Baltimore Radio Show, Inc. v. State Baltimore Broadcasting Corp.

These three appeals are from separate orders on Jan. 28, 1949, of the Criminal Court of Baltimore City finding the appellants guilty of contempt, and imposing fines, for broadcasting over local radio stations certain news dispatches relating to Eugene H. James, at a time when he was in custody of the police on a charge of murder. We have been greatly assisted in the consideration of the case by the excellent arguments and briefs of counsel on both sides, as well as by the briefs of amicicuriae.

On the early afternoon of July 6, 1948, Marsha Brill, an eleven year old girl, was stabbed to death by an unidentified man in the northwestern section of Baltimore, while she was at play with two other children. Because of the atrociousness of the crime, great public interest was aroused, and parents residing in the vicinity became greatly concerned for the safety of their children.

At about 10:45 P.M. on the same day, Eugene H. James was arrested and held for investigation. On the afternoon of July 8, 1948, he was taken to the scene of the crime, at which time he made an oral statement to the police admitting his guilt, and directed the police to the spot where he had buried the knife with which the murder was committed. At about 6 P.M., James was formally charged with murder at the Northern Police Station. A few hours later, James signed a written confession. Miss Taggert, the night editor of the United Press, called Hamilton R. Atkinson, Police Commissioner of Baltimore City, about 7 P.M. stating that she intended to write a story embodying the information which he would either give or verify for her. Commissioner Atkinson verified certain information already possessed by her, and gave her certain other information relative to the case. Later that evening, Commissioner Atkinson was interviewed by the Press outside his office at Police Headquarters, and in response to questions, gave further information, although he denies that he gave out a formal press release for publication.

At about 9:45 P.M. Miss Taggert placed on the teletype, operated by United Press, a dispatch concerning the case. This dispatch was received by the three radio stations and broadcast at various times during the evening, in slightly different forms. The broadcasts were capable of being heard throughout the city and in many of the counties of the State, and were heard by a substantial but indeterminate number of listeners. Similar broadcasts were made by other radio stations located within and without the state, and similar news items were published in newspapers published in Washington, D.C., Philadelphia and New York, circulating in the state. The newspapers published in Baltimore City did not publish the items complained of.

At 8:45 P.M., on July 8, 1948, the appellant Connolly broadcast over the facilities of the appellant WITH the following information:

"After three days of unrelenting hard work on the part of every man in the department, the Baltimore police have just broken the Brill murder case — broken it wide open. Police Commissioner Hamilton R. Atkinson announced only a few moments ago that a man has been arrested and formally charged with the crime — the brutal and apparently pointless stabbing of eleven-year-old Marsha Brill in the Pimlico neighborhood Tuesday afternoon. The funeral of the little murder victim was held today and hundreds of persons attended. The man now charged with the Brill girl'smurder is Eugene James, a 31-year-old Negro and convicted formeroffender, whose home is at 3311 Payton Avenue, not far from thescene of the crime.

"The police said James not only admitted the Brill murder andanother recent assault in the same area but that he went over thescene of the crime with them late this afternoon and showed themwhere the murder weapon was buried. It turned out to be an oldkitchen carving knife. Immediately after the finding of theknife the prisoner was taken downtown to police headquarters for aformal statement. The story of how James came to be charged withthe Brill murder is an account of police work at its best. Jameswas taken into custody yesterday mainly because of his record.Police remembered that he had been charged or suspected in pastyears with a series of assaults and that about ten years ago hewas sentenced to the Maryland Penitentiary for an attack on aten-year-old child. The police took into account also the fact that James' home was close to the scene of the Brill crime.

"James was questioned, along with other suspects, but noinformation of much importance was obtained from him until today.The police did not use any force, of course, but questioned himpersistently. Then, this morning, according to the officers,James admitted an attack on a white woman recently in the samewoods near where the Brill girl was slain. In that case, too,James used a knife but only to threaten his victim intosubmission. She was not otherwise injured. With more informationsupplied by James, police recovered the woman's pocketbook, whichhad been taken from her. Police said James was familiar withevery foot of the ground on which offenses, the assault of thewoman and the slaying of the girl, occurred. James is not anobvious mental case. Throughout all his questioning, said thepolice, he seemed, as they put it, ``quite Cute', in other words,wary. When James freely admitted the assault on the woman thepolice were encouraged and renewed their interrogation withrenewed vigor. They felt that James had admitted the lesserassault only to throw the police off the main track, and thepolice felt they were close to a confession in the Brill case.They were in fact.

"A few hours later the prisoner broke again and this time itwas the break that broke the Brill case. James admitted thatcrime also and consented to accompany the police to the scene. Onthe ground, said the police, he made a more detailed admission. Among those who accompanied him to the scene of the crime were the highest ranking officers of the department. They were led by Commissioner Atkinson. With him were Chief Inspector M. Joseph Wallace, Inspector Joseph Itzel, who had directed the examination of James and other suspects, and Capt. Oscar Lusby, the comparatively new commander of the Northern Police District.

"The appearance of the high ranking police officials with an obvious suspect on the scene of the crime soon drew hundreds of idle spectators and for that reason the police did not linger on the ground any longer than necessary. Instead they took James and the evidence they had accumulated downtown to Police headquarters for a formal statement. From headquarters the prisoner was taken to the Northern station. He probably will be arraigned in Northern police court tomorrow.

"The first hint that the police were close to an important break in the Brill case came with word from an officer of rank at headquarters that, while no arrests had yet been made and no charges had been placed, the police felt they had a very good suspect. James was the suspect of course. At that time he hadnot confessed the Brill crime, although he had admitted theearlier offense against the woman in the same neighborhood. Since the break in the case came so late in the day, the police at first were inclined to postpone making the actual charge against James until tomorrow. In view of the intense interest in the case, however, and in view of the alarm and agitation among parents and children in the area in which the crime occurred, Commissioner Atkinson decided to make the charge and the announcement immediately in order to relieve anxiety among the families in the Pimlico area.

"The Police are deserving of the utmost commendation for the comparatively quick break in the case, and the commendation is merited by every man who worked on the assignment, from the highest to the lowest in the department. From the first Commissioner Atkinson personally took charge of the investigation. The hunt for the slayer promised to be a long, hard routine search. The killer had escaped from the scene despite a wide dragnet thrown around it soon after the alarm. Usually when an arrest is not made on or near the scene such cases develop into long, exhausting investigations that end, usually, only when the police get some favorable break. In this case the officers made theirown break by remembering James' record and taking him in handpromptly. Had the police not been so alert and so prompt James might have fled the city. With the prisoner in hand, all the rest was accomplished by patient and skilled interrogation. Dozens of suspects were examined and released until the police felt reasonably sure that the lone man remaining in custody was the one they wanted.

"The police are to be congratulated. And it is tragic that all the community can do otherwise is commiserate with the beraved family. Fifteen hundred dollars in reward money has been offered for the arrest and conviction of the Brill slayer, and the distribution of that money among these who have earned it remains to be decided. But, if I am not mistaken, the police do not consider themselves eligible for rewards.

"And now a brief pause. Here is our announcer, Gil Kriegel, again with a message from our sponsor. I'll be with you again in a moment with more news and comments.

"Tonight's development in the Brill case blasts sky high City Councilman Bill Muth's misguided effort to pin the crime directly on the Supreme Bench of Baltimore. As a result of tonight's arrest, the local judiciary stands exonerated of any complicity. In a sweeping condemnation of the Bench Muth yesterday laid the blame for the Brill murder directly at the door of the judiciary. The City Council Vice President assailed the local courts for coddling criminals and accused the jurists of excessive leniency, especially in the cases of first offenders. Muth complained that even old offenders are let off with light sentences or suspended sentences and that it was common talk around the Court House that almost any old first offender can have his first offense free — that is, that he can get off without any penalty.

"Muth further stated that in cases where more severe penalties are imposed the sentences are reduced almost before the prisoners get their noses inside the penitentiary doors. One thing Muth said was vindicated in a measure. He said he was willing to go out on a limb and bet that, if and when an arrest was made in the Brill case, the prisoner would turn out to be an old offender who had been up before for similar offenses. And, as you know now, that turned out to be the case. When James, the defendant in theBrill case, was up before for assaulting a ten-year old girl, hissentence was twenty three years. His release recently means,therefore, that he served only about ten years of the originalsentence."

The information received by the representative of the United Press was teletyped into the office of the appellant WCBM, which is a subscriber of the United Press, and at about 7:45 P.M. to 8:00 P.M. and 8:00 P.M. to 8:02 P.M. on July 8, 1948, there was broadcast over the facilities of the appellant WCBM the following information which had been received from the representative of the United Press:

"8:00 P.M. 7:45 P.M. July 8, 1948

"Baltimore * * * Police Commissioner Hamilton Atkinsonannounced tonight that the killer of little Marsha Brill is nowin custody at the Northern District Police Station. Atkinsonidentifies the man as 31-year-old Eugene James, a negro handyman,who lives at 3311 Payton Avenue. James was recently released fromprison after serving eight years for a series of stabbing attackson women.

"8:00-8:02 July 8, 1948

"Commissioner Atkinson says Police broke the case shortlyafter James was taken to the murder scene this afternoon.According to the Police Department head, the colored man showeddetectives exactly how he stabbed the little girl to death onGlen Avenue near Park Heights, and then led them to a spot at Key and Whitney Avenues where hesaid he buried the murder weapon — a large butcher knife.

"James, who is unmarried, has been employed at an apartment house and done odd jobs in the Pimlico neighborhood for several months. He was released last December from the State Penal Farmafter serving eight years on a ten-year sentence for a series ofstabbing attacks on women in North Baltimore. He was arrestedlate Tuesday night after Captain Oscar Lusby of the northerndistrict remembered the earlier cases. Commissioner Atkinson saysJames also has been linked with an attack on a woman last June15th in the rear of the 47-hundred block Wabash Avenue. The womantold police her assailant wore a string of beads around his neck.Police say James was wearing beads when arrested Tuesday.

"James' arrest ends one of the biggest manhunts in Baltimore history. Hundreds of Policemen have been combing the woods in the Pimlico section since Tuesday afternoon when Marsha Brill was dragged from her bicycle and slashed to death Tuesday afternoon.

"The Police Commissioner says no formal charges have been placed against James as yet. Says Atkinson: ``We have only an oral statement. We expect to get a written one later tonight and then we will put the formal charges on the docket.'

"Baltimore * * * Eugene James was formally charged with the murder of eleven-year-old Marsha Brill at 7:45 P.M. tonight. James was docketed at Northern Police Station and taken immediately to police headquarters."

Later during the evening of July 8, 1948, Miss Taggert placed on the teletype operated by United Press for the benefit of its subscribers a dispatch summarizing the information which had been given to or verified for Miss Taggert by Commissioner Atkinson. The dispatch in the following form was received at about 9:45 P.M. by the appellants WCBM and WFBR and broadcast by them:

"Baltimore * * * a negro janitor with a long prison record hasbeen charged with the murder of eleven-year-old Marsha Brill. The school girl was dragged from her bicycle and stabbed to death last Tuesday afternoon while she and two playmates were on their way home from a picnic.

"The man charged tonight is 31-year-old Eugene James of 3311Payton Avenue. James, who is unmarried, has been working as ahandyman around a Pimlico apartment house for several months. Hewas released last September from the State Penal Farm where hehad served eight years of a ten-year sentence for stabbingattacks on women in north Baltimore.

"Police Commissioner Atkinson said James was arrested Tuesday night just a few hours after the brutal murder.

"Questioned about the arrest, Atkinson said: ``This man had arecord. He attacked a 12-year old girl sometime ago. And we picked up anybody we thought would or could have done this thing.'

"Atkinson said earlier that Northern District Police broke thecase late yesterday afternoon after James was taken to the sceneof the crime in the Pimlico section. The man was led through thewoods in handcuffs, and when police returned to the stationhouse, they carried a six-inch butcher knife which will be usedin evidence.

"James was charged with the murder at 7:30 o'clock tonight at the Northern Police Station. He also was charged with attacking and robbing a 38-year-old Baltimore housewife in the 47-hundred block of Wabash Avenue. He is accused of taking five dollars from her.

"When the woman reported the attack, she told police her assailant wore a string of beads around his neck. Police say James was wearing beads when arrested Tuesday.

"The negro was viewed in a police line-up yesterday by the attack victim, and also by eight-year-old Alan Sapperstein and his eleven-year-old sister, Barbara. The Sapperstein children witnessed the savage attack on their playmate, Marsha Brill.

"Police were still questioning James at Headquarters late tonight. Commissioner Atkinson says the man will be arraigned on the murder and rape charges in Northern Police Court at 9 A.M. tomorrow morning.

"Meanwhile, three Washington Detectives are waiting to question him. They have been in Baltimore since Tuesday investigating the parallel between the Brill slaying and a similar one in Washington's Rock Creek Park one week ago last Sunday. In that case, eleven-year-old Carol Bardwell was dragged from her bicycle and slashed to death.

"Atkinson says James denies this crime and contends he has not been in Washington since 1940. The Washington detectives will question him as soon as Baltimore officials are through with him.

"The only clue linking the Baltimore case with the slaying in Washington is an excursion boat badge found in the woods near Pimlico. The badge is a souvenir issued by a Washington Steamerline. It apparently is brand new and was torn from the clothing of someone running through the undergrowth." (The italicized portions of these broadcasts were italicized in the State's bill of particulars to inform the appellants as to the particular words considered as contemptuous.)

On July 9, 1948, James was indicted by the Grand Jury of Baltimore City for the Brill murder, and for the assault and rape of a certain woman some weeks before the Brill murder. At his arraignment on the indictment for murder on July 13, 1948, through counsel, he plead not guilty, and not guilty by reason of insanity. On September 20, 1948, he submitted to trial before the Criminal Court of Baltimore City, without a jury. He was found guilty of murder in the first degree, and after a motion for new trial had been denied by the Supreme Bench of Baltimore City, sentenced to capital punishment. Upon appeal to this court the judgment was affirmed. James v. State, 193 Md. 65 A.2d 888. The only question argued was the admissibility of the confessions. Citations for contempt were issued July 20, 1948.

At the appellants' trials upon these citations, in addition to the stipulated facts regarding the broadcasts, William H. Murphy, one of the counsel for James, testified that he represented James at the time of his arraignment. He did not seek a removal, but elected to be tried by the Court without a jury. One of his reasons for waiving a jury was that he "felt that, inasmuch as it was common knowledge throughout the city that James had, allegedly, made a confession, and that he had been previously convicted for crimes somewhat similar to his then present indictment, I did not feel that I could have picked a jury that had not been infected, so to speak, by the knowledge of this man's confession and his criminal background". On cross-examination he stated that one of the reasons he elected trial by the court was because of the broadcasting of information about his client's confession and past criminal record, and that he had talked to numerous people who had heard those broadcasts. Another reason was "the nature of the crime", which appeared so unnatural as to suggest insanity. During the trial in September both the oral and written confessions were admitted in evidence, there was extended testimony of five psychiatrists concerning his mental condition, and in the course of the medical testimony his previous convictions and incarceration were brought to the Court's attention.

A preliminary question is raised concerning the authority of Judge Gray, Associate Judge of the Seventh Judicial Circuit, to sit in these cases. His assignment was by Chief Judge Marbury, of this court on Jan. 14, 1949, "under the authority given me by section 18A of Article IV of the Constitution of the State of Maryland and pursuant to the request of the Judges of the Supreme Bench of Baltimore City * * * to sit as a Judge of the Criminal Court of Baltimore City in the contempt cases now pending in said Court * * *." (The cases were then particularly designated.) Judges Niles and Tucker, who issued the citations, thereupon entered an order referring the cases to Judge Gray.

Section 18A provides, in part, that "the Chief Judge of the Court of Appeals shall be the administrative head of the judicial system of the State * * *. He may * * * designate, to sit as a judge of the Circuit Court of any county or of any Court or Courts of Baltimore City, either alone or with one or more other judges, in any case or for a specified period, any judge of the Court of Appeals or of any other Circuit Court or of the Supreme Bench of Baltimore City."

The appellants contend that this provision is inapplicable because a citation for constructive contempt is not a "case". We find no merit in that contention. It is true that it was held inEx parte Sturm, 1927, 152 Md. 114, 136 A. 312, 51 A.L.R. 356, and Kelly v. Montebello Park Co., 141 Md. 194, 118 A. 600, 604, 28 A.L.R. 33, that, in the absence of express statutory provision, no appeal would lie in a contempt case, and that the general provision for appeals from final "judgments in criminal cases" was inapplicable. In short, the holdings were that contempt proceedings were sui generis and not criminal cases within the meaning of the appeal statute. After the decision in the Sturm case, the General Assembly passed a statute conferring the right of appeal "in all such cases". Code, Article 5, § 107, chapter 357, Acts of 1927. When section 18A of Article IV was adopted and ratified in 1944, one of its chief purposes was to give flexibility to the Maryland judicial system. In the instant case, the reason for the assignment was, of course, to enable a judge who had not participated in the formulation of a Rule of court to pass upon its validity. The assignment was thus within the spirit of the constitutional provision, and we think it was within the letter as well. The word "case" is broad enough to include all proceedings where issues are judicially determined. Gamble v. State, 164 Md. 50, 53, 163 A. 859; Baltimore v. Ritchie, 51 Md. 233. The order of Judges Niles and Tucker could add nothing to the authority of Judge Gray, derived from the order of Chief Judge Marbury, nor could it substract from it. It is clear that they could not assign a criminal case to a judge of another circuit. Brack v. State, 187 Md. 542,51 A.2d 171. But since section 107 provides that cases of constructive contempt shall be tried "before a judge or judges other than the judge issuing the citation", their order did serve the purpose of making their disqualification a matter of record.

The citations, as amplified by the bill of particulars, were declared to be "based upon Rule 904 of the Rules of the Supreme Bench of Baltimore City" and also "upon the general power and authority of the Courts to issue citations for contempts for the protection of a prisoner's rights to a fair trial." Since much of the appellants' fire is directed at Rule 904, we shall first consider it. The Rule reads:

"In connection with any case which may be pending in the Criminal Court of Baltimore, or in connection with any person charged with crime and in the custody of the Police Department of Baltimore City, or other constituted authorities, upon a charge of crime over which the Criminal Court of Baltimore has jurisdiction, whether before or after indictment, any of the following acts shall be subject to punishment as contempt:

"A. The making of photographs of the accused without his consent.

"B. The making of any photograph in violation of Rule 3 hereof.

"C. The issuance by the police authorities, the State's Attorney, counsel for the defense, or any other person having official connection with the case, of any statement relative to the conduct of the accused, statements or admissions made by the accused, or other matter bearing upon the issues to be tried.

"D. The issuance of any statement or forecast as to the future course of action of either the prosecuting authorities or the defense relative to the conduct of the trial.

"E. The publication of any matter which may prevent a fair trial, improperly influence the court or the jury, or tend in any manner to interfere with the administration of justice.

"F. The publication of any matter obtained as a result of a violation of this rule."

The Rule was adopted in 1939 and has not since been modified. Judge Gray, in a careful opinion, held that paragraph E was "too broad under the clear and present danger doctrine," and was "based clearly upon the original federal rule of the doctrine of reasonable tendency". He held, however, that the rule was severable and rested his finding of contempt upon the violation of paragraph F, that is to say, upon the publication of matter obtained from or statements issued by the Police Commissioner, in violation of paragraph C. The appellants contend that paragraph F is also invalid. We think the history and background of the Rule, as developed in the addresses of Judge Niles, 45 Transactions,Maryland State Bar Association, p. 101 (1940) and Judge Sherbow,53 Transactions, Maryland State Bar Association, p. 165 (1948), support the court's conclusion as to the invalidity of paragraph E. But we do not agree that paragraph F can stand under the doctrine of severability. As the appellants argue, a rule that would condemn the publication of statements made by responsible officials, but condone the publication of similar statements from other sources, would be illogical, if not fatally discriminatory. We are not persuaded that the Rule would have been adopted in that limited form. Cf. Schneider v. Duer, 170 Md. 326,184 A. 914, and Maryland Theatrical Corp. v. Brennan, 180 Md. 377, 386, 24 A.2d 911.

Moreover, counsel for the State and counsel representing the Bar Associations concede that the Rule cannot be construed so as to create an offense of a criminal nature, if, indeed, it can alter in any respect the substantive law. They admit that the source of the power to punish for contempt is inherent in the court, and that the Rule was merely designed as a general warning or declaration of judicial policy. The appellants contend that even when viewed in this light the Rule is objectionable as being in the nature of a censorship. They point to a practice whereby Judges sitting in the Criminal Court have undertaken to advise the press as to whether particular statements would or would not be contemptuous, and suggest that this runs counter to the accepted Maryland principle that the courts are not at liberty to give advisory opinions, except through the medium of declaratory judgments in contested cases. We think there is force in these contentions, but it is sufficient to say that even if the Rule could be sustained as a warning, it could not, standing alone, support the judgments appealed from, which must stand or fall upon the alternative ground set out in the bill of particulars. Cf.Washington-Southern Navigation Co. v. Baltimore PhiladelphiaSteamboat Co., 263 U.S. 629, 44 S.Ct. 220, 68 L.Ed. 480. If the decision below was correct on either ground, it must be affirmed.Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224. Cf. Rollman v. Rollman, 175 Md. 379, 2 A.2d 15.

The appellants do not deny the inherent power of a court to punish for contempt, but they argue that the power has been limited by statute. Code, Article 26, § 4. Chapter 450, Acts of 1853, as amended by Chapter 31, Acts of 1898. This section provides that "the power of the several courts of the State to issue attachments and inflict summary punishments for contempt * * * shall not be construed to extend to any cases except the following:" (The section then sets out seven classes of contempts, none of which in terms cover publications.) In the original Act of 1853, the title described the Act as "declaratory of the law concerning contempts of court." Section 2 of that Act, providing criminal penalties, is now codified as Code, Article 27, § 30. The appellants contend that this statute was intended to limit the inherent power of the courts to punish summarily for contempt, and that the General Assembly had the constitutional power to do so.

The doctrine that, under the separation of powers, a court cannot be stripped of its inherent power to protect itself or persons in its custody, has been widely recognized in this country. Nelles and King, "Contempt by Publication", 28 Col. L.R. 554. We find it unnecessary to decide the point, for we think our statute, as construed by this court, is not all-inclusive, despite the argument based upon its contemporary legislative history. In Ex parte Maulsby, 1859, 13 Md. 625, Judge Bartol, in an opinion in a habeas corpus proceeding (not then reviewable by the Court of Appeals), held that a judgment of contempt was not void, although it did not appear upon its face to have been based on facts within the Act of 1853. He pointed out that contempt "is an offense at the common law; it is not created by the Act of 1853, nor is the jurisdiction to punish it conferred by that Act alone. * * * The Act of 1853 does not confer upon the courts jurisdiction; it is merely declaratory of what shall constitute a contempt; and while it is intended to restrain the courts from punishing, as a contempt, any thing which does not fall within the terms of the Act, it necessarily devolves upon each court which is called upon to enforce it, the power and duty of construing it. * * *"

In Kelly v. Montebello Park Co., 141 Md. 194, 118 A. 600; 28 A.L.R. 33, it was held that the statute authorizing appeals in criminal cases was not broad enough to supplant the common-law rule that no appeal would lie from a judgment in a contempt case. The court referred to the inherent power to punish for contempt, without mentioning the Act of 1853. In Ex parte Sturm, supra,152 Md. 114, 136 A. 312, 314, 51 A.L.R. 356, the court referred to the Act of 1853, but said: "The judicial power to punish for contempt did not emanate from the statute just cited. It is a common-law power possessed, independently of statute, by our courts of constitutional origin." In the case of In re Lee,170 Md. 43, 183 A. 560, 562, decided after the enactment of chapter 357, Acts of 1927, Code Article 5, § 107, establishing appeals on both "the law and the facts" in contempt cases, the court said: "The power and authority possessed by courts may not be destroyed or abridged by legislative enactment. It is recognized as a constitutional attribute, and is preserved as a necessary function of the judiciary."

In Hitzelberger v. State, 1938, 173 Md. 435, 439, 196 A. 288, 290, citations were issued upon information that the defendant had attempted to influence a member of the Grand Jury, prior to his arrest and indictment. It was contended that the court was without jurisdiction to punish these acts as contempts because they did not fall within any of the provisions of Code, Article26, § 4. But the court took the position that the "summary punishments," mentioned in that section, were confined to cases of direct contempt by Code, Article 5, § 107, which prescribed a different procedure in cases of constructive contempt. "There is no need to reconcile these statutes, or to express an opinion of the power of the Legislature in the matter of contempts until presented in a proper case. What we say now is that this is a case of constructive contempt, which the Legislature has not undertaken to construe, define, or forbid. It did, however, prescribe the procedure in cases of constructive contempt, and in doing so merely followed the law as already existing and generally observed." Again in Freedman v. State, 1939, 176 Md. 511, 6 A.2d 249, where the contemnor wrote a letter to the trial judge, in an effort to influence his verdict, the court dealt with the case as one of constructive contempt. We think the Hitzelberger and Freedman cases are controlling on the question of construction.

The Attorney General makes the further point that the General Assembly has not seen fit to amend these statutes since these cases were decided, so as to repudiate the alleged misconstruction. On the contrary, section 107 of Article 5 was amended by chapter 493 of the Acts of 1941, merely to provide that, in cases of constructive contempt, trial shall be "before a judge or judges other than the judge issuing the citation."

We come, then, to the chief contention of the appellants, that the power to punish for contempt is limited by the First and Fourteenth Amendments to the Federal Constitution, and that the facts in the case at bar cannot support the judgments, in the light of those amendments, as authoritatively construed by the Supreme Court. It is now perfectly clear that whatever the law of the state, embodied in its constitution, statutes or judicial decisions, the provisions of the Federal Constitution are supreme. Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346. It is also clear that the guarantees contained in the First amendment, safeguarding free speech and a free press, are implicit in the concept of due process contained in and made applicable to the States in the Fourteenth amendment.Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138;Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357;Schneider v. State, 308 U.S. 147, 160, 60 S.Ct. 146, 84 L.Ed. 155. We assume that those guarantees extend to radio broadcasts.United States v. Paramount Pictures, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260.

In Bridges v. California, supra, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346, the Supreme Court was squarely faced with the problem of conflict between free speech and a fair trial. It referred to the earlier case of Nye v. United States,313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172, in which the case ofToledo Newspaper Co. v. United States, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186, was disapproved. It applied the test laid down in Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, whether or not "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils". "What finally emerges from the ``clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished." [314 U.S. 252, 62 S.Ct. 194] Pressed with the argument that the power to punish for contempt was deeply rooted in the English common law, the court said: "The First Amendment cannot reasonably be taken as approving prevalent English practices. On the contrary, the only conclusion supported by history is that the unqualified prohibitions laid down by the framers were intended to give to liberty of the press, as to the other liberties, the broadest scope that could be countenanced in an orderly society." The court also pointed out that the effect of the publication during the pendency of the trial appeared "to be double: disrespect for the judiciary; and disorderly and unfair administration of justice." Brushing aside the first effect and considering the second, the Court said: "We cannot start with the assumption that publications of the kind here involved actually do threaten to change the nature of legal trials, and that to preserve judicial impartiality, it is necessary for judges to have a contempt power by which they can close all channels of public expression to all matters which touch upon pending cases."

One of the specific statements alleged to have been contemptuous in the Bridges case was an editorial commenting upon a pending prosecution against labor leaders and stating that the judge would make a serious mistake if he put them on probation. As to this the court said: "To regard it * * * as in itself of substantial influence upon the course of justice would be to impute to judges a lack of firmness, wisdom, or honor, which we cannot accept as a major premise." In the companion case, while a motion for new trial was pending, Bridges telegraphed the Secretary of Labor calling the judge's previous decision an outrage and stating that his union did not intend to follow it. This was construed as a threat to strike, if the court did not change its decision.

Despite the powerful dissent of Mr. Justice Frankfurter in that case, in which three justices concurred, the same principle was applied in Pennekamp v. Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295 (in which all of the participating Justices concurred) and in Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546. In the latter case the court said: "The danger must not be remote or even probable; it must immediately imperil." In that case, as in the Bridges case, there were direct threats and attempts to influence the decision of the trial judge in a pending case, not merely unfounded criticism after the event. Mr. Justice Frankfurter filed a dissent in which the Chief Justice concurred. Mr. Justice Jackson filed a separate dissent.

It is trite to observe that we are bound by the decisions of the Supreme Court construing the Fourteenth Amendment. "We are not at liberty to decide to the contrary, or to attempt to whittle away the effect of such decisions by holding that some of the statements made are dicta." Goetz v. Smith, 191 Md. 707, 711, 62 A.2d 602, 603. In the recent cases, the Supreme Court was not concerned with publications merely "scandalizing" the trial court, but with publications calculated and designed to influence the court's decision. The judgments were reversed because the court found that the danger that the trial court would be influenced was remote.

It is suggested that the Supreme Court, which has not hesitated to extend the constitutional protection to procedural due process, might take a different view where juries or potential juries are concerned, rather than trial judges. The distinction is hardly tenable. Judges are not so "angelic" as to render them immune to human influences calculated to affect the rest of mankind. Conversely, while juries represent a cross-section of the community, it cannot be denied that in every community there are citizens who by training and character are capable of the same firmness and impartiality as the judiciary. It is plainly a matter of degree. The dissenting opinions argue that neither judges nor juries can remain unaffected by comments and recriminations while a case is pending. This contention did not prevail, even in cases where the statements threatened the judges with retaliation, if they should reach a particular decision. Granted that the decisions are not directly in point, they seem to go further than we are required to do in the case at bar.

In the case at bar, we are not concerned with deliberate attempts to influence the outcome of a pending case. The statements were not argumentative, but factual. "If there was electricity in the atmosphere, it was generated by the facts", not by the "explicit statement of them". Bridges v. California,supra, 314 U.S. at page 278, 62 S.Ct. at page 201, 86 L.Ed. 192, 159 A.L.R. 1346. It was at least a mitigating circumstance that the broadcasts reported statements made or verified by the public authorities. We are asked to hold that disclosure of the fact that the accused had confessed, and had previously been convicted of similar crimes, presented such a clear and present danger as to deprive the accused of his right to a fair trial. It is appropriate to consider, in this connection, the legal effect of such disclosures in the course of a trial.

A confession is inadmissible in evidence until such time as the State can show that it was freely and voluntarily made. During this preliminary examination we have said that it is the better practice to exclude the jury, although we have held that it is not reversible error to deny a motion to exclude the jury, if the court subsequently rules that the confession is admissible.Smith v. State, 189 Md. 596, 56 A.2d 818. The practice of excluding the jury is by no means universal. In many states it is held to be discretionary with the trial judge. Wigmore,Evidence, 3d Ed., § 861. In none has it been elevated to the status of a constitutional right. Nor has it ever been suggested that mere public knowledge of a confession would vitiate a subsequent trial. If that were so, after a case had been reversed on appeal, for the improper admission of a confession, the case could not be retried.

As we pointed out in James v. State, supra, the present English practice is to exclude altogether confessions obtained by the police from persons under arrest, implemented by Rules of Court and Instructions to the Police. The practice in this country is quite to the contrary, although in the federal courts the admissibility of a confession is scrutinized more closely, particularly in cases of protracted or illegal detention. Upon the question whether disclosure of a confession is contemptuous, there is not an abundance of American authority, although the instances in which it has been done are legion. Sullivan,Contempts by Publication, 2nd Ed. 1940, p. 125. InHerald-Republican Publishing Co. v. Lewis, 1913, 42 Utah 188, 129 P. 624, the court reversed a finding of contempt because of rulings by the trial court. Chief Judge McCarty concurred on the ground that there was no showing of actual prejudice to the accused in the publication of the confession.

In trials before court or jury evidence that the accused has been convicted of other crimes, wholly unrelated to the crime charged, is inadmissible. Wood v. State, 191 Md. 658, 664,62 A.2d 576, 578; Dobbs v. State, 148 Md. 34, 129 A. 275. However, such evidence may have logical relevancy, particularly where it tends to establish a behavior pattern. In the case at bar the previous record of the accused was the clue that led to his apprehension by the police. There is also a widely recognized exception to the exclusionary rule in cases involving sex crimes or abnormalities. Wentz v. State, 159 Md. 161, 150 A. 278, citing Wigmore, Evidence, 3d Ed. § 398. (See also the dissenting opinion of Chief Judge Bond.) The rule that previous convictions are inadmissible is based upon the desirability of avoiding a confusion of issues as well as the unconscious influence upon the trier of the facts. After verdict, it is universal practice for the court to be informed of past offenses in determining the appropriate sentence. Murphy v. State,184 Md. 70, 82, 40 A.2d 239. Without questioning the soundness of the rule of exclusion prior to verdict, it remains a rule of evidence, not a constitutional right. As bearing upon the issue of insanity, it can hardly be doubted that the psychiatrists would have been permitted to disclose, in a jury trial, the prior offenses and predilections of the accused, as they did without objection in the trial by the court.

The suggestion of prejudice in the broadcast that the accused was "wary" and "not an obvious mental case", can hardly be maintained. These statements fall short of an expression of opinion that the accused was sane, which would be inadmissible from a witness not qualified to express such an opinion.

Assuming that the case at bar was "pending" as soon as the accused was arrested and charged, but before his indictment,Berlandi v. Commonwealth, 314 Mass. 424, 50 N.E.2d 210, 216, it seems clear that the mere fact of public statements as to matters that might, or might not, be admissible in evidence against him, would not prevent a trial or vitiate a subsequent jury verdict. Our decisions so hold. In Garlitz v. State,71 Md. 293, 300, 18 A. 39, 41, 4 L.R.A. 601, a talesman, examined upon his voir dire, admitted that he had formed an opinion based upon newspaper reports and rumors, but that it could be changed by the evidence. The court, speaking through Chief Judge Alvey, said: "In our present state of society, all that can be required of a juror, to render him competent, is that he shall be without bias or prejudice for or against the accused, and that his mind is free to hear and impartially consider the evidence, and to render a verdict thereon without regard to any former opinion or impression existing in his mind, formed upon rumor or newspaper reports." Cf. Lockhart v. State, 145 Md. 602, 614,125 A. 829.

In Downs v. State, 111 Md. 241, 73 A. 893, 896, 18 Ann. Cas. 786, it was held that the trial court had not abused its discretion in declining to remove a case, although it was undisputed that the newspapers had published statements that the accused had confessed. The court said: "Such comment does not always arouse such a general prejudice against the accused as to render it impossible for him to secure a fair trial in the county or city where the crime is committed, and it is for the judge to whom the suggestion is made to determine, on the proofs presented to him, whether such prejudice exists."

In Newton v. State, 147 Md. 71, 77, 127 A. 123, 126, three persons were jointly indicted for criminal conspiracy. Two of them elected to be tried by the court without a jury and were convicted. This fact, together with the evidence produced at the trial, was published in the Baltimore newspapers. Newton, who elected a jury trial, filed an affidavit and suggestion of removal, which was denied. On appeal, this court, speaking through Judge Offutt, said: "We cannot assume as a matter of law, as we are asked to do, that either judges or jurors will be influenced by considerations which under their official oaths they are bound to disregard, and the statements made by the jurors in this case tend to confirm that view. * * * Before he was sworn in this case every juror on the panel expressly denied that he would be influenced in rendering his verdict as to Newton by the verdict of the three judges, and stated affirmatively that his verdict would be based solely upon the law and the evidence uninfluenced by the action of the three judges in the case against Gillespie and Dickey".

In Jones v. State, 185 Md. 481, 485, 491, 45 A.2d 350, 351, we held that, upon petition for a change of venue, the trial court should determine the truth or falsity of the facts alleged as to local prejudice. It was not suggested that "statements printed in local and state-wide newspapers alleging confessions and admissions of guilt" would, without more, require removal. InHolt v. United States, 218 U.S. 245, 251, 31 S.Ct. 2, 6, 54 L.Ed. 1021, 20 Ann. Cas. 1138, where in a federal case it was contended that members of the jury were influenced by newspaper accounts, published during the trial, Mr. Justice Holmes, speaking for the court, said: "If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day". See also Welch v. UnitedStates, 77 U.S. App. D.C. 317, 135 F.2d 465; certiorari denied, 319 U.S. 769, 63 S.Ct. 1329, 87 L.Ed. 1718.

An accused, of course, has a right to examine prospective jurors on their voir dire. Alexander v. R.D. Grier Sons Co.,181 Md. 415 30 A.2d 757; Whittemore v. State, 151 Md. 309, 314,134 A. 322. In a capital case, he has an unqualified right of removal. Code, Article 75, § 109. These rights are predicated upon the everpresent possibility of public indignation and prejudice against an accused, where a crime of a wanton or shocking character is committed. The mere fact of arrest, or indictment, implies that the police believe the accused to be guilty, or that the Grand Jury has found a prima facie case. Knowledge that the public authorities are active may have a tendency to allay public excitement and fears, so often magnified by word of mouth. Trials cannot be held in a vacuum, hermetically sealed against rumor and report. If a mere disclosure of the general nature of the evidence relied on would vitiate a subsequent trial, few verdicts could stand.

With due respect for the finding of Judge Gray, we find no direct evidence of prejudice in the community because of the broadcast information. The testimony of James' counsel that he felt the disclosures would prevent him from obtaining an impartial jury, were only conclusions of the witness and not statements of fact. Unless we can infer prejudice from the broadcasts themselves, the State has not met the burden of proof.

The State earnestly contends, however, that the question is not whether there is such a showing of prejudice as to vitiate a trial, but whether the statements were reasonably calculated to influence a potential jury. We should have grave difficulty in holding that the same statements that would not be so prejudicial as to require the reversal of a death sentence, could still be so prejudicial as to support convictions for contempt. But even drawing the inference, we think the proof does not meet the present test laid down by the Supreme Court, which requires more than an inherent or reasonable tendency to prejudice, or even the probability that it will do so.

In so holding, we are well aware of the high motives of the Maryland Bench and Bar in attempting to keep the stream of justice undefiled by sensationalism, and the dramatization of crime, so prevalent in this country and so roundly condemned in England. We do not suggest that the courts lack the traditional power to discipline officials who are a part of the administration of justice. The question whether they can now deal with the radio stations or the press in cases where the statements are inflammatory, false, or designed to intimidate, is not before us. We simply hold that upon this record the broadcasts did not create such a clear and present danger as to meet the constitutional test.

In view of our conclusion it is unnecessary to discuss the other points raised in the briefs.

Judgments reversed.