Rose v. State

Bond, C. J., delivered the opinion of the Court. In more than one respect these appeals fail to comply with the requirements for review in this court, but as they are taken from a conviction of murder in the first degree and a sentence of death, the court has examined what is presented in a brief record; and it has found no showing of error in the trial proceedings. Having actually reviewed the case, or so much of the proceedings as the record recites, it will affirm the judgment rather than dismiss the appeals. ⁵⁷⁹ The docket entries reproduced show that upon her arraignment Martha Rose, appearing by attorney, pleaded “Not guilty,” and elected to be tried by a jury, but on coming to the trial withdrew that election and, instead, elected to be tried by the court without a jury. No objection to the verdict, or reason why sentence should not be imposed, was offered by the accused when asked by the court for any she might have, and sentence was imposed on October 9th, 1939.

The first appeal was then entered. There was no bill of exceptions. On the following November 3rd, after the case had been so appealed, the accused by her attorneys moved that the judgment and sentence be stricken out because she had been deprived of her constitutional rights in being tried without a jury, and because the verdict and sentence had not been entered in accordance with the requirements of section 6, article 59 of the Code, concerning proceedings on pleas of insanity. The motion, in writing, alleged an obvious mental degeneracy.

It was heard and overruled, and the second appeal was entered from that action. The recitals in the docket entries in themselves show no error or irregularity; such a showing could only be added by the motion if added at all; and the appeals may be considered as if one. For the first time in the state it is objected that in the allowance of election of trial by the court without a jury there is violation of the constitutional provisions regarding jury trials in criminal cases. The Declaration of Rights, in article 5, provides that the people are “entitled to the Common Law of England, and the trial by Jury, according to the course of that law;” in article 21, “That in all criminal prosecutions, every man hath a right * * * to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty;” and in article 23, “That no man ought to be * * * in any manner destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the Land.” These provisions have been contained in all constitutions of the state, including the first, of ⁵⁸⁰ 1776.

In addition, the Constitution of 1851 and subsequent Constitutions have provided that, “In the trial of all criminal cases, the jury shall be the Judges of Law, as well as of fact.” Constitution of 1867, art. XV, sec. 5. If any of these clauses might otherwise be read as commanding trials by jury in all criminal cases, it is to be borne in mind that trials without juries have regularly been allowed since near the founding of the province, if not from the beginning, and the clauses were all adopted while the practice was in vogue, and were never regarded as causing any interruption of it. Explanatory theories seem to have varied somewhat.

Statutes adopted soon after the settlement provided that a jury trial should be allowed in a case of crime affecting life or member, or in any other case upon security given by the accused to pay the cost of it; and instances of trials without juries appear in some, of the records of the Provincial Court and county courts of that century. Archives of Maryland, vol. 1, 83 and 151; vol. 4, 165. And so it was during the 18th century, before and after the Revolution. The practice was. then usually supposed to have been derived from the old English practice of confession and submission in minor cases, although innocence was nevertheless provable, and acquittals were obtained. 2 Hawkins, Pleas of the Crown, ch. 31; Jenifer v. Lord Proprietary, 1774, 1 H. & McH. 535 ; and Miller v. Lord Proprietary, 1774, 1 H. &.

McH. 543. A statute of 1793, November Session, ch. 57, provided that submission should always be so far an admission of the crime or offense charged as to render the person submitting liable to the costs of prosecution; and an Act of 1809,