Haley v. State

Collins, J., delivered the opinion of the Court. This is an appeal from a judgment and sentence of the trial court, sitting without a jury, by the appellant, Carl R. Haley, who was charged on information with committing a certain unnatural and perverted sexual practice, on July 26, 1951, with a certain female named therein. The appellant claims there was not sufficient evidence before the trial judge to convict him of the offense ⁷⁵ charged. The appellee claims the appellant is not entitled to question the sufficiency of the evidence because he failed to include the evidence in the appendix to his brief.

As pointed out in many previous cases, Rule 39 (1) (e) of The Rules and Regulations of the Court of Appeals requires that in the appendix to the appellant’s brief must be printed “such parts of the record as he desires the Court to read”. We have held in many cases that this rule means exactly what it says. Some of these cases are: Strohecker v. Schumacher, 185 Md. 144, 146, 147 , 43 A. 2d 208 ; Condry v. Laurie, 186 Md. 194, 197 , 46 A. 2d 196 ; Grimm v. Virts, 189 Md. 297, 299 , 55 A. 2d 716 . We have dismissed a number of appeals for failure to abide by this rule.

Sunshine Laundry Cory. v. White, 197 Md. 582 , 80 A. 2d 1 ; Lane Manor Cory. v. Byers, 199 Md. 406 , 86 A. 2d 731 . However, as pointed out in Naughton v. Paul Jones & Co., 190 Md. 599 at page 605: “If the appellant’s brief contains a statement of facts which the appellee accepts as accurate and sufficient, no evidence in appellant’s appendix and no record references are necessary. But, in the absence of a stipulation between the parties, an appellant would act at his peril. If his statement of facts is disputed by his adversary and is not supported by evidence in his appendix, the only questions reviewable are questions which may be decided on facts that are not disputed.” In the case at bar it seemed to be agreed at the argument in this Court that the only essential facts not contained in appellant’s brief were certain obscene remarks made by the appellant during the commission of the offense which tended to prove his guilt.

These remarks on account of their obscenity were omitted but are considered by this Court on the question of appellant’s guilt. At about 11 P. M. on July 26, 1951, an automobile was seen moving rapidly into a state forest in Howard County. It stopped and the lights were turned out. At a distance of 25 or 30 yards from the automobile a forest warden, accompanied by another man, was in a truck ⁷⁶ with its lights turned out.

The horn of the automobile was blown for some time and shouts were heard from the car. The dome light was turned on and the occupant on the left of the car in the driver’s seat was seen striking the person on the right. The two men got out of their truck to investigate and the dome light of the automobile was turned off. The man in the automobile was then heard making certain obscene remarks.

These are the words omitted from appellant’s brief, which constitute strong evidence against him. Mumbling and slapping followed these remarks. The noises finally ceased. The forest warden then approached the automobile from the driver’s side and the other man from the other side.

They flashed flash lights in the car. The male occupant seated in the driver’s seat was completely nude and the woman was fully clothed. The woman had been sitting straight up, but had lain over with her face down in his lap and his hand was on top of her head. The man was then ordered from the car.

It was stipulated that if the woman in the car had been present at the trial she would have testified that she was so intoxicated that she did not remember anything which had transpired. The men did not open the car door but could see the woman’s face in the light. They also made certain observations of the man which it is not necessary to . relate here. The man later dressed.

He was drunk, but began to sober and was able to drive his car and speak clearly. The woman was incapable of speech and could not raise her head or her hand. The appellant did not testify in the case. It is plain that the trial judge was hot clearly wrong in finding the appellant guilty of the crime charged on this testimony and on the remarks made by the appellant which are deleted from the brief and this opinion.

Rule (7) (c) of the Criminal Rules of Practice and Procedure of this Court; Edwards v. State, 198 Md. 152 , 88 A. 2d 578 . ' A motion for a new trial was filed on the usual grounds by the appellant, when for the first time it was contended that he, an American citizen, was a domestic servant of ⁷⁷ Colonel David Herbert de Schinkel, Swedish Air Attache to the Swedish Embassy in Washingtpn, D. C., and duly accredited by the United States Government, and as such was entitled to immunity from arrest and imprisonment. The motion for the new trial was refused. Of course, there is no appeal to this Court from the refusal of a new trial. Miller v. State, 135 Md. 377, 379 , 109 A. 104 .

This question was not raised and decided in the trial of the case below. Rule 9 of this Court provides: “In no case shall the Court of Appeals decide any point or question which does not plainly appear by the record to have been tried and decided by the Court below.” This rule applies to criminal as well as to civil cases. Davis v. State, 189 Md. 269, 273 , 55 A. 2d 702 ; Swann v. State, 192 Md. 9, 11 , 63 A. 2d 324 ; Madison v. State, 200 Md. 1 , 87 A. 2d 593 . As this question involves relations with a foreign government it will be considered here, even though not properly raised.

With the motion for a new trial were filed the following papers: “Embassy of Sweden Washington 8, D. C. It is hereby certified: that Colonel Herbert de Schinkel is since October 1,1946, the Air Attache of the Swedish Embassy in Washington, D. C., and is as such directly under the orders of the Ambassador of Sweden that Carl Haley, an American citizen, has since the spring of 1948 been employed by Colonel de Schinkel as his personal servant, and that there is nothing unfavorable about Haley known to this Embassy. Washington, D. C., October 30, 1951 For the Ambassador RAGNVALD BAGGE, Minister Counselor. (SEAL’S PLACE) ⁷⁸ Air Attache Embassy of Sweden Washington 8, D. C. The undersigned, Colonel de Sehinkel, Air Attache to the Embassy of Sweden in Washington, D. C., being precluded — on account of my official position at the Embassy — from appearing in person before United States Court of Law, begs to make the following statement regarding my personal servant Carl Haley. Carl Haley has been employed by me since the spring of 1948 as my personal servant and as captain aboard my boat.

Throughout all this time he has conducted himself extremely well, and I have learned to appreciate him as an absolutely honest man. He has been a very good and reliable worker, and whatever I would put in his hands, I could always trust him to do to the best of his ability and with perfect loyalty. As far as I know, he has never done any thing wrong during the time he has been in my service. I would appreciate if the rights and privileges enjoyed by personal servants to foreign diplomats be extended to Carl Haley.

Washington, October 30, 1951 HERBERT de SCHINKEL Colonel” (SEAL’S PLACE) Under the seal of the Secretary of State the following letter was written to this Court: “Department of State Washington February 19, 1952 The Court of Appeals, State of Maryland. Gentlemen: The Department of State, at the request of the Attorney General of the State of Maryland, has ⁷⁹ been asked to inform your Honorable Court of the status of Carl Haley, in an appeal now pending in the Court of Appeals under the caption: Haley v. The State of Maryland, No. 134, Court of Appeals, Maryland, October Term 1951. Mr. Carl Haley, according to unofficial information available to the Department of State, has been employed by a diplomatic officer at the Swedish Embassy. The Swedish Ambassador has not notified the Department of State officially that Mr. Haley is so employed and the Secretary of State has not, therefore, transmitted his name to the Marshal of the District of Columbia in accordance with provisions of law as set forth in Section 252-254, Title 22, United States Code.

Under these circumstances the Department of State is of the opinion that Carl Haley does not have immunity under the sections of Federal law above quoted for the reason that there has been no official notification to the United States of any diplomatic status, hence he could not be accepted and received as such by United States. Very truly yours, For the Acting Secretary of State: JOHN F. SIMMONS Chief of Protocol.” Appellant claims diplomatic immunity under Title 22, U. S. C. A., Sections 252-254, which read as follows: “252. Suits against ministers and their domestics prohibited. Whenever any writ or process is sued out or prosecuted by any person in any court of the United States, or of a State, or by any judge or justice, whereby the person of any ambassador or public minister of any foreign Prince or State, authorized and received as such by the President, or any domestic or domestic servant of any such minister, is ⁸⁰ arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, such writ or process shall be deemed void.

(R. S. sec. 4063. ) “253. Penalty for wrongful suit. Whenever any writ or process is sued out in violation of the preceding section, every person by whom the same is obtained or prosecuted, whether as party or as attorney or solicitor, and every officer concerned in executing it, shall be deemed a violator of the laws of nations and a disturber of the public repose, and shall be imprisoned for not more than three years, and fined at the discretion of the court. (R. S. sec. 4064. ) “254.

Exceptions as to suits against servants etc., of minister; listing servants. The two preceding sections shall not apply to any case where the person against whom the process is issued is a citizen or inhabitant of the United States, in the service of an ambassador or a public minister, and the processes