State v. Preissman

Moore, J., delivered the opinion of the Court. The State of Maryland petitioned for a Writ of Certiorari from a dismissal of charges against appellee, Isidore Preissman, by the Criminal Court of Baltimore (Hinkel, J.) on the ground that there had been improper service of criminal process. We granted the Petition by Order of 20 November, 1973. The case presents the single question whether Judge Hinkel erred in concluding that the District Court Commissioner was without power to serve process upon appellee.

The record does not disclose precisely why appellee was in the Housing Part of the District Court on February 20, 1972 when he was served with summonses by the District Court ⁴⁵⁶ Commissioner charging him with multiple housing violations. It appears, however, that appellee was scheduled to stand trial in the same court some four days later on previous housing violation charges. As to those, appellee had prayed a jury trial but the State’s Motion Ne Recipiatur to his prayer was granted by the Criminal Court of Baltimore in August, 1971. Appellee’s subsequent motion to set aside that order was denied and on November 29, 1971 he filed an appeal to this Court. 1 While that appeal was pending, and prior to February 20, 1972, he received a phone call from the District Court instructing him to appear in court.

Mr. Preissman complied and in the course of proceedings on that date before Judge Solomon Baylor, he was served with the disputed process by District Commissioner Antonelli. At trial in March, 1972 appellee’s motion to dismiss the subject charges was denied, and after trial upon his plea of not guilty he was convicted of all the charges. In the Criminal Court of Baltimore he sought a trial de novo (Code, Art. 26, § 156) and again moved to dismiss the charges oh the ground of improper service. The motion was granted, the court finding that appellee had refused to submit voluntarily to the jurisdiction of either the District Court or the Criminal Court and that the method of service of process was contrary to the statute and therefore defective.

Accordingly the charges against appellee were dismissed. Acts of 1969, ch. 789, ratified November 3, 1970, repealed former Parts V-A, V-B and VI of Article IV of the Constitution of Maryland entitled, respectively, “People’s Courts,” “Municipal Court” and “Justices of the Peace” and added present Part VI of Article IV entitled “District Court.” Section 41G of Part VI, “Commissioners,” provides in pertinent part: “Commissioners may exercise power only with respect to warrants of arrest, or bail or collateral or ⁴⁵⁷ other terms of pre-trial release pending hearing, or incarceration pending hearing, and then only as prescribed by law or by rule.” Implementing Article IV of the Constitution, Acts of 1970, ch. 528 established a District Court of Maryland. Section 154 (c) thereof (Code, Art. 26, § 154 (c)) 2 provided in pertinent part: “(c) A commissioner shall receive applications and determine probable cause for arrest warrants and criminal summonses. He shall advise arrested persons of their constitutional rights, set bond or commit persons to jail in default of bond or release them on personal recognizance if circumstances warrant, and conduct investigations and inquiries into the circumstances of any matter presented to him in order to determine if probable cause exists for the issuance of a warrant or criminal summons and, in general, perform all the functions of committing magistrates exercised by the justices of the peace prior to the effective date of this section in the City of Baltimore and each county, and there shall be in each county and the City of Baltimore, at all times, one or more commissioners available for the convenience of the public and police in obtaining warrants or criminal summonses and to advise arrested persons of their rights as required by law.” By