The Young Progressives of Maryland decided to test the policy of the Board of Recreation and Parks in Baltimore City in relation to interracial tennis playing in Druid Hill Park, a public park of that City, on July 11, 1948. This organization was interracial, numbering among its members both colored and white people of all religions and creeds. As a result of this decision, Stanley L. Askin, State Director, and one of the appellants here, wrote to the superintendent of recreation and notified him what was proposed. The superintendent of parks replied to this letter, stating that due to the Board's policy of segregation, permission could not be granted. Thereafter, on July 8th, a meeting was held with the superintendent, which was attended by Askin, by the executive secretary of the National Association for the *Page 8 Advancement of Colored People in Maryland, by Harold Buchman, one of the appellants, a member of the Bar and Director of the Progressive Party in Maryland, by the assistant Director of the Progressive Party, by two representatives of the Afro-American Newspaper, and by one of the members of the Young Progressives. The Superintendent, Mr. Hook, was informed that these parties felt that there was no law or regulation which prohibited them from having an interracial tennis game, that they felt it was their right to have such a game, and that they proposed to try this on July 11th. Requisite permits were obtained by those intending to play, and on July 11th those selected to test the question arrived on the tennis courts for which they had permits, claimed these courts, and began to play in mixed groups, white and colored, male and female. At the meeting of July 8th, Mr. Hook advised members of the group present that segregation was the Board's policy, although there was no rule. There was some question of forwarding a copy of the minutes to some one of the Young Progressive members, and it was suggested to Mr. Askin by Mr. Hook that the matter be tested by applying for a permit, and having it denied, and then going to court, but the members of the group replied that they would proceed in their own way. The booklet issued by the Park Board, containing rules and regulations with respect to the use of the public parks admittedly contained no statement that colored and white persons could not play tennis together in the public parks of Baltimore.
When playing started on July 11th, the captain of the Baltimore Park Police saw the mixed tennis games going on and a crowd of people, which he estimated at between 250 and 300, watching. He requested that this playing be stopped, and Mr. Buchman, who apparently was acting as advisor to the group, said they were not going to stop, and it is testified that he told the others to go ahead and play. Thereupon a number of policemen were called, and fortified with these additional officers, the request *Page 9 was again made that playing be stopped, and when this request was not complied with, the players were arrested. Some of the players sat down on the courts, and had to be removed bodily, and afterwards there was some disorder and name calling by some of the spectators. It does not appear that there was any disorder prior to the arrests. The occurrence mentioned took place at a time when a campaign was being conducted for the presidency of the United States, by what was known as the Progressive Party, headed by Henry Wallace. One of the chief contentions of that party was that segregation should be abolished. The Young Progressives were not officially allied with the Progressive Party, but the Progressive Party itself, according to Mr. Buchman, took official action supporting the test. Leaflets were sent out asking people to come, and generally distributed, and as a result of the leaflets, a number of spectators appeared. Some of these leaflets read as follows:
"Kill Jim Crow!" "Demand Your Rights!" "Organize to smash discrimination in recreational facilities. No law has ever been passed by the City Council stating that Negro and white citizens must use separate park facilities. On Sunday, July 11th at the Druid Hill clay tennis courts near Auchentoroly Terrace and Bryant Avenue (near the hot house) promptly at 2 P.M. Negro and white citizens are going to insist on their lawful rights to use these courts!
"Be present to lend your support!
"Sponsored by: The Young Progressives of Maryland
"328 N. Charles Street, Plaza 2470
"Henry Wallace Says: `Jim Crow in America Has got To Go.'"
A number of indictments were found against the appellants here. Four (Collidge, Silverberg, Vestal and Swan) were indicted for violating the rule against disturbing the peace. Thirteen persons, including Askin and Winkler, two of the appellants, were indicted for *Page 10 violating a rule of the Board by engaging in interracial activities after they had been notified of a prohibition against such action. These indictments were brought in on July 14, 1948. Subsequently, in September, 1948, 22 defendants, including all of the appellants, were indicted for riot and conspiracy. This was the indictment known as 3086. The first count charged riot and the fifth count charged that the defendants "unlawfully did conspire, combine, confederate and agree together and with each other unlawfully, riotously and tumultuously to assemble and gather together to disturb the peace." The parties charged were tried on this last indictment before Judge Moser sitting in the Criminal Court of Baltimore City without a jury, and the seven appellants, all of whom are white, were found guilty on the first and fifth counts. A motion for a new trial was made, and was heard before the Supreme Bench of Baltimore City. A new trial was granted on the first count, and denied on the fifth count. Seven judges concurred in this action, and two dissented. Thereafter the seven appellants were sentenced to various terms in the House of Correction, and were fined, the sentences were suspended and they were placed on probation for two years. From these judgments, the appeal is taken here.
The defendants filed demurrers to the indictments and also a motion to quash. The only count on which defendants were sentenced was the fifth. That clearly charges a common law offense, that is a conspiracy to commit a crime. State v.Buchanan, 5 H. J. 317, 9 Am. Dec. 534; Wharton's CriminalLaw, Vol. 2, Sections 1610 and 1620; Code 1947 Supplement, Article 27, § 128. The other questions raised in the demurrers referred to the other indictments, which were not tried.
The motion to quash charged that the indictments were vague and also that they were improperly found because a stenographer or court reporter was in the grand jury room at the time of taking of testimony. We are unable to agree that count five is vague. With respect *Page 11 to the other contention, there is a local statute, Chapter 668 of the Acts of 1945, which authorizes the appointment of a stenographer for the purpose of taking and transcribing testimony before the grand jury in Baltimore City. The predecessor of this statute was referred to by this court in the case of Coblentz v.State, 164 Md. 558, 166 A. 45, 88 A.L.R. 886, in which an indictment was held invalid because a special prosecutor was in the grand jury room. The Court, in that case, clearly indicated that a stenographer could lawfully, under a statute, be in the grand jury room. We see no constitutional objection to such a statute.
The motion in arrest of judgment, besides being based on the grounds set out in the demurrer and in the motion to quash, is based upon four other grounds. First a variance between the indictments and the proof, second irregularity in the conduct of the trial, third an alleged prejudicial exercise of the trial court's discretion in permitting the State to try a subsequent series of indictments charging conspiracy and riot, rather than the earlier indictments charging alleged violation of rules and policy of the Board of Recreation and Parks, and fourth, alleged prejudicial error made by the Court in refusing to enter a "not guilty" verdict after the State had entered a nolle pros in these earlier indictments.
Motions in arrest of judgment are confined to substantial errors, intrinsic in the pleadings or the verdict, and apparent on the face of the record which cannot be the subject of a demurrer. Simmons v. State, 165 Md. 155, 167 A. 60. The first of the contentions cannot be raised on such a motion. Willie v.State, 153 Md. 613, 139 A. 289. The second is an attempt to show collusion and consultation among the witnesses for the State, because, after some of the officers who had testified left the court room, they talked to other officers who were to testify, and were asked by the latter what questions were asked them. This is not the kind of error which can be reached by a motion in arrest of judgment. In any event, we do not think that the facts indicate collusion. *Page 12 The third contention was brought about by an earnest effort made by appellants at the outset of the case to have the court try the indictments for violation of the park rules before the other indictments were tried. The State selected the other indictments to be tried first. It is usual in criminal cases to permit the State to select the indictments on which defendants are to be tried, in case there are several charges, and while the Court may direct the State to proceed on some specific indictment, that is a matter largely within the discretion of the trial court, and is not subject to review unless there is an abuse of this discretion. If we could consider this question on a motion in arrest of judgment, we would be unable to find that the trial court abused its discretion by not directing the State's Attorney to proceed on the earlier indictments rather than the later ones. The State may have come to the conclusion that it could not convict on the indictments charging the violation of rules, but that it had sufficient evidence to convict on the charges of riot and conspiracy to promote disorder. The Court could not go into this in advance. We see nothing that is irregular or improper in the Court's action in permitting the State, at the outset of the case, to select the charges on which it preferred to try the defendants. The fourth contention refers to indictments which were not tried, and the question raised is not before us in this case.
These are all the adverse rulings below, except the verdicts and judgments and the ruling of the Supreme Bench on the motion for a new trial. Rulings on motions for a new trial are not appealable unless there is an abuse of discretion, (Snyder v.Cearfoss, 186 Md. 360, 46 A.2d 607), which we do not find, and we are, therefore, confronted with the final and real contention of the appellants, which is that the verdicts and sentences in this case constitute a violation of their rights of peaceable assembly and freedom of speech under the First Amendment to the Constitution of the United States. To pass upon this question, as urged by the appellants, *Page 13 it will be necessary to examine the entire record, including the testimony.
By Article 15, § 5 of the Constitution of this State, it is provided that in the trial of all criminal cases, the jury shall be the judges of law as well as of fact. In the case ofLeague v. State, 36 Md. 257, it was held that when a person indicted elects to try his case before the Court without a jury, the court is substituted for the jury and has the same duties and functions to perform in passing upon the guilt or innocence of the accused. It has become firmly established in our law since the decision in the League case, that where a criminal case is tried before the court, no question of sufficiency of evidence can be raised on appeal because the position of a judge, in such a case, is analogous to that of a jury and he is, therefore, the final judge of both the law and the fact. Folb v. State,169 Md. 209, 181 A. 225; Berger v. State, 179 Md. 410, 20 A.2d 146;Meyerson v. State, 181 Md. 105, 28 A.2d 833; Smith v. State,182 Md. 176, 32 A.2d 863; Bright v. State, 183 Md. 308,38 A.2d 96; Peters and Demby v. State, 187 Md. 7, 48 A.2d 586; Abbottv. State, 188 Md. 310, 52 A.2d 489; Davis v. State,189 Md. 269, 55 A.2d 702; Hill v. State, 190 Md. 698, 59 A.2d 630;Swann v. State, 192 Md. 9, 63 A.2d 324; Slansky v. State,192 Md. 94, 63 A.2d 599. Since the appellants were tried before the court and convicted on a charge of conspiracy to disturb the peace, the state earnestly contends that under these decisions we have no power to review the question whether or not their convictions were justified. That, in an ordinary case, is clearly the law.
The appellants, however, contend that as a result of their political and social beliefs they determined to test the validity of the policy of the Board of Recreation and Parks to prohibit interracial tennis games in Druid Hill Park. They claim they had a right to play such games, and they went to the Park to assert such right. They contend that the leaflets distributed and the arrangements made to have a number of people present to see *Page 14 the test were not in furtherance of any desire or conspiracy to disturb the peace or to promote disorder. The intention was to play the games, let the participants be arrested and on their trial, the constitutional question they raised might be tested. They say that the testimony clearly and indisputedly shows that was what they did, and all that they did, that here was no disorder, except some sporadic incidents after the games had been broken up by the arrest of the players, and that the charges laid at first by the state were for violation of the rules and policy of the Board of Recreation and Parks, that subsequently the charges of riot and conspiracy were brought and the State insisted on trying these charges because it knew the difficulties of convicting on the earlier charges. They contend that the testimony in the case shows no evidence whatever of any conspiracy on their part to do anything but to exercise their lawful rights. That they had the right of peaceable assembly and of free speech under the First Amendment to the Constitution of the United States, that these rights were destroyed by the proceedings taken by the State and by appellants' conviction on a charge which has no evidence whatsoever to support it. They contend that as the courts are sworn to uphold the Constitution of the United States, they must take notice of this situation.
We think it is clear that no question as to the right to play interracial tennis matches is before us in this case. We may assume, without deciding, as the trial court seems to have assume, that, in the absence of a statute, ordinance or rule, the alleged "policy" of the Park Board was wholly invalid, and that the initial arrests of the appellants were illegal and deprived them of their civil rights under the First and Fourteenth Amendments. If so, other remedies are open to them. But it can hardly be contended that the appellants had a constitutional right to be tried on those charges, when the State elected to abandon them and proceed on the subsequent indictment for conspiracy to disturb the *Page 15 peace. That indictment was regular on its face and would permit proof of unlawful acts concurrent with, or in excess of, the lawful assertion of civil rights. The case was tried upon the theory, as stated by the trial court, that "illegal means were taken by a group * * * to rectify a just grievance * * * an illegal attempt to have that grievance remedied."
The appellants do not deny that in the ordinary case we are precluded by our prior decisions from examining the evidence to determine its legal sufficiency to support a criminal charge. They argue, however, that an exception must be made if it is affirmatively shown in any case that the trial was so unfair as to amount to a denial of due process under the Fourteenth Amendment. We have recognized this principle. In Raymond v.State ex rel. Szydlouski, 192 Md. 602, 65 A.2d 285, 288, the unfairness found was the failure to appoint counsel under the circumstances, and, although no direct appeal was taken, on appeal in a habeas corpus case we set aside the judgment of conviction. On the other hand, we have held that the mere fact that, under established Maryland procedure, this court does not pass on the sufficiency of evidence to convict, but leaves that question to the determination of the trial court, or the Supreme Bench in Baltimore City, on motion for new trial, does not of itself render a trial unfair and a judgment void, within the meaning of the Fourteenth Amendment. Peters and Demby v. State,187 Md. 7, 16, 21, 48 A.2d 586; Slansky v. State, 192 Md. 94,63 A.2d 599.
The question is whether such unfairness is affirmatively shown in the case at bar so as to justify us in declaring the judgment a nullity. We think there is no such showing. On the contrary, we think the record shows that the trial judge, and a majority of the judges on the Supreme Bench who reviewed the evidence, acted in good faith and in the exercise of an honest judgment, even if we were disposed to disagree with their conclusion. The mere existence of error, open to review in another forum, does not amount to a deprivation of *Page 16 constitutional rights. In the absence of controlling decisions by the Supreme Court, we should be slow to hold that in any case where a trial court, in arriving at a verdict, misconstrues the law or errs in a finding that the facts justify a conviction, we are compelled to extend the scope of review. Claims of unfairness in the result might be raised in any case.
In Foster v. Illinois, 332 U.S. 134, 67 S.Ct. 1716, 1719, 91 L.Ed. 1955, 1959, the Supreme Court said that claims of denial of due process "must be raised by whatever procedure Illinois may provide, or, in default of relief by appropriate Illinois procedure, by a new claim of denial of due process for want of such relief." In Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 1630, 91 L.Ed. 2043, 2063, it is stated "But beyond requiring conformity to standards of fundamental fairness that have won legal recognition, this Court always has been careful not so to interpret this Amendment as to impose uniform procedures upon the several states whose legal systems stem from diverse sources of law and reflect different historical influences." And in Bute v.Illinois, 333 U.S. 640, 68 S.Ct. 763, 768, 92 L.Ed. 986, 991, the Court said "The Fourteenth Amendment, however, does not say that no state shall deprive any person of liberty without following the federal process of law as prescribed for the federal courts in comparable federal cases" and "This clause in the Fourteenth Amendment leaves room for much of the freedom which, under the Constitution of the United States and in accordance with its purposes, was originally reserved to the states for their exercise of their own police powers and for their control over the procedure to be followed in criminal trials in their respective courts."
The State of Maryland does not leave those convicted of a crime without a right to have a review of the evidence after conviction. That is provided by a motion for a new trial, and, in the case before us, that motion was heard by nine of the members of the Supreme Bench, excluding the judge who heard the case. The appellants *Page 17 have exhausted this remedy, and, as we have shown, there is no provision of the Constitution of the United States as interpreted by the Supreme Court of the United States which holds that this is not sufficient. We conclude that the appellants have had their day in court, have had the evidence against them reviewed by the highest tribunal provided by this State for that purpose, and that, under our established practice, continuing over a period of many years, we should not re-examine that evidence upon the grounds urged upon us. The judgments will be affirmed.
Judgments affirmed with costs.