Opinion
[H.C. No. 38, October Term, 1949.]
Decided April 12, 1950.
Habeas Corpus — Being Compelled To Stand Trial In State Court Before Conclusion of Trial In Federal Court, Held Not Ground For Release Under Circumstances — Indictment — If Signed By Foreman of Grand Jury But Not By State's Attorney, Valid If Latter's Name Appears Thereon In Typewritten Form — Lack of His Signature Does Not Go To Jurisdiction and Cannot Be Raised For First Time On Habeas Corpus.
A contention by petitioners for a writ of habeas corpus that they were deprived of a constitutional right by being compelled to stand trial in a State court on a charge of larceny of sugar before the conclusion of their trial in a Federal court on a charge of possessing and transporting distilled spirits with intent to defraud the United States of taxes is without merit where they had made no objection or motion for postponement at their trial in the State court and there was no showing of prejudice in the presentation of their defense, and no question as to a conflict of jurisdiction between the State and Federal courts is presented. In the case at bar, the petitioners, at the time of their trial, had been convicted in the Federal court but sentence had been deferred until disposition of the State court case. pp. 709-710
An indictment which is signed by the foreman of the Grand Jury but not by the State's Attorney is valid if the State's Attorney's name appears thereon in typewritten form. The lack of his signature does not go to the jurisdiction and is not such a defect as can be raised for the first time on habeas corpus. p. 710
Decided April 12, 1950.
Habeas corpus proceeding by State of Maryland, on the relation of Melvin Swietkoski and Benjamin Swietkoski, against Edwin T. Swenson, Warden of Maryland Penitentiary. From a refusal of the writ, petitioners applied for leave to appeal.
Application denied.
Before MARBURY, C.J., and COLLINS, GRASON, HENDERSON and MARKELL, JJ.
This is an application for leave to appeal from a refusal of a writ of habeas corpus. The petitioners were indicted in the Federal District Court on November 4, 1947, on a charge of possessing and transporting distilled spirits with intent to defraud the United States of taxes, tried and convicted on January 19, 1948. Imposition of sentence was deferred "until disposition of cases pending against them in [the] State courts of Baltimore." Meanwhile, the petitioners were indicted on January 9, 1948 by the Grand Jury of Baltimore City, on a charge of larceny of sugar. On February 6, 1948, they were tried and convicted in the State court and each sentenced to three years imprisonment and $2,000 fine. On February 13, 1948, they were sentenced by the District Court.
The petitioners contend (1) that they were deprived of a constitutional right by being compelled to stand trial in the State court before the trial in the Federal court had been concluded and (2) that the indictments upon which they were tried in the State court were fatally defective, in that they were not signed by the State's Attorney, although his name appeared thereon in typewritten form. It was conceded that the indictments were endorsed "a true bill" over the signature of the foreman of the Grand Jury.
We find no merit in either contention. Judge Warnken, who heard the petitions, pointed out that petitioners made no objection or motion for postponement at the time of the trial, and there was no showing of prejudice in the presentation of their defense. No question is presented as to a conflict of jurisdiction between the State and Federal courts.
In Gillespie v. State, 147 Md. 45, 65, 127 A. 727, 735, the validity of an indictment was sustained on appeal against the objection that it was not signed by the foreman of the Grand Jury. While recognizing a practice, not based on any statute, that indictments be signed by both the foreman of the Grand Jury and the State's Attorney, it was said: "The purpose and reason for the indorsement and signature is to identify the indictment and to attest the fact that it is the act of the grand jury, and if those facts appear from any other satisfactory source it is enough." By a parity of reasoning, it has been held that in the absence of statute the failure of the prosecutor to sign an indictment is not fatal, even where the objection is properly raised on appeal. In re Lane, 135 U.S. 443, 10 S.Ct. 760, 34 L.Ed. 219; Commonwealth v. Stone, 105 Mass. 469. It has also been held that a typewritten authentication is sufficient. Miller v. State, 36 Tex.Crim. 47, 35 S.W. 391. In any event, we think the lack of signature does not go to the jurisdiction and is not such a defect as can be raised for the first time on habeas corpus. Cf. Bridge v. Wright, 192 Md. 709, 63 A.2d 628; Longhran v. Warden of Maryland House of Correction, 192 Md. 719, 64 A.2d 712; Winegard v. Warden, 194 Md. 699, 69 A.2d 685.
Application denied, without costs.