Wright v. State Ex Rel. Iser ( 1947 )

In appellee's petition for writ of habeas corpus he alleged that he was illegally deprived of his liberty, in violation of his constitutional rights "and upon grounds of a faulty (therefore illegal) commitment." The grounds specified did not include any facts sufficient to show that the commitment or the imprisonment was illegal — or any charge that the magistrate lacked jurisdiction or that appellee did not "freely elect to be tried before" the magistrate. Nor did he testify that he did not freely elect. The magistrate at least asserted jurisdiction by exercising it; appellee did not even deny jurisdiction. I think, therefore, that the petition was insufficient to require issuance of the writ, and the writ having been issued, the evidence at the hearing was insufficient to justify release of appellee. If he had testified, showing that he did not freely elect, I think the State would have had the burden of supplementing the magistrate's commitment and docket entries by testimony rebutting appellee's testimony and showing that he did freely elect. State v. Stafford, 160 Md. 385, 388, 389,153 A. 77. The order releasing him therefore should be reversed.Rountree v. Wright, Warden, 189 Md. 292, 55 A.2d 847.

I am, however, unable to understand how either judges or jailers (1) can regard a commitment as a recital of evidential "facts" and infer from them the ultimate jurisdictional fact which the commitment fails to state or (2) specifically, can regard a recital that appellee "declared that he wished to waive" as equivalent, by reasonable intendment, to the required statutory fact that he did "freely elect."

The statute in question, Art. 52, § 13, has been enacted and reenacted no less than nine times in the course of sixty-seven years. Acts of 1880, ch. 326; 1884, ch. 510; 1890, ch. 618; 1892, ch. 485; 1894, ch. 338; 1896, ch. 128; 1906, ch. 475; 1914, ch. 482; 1945, ch. 845. From 1880 to 1906 the statute gave jurisdiction (a) unless a jury trial was prayed, (b) provided the magistrate inform the accused of his right to a jury trial. From 1890 until 1906 the statute also referred to "waiver of jury trial." From 1914 to date the statute gives jurisdiction, provided the accused, (a) on being informed of his right of trial by jury (b) "freely elects" to be tried before the magistrate.

Few legal expressions have more different meanings, or applications, in different circumstances than the word "waive", both in substantive law (e.g., insurance) or in procedural law. In respect of fundamental rights the difference between "waive" and "intelligently waive" is the difference between due process and lack of it. Hawk v. Olson,326 U.S. 271, 279, 66 S. Ct. 116, 90 L. Ed. 61; Carter v. Illinois,329 U.S. 173, 177, 67 S. Ct. 216. In respect of the constitutional right of trial by jury for a criminal offense (e.g., petty larceny, until recent change in the punishment), the difference between "waive" and "freely waive" is the difference between waiver and no waiver at all, and the necessary operation of this very statute has been held to make free waiver impossible and to make the statute unconstitutional. Danner v. State, 89 Md. 220, 229, 42 A. 965. On the other hand, there is no constitutional right of trial by jury in petty criminal cases. State v. Glenn,54 Md. 572; Crichton v. State, 115 Md. 423, 81 A. 36. In such cases trial by jury may be given or withheld on such terms (including waiver by implication) as the legislature may deem fit. So in civil cases, in Baltimore by constitutional amendment (Art. 4, § 39) or in the federal courts by rule of court, Rule 38(d), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, mere oversight in failing to elect trial by jury may constitute a waiver.

The statute now involved expressly covered petty larceny from 1880 till 1906, after it had been held unconstitutional as to petty larceny. In 1906 the legislature eliminated reference to petty larceny and left the statute applicable, principally if not exclusively, to petty offenses as to which jury trial might have been denied altogether. Nevertheless the Act of 1906, instead of the less definite word "waive," expressly required that the accused "freely elect".

Even if this court may since have intimated that the prior statutes required in effect that the accused "freely elect", (Green v. State, 113 Md. 451, 456, 77 A. 677) I can not understand how judges or jailers can read such a construction into a magistrate's commitment, and thus read in the omitted statutory requirement which has been a jurisdictional requisite for forty years.