended by the Court, the defendant shall have the right to appeal to the Court of Appeals in the same manner as if sentence or judgment had been entered in said case. The conviction under the sixth count of the indictment, No. 30503, being the subject of the appeal in No. 165, is, therefore, properly before us for review. In both appeals the first question raised by the appellant relates to the alleged misconduct of the Assistant State’s Attorney in his closing argument to the jury.

This incident is stipulated in the record as follows: “(Mr. Biddison) The law applies to everyone equally whether it be applied to a Philadelphia foreigner. “(Mr. Berman) I move to withdraw a juror and have your Honor declare a mistrial. “(The Court) Motion denied. “(Mr. Biddison) Well he is from Philadelphia. “(Mr. Berman) I move to withdraw a juror and ask for a mistrial. “ (The Court) Overruled. “(Mr. Biddison*) Continuing—A foreign jurisdiction, and the law should apply to him as well as to anyone who is a resident of our City.” ⁵²¹ The record discloses that, when the appellant took the stand to testify in his own behalf, after he had given his name and Baltimore address to the bailiff, the first question asked him by his counsel, Mr. Berman, was “Where are you from?” and his answer was “I am from Philadelphia.” So the reference to him as a “Philadelphia foreigner” by the Assistant State’s Attorney was sustained by his own testimony. We agree with the statement of this Court in Toomer v. State, 112 Md. 285 , 76 A. 118, 122 , that “it is unquestionably wrong for the State’s Attorney in his argument to the jury to refer to any matter not testified to by the witnesses or disclosed by the evidence in the case, and it is his duty to confine his remarks to the facts in the case.” If there was any impropriety in referring to the appellant as a “foreigner” the Assistant State’s Attorney, when checked, immediately corrected the statement by saying “Well he is from Philadelphia—a foreign jurisdiction.” We cannot ascribe to the remark the implications which the appellant seeks to make. We commonly refer to out-of-state corporations as “foreign” corporations and to other states as “foreign” jurisdictions. In the absence of something to show that the jury, which is a body of competent and honest men and women, sworn to try the' issue of the traverse on the evidence before them, was misled or influenced to the prejudice of the traverser by such remark the lower court would not have' been justified in declaring a mistrial, nor would this Court be warranted in reversing the judgment.

In Dunlop v. United States, 165 U. S. 486 , 17 S. Ct. 375, 379 , 41 L. Ed. 799 , the Supreme Court said: “If every remark made by counsel outside of the testimony were ground for reversal, comparatively few verdicts would stand, since, in the ardor of advocacy, and in the excitement of trial, even the most experienced counsel are occasionally carried away by this temptation.” See also Cohen v. State, 173 Md. 216 , 195 A. 532 , 196 A. 819 ; Rasin v. State, 153 Md. 431 , 138 A. 338 ; Dick v. State, 107, Md. 11, 68 A. 286, 576 ; Esterline v. State, 105 Md. 629 , 66 A. 269 . The situation ⁵²² in the instant case is entirely different from that presented in Meno v. State, 117 Md. 435 , 83 A. 759 , where the State’s Attorney interrupted a witness during the course of her examination and injected a statement, which tended to connect the traverser with the crime but which would not have been admissible evidence had the State attempted to introduce it. This was highly prejudicial to the traverser and this Court was correct in so holding. Nor do we think that the Assistant State’s Attorney in this case contravened the rule laid down by the Supreme Court in the case of Viereck v. United States, 318 U. S. 236 , 63 S. Ct. 561, 567 , 87 L. Ed. 734 , in the following language: “He may prosecute with earnestness and vigor -—indeed, he should do so.

But, while he may strike hard blows, he is not at liberty to strike foul ones.” We can see nothing in the remark objected to which deprived the appellant of a fair and impartial trial or denied him due process of law. The second objection is to the validity of the verdicts in both cases. When the jury returned and were asked by the Clerk if they had arrived at a verdict they answered, “Yes.” The Clerk then asked for their verdict and the forelady said, “Guilty on the sixth count in indictment No. 30503.” The Assistant State’s Attorney and the Court then asked the jury if they had arrived at a verdict on the assault indictment, to which they answered: “No.” The Court then instructed the jury that they should return to their jury room and that the form of their verdict should be either “Guilty” or “Not Guilty” on the assault indictment. Appellant’s counsel then moved that the verdict be set aside on the ground that “all the forelady would say was ‘guilty on the second count.’ ” He then objected to the Court’s sending the jury back and asked that the jury be discharged from further consideration of the case and that the Court declare a mistrial.

These motions were denied. When the jury returned after further deliberation, appellant’s counsel objected to the taking of any verdict ⁵²³ at this time, contending that the former verdict of “Guilty on the sixth count in indictment No. 30503” was their whole verdict in both cases. After his objection was overruled the Clerk asked the jury, “Have you agreed of your verdict?” Their answer was, “We have.” He then asked, “Who shall say for you?” and their answer was, “Our foreman.” The Clerk then said: “Please stand. How say you, is Samuel Glickman guilty of the charge of assault whereof he stands indicted or not guilty?” The forelady replied: “Guilty of charge 30504.” The Clerk then said: “Hearken to your verdict.

You say Samuel Glickman is guilty in 30504 and so say you all.” Since the decision of this Court in the case of Hechter v. State, 94 Md. 429 , 50 A. 1041 , 56 L. R. A. 457, there has been no question that a verdict, finding a traverser guilty under one count of an