Walker v. State

Henderson, J., delivered the opinion of the Court. The appellant in this case was convicted of attempted rape by the court, sitting as a jury, in the Criminal Court of Baltimore City. After a motion for new trial had been overruled by the Supreme Bench, he was sentenced to be hanged. The appeal comes here under Section 88A of Art. 5 of the Code, Chap. 1068, Acts of 1945, the appellant having filed an oath in forma pauperis.

The appeal is not based upon any objections taken in the course of the trial, but is based upon (1) alleged error in certain remarks of the trial court after verdict, but before sentence, and (2) the court’s alleged refusal to accept the recommendations of medical experts as to the sentence. It appeared from the testimony produced by the State that the prosecuting witness, an unmarried girl of nineteen, and her escort, a boy of the same age, were sitting ⁴⁴² on a bench on a driveway in Carroll Park at about 2:15 a. m. oh the morning of June 4, 1945, when the traverser, a negro youth aged 23, approached from the rear, and demanded their money, watches and jewelry. When these were handed over, he required the couple to go farther into the park, through clumps of bushes, and directed the escort to lie on his face, and the prosecuting witness to lie on top of her escort, face up. The traverser ripped the escort’s clothing down the back with a knife, and ripped the clothing of the prosecuting witness down the front, until she was entirely nude except for her coat.

He threatened her with the knife and hit her several times with his fist, when she refused to accede to his demands for sex relations. Finally, the escort managed to extricate himself and engaged the traverser in a tussle, during which he was stabbed about the face, but the traverser finally ran off, leaving his cap on the ground. The traverser was 6 feet 4 inches tall, and weighed 173 pounds. He admitted tearing the clothing, of the prosecuting witness, although he denied using a knife, but said that he did so to prevent them from getting in touch with the police until after he could make his escape.

He admitted the robbery, but denied any intention to rape. A ring belonging to the prosecuting witness and a watch belonging to the escort were turned over to the police by the traverser’s brother. After the verdict, the trial court remarked: “I recognize this man. I recognize his brother.

They were here in court before me so little time ago. I have a vague recollection there was a pistol involved, with blank shells in it. I also have the recollection something occurred down in this same locality, down around Carroll Park, and I believe the brother at that time—I don’t know which was charged, or who came to the rescue of who in the case—but I have a rather distinct recollection of having seen him and his brother here before. Do you have anything on that, Mr. Peter?

(Mr. Peter was the assistant State’s Attorney who tried the case for the State.) ⁴⁴³ “Mr. Peter: I don’t know whether your Honor should know about that. “The Court: You better not tell me about it. However, I have a pretty definite recollection of there being an alibi about a card game. I think I remember pretty much about it. “Mr. Peter: I think I would prefer not to tell your Honor about it at this time.” No objection was taken to the remarks of the court at that time. In the recent case of Murphy v. State, 184 Md. 70 , 40 A. 2d 239 , we had occasion to consider, upon motion in arrest of judgment, the question as to the extent to which a trial court might consider prior convictions in passing sentence.

Of course, a trial court should not consider mere charges of which a traverser was acquitted. But the mere fact that a trial court may have had some previous acquaintance with a traverser, in the course of his judicial duties, would not disqualify him from hearing a subsequent case. In the instant case, it seems clear that the court did not recall whether the traverser or his brother had been charged with a previous offense, the nature of that offense, or the outcome. Moreover, it appears that the court, and the State’s Attorney, had the applicable rules well in mind.

We find nothing in the remarks quoted to indicate any prejudice against the traverser on the part of the trial court, or that any undue weight was given to the previous court appearance of the traverser. The main contention of the appellant is that the court erred in imposing the death penalty, because the two medical experts recommended a lighter sentence. Dr. Lewis Hill, at the