Williams v. State

SOBELOFF, ,C. J., delivered the opinion of the Court. The interest and importance that attach to the issues raised in this case are vastly disproportionate to. the small fines imposed by the Criminal Court of Baltimore City — $25 and $50 on the appellants Williams and Jones upon their conviction on one count and two counts respectively — for assault and battery on police officers and a police matron. We permitted consolidation of the appeals because the convictions were based upon facts practically identical. Appellants contend that the charges of assault and battery cannot be sustained, since the charge of disturbing the peace, for which reason appellants say they were arrested, has been stetted in the case of Williams, and resulted in a verdict of “not guilty” in the case of Jones!

The appellant Williams urges further that her conviction should be set aside because a juror's affidavit discloses that the jury was influenced by race prejudice. Appellants are two young Negro women, native Baltimoreans, employed by the Government in Washington, D. C. They returned to Baltimore to visit their families on Christmas Day, 1952. Arriving at the Pennsylvania Railroad Station, they sought transportation to northwest Baltimore. They observed a taxicab waiting to pull out of line.

It was already occupied by another passenger, a Negress desiring to go to Orleans and Wolfe Streets, in east Baltimore. Before the driver lowered the meter flag the appellants put their bags on the front seat of the cab and occupied, the rear seats. ⁵⁹ Appellants’ version can be given in Mrs. William’s words: “The driver,” she testified, “looked at us and said: ‘You hit me with that bag. I don’t have to take that.’ We looked at him. He said, T don’t have to take you where you are going.’ I said: ‘You are driving a public vehicle.

You are supposed to take us where we are going.’ He insisted we get out. In the meantime, the first passenger in stepped across Miss Jones and me and got out. Then the dispatcher came up and asked us, Do you want a cab? Just then the driver had gotten out of the cab and had put our bags on the platform.

I said, No, we already have a cab.” An unyielding position was maintained by the appellants despite the cab driver’s demand that they leave his cab and by the cab driver despite the original occupant’s leaving the cab to engage another. A dynamic element was introduced into the impasse by the arrival of two police officers who had been called at the cab driver’s instance by the radio dispatcher. The story is told by appellant Jones as follows: “We stayed in the cab and within a matter of minutes, up comes this patrol wagon and two officers. Officer Cord-well opened the door and said, ‘Come here, you.’ He pulled me out of the taxi and literally threw me in the wagon.

While he was pulling me out, Mrs. Williams said to him: ‘You are hurting her.’ He said: ‘You shut up because you are coming too.’ ” Such was the appellants’ account. Omitted from the appendix of appellants’ brief is all testimony that would tend to indicate the State’s version that the appellants created a disturbance and pushed, shoved, and kicked the officers before any arrest was attempted. At the trial both police officers and a starter for the Yellow Cab Company testified that the appellants created “noise and commotion” by stomping their feet on the floor of the cab and by using loud and profane language. The officers also stated that when they approached the taxicab and before they had chance to speak to the two women, appellant Jones threw a hat box at Officer Schne ⁶⁰ blein and then came out of the cab and grabbed the officer by the lapels and started to shake him.

Officer Schenblein said on the witness stand, “Yes, had her hands on both lapels of my coat. I said, ‘We are here to investigate a complaint. I don’t know who is wrong. If you give me time, maybe I can help you.

Relax, I will try to help you.’ She said: T don’t need help from you or no other white (profanity). Anybody who wears that uniform, I have no respect for.’ ” Miss Jones, according to the officers, was then placed under arrest but she “jumped back in the cab.” Officer Cordwell testified, “I reached in the cab and told her she was under arrest, to come out of the cab. With that, the Williams woman, sitting on the left rear, kicked at me with her left foot. She missed me.

Then she swung around and hit me on the right shoulder with her hand.” It was testified that Mrs. Williams said, “Get your hands off her. You don’t know who you are locking up. You don’t know who you are fooling with.” Appellant Willimas was then also placed under arrest. The account given by the officers is supported by the cab driver.

We are asked to conclude from the evidence that the cab driver’s refusal to permit the appellants to use his cab was a manifestation of racial prejudice and we are urged to hold that all subsequent events should be viewed in the light of this alleged initial discrimination. Whatever one might think of the driver’s behavior, the suggestion that race prejudice must have motivated him is not established. He was, it appears, willing to serve his original passenger, a Negro woman desiring to go to Orleans and Wolfe Streets in east Baltimore. Why would he decline service to others of the same race on the same ride, since he was already committed to a Negro customer?

It was not a case of rejecting Negro passengers to give preference to white. Especially incomprehensible and not to be explained as racial antagonism is the cab driver’s alleged conduct, if we assume the appellants’ version that they had not yet told him their destination, and that he did not learn ⁶¹ until they were at the Police Station that their homes were in northwest Baltimore. His version was that he declined their patronage in the first instance because he was committed to a patron going in the opposite direction. If nothing had happened to offend him, justifiably or otherwise, or to cause him to refuse to carry the appellants where they wished to go, since appellants say he did not know at the time that their destination was in the opposite direction from the other passenger, and if his sole objection to them was on account of their race, one is at a loss to reconcile this with the undisputed fact that he already had accepted a Negro passenger without objection.

However this may be, the issues we are called upon to decide do not turn on the racial attitude of the cab driver. There was further testimony by State’s witnesses that at the police station appellant Jones slapped, scratched and kicked Matron Poole and bit the finger of Officer Schneblein, for which he was treated at the hospital. Indictments charging disorderly conduct and assault and battery were returned in the usual form. The appellant Jones was tried first, in the Criminal Court of Baltimore City by the court (Cullen, J.) sitting without a jury.

Her indictment charged disturbance of the peace, and assault and battery upon Police Officer Schneblein and assault and battery upon Matron Poole. Verdict was withheld by the Judge pending disposition of the Williams case which was later tried before a jury. Appellant Williams was found guilty of disturbing the peace and of assault and battery upon Police Officer Cordwell. A motion for a new trial was granted by the Supreme Bench of Baltimore City to the appellant Williams on the count for disturbing the peace and this was subsequently stetted by the State.

Her motion was denied as to the conviction for assault. The Judge then entered his verdict which he had been holding in abeyance as to the appellant Jones. He found her guilty of assault and battery upon Police Officer Schne ⁶² blein and Matron Poole and not guilty of disturbing the peace, following in substance the view taken by the Supreme Bench in the Williams case. I .

In their printed brief -the appellants completely ignored the State’s testimony of alleged assaults, contenting themselves with denial of the alleged disorderly conduct. At the hearing of the appeal their position was that they were guilty of - no disorder, and no assault prior to their arrestthat the policemen arrested them without having witnessed any disorder.or other violation; and that any assault on the officers which may have occurred at the railroad station or at .the police station was therefore legally justified as resistance to unlawful arrest. • ■ ■ Appellants insist that all acts preceding their arrest are merged in the charge of disorderly conduct; that the Judge’s verdict that appellant Jones is not guilty of disorderly conduct is res judicata as to prior events; and that the State’s stetting of this count in the companion case places appellant Williams in the .same position. They reason that the failure ■ of the charges of disorderly conduct renders the arrests unlawful and makes the assault cases fatally defective. This- contention ordinarily could not be considered by this Court because of the appellants’ failure to comply with Rule 39, Sec. 1 (e) of the Rules of the Court of' Appeals by the omission of testimony material to, if not controlling of, the point.

This Court has repeatedly warned that the rule does not allow appellants to pick out of the testimony only the portions they consider favorable to themselves, and leave out all of the- remainder, but that the rule requires appellants to print in the appendix everything the Court has to have before it to decide the question presented. Strohecker v. Schumacher, 185 Md. 144 ;. Condry v. Laurie, 186 Md. 194 ; Butler v. Reed-Avery Co., 186-Md. 686; Foley v. Hoffman, 188 Md. 273, 288 ; Grimm v. Virts, 189 Md. 297, 299 ; ⁶³ Naughton v. Paul Jones & Co., 190 Md. 599, 604 ; Platt v. Wilson, 191 Md. 371 ; Bishop v. Richard, 193 Md. 6, 8 ; Musser v. Citizens Bank of Takoma Park, 195 Md. 100 ; Sunshine Laundry Corp. v. White, 197 Md. 582 ; Seybolt v. Baber, 203 Md. 20 , 97 A. 2d 907 ; Schwartzman v. Payne, 203 Md. 256 , 100 A. 2d 23 ; Gmurek v. Kajder, 203 Md. 437 . The nature of the issue on appeal must in each instance be considered in determining whether Rule 39 has been complied with.

In this case, by omitting material testimony and reproducing only selected portions of the record appellants have cast the facts in a context and light different than that appearing to the Court below. It is scarcely necessary to point out that what we are called upon to judge on this appeal is the case as it was presented in the trial court. Where it is shown that an appellant in a criminal case has failed to reproduce in the appendix to his brief material testimony required under Rule 39, the appeal will be subject to dismissal, the same as in civil cases. Hill v. State, 190 Md. 698, 703 .

Cf. Haley v. State, 200 Md. 72, 75 . Apart from the operation of Rule 39, however, there are weighty reasons why appellants’ contention cannot avail them. In the first place, even if we treat the appellants as exonerated on the counts for disorderly conduct “upon or near a public street” or in a “neighborhood,” as provided in Article 27, Section 142, 1951 Code, and as charged in the indictment, their conduct may have constituted a violation of Article 27, Section 144, which makes it an offense to act in a disorderly manner in or about a railroad station, despite the fact that it is not on a public street.

It may be that the Supreme Bench, which filed no opinion, was led to order a new trial of the disorderly conduct charge, by giving the appellant Williams the benefit of a strict interpretation of Section 142. Although appellants were not indicted for violating Section 144, such violation, if observed by the officers, would have justified the arrests. ⁶⁴ If the triers of fact (the jury in one case and the Judge sitting without a jury in the other) believed the State’s witnesses rather than the defendants, as they had a legal right to do, then they may well have concluded that the arrests were lawfully made because of a disorder committed by the two young women. Alternatively, the triers of fact, or later the Supreme Bench, might have accepted the defense version that they committed no disorder but may have found that they assaulted the policemen before any arrest was attempted, and that the arrests resulted from such assaults. In either view the Judge and the jury passing on their respective cases would be easily within the bounds of this record and in no sense inconsistent in holding the defendants guilty of assault.

We agree with the general proposition advanced by appellants that a peace officer may not arrest for a misdemeanor not committed in his presence, and also that one illegally arrested may use any reasonable means, even force, to effect his escape. Sugarman v. State, 173 Md. 52, 57 . Since there was, however, ample basis for a finding by the jury and by the trial judge that the the arrests were legal because of misdemeanors committed in the officers’ presence, we need not consider whether the force used at the railroad station and later at the police station was justified as an effort to escape. Moreover, even if the two findings were inconsistent, acquittal on the disorderly conduct charge does not necessarily result in the' conclusion urged upon us by appellants, that the assault charges must fail.

A similar argument was rejected by this Court at this term, in Leet v. State, 203 Md. 285 , 100 A. 2d 789 . There it was held that a conviction on one count may stand even in the face of an inconsistent acquittal on another count. Each count of an indictment is regarded as if it were a separate indictment, and the inquiry is whether the evidence is sufficient to support the conviction on that count without regard to the disposition of other counts. It may also be noted that in the Williams case the count ⁶⁵ for disorderly conduct was stetted, and there was actually no acquittal.

The failure of this appellant during her trial by the jury to request a directed verdict under Rule 5A of the Criminal Rules of Practice and Procedure technically would prevent consideration of the sufficiency of the evidence. Auckincloss v. State, 200 Md. 310 ; Leet v. State, supra, and cases therein cited. However, appellant Jones, having been tried by the court sitting without a jury, may have this Court determine whether in law the evidence is sufficient to sustain the conviction; but, under the Rule, the verdict of the trial court may not be set aside on the evidence, unless clearly erroneous, and we are required to give due regard to the opportunity of the trial court to judge of the credibility of the witnesses. Rule 7, Criminal Rules of Practice and Procedure; Diggins v. State, 198 Md. 504 .

Upon review of the record, we cannot say that in either of the two cases the verdict was insufficiently supported as a matter of law or was clearly erroneous.

II