Appeal from the Criminal Court of Baltimore; Sodaro, J.
Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ., and subsequently argued before Brune, C. J., and Henderson, Hammond, Prescott, Marbury and Sybert, JJ., and Gray, J., Chief Judge of the Seventh Judicial Circuit, specially assigned. Henderson, J., delivered the opinion of the Court. Brune, C. J., filed the dissenting opinion, in which Prescott, J., joined.
The appellants Knox and Hamm were indicted for armed robbery. Knox pleaded guilty and Hamm not guilty. Hamm was convicted and the conviction was sustained by this Court. Hamm v. State, 233 Md. 248. In Knox's appeal we ordered a reargument.
Knox pleaded guilty and, before sentence, was called by the State as a witness against Hamm. In Hamm's case the State proved that there was a robbery of a Western Union branch. Mrs. Luttman testified that a man she identified as Knox, accompanied by another man (Batman) entered the office where she was employed and at pistol point compelled her to lie on the floor while they took money from the till. When they left she called the police, who were on the scene as the two were leaving. Knox ran to a car parked nearby and threw the pistol into it, then ran off. He was pursued and arrested. Hamm drove off but was also arrested. Mrs. Luttman identified Hamm as a former messenger. Knox wore Hamm's badge and dark glasses at the time of the robbery. Batman escaped and was never apprehended. Hamm testified he just happened to be sitting in his car. He denied owning the pistol, but some cartridges that fitted it were found in the cuff of his trousers.
When called by the State, Knox said: "I don't want to testify because it may be against me. * * * I am guilty, your Honor, and like to throw myself on the mercy of the Court." The court told him he must testify, and he did so, implicating Hamm on whom he placed the blame for planning the robbery and supplying the weapon. In cross-examination by Hamm's counsel he said: "* * * the reason why I wanted the fifth amendment not to take the stand is because I did not want my record to incriminate me in this courtroom, I do have a record * * *." As a matter of fact he had some twenty-nine previous convictions of a serious nature, including cutting and stabbing, second degree murder, and many larcenies and burglaries. He said he pleaded guilty because he was caught "in action" and "the woman stated I pulled the pistol on her."
Knox did not contend below, nor does he contend here, that his plea of guilty was not voluntary. He was informed of his
right to plead not guilty, and to elect a jury trial. He was told that the maximum penalty for the crime charged was twenty years. He did not know at that time that he would be called to testify against Hamm.
These facts serve to distinguish the case of Lowe v. State, 111 Md. 1. In that case Lowe and Fisher were arrested and while being held on a charge of arson, and before indictment or trial, Lowe was called to testify against Fisher on a habeas corpus petition brought on behalf of Fisher. Both were later indicted. Lowe pleaded guilty and voluntarily took the stand against Fisher. Lowe then moved before sentence that the judgment be suspended, contending that he was induced to plead guilty and to testify on a promise of immunity implied in law, but was sentenced nevertheless. On appeal, it was held that he should have been permitted to withdraw his plea of guilty, since it was not shown that he knew its nature and effect, as a waiver of promised immunity. The court found that the State's use of Lowe's testimony to hold Fisher in the habeas corpus proceeding was an offer of immunity in the succeeding case, or at least that Lowe was justified in so believing. In Simond v. State, 127 Md. 29, 34, Chief Judge Boyd characterized the Lowe case as holding that under the circumstances there was an understanding or agreement with the prosecuting officer, approved by or known to the court, that an accomplice or coconspirator should be immune if he testified fully and truthfully as to the matter charged. In Graczyk v. State, 230 Md. 299, 303, the Lowe case was cited as turning on the voluntary and understanding nature of a guilty plea.
In the instant case there is no claim of any promise, express or implied. Clearly, the plea of guilty was not induced by any action on the part of the State. It would appear that the State did not intend at that time to call Knox as a witness against Hamm, for the State closed its case against Hamm without calling him and was allowed to reopen it, probably as an afterthought. In any event Knox has never contended that he thought the State intended to call him when he entered his plea. His motivation in filing the plea was simply that the evidence against him was too strong to successfully rebut.
In the absence of any inducement or promise, express or implied,
and in the absence of any contention that the plea was not freely and voluntarily entered, it would seem to follow that the claim of privilege against ...