Appeal from the Criminal Court of Baltimore; Manley, C. J.
Brune, C. J., and Hammond, Horney, Marbury and Sybert, JJ. Hammond, J., delivered the opinion of the Court.
The appellant, Bowie, a negro man, was convicted in 1945 by Judge Moser, sitting in the Criminal Court of Baltimore without a jury, of sexual assault on a negro woman, and sentenced to life imprisonment. There was no appeal. In 1945 Bowie unsuccessfully sought habeas corpus from a Maryland judge on the grounds that he had been illegally arrested and that evidence had been erroneously admitted against him at his trial. Leave to appeal was denied in Bowie v. Warden, 190 Md. 728, this Court saying on the latter point that "[p]rocedural details (not fundamental), including rulings on evidence, cannot be reviewed on habeas corpus."
In 1952 Bowie again tried, without success, to obtain relief by way of habeas corpus, this time on the claim of double jeopardy and of invalidity of one count of the indictment. In Bowie Page 588} v. Warden, 201 Md. 648, Judge Markell, for the Court, in denying leave to appeal, said "defects in an indictment and the defense of double jeopardy, if properly objected to at the trial, may be reviewed on appeal or on motion for a new trial, and not on habeas corpus."
In 1961 Bowie filed a petition under the Post Conviction Procedure Act, claiming that he had been acquitted of rape, charged by the first count of the indictment against him, that he was convicted of assault with intent to rape under the second count of the indictment, but that the second count did not charge assault with intent to rape but, like the first count, charged rape. From these premises he argued that conviction on the second count put him in double jeopardy since he was acquitted on the first count. He claimed also that there was an inconsistency in the verdicts in that he was acquitted of rape under the first count and convicted of rape under the second count, and finally that if he was convicted of assault with intent to rape the conviction was illegal and unconstitutional since he was not charged in the indictment with that crime. Judge Manley found against him.
In granting leave to appeal and remanding the case for further consideration, Judge Henderson, for the Court said (p. 608 of 230 Md.):
"Yet the docket entries show that he was convicted of assault with intent to rape, and the second count was at least ambiguous in form. Under the circumstances we are constrained to remand the case for further consideration of that point by Judge Manley, without affirmance or reversal. We intimate no opinion as to whether the point was finally litigated in Bowie v. Warden, supra [201 Md. 648], or whether a defect in the indictment could be reviewed in this proceeding."
On remand, after a further hearing at which Bowie was represented by counsel appointed by the court, and consideration of argument of counsel, Judge Manley (1) found that the second count of the indictment charged rape, (2) ordered the clerk to strike from the docket the words between the parentheses
in an entry made at the trial in 1945, reading "Verdict of Guilty, 2nd, 3rd and 4th counts (Assault to Rape, etc.). Not Guilty 1st Count," and (3) said the evidence would have supported a verdict of guilty of either rape or intent to rape and that the statutes authorized the same penalty for both offenses. He held that the point of double jeopardy, having been finally litigated in the second habeas corpus case, could not be again raised, that it does not follow that a conviction on one count may not stand because of an inconsistent acquittal on another count, and that the contention that the second count was illegal and defective should have been made in the trial court and was not open for review under the Post Conviction Procedure Act. We granted leave to appeal.
A review of the facts is essential for a full understanding and correct decision of the case.
Bowie was charged by the Grand Jury in 1945 in the assault case in a four-count indictment.*fn1 The first count charged rape, the third count charged perverted sexual practice, and the fourth common assault. The second count, which in Baltimore in such cases has long been, and in 1945 was, by almost unvarying custom, if not unvarying custom, a count charging assault with intent to rape, read as follows in this case:
"And the Jurors aforesaid, upon their oath aforesaid, do further present that the said FRANK BOWIE, on the said day, in the said year, at the City aforesaid, in and upon one Nettie Graham, feloniously did make and assault with intent then and there, her, the said Nettie Graham, then and there violently and against her will, feloniously did ravish and carnally know, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State."
No challenge was made to the indictment and no question raised as to its meaning until 1961, some fifteen years after
the Grand Jury returned it and the accused pleaded not guilty of the offenses charged in it, and ...