Evening star., 1951-05-11
Appeals Court
Spur Action
On Legal Issue
Maryland Deadlock
In Criminal Cuses
Stalls Prosecutions
By J. l. Miehoel
Stor Stoff Corrsspondent

DALI 44MOFtE1, May 11.-1u
Maryland Court of Appeals vii
! shear red tape to consider tn
question of whether grand jur.
witnesses must be sworn in tn
presence of judge.
With freedom for some prise,
inmates and the validity of a hal
century of court actions in tn,
States four largest counties hang,
ing in the balance, the 'appellat,
court has agreed to take up tn,
problem when it convenes Tues
day In Annapolis.
No matter which way the cour1
holds, a final decision probably
will be asked Of the United State.
Supreme Court.
Assistant Attorney Genera
Kenneth c. Proctor of Maryland
announced the scheduled actor
yesterday after he had been urged
by Prince Georges County State.
Attorney Carlyle j. Lancaster tx
help free the wheels of his coun.
tvs Circuit Court criminal ma.
chinery.
Decision of Digges.
The deadlock, which has caused
postponement of trials of two
men charged with capital offenses
came when Judge j. Dudley
Digges said in an opinion las1
week that grand jury witnesses
may be legally sworn out of the
presence of judge and in place
apart from a courtroom. The
court suggested, however, that
trials of criminal cases be deferred
until the issue is finally decided.
The question arose when Attor-
neys A. Gwynn Bowie and Ig-
natius j. Keane applied for writ
of habeas corpus for Norman r
Strait, Al, accused of the February
/ rape of a 72-year-old Bladens-
burg woman. They contended
that an indictment returned
against Strait by the April grand
jury is invalid because witnesses
took their oaths in the grand jury
room and not in "open court"
Practiced for so Years.
Judge Digges said the swearing
In of witnesses in grand jury
rooms has been practiced for Is
to SO years in Prince Georges
Montgomery, Baltimore. Anne
Arundel and Charles Counties. He
added that if the defense argu-
ment is correct "a large proportion
of Maryland's prison inmates are
being illegally detained"
The specific question to come
before the Appeals Court Tuesday
is whether it will agree to review
Judge, Digges' decision. Appeals
in habeas corpus actions can enly
be argued with Appellate Court
permission. They are not docketed
in the same manner as that for
trial decisions. Until the Legisla-
ture changed the law in 1947, rul-
ings of judges in habeas corpus
proceedings were final.
Indicating that appellate judges
consider the question important
and that the defense is working
against heavy odds, James l.
Young. chief deputy Appeals Court
clerk, said swift consideration OF
the case is unusual. He added
that out of about 200 requests for
habeas corpus decision RENEWALS
in the last four years only -four
have been granted.
If the Appeals Court agrees to
pass on Judge Digges findings
Mr.. Young and MI. Proctor said
the case will be argued the fol-
lowing week. If it refuses, the
issue will be decided, unless de-
tense counsel takes the matter te
the Nations highest tribunal.
Flood of Actions Seen.
Mr.. Proctor said a ruling favor
ing defense contentious probably
would be followed by a flood OF
habeas corpus actions for persons
now in penal institutions.
The result, if writs are granted
he indicated, would be to free an
undetermined number of prison.
ers without bond. Then would
arise the further question OF
whether they could be retired
because Of the prohibition against
placing defendants in double
jeopardy.
The latter question, however
would not be applicable in the
Strait case since he has not beer
tried. The Prince Georges County
grand jury, it was pointed out
could be brought back to re.
indict him.
In his decision, Judge Digge.
quoted this excerpt from Mary.
land Court of Appeals decision
defining the term "open court:
"An open court" the Appeals
Court said in the Hays case GO!
Md. page 419), "contemplates thu
presence of the judge and tht
clerk of the court, or. a duly quail.
fed deputy and the presence
of the clerks docket"
Challenges Contention.
States Attorney Lancaster sale
in answering this contention tha'
the terms presence" and "oper
court" are not confined to 6
definition which would "enyelor
the mere four walls of room
and asserted that 'it is fallacy
to assume that the court mus
physically preside over the swear.
ing in Of witnesses"
Agreeing with this argument
Judge Digges said court record.
show that more than 500 wit.
nesses have testified in Prince
Georges in the last IL months
and added that "if it ever wa,
the practice to have grand jur,
witnesses sworn before the bench
IN the courtroom, the increased
population of the county ha,
burst the bounds of the four wall,