Davis v. State

38 Md. 15 | Md. | 1873

Lead Opinion

Robinson, J.,

delivered the opinion of the Court.

On the 5th of April, 1872, Abraham L. Lynn, was found dead in the sink or bin of Ms mill. Six wounds were discovered on his head, one of which the examining physician pronounced mortal The appellant, an employe of the deceased, was arrested, tried and convicted of the murder.

At the trial, certain exceptions were taken, under the provisions of the Act of 1872, to the rulings of the Court. These exceptions were heard in December last, and the five Judges before whom they were argued, were of opinion that no error had been committed by the Court below, and that the said several rulings ought to be affirmed. By the request of one of the Judges who concurred in that opinion, these exceptions have been re-argued, and the case has received that patient and careful consideration which its importance and gravity demanded.

We propose now to consider the exceptions thus relied on, in the order in which they are presented by the record.

First. Doctor Manakee, the examining physician, was asked to “ state to the jury what kind of an instrument could, in your opinion, have inflicted the wounds found on the head of the deceased? ”

It is contended, that the question involves a mere possibility and not a rational probability, as to the nature of the weapon used. We do not think however, it is liable to any such objection. The witness had examined the wounds on the head of the deceased, and the sink or bin in which the body was found; and had examined also, the iron crowbar and adze, both of which were found in or about the mill. The fair import and meaning of the question under such circumstances, was to ascertain from the witness, the nature and character of the instrument by which the wounds were, in his judgment, inflicted. The answer clearly shows, the witness so understood it, for he says, the wounds might have been inflicted 'by a crowbar or an adze, and in support of this opinion, he further states, that assuming the blow to have been given from a certain direction, he found the crowbar fitted the depression in the skull.

The second exception arose upon the cross-examination of the same witness. No autopsy of the body was made, the examination being confined to an external examination of the wounds. The witness was asked if there was any medical or scientific term, distinguishing the examination thus made, from autopsy? To which he answered, “some books on Medical Jurisprudence called it an examination of the body.” In answer to the further question, as to what book, witness replied, “ Taybr whereupon the counsel for the prisoner, handed the hook to the witness, and asked him to turn to that part of it in which such an examination was so designated. If. the purpose was to test the medical knowledge of the witness, the mode proposed certainly was not a very satisfactory way to do so. The medical knowledge of a witness, who is competent to testify as an expert, it is but fair to presume is founded upon authorities so differing in value, and upon such various degrees of practice and experience, that it is doubtful, to say the least of it, ■whether the accuracy of his' recollection as to a technical term used by a writer, can be said to test in any manner, his general knowledge and experience. Be that however as it may, we are of opinion that the book could not be handed to the witness even for such a purpose. Courts are not presumed to be familiar with the principles, or the terms used by medical authors, and when questions arise-, necessarily involving their application, they must, he proved as facts are proved, by witnesses competent to testify in regard thereto. Medical books are not admissible in evidence, either for the purpose of sustaining or contradicting the opinion of a witness. Collier vs. Simpson, 5 Carr, & P. 74; 1 Greenleaf on Ev. sec. 440.

In the third exception, having proved by Doctor Herring, that he had been a practising physician for eighteen years, and that he had heard Doctor Manakee’s description of the wounds, and had heard also the description of the sink or bin in which the body was found, the State proposed to ask the witness whether ‘5 from the nature of the wound and fracture described by Doctor Manakee as fatal, such wound and fracture could have been or were likely to have been, inflicted by the deceased accidentally falling into the sink in the condition in which it had been described by the witnesses? ”

This question is objected to in the first place, on the ground that the subject-matter of inquiry, is not of such a character as to warrant the introduction of expert testimony. It may be difficult sometimes to determine whether the matter of inquiry, is such as to permit the opinion of experts to be offered in evidence. Witnesses ordinarily are permitted to testify only in regard to facts, and upon the facts thus proven, the tribunal before whom the case is tried, is presumed capable of forming a correct judgment. In the trial of cases however, it often happens, that questions arise, touching the matter of inquiry quite out of the observation and experience of persons in general, but within the observation of others, who from previous study or pursuits, or experience in life, have frequently and habitually brought that class of questions under their. observation. And hence it is, that in such cases, persons who from study or experience, have acquired a peculiar knowledge in regard thereto, are permitted to testify, not only as to facts, but also to give their opinions based upon facts within their own knowledge or upon facts proved by other witnesses. The weight to be attached to this kind of evidence, and the grounds upon which it is founded, are matters of course for the consideration of the jury, the sole purpose in thus relaxing the rules of evidence in such cases being to aid jurors in forming a correct judgment in regard to questions, which it is but reasonable to suppose that the witness from his peculiar knowledge and experience, is more competent to judge of than they themselves. Without attempting therefore, to lay down a precise rule applicable to all cases, it is enough to say, that whenever the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it; or in other words when it so far partakes of the nature of a science or trade, as to require a previous habit or experience or study, in order to the attainment of a knowledge of it, the opinion of experts is admissible. On the other hand, if the matter of inquiry is not such as to require any peculiar habits or study, in order to qualify a person to understand it, then such evidence is not admissible. See Carter vs. Boehm, 1 Smith’s Leading Cases, 631, (marg.)

Here the body of the deceased was found in the sink or bin .of his mill, with six wounds on the head, one of which involved a fracture of the skull, and in the absence of direct proof, the question as to how and by what means they were inflicted, depended to some extent at least upon the character and appearance of the wounds themselves. The inquiry then involved not only the general appearance of the wounds and the extent of the' injury, whether they were inflicted by a sharp, or by a dull instrument, or by accidentally falling into the sink, but also some knowledge at least of the anatomy of the skull — the relative strength and weakness oi the several parts thereof — questions which could only be satisfactorily determined by the skill and experience of persons accustomed to and familiar with the examination of wounds.-

In the next place, it was contended that the record, did not contain such a description of the wounds, and of the construction and condition of the sink, as to enable this Court to determine whether a proper foundation had been laid for the introduction of this kind of testimony. It does appear, however, that the body was found in the sink, with several wounds on the head, one of which involved a fracture of the skull, and that a crow-bar found in the mill fitted the depression in the skull, caused by this fracture. These facts are sufficient, in our opinion, to lay the foundation for the admissibility of the evidence of experts, who from their knowledge and ex-, perience in regard to the nature of wounds, are better qualified than ordinary persons to form an opinion, as to how and by what means the injuries thus found on the head of the deceased, were inflicted. The preliminary question to be decided by the Court, whether the subject-matter of inquiry was of such a character as to admit of the introduction of expert testimony, depended solely upon the nature of the wounds, and not upon the description of the sink, or instrument by which in the opinion of the witness they were inflicted.

The question in the fourth exception as to whether, leaving out of view the description of the wound and fracture on the back part of the head, as testified to by Dr. Manakee, that part of the skull below the occipital protuberance, would or would not be liable to be fractured by accident, was clearly irrelevant, and therefore properly rejected. In questions of skill and experience, facts, strictly speaking, collateral, may sometimes be proven, provided they tend to illustrate the opinion of witnesses touching the subject-matter in issue. See 1 Taylor on Ev., 349. But the question here, was whether the wound and fracture found on the head of the deceased, and described by the examining physician, were occasioned by accidentally falling into the sink, and the fact that some other part of the skull, as for instance the part below the occipital protuberance, might or might not be fractured by accident, tended in no way to enlighten the jury in regard to the inquiry before them.

The queslions in the fifth, sixth and seventh exceptions, as to whether it would not have been proper, according to the rules stated by medical authors, and more condxxcive to certainty in respect to description and location of the wounds and fracture, that one of the examining physicians should have made notes of the examination of the woxxnds as they were examined; — or whether there are any rules prescribed by medical science for conducting an examination of the body or the skull, for the pxxrpose of ascertaining an accurate description of the wounds in respect to their character and precise location ; — or whether according to the rules of medical science, notes of the post-mortem examination, ought to have been made at the time of the examination, were clearly inadmissible. Rules prescribed by medical authors cannot be offered in evidence, and if the purpose was to show that the examination of the wounds and fractxxre was not made in a proper and skilful manner, this could only be done through the testimony of witnesses competent to testify on the subject.

The ruling in the eighth exception must be affirmed, for reasons assigned under the third exception. Doctor Billingslea had heard Doctor Manakee describe the wounds on the head and the fracture on the skull, and heard several witnesses ‘describe the construction and condition of the sink, and upon the facts thus proven, it was competent for him to say whether such wound and fracture were likely to have been occasioned by accidentally falling into the sink.

. On cross-examination of this witness, he said he had not heard the entire testimony of Doctor Manakee — that he heard his testimony from the time he was called to the stand up to about 1 o’clock P. M., but did not hear his continued cross-examination from 2 o’clock, P. M., to 4 o’clock, P. M., but that he heard Doctor Manakee describe fully the nature and character of the wounds, and heard a full description by several witnesses of the construction of the sink and its condition at the time the body was found. Whereupon the prisoner, by his counsel prayed the Court to strike out the proof, offered by the State, of the opinion of this witness, and to instruct the jury that it was not to be considered by them.

In some cases, it may be proper for the Court to refuse to allow an expert to give his opinion upon facts proved by a witness, unless he has heard all the testimony of the witness, because in such cases the entire testimony may be necessary, in order to enable him to form an opinion in regard to the subject-matter of inquiry. But here, the witness had heard the examining physician describe fully the nature and character of the injuries, and liad heard several witnesses describe the construction and condition of the bin or sink, and upon these facts we think it was competent for him to say whether such injuries were likely to have been occasioned by accidentally falling into the sink, although he was not in fact, present during the whole cross-examination of the witness. If the cross-examination elicited anything new in regard to the wounds or the sink, different from what was testified to in the hearing of the witness, the prisoner could have inquired of the witness, whether such facts affected in any manner the opinion he had formed. After all, the opinion of the witness, and the grounds upon which it was formed, and the weight to be attached thereto, were matters for the consideration of the jury.

In the tenth exception the witness, after having answered the question propounded to Doctors Herring and Billingslea, in the third and eighth exceptions, said that according to Doctor Manakee’s description of the wound and fracture, he understood the fracture to be partly above and partly below the occipital protuberance; the prisoner’s counsel then asked the witness “whether a fracture of that part of the skull below the occipital protuberance could probably be caused by accident, because of its being thinner or weaker than the part of the skull on the occipital protuberance, or immediately above it ?” To which, the witness answered, that “from the description of the.fracture as given by Doctor Manakee,’the fracture of the thin part of the skull of Lynn, below the occipital protuberance, could not have been caused by accident,” whereupon the prisoner by his counsel, objected to the Court, that the answer was not in reply to the question, and claimed that the prisoner was entitled to have his question answered; but the question having been repeatedly put to the witness, and the same answer given thereto, and the witness having stated that to be his only answer to the question, the Court overruled the objection and decided that the answer was proper, and that the witness should not be further pressed with the question. It is no doubt the duty of a witness to answer such questions as the counsel have the right to ask, and should he capriciously refuse, the Court will, interfere and compel him to answer. There does not seem, however, to have been any unwillingness on the part of this witness to answer the question as he understood it. The question was purely an abstract one, and the witness answered it as being connected with some of the facts in the case, that is from the description of the wound and fracture as given by Doctor Manakee, the fracture on the thin part of the skull of the deceased could not have been caused by accident, and the question being repeatedly put to the witness and the same answer given thereto, and the witness having stated he had no other answer to give, the Court, .we think, properly interfered in not permitting the question to be further pressed.

In the eleventh exception the prisoner offered to prove by the witness that Professor Tonry, had been employed by the State as a chemical expert in this case, for the purpose of analyzing and detecting blood marks, and had been examined by the State as an expert on the previous trial of this case at Westminster, and had bad in his possession for the purposes of analysis the clothes of the prisoner, — that the supposed blood marks on the gable-end wall of the mill spoken of by witness had not been submitted to him, and are now the same on said wall as when witness first saw them, &c. The State objected to so much of the testimony of said witness as was offered to prove that Professor Tonry had been employed in ilce former trial to analyze or subject to chemical tests, certain supposed blood-stains on the clothes of the prisoner, and the Court sustained the objection. Before, however, the exception was signed, “the State admitted to the Court and to the jury,” that “Professor Tonry had been employed on the former trial of this cause at Westminster, as an expert to apply chemical tests to the said clothes, and that he had not applied any chemical tests to said spots on the wall of the mill,” &c. The State having thus admitted the facts in regard to which evidence was offered, and to which the objection had been made, and this too, before the bill of exceptions was filed, it is very clear the prisoner was not prejudiced by the ruling of the Court, and the question as to whether the ruling was right becomes wholy immaterial.

It appears by the twelfth exception that the skull of the deceased had been brought into Court,and the witness, Doctor McKee having testified that he had been a practising physician for 38 years, that he had heard the testimony of Doctor Manakee, and the description of the sink by the witnesses, and that he had examined the skull of the deceased, and the several fractures thereon, it was clearly competent for him to answer the question, “tohether from the nature and character of the fractures on that skull, as now shown you, such fractures could have been, or were likely to have been produced or inflicted accidentally by falling into the sink, in the condition in which the sink had been described by the witnesses ?” ■ .

. The objection to the testimony of Doctor Dorsey was also properly overruled. He had heard the testimony of Doctor Manakee, and others, describing the wounds and the sink, and had seen and examined the skull of the deceased, and was competent to testify as an expert. The fact that prior to the trial, the Attorney General had handed to the witness a. written description of the wounds, prepared by the examining physician, together with a model of the sink, and that upon the examination then made, he had formed the same opinion, testified to by him on the trial, in no manner affected his competency as a witness. ' Whether the opinion given in evidence by the witness was a fair and impartial one, was a matter for the jury. The fact that an expert, has formed an opinion upon the subject-matter of inquiry after reflection and deliberation, and upon consultation with others of skill and experience, surely does not render him incompetent as a witness. .

Doctor Scott, the witness offered’in the fourteenth exception, had been a practising physician for many years, had given the subject little thought, had not heard all the evidence describing the wounds and the sink, but had heard occasional parts thereof,— had seen the skull of the deceased produced in Court and examined the fractures thereon, and had seen the model of the sink which had been offered in evidence, and had examined it. The State then asked the witness the same question that had been put to Doctor McKee, in the twelfth exception, to which the prisoner objected. Now if the opinion of the witness which it was proposed to give in evidence had been based upon the description of the wounds and the sink, as testi-' fied to by other witnesses, there might be some ground for contending that a proper foundation had not been laid for the introduction of such evidence. But here the witness had examined the skull and the model of the sink, and upon this examination, together with such description of the construction and condition of the sink as he had heard from other witnesses, we are of opinion it was competent for him to answer the question.

The question presented by the fifteenth exception is whether an accessory before the fact, is competent to testify for the principal felon f That he was not at Common Law, can no longer be considered an open question. Not a single case has been referred to by the counsel who has argued this case with a zeal so commendable and with an ability not loss conspicuous, nor have we been able, after the most diligent examination to find one, in which such evidence has been admitted

The rule of exclusion resulted necessarily from the relation in which the parties stood to each other. “An accessory before the fact is one who not being present, yet counsels, incites and procures another to commit a felony.” 1 Chitty’s Cr. Law, 262 ; 1 Hale, 615.

The trial and conviction of the principal was therefore a condition precedent to the trial of the accessory, whereas the acquittal of the principal operated ipso facto, to discharge the accessory. To allow an accessory to testily under such circumstances, would be to permit him to testify for himself.

But, it is contended that whatever may have been the rule of the common law, an accessory is a competent ■witness for the principal under the Act of 1864, ch. 109.

Section 1st of that Act provides that, “No person offered as a witness shall hereai'ter be excluded by reason of incapacity from crime or interest 1'rom giving evidence either in person or by deposition,” ***.****

“except as hereinafter excepted.”

Section 3. “No person who, in any criminal proceeding, is charged with the commission of an indictable offense or any offense punishable on summary conviction, shall he competent or compellable to give evidence for or against himself, nor shall any person be compellable to answer any question tending to criminate himself,” &c.

It is insisted that the common law ground of incapacity on the ground of interest is swept away by the first section, and that the exception in the 3d section excludes only a party on trial, called on his own behalf,, and that the accessory and .principal being in this case indicted and tried separately, the former is a competent witness for the latter.

This construction, however, is certainly not warranted by the language of the statute. The exception in the 3d section is not confined to the party on trial, but says in express terms,

“No person who, in any criminal proceeding is charged with the commission of an indictable offence,” * * “shall be competent or compellable to give evidence for or against himself.”

The question, then, as to whether the accessory in this case comes within the provisions of the 3d section, resolves itself into this, “is he charged in a criminal proceeding with the commission of an indictable offence, and if so, is the nature of the proceeding in which he was offered as a witness of such a character as he would be testifying for himself?” That the witness Hamilton Shew was charged in a criminal proceeding with the commission of an indictable offence is admitted, and it is equally clear that the nature of the proceeding in which he was offered as a witness, that is the trial of the principal, was of»such a character, that he would be testifying for himself, because the acquittal of the party on trial, in whose behalf he was offered as a witness, operated ipso facto, as an acquittal of the witness.

The fact, that they were separately indicted does not, in any manner affect the principle upon which the testimony of an accessory was excluded. If indicted jointly, they must be tried separately, the conviction of the principal being necessary to put the accessory on trial, and even in such a case, if the contention of the prisoner be correct, the accessory would be competent as a witness, because he would be testifying in a proceeding in which another party was charged with the commission of an indictable offence. An accessory was incompetent to testify for the principal at common law, not on the ground of being jointly indicted with him, for such-was not always the case, but upon the ground that to permit him to testify under such circumstances, would be to allow him to testify for himself, and it was to prevent any possibility of its being thought that the law in this respect had been altered by the first section of the Act of 1864, that the third section was introduced.

The construction contended for by the prisoner is not sanctioned by any authority. The Act of 1864, chap. 109, was taken from the British’statutes of 6 and 7 Vict., chap. 85, and 14 and 15 Vict., chap. 99 — the third section of the latter statute being identical in language with the third section of our Act. In considering these statutes, Mr. Taylor, in the 5th edition of his work on Evidence, 2 vol., sec. 1223, says,

<cIf, therefore, several persons be jointly indicted, any one of them may under section 2 (which corresponds in this respect with the 1st section of the Act of 1864) be called as a witness, either for or against his co-defendants, excepting only in those few cases where the indictment is so framed as to give him a direct interest in obtaining their discharge. Por instance, if a man were indicted for conspiracy or a riot with other defendants, or as an accessory to their guilt, * * * it would seem that he could not be a competent witness for them, or compellable to give evidence against them, because in each of these cases, * * * the acquittal of the other defendants would inevitably lead to his own, while their conviction might, at least, be a material step in establishing his guilt.” According to the construction thus placed upon the British Evidence Act, a witness was incompetent under it, to testify in any case where the acquittal of the prisoner would lead to his own, or where their conviction might be a material step in establishing his guilt — a construction utterly inconsistent with the one contended for by the prisoner.

In the late case of The Queen vs. Payne and others, 1 Crown Cases Res. 349 (Law Reports) the exception provided for in the 3d section of the 14 and 15 Vict., ch. 99, was held to extend farther than even laid down by Taylor. In that case four persons were jointly indicted for entering upon the land belonging to Earl Dudley, for the purpose of taking or destroying game, and upon the trial one of the prisoners was offered as a witness for the other. The case was heard before the sixteen Judges of England, constituting the Court of Appeals in criminal cases. It was pressed in argument in that case, as it was in this, that the common law ground of incapacity on account of interest had been abolished by the 1st and 2d sections of the British Statute, and that the only witness whose testimony was excluded by the 3d section, was the prisoner called on his own behalf.

Cockburn, C. J.,

said: “We are all of opinion that the evidence rejected was properly rejected. We are all agreed that the exception in 14 and 15 Vict., ch. 99, sec. 3, was introduced to prevent any possibility of its being thought that the law, as it had existed from the earliest times, was altered by the Act. By that law it was a distinguishing characteristic of our criminal system that a prisoner on his trial could neither be examined nor cross-examined. We think it is impossible to suppose that it could have been intended to change this rule by a mere sidewind by means of this exception.” We have referred to this decision for the purpose of showing that the English Judges have gone much further in extending the exceptions of the 3d section of their Statute, than is contended for here, and .that even in a case where parties were jointly indicted, one could not testify for the other, although the acquittal of the party in whose behalf he was called to testify, operated in no manner to discharge the witness.

We rest our decision upon the plain language of the statute which declares, that “No person who in any criminal proceeding, is charged with the commission of an indictable offence,” “shall be competent or compellable to give evidence for or against himself.”

In the sixteenth exception, the witness, Harrison, testified that he saw the prisoner at Union Bridge, on the 5th April, at about a quarter past three in the afternoon. On cross-examination,'the witness said he was at several places at Union Bridge, on that day, before he say the prisoner, and amongst others, .he was at the office of Joshua Sweitzer, and that Sweitzer looked at his watch and said it was then about 1 o’clock, P. M.

The State then called Joshua Sweitzer, who testified that the said Harrison was not at his office on the 5th of April, while he the witness was there; that he did not look at his watch, and say it was about 1 o’clock, as stated by Harrison; that he recollected distinctly he was absent, on the 5th of April, from his office, from eight o’clock in the morning, until seven o’clock in the evening ; that he returned to Union Bridge so late that evening, that he had not time to get his supper, before he had to go to a meeting of the building association, of which he was an officer, &c.

The prisoner then called Isaac Shriver, and proved by him, the general character of Harrison for truth and veracity ; whereupon the State offered to prove by the same witness, the general good character of Sweitzer for truth and veracity, to which the prisoner objected. Mere contradiction among witnesses furnishes no ground, as a genera] rule, for admitting general evidence as to their character; though if fraud or other improper conduct be imputed to any of'them, such evidence will be received. Annesley vs. Anglesea, 17 How. St. Trials, 1348. The credit of a witness however, may be impeached by evidence assailing his character for veracity; or by proof of contradictory statements in regard to material facts; or by disproving by other tvitnesses material facts stati d by him either in his direct or cross-examination. Here the purpose of the State was to discredit the witness Harrison, by disproving material facts testified to by him, and it was competent therefore, tor the prisoner to sustain the witness by proof of his general character for veracity. Thus the credit of the two witnesses, Harrison and Sweitzer, was fairly put in issue, and it was equally competent for the State under such circumstances, to support the general character of Sweitier for veracity. To permit the credit of the two witnesses to be put in issue, and then to deny to either side, the right of sustaining its witness by proof of general character for veracity, would be to deprive the jury of evidence necessary to the determination of the issue thus submitted to them. And where such evidence has been admitted in support of the witness on the one side, it would be manifestly unjust to deny the same right to the other. The rule laid down in 2 Taylor’s Ev. sec. 1327, is not inconsistent with these views. Thei’e the author is speaking of a witness whose general character for veracity has been impeached, and says, “the party calling him may re-establish his credit, by attacking the general character of the impeaching witnesses. How far this plan of recrimination may be carried at common law, is not yet determined; though in Courts of Equity,” adds the author, “the practice is in conformity with the rule of the civil law,” which permitted the discrediting witness himself to be discredited by other witnesses, but no further.

The last exception was taken to the refusal of the Court to sign the bills of exceptions, containing all the evidence given in the cause as prepared and presented by the counsel of the prisoner.

It appears, that during the trial, the prisoner’s counsel reserved several exceptions to rulings of the Court on questions of evidence, but no exceptions were formally prepared during the trial, but were prepared thereafter, and in preparing the same, the counsel for the prisoner inserted all the evidence given on the trial, according to the view of such counsel, and asked the Court to sign and seal said exceptions, stating at the time, that they deemed it important to the full presentation of the questions reserved, that all of said evidence should be incorporated in the exceptions. The Court, however, were of a different opinion, and thought it unnecessary to the full and fair presentation of the several exceptions reserved, that the record should be incumbered with all the evidence in the cause, and declined to sign the exceptions as presented by the counsel for the prisoner, and required the exceptions to he prepared in accordance with the 5th Rule prescribed by the Court of Appeals, at the same time informing the counsel on both sides, that any suggestions they might make In reference to the insertion of facts or evidence material to the exceptions would be gladly heard and considered, and the Court thereupon, in the presence of the counsel on both sides, proceeded to revise and re-model the said exceptions, so presented by the prisoner’s counsel, so as to make the same conform to the said 5th Rule, and in lieu of the exceptions prepared by the counsel for the prisoner, did sign and seal the several exceptions in the form they now appear in the record. The 5th Rule prescribed by this Court, respecting appeals from Courts of law, provides “that hills of exceptions shall he so prepared, as only to present to the Court of Appeals, the rulings of the Court helow upon some matter of law, and shall contain only such statements of facts as may he necessary to explain the bearing of the rulings upon the issues and questions involved.” “And it shall be the duty of the Judges-in the Courts below, to require exceptions tobe prepared in accordance with this Rule.”

(Decided 18th April, 1873.)

We have had occasion heretofore, on a petition filed by the counsel for the prisoner, praying this Court to direct the Court below to send up all the evidence in the case, to consider the question presented by this exception ; and then again upon an application for a writ of diminution ; and then again in the argument of the case the prisoner’s counsel were permitted to argue that the record did not contain all the evidence necessary to present fully the exceptions reserved, and that the rulings below ought to be reversed on that ground, and after the most careful examination of the record we are of opinion that it contains, all the facts and evidence necessary to a full and fair presentation to this Court of the several exceptions reserved by the prisoner.

Being thus of opinion that no error was committed by the Court in any of the rulings relied on, they must be affirmed.

Rulings affirmed and cause remanded.

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Dissenting Opinion

Stewart, J.

s delivered the following dissenting opinion:

As this is a capital case, and I do not concur in the judgment of a majority of the Court, it is due to my brethren, and all concerned, that I should in this form, record the extent of my dissent.

I shall therefore take the occasion, briefly, to state my conclusions as to the various bills of exceptions, hut shall not undertake an elaborate discussion of the grounds or reasons therefor, — or refer to authorities for their support.

In the first exception, no objection is taken to the testimony of Doctor Manakee, who was the physician who had examined the wounds of the deceased; and who was offered by the State as an expert; but the exception was as to the character of the testimony sought to be obtained from him by the State, as to the kind of instrument inflicting the wounds upon the deceased.

The witness was asked by the State, to “state to the jury, what kind of instrument could in your opinion have inflicted those wounds.”

The prisoner’s counsel objected; insisting as we understand, that it was incompetent to prove the possibility of certain instruments having inflicted the wounds, but that proof, to be admissible in regard to the instrument occasioning the death of the party, must be within the limits of probability.

The prisoner’s counsel suggested that the proper enquiry was, “what kind of instrument would have been likely to inflict the wounds? ”

It was competent for the State to prove the character of the wounds, and by what sort of an instrument inflicted, and if the jury could find from the probability, or possibility of any instrument inflicting the actual wounds, that the prisoner was the party beyond a reasonable doubt, that used the instrument inflicting the wounds, such fact was relevant and legitimate. The question was remotely connected with the ultimate fact to be proved, and unless the preliminary information sought, (whether in the one mode or the other, was not material,) was followed up by additional proof, the answer, whether founded on probability or possibility, could not benefit the State or injure the prisoner.

All enquiries relevant in any degree to the investigation of the main issue are legitimate, and I do not perceive upon what grounds the testimony proposed could he excluded from the jury.

Much latitude' is allowed on cross-examination, hut the question propounded to the witness by the prisoner’s counsel in the second exception, if permitted to be answered, would have introduced inadmissible testimony to some extent at least, — the statement of the hook in question, — and the Court below very properly refused to allow the question.

The objection to the competency and proposed testimony of Dr. Herring referred to in the third exception, was properly overruled. It was competent for the State to prove the guilt of the prisoner by circumstantial testimony. The deceased might have been murdered, or his death the result of accident. It was incumbent on the State to establish the former theory, and to exclude and negative the possibility of any other reasonable hypothesis. If the death of the party was the result of accident, the State must fail, because utterly inconsistent with the theory of guilt. Any relevant testimony to prove the death was not, occasioned by accident, was admissible.

In the fourth exception, Dr. Herring had testified for the State, that the wound on the back part of the skull, was on the occipital bone and involved the occipital protuberance. The prisoner’s counsel in his cross-examination, asked him in substance, if the skull below the occipital protuberance, was liable to be fractured by accident.

The preface to the question, “ leaving out of view the description of the wound, etc.” did not render it an abstraction. The prisoner’s counsel had the right, on the cross-examination of Doctor Herring, as an expert, introduced on the part of the State,-to propound the question without reference to Dr. Manakee’s testimony. 1 do not perceive upon what legal grounds, the State. could interpose objection; and in my judgment the Court erred, in not overruling the State’s objection.

Unless some reason can be given for the exclusion of testimony, it ought to he admitted; and the fullest investigation allowed — such is the policy and reason of the law of evidence, in the administration of justice.

The prisoner’s question, by his counsel, in the fifth exception, to the witness as an expert, would have been clearly unobjectionable if it had omitted the reference to the rules stated by judicial authority. The question was complex, aud although the witness could give his own opinion, founded on information from all sources, the answer to the question as propounded would have left it uncertain, whether he was giving his own opinion or that of others, unsworn and incompetent, and therefore such question was inadmissible aud properly ruled out.

I see no valid objection to the rulings in the sixth and seventh exceptions.

The eighth exception is disposed of in the review of the third exception.

The testimony of the expert, Doctor Billingslea, referred to in the ninth exception, ought not to have been received. He was required to give his opinion merely as an expert upon the state of facts, testified to by Doctor Manakee.

Doctor Manakee had been cross-examined by the prisoner’s counsel, as they had the right to do, and his testimony as a witness, as the basis for the opinion of an expert, must be taken in its entirety. The testimony on cross-examination should be received and considered by the Court, quite as admissible as the evidence in chief. It is irregular to separate the one from the other. The witness heard but a part of his testimony as to the series of facts upon which he was to give his opinion as an expert. There was, therefore, no sufficient and legal data for his opinion, and his testimony ought to have been excluded. Any other rule, it seems to me, would lead' to very irregular results.

The question propounded to the witness, Doctor Martin, introduced by the State, on his cross-examination by the prisoner’s counsel, referred to in the tenth exception, was one not difficult of an answer, and the prisoner was entitled to have it answered.

It was conceded to be competent. The explanation of the witness, that the answer he gave, was his only answer, was totally insufficient, unless he had further stated, that he was unable to give any other answer — the decision of the Court that it was a proper answer, and no further answer -should be given, deprived the prisoner of the benefit of testimony to which he was entitled, and there was error in this ruling of the Court.

The alleged admission of the State in the eleventh exception, did not meet the purposes sought by the prisoner’s counsel in his question to the witness, and the objection of the State, notwithstanding, ought not to have been sustained. The clear object of the prisoner’s counsel, was to have the inference drawn by the jury, from the absence of any proof on the part of the State, of blood-marks on the wall of the mill, or clothes of the prisoner, that none existed, inasmuch as Professor Tonry had been employed by the State to analyze the supposed blood-marks ; and after having done so, found none, as thei'e was no report from him. Such would probably be the conclusion of the jury, as conjectured by the prisoner’s counsel. The alleged admission by the State, that the Professor had been employed, but had not applied any test directly, antagonized or excluded any such inference as sought by the prisoner’s counsel.

There was no reasonable objection to the testimony of the expert referred to in the twelfth and thirteenth exceptions, as that evidence was based upon all the proof adduced.

The testimony of Dr. Scott, offered in the fourteenth exception, should- have been ruled out, because based upon a partial knowledge of what the witness had sworn to.

He ought not, for the reason stated in the ninth exception, as to Doctor Billingslea’s testimony, to have been allowed to give his opinion as an expert, without a proper foundation had been first laid.

The testimony of Shew, a witness offered by the prisoner in the fourteenth exception, should have been received. He was separately indicted as an accessory to the commission of the alleged murder, and although the record of the conviction of Davis, the principal, might have been used against him, if put on trial, yet anything he swore in this case, or that of any other witness, could not have been adduced on the trial of Shew, as accessory.

By no legal intendment could it follow, that by giving testimony in this case, he was testifying for himself, although his testimony might acquit the principal, Davis, who was entitled to his testimony, unless there is some legal point of objection.

But if, in fact and in law, Shew, when testifying for the prisoner, was giving evidence for himself, his testimony could not be excluded, on the ground, that he was giving such testimony; because by the 1st sec. of the Act of 1864, ch. 109, any interest he might have in the result of Davis’ trial, could not affect his competency.

The exceptions recognized in the 1st section of that Act, have reference to litigants, or parties having a trial pending, — the 2d section, having reference to one description of litigants, those in civil causes, and the 3d section' to criminal proceedings, where a person is charged with the commission of an indictable offence, &c. The exception of that section, is to a party on his own trial, and in such case, he is rendered incompetent to testify, where, otherwise under the 1st section he would labor under no disability, no matter how greatly and directly interested.

The object and policy of this law so radically changing the ancient rules of evidence, was to abrogate the restrictions upon testimony on the score of interest or crime, recognized by’the common law, and to admit the testimony of all witnesses, to be estimated for what it was worth under the circumstances of interest or crime ; as a better means of eliciting truth, and advancing the purposes of substantial justice, than the principles and modes of the common law allowed'.

It must be conceded, to give a fair construction to the provisions of this law of. evidence, that every witness is clearly competent^ unless within the exceptions, and should not be excluded by any rule of the common law, and only by virtue of the statutory disabilities.

If there were any doubt upon the subject, the rule of the statute should govern and not the exception. The prisoner is entitled to the benefit of all reasonable doubts in this case.

This new principle of evidence has been extended in some quarters, so as even to allow a party to testify in his own favor, when actually on trial. But the-provisions of the law of this State must govern in this case.

There has been no decision of the British Courts, where they have a similar law to ours, or rather our Statute is very much a transcript of the English law upon the subject; nor has there been any judicial ruling anywhere, excluding the testimony of an accessory in the trial of his principal.

The case of The Queen vs. Payne and others, relied upon by the Attorney-General, settles nor affirms any such construction.

According to my best apprehension of the tenor of the Act of 1864, the very obvious construction of its provisions, admits the testimony of an accessory, and I think the prisoner was entitled to have the testimony of Shew, and that the Court below committed an error in his exclusion.

I refer to the very lucid opinion of my brother Bowie, for a more satisfactory and detailed exposition of the reasons for this construction.

The objection of the prisoner’s counsel to the testimony of the witness Shriver, referred to in the sixteenth exception, ought to have been sustained.

The State had permitted the prisoner to sustain his witness, Harrison, by Shriver, as if he had been impeached by the State’s witness, Sweitzer, who, on the other hand had not been impeached, in fact, or by any concession of the prisoner, and therefore, the State had no right to undertake to sustain its witness, when not impeached. I know of no rule or practice, or authority to sustain the ruling of the Court below in this exception. The mere disagreement of witnesses in their testimony, is not an impeachment. See Vernon vs. Tucker, 30 Md., 456.

I concur fully with the reasoning and conclusion of Judge Bowie, upon this exception in his dissenting opinion.

There is-some reasonable ground of objection on the part of the prisoner’s counsel to the ruling in the seventeenth exception.

The counsel for the prisoner having reserved exceptions during the progress of the trial to the rulings of the Court, on portions of evidence, after the trial, prepared exceptions, in which all the evidence was embraced, according to their view of the same, and asked the Court to sign and seal 1he same, stating they deemed it important to the full presentation of the questions involved, that all the evidence should be incorporated.

The Court thought such course unnecessary, and declined to sign the exceptions thus prepared, but required them to be prepared in accordance with the 5th Rule prescribed by the Court of Appeals. 29 Md., 2.

The Court thereupon revised the exceptions themselves, which had been framed by the counsel for the prisoner, and signed and sealed the exceptions thus revised in lieu of the exceptions of the prisoner’s counsel.

The recent law, authorizing exceptions in criminal cases, applies the same rule, governing exceptions in civil cases, and the 5th Rule of the Court of Appeals referred to is applicable. That Rule ought to have a reasonable interpretation, to accomplish the purposes designed.

The object of the rule, together with the 6th and 7th Rules, was to prevent the insertion of useless matter, which had been done under the former practice, so as not to have the record encumbered with anything not necessary or material to the full and fair presentation of the question to be reviewed by the Appellate tribunal.

This rule ought to be carried into effect according to its spirit and intent, not merely that the record may be abridged as much as possible, but to subserve the purposes of substantial justice. To accomplish this, mere forms must yield to matters of substance. A large discretion is given to the Judges, who have the control in the preparation of bills of exceptions, and they are required to see that all the necessary facts are stated in the exceptions, to enable the Court of Appeals fully and fairly to comprehend the bearing of the rulings upon the question involved.

It is manifest that a very strict abridgment of the statement of the facts might hazard the proper presentation of the questions to be adjudicated. If a more full statement is made, and unnecessary matter incorporated, the surplusage would not vitiate the proceeding — under such circumstances, it seems to me in this criminal proceeding, involving the life of the prisoner, and more especially, where a very large portion of the testimony was that of experts, whose opinions were admitted as evidence, predicated upon facts testified to by others, the effort to abridge the statement of the evidence to accord with a rigid construction of the 5th Rule, and at the same time, to furnish the Appellate Court with full and adequate information for the review of the questions decided below, was a very embarrassing duty, devolved upon the Court, and which might in the performance be attended with some injustice to the accused.

In such case, where the counsel of the prisoner, having charge of his interests, had prepared the exceptions embracing all the evidence and represented to the Court, tliat such course was deemed necessary, for the full presentation of the questions to this tribunal; in my judgment the purposes of justice between the State and the prisoner, would have been better subserved by giving to the Eule such operation as would admit of no question, rather than to have the statement of fact so abridged by a meagre presentation, as to afford ground of complaint, and possible disability in this Court, fully to determine the questions involved.

The statement of the evidence is reduced to a narrow compass, and I doubt if it is sufficently comprehensive to enable this Court, properly to review the rulings below, as to the admissibility of the testimony of the experts, whose opinions upon facts testified to by others, not embraced in the record, formed a large portion of the evidence.

A large discretion is of course to be allowed to the Court below; still in a case where the purposes of justice require a revision of their determination in such a proceeding, this Court, where the exception is taken, has the power of correction.

This Court, as well as the Legislature, has authority under the 18th sec. of the 4th Art. of the Constitution, to change or modify the Eule adopted, if it require revision to adapt it to the exigencies of criminal proceedings. But as it stands, I doubt not a reasonable construction of its provisions in their application to criminal cases, authorizes this Court to review the exercise of authority under it, given to the Court below in regard to this matter. According to my apprehension, the Court below erred in its ruling, in this exception, disallowing all the evidence to he incorporated in the exceptions. Concurring with the majority of the Court on the first, second, third, fifth, sixth, seventh, eighth, twelfth and thirteenth exceptions, but being of opinion for the reasons stated, that there was error ■in the rulings of the Circuit Court iii the fourth, ninth, tenth, eleventh, fourteenth, sixteenth, and seventeenth exceptions, I think the case ought to be, remanded and a new trial ordered.

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Dissenting Opinion

Bowie, J.,

delivered the following dissenting opinion.

. Having heard the second argument of this cause only, and had but little leisure for the consideration of the numerous exceptions and examination of authorities, I very reluctantly dissent from the conclusions as to the fifteenth and sixteenth bills of exception, reached by the majority of the Court, who have had larger opportunities, and given the case more mature reflection.

Respect for the opinion of my brothers, as well as the importance of the principles involved, compels me to state, however imperfectly, the reasons upon which my dissent is founded.

The exclusion of testimony on the ground of interest in the event of the suit, or in the record, as an instrument of evidence, or on account of conviction for crime, being found by long experience, in the judgment of the most enlightened jurists of Great Britain, to defeat rather than promote the administration of justice, a series of enactments tending to relax the rigid rules of the Common Law, was initiated in the reign of William IV., (1838,) and culminated in that of Victoria, (1851,) in the Act known as Lord Brougham’s Act, by which all incapacities from interest or crime, (except in a few specified cases,) were abolished.

No act of legislation, since the adoption of the Bill of Rights, has had more important influence on the administration of justice.

The preamble of Lord Dustman’s Act, 6 & 7 Vict. 1843, indicates the object and policy of the radical change in the law of evidence, in the following significant and emphatic terms. “Whereas the inquiry after truth, in Courts of justice, is often obstructed by incapacities created by the present law, and it is desirable that full information as to the facts in issue, both in criminal and civil cases, should be laid before the persons who are appointed to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced, and on the truth of their testimonyBe it enacted that “No person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest from giving evidence, either in person, or by deposition, according to the practice of the Court, on the trial of any issue joined, etc., in any suit, action or proceeding, civil or criminal, etc., but that every person so offered, may and shall bo admitted to give evidence, etc.; notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question or inquiry, or of the suit, action, or proceeding in which he is offered as a witness, and notwithstanding that such person offered as a witness, may have been previously convicted of any crime or offence: Provided this Act shall not render competent any party to any suit, named in the record," etc.

These provisos (says Taylor,) engrafted on the general rule, that no interested witness should be incompetent to give evidence, were “after the wisdom of this great alteration in the law had been tested and thoroughly proved by the experience of six years," swept away by Lord Brougham’s Act, 14 (h 15 Vict.: “which carried out the principle to its legitimate extent."

Whatever individual opinions of their wisdom may be, it is manifest from their origin, and progressive advancement by successive enactments to their present state, that the alterations in the law of evidence, were not the result of any temporary impulse, but the steady and gradual development of principles, directly opposed to the common law maxim, “ nemo debet esse testis in sua propria causa.” The advocates of the new system say the common law rule was founded upon ignorance and distrust of humanity ; the supposed omnipotence of self-interest, and the narrowest view of evidence, as a science. On the other hand, the modern doctrine, that no exclusion shall exist from interest or crime, is based upon confidence in man; in the sagacity and discrimination of judges and jurors, and the self-evident proposition, that exclusion and inquiry after truth are irreconcilable.

The changes in the law of evidence, effected in English jurisprudence, by the statutes referred to, were, after an interval, of twenty-five years, introduced into this State, by an amendment of the Code, by the Act of 1864, ch. 109: which, although not prefaced by any preamble, being as it is said, almost a literal transcript of the 14 and 15 of Victoria, may, from its purview, be regarded, as a legislative adoption of the theory of evidence therein embodied. The 1st section of the Act of 1864, ch. 109, enacts that !CNo person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest, from giving evidence, ****** but that every person so offered may and shall be admitted to give evidence, notwithstanding that such person may or shall have an interest in the question, or in the event of the trial, * * * * in which he is offered as a witness; and not-, withstanding that such person offered as a witness, may have been previously convicted of any crime or offence,” (the crime of perjury excepted,) and the parties litigant, and all persons in whose behalf any suit, action or other proceeding may be brought or defended, themselves, and their wives and husbands, shall be competent, and compellable, to give evidence in the same manner, as other witnesses,” except as thereinafter excepted.

The 3d section enacts, “No person, who in any criminal proceeding, is charged with the commission of any indictable offence, or any offence punishable on summary conviction, shall be competent, or compellable to give evidence for or against himself, nor shall any person be compellable to answer any question tending to criminate himself, nor, in any criminal proceeding, shall any husband be competent or compellable to give evidence for or against his wife,” etc.

The question is, how far does the third section qualify or restrain the language of the first. We are required now, for the first time in this State, to decide whether the Act of 1864, ch. 109, constituting the 1st and 3rd sections of the 37th Art. of the Code of Public General Laws, shall be liberally interpreted in consonance with its policy and spirit, or shall be literally construed, so as to contract its operation. The State contends that the third section incapacitates any person, who is charged in any criminal proceeding, with an indictable offence, from testifying/or another, if that testimony tends to exonerate the witness, in any other case in which he is charged.

The appellant insists that the true meaning of the section is, he shall not testify for himself in the case in which he is charged ; in all others he is a competent witness and compellable to testily. The rules for the interpretation of statutes, as laid down by the Barons of the Exchequer, in Heydon’s case, (3 Rep. 7,) and sanctioned by universal consent since, are

“ 1st. What was the common law before the making of the Act ?

“2d. What was the mischief and defect against which the common law did not provide ?

“3d. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth? and,

. “ 4th. The true reason of the remedy.

“It was there held to be the duty of Judges, at all times, to make such construction as should suppress the mischief, and advance the remedy ; putting down all subtle inventions and evasions for the continuance of the mischief, ‘et pro privato commodo,’ and adding force and life to the cure and remedy, according to the true intent of the makers of the Act, cpro bono publico.’ ” Dwarris on Stats., 695.

Interpreting the Code by these sound maxims, adopted by the sages of the law in their palmiest days, the meaning or intention of the Legislature is next to be sought in the language of the several sections cited.

The Common Law, as we have seen, excluded as witnesses all persons interested in the event of the suit, and all parties to the record, as well as persons convicted of crime.

Experiencei showed that these incapacities obstructed the search after truth and defeated the administration of justice.

The remedy designed was, the removal of these restrictions, and rendering all persons competent to testify, as far as compatible with other great principles of justice. The great impediments to full information as to the facts, in the trial of causes technically classified were “ conviction for crime,” “interest in the question or issue,” and being “parties of record.”

The first section of the Act of 1864, ch. 109, “Ex vi termini,” absolutely removes incapacity from crime, or interest, in all cases civil or criminal, “ notwithstanding such person shall have an interest in the matter in question,” or in the event of the trial of any issue, or in any trial, in which he is offered as a witness, and notwithstanding he may have been previously convicted of any crime, perjury excepted.

In civil cases/ all parties (when both the original parties to the cause of action are alive,) their husbands and wives, are made competent, and compellable to testify for others, and may testify for themselves.

Thus, it may be said, with trivial exceptions, all objections to the competency of witnesses, for crime, or interest, are annulled in civil or criminal cases.

No conviction for crime, however infamous, (except perjury,) no interest, however controlling, excludes the witness ; so that, all the fountains of knowledge, whether pure or poisoned, all sources of information, are designed to be open to the judge or jury, before whom the trial is had. For whose benefit are the limits of investigation so extended, and the barriers of exclusion broken down?

For the protection of the rights of the parties and “pro bono publico,” not for the advantage of the witness, or “privato commodo.”

It should be borne in mind, that the terms of this Act of Assembly are negative, the strongest form of inhibition, viz : “No person, etc.,” shall hereafter be excluded by reason of incapacity, etc. ; they are absolute, explicit, and peremptory, showing no discretion was intended to be given. Dwarris on Statutes, (715.) If, as we have seen, all incapacity from “conviction for crime,” (except perjury,) and from “interest,” is abolished by the 1st section of the Act of 1864, ch. 109, in both civil and criminal cases;. is it consistent with the established canons of construction to adopt a reading of the third section which renders the first inoperative in a large and most important class of cases, included within its letter and spirit; when the third is susceptible of being gratified without violating the first. It is admitted in the brief of the Attorney-General, that the first section standing alone, is broad enough to include not only persons having an interest in the result of the issue, but parties to the record, severally or jointly charged, or indicted, and therefore the third section was enacted to qualify its meaning and except the latter class.

If he is correct in this view, the object and office of the third section'was merely explanatory and saving, confining the alteration of the common law rules of evidence in criminal cases, to persons interested, or convicted of crime, not parties to the record, but retaining the disability of those who were parties of record.

This construction seems to us, not only consonant with the declared objects of the amendment of the law of evidence in Great Britian, but the spirit and letter of the two sections of the Act of 1864, above cited.

No verbal criticism can render the third section clearer than it is. A person not indicted jointly, cannot be said to be charged with crime in a proceeding against another, however that prosecution may be related to some other proceeding against himself, and therefore, in testifying for another, is not testifying for himself.

The language of the third section is not, no person who is'indicted, etc., shall be competent or compellable to give evidence for or against himself, but “ No person who in any criminal proceeding is charged;” that is, “ given in charge or put on trial.” Tobe “charged,” technically, is to be put on trial, and in this sense, it will appear from the language of commentators on the English statutes, hereinafter cited, to have been used.

As a remedial Act, designed to eiilarge investigation and gather information from every source, to eviscerate the truth in vindication of life, liberty and property, it is entitled to a' liberal construction. It was one of its special objects to give persons accused, the benefit of the testimony of their supposed confederates. In cases of accusation founded on circumstantial evidence, the necessity of this means of eliciting the facts is self-evident.

From the infinite complexity of human affairs, the innocent are often involved in the darkest shadows of suspicion, whilst the guilty assume the shape of angels of light. The law, in its wisdom and mercy presumes all men to be innocent until convicted in due course of law, to protect them from the effect of fallacious appearances. Men are judged by the company they keep. Associates are supposed to have common objects and purposes, and when one is charged with crime, his most intimate companion and friend is not unfrequently suspected, and prosecuted as his confederate or accessory. If according to the rule of the common law, the accessory cannot testify for the principal, or vice versa, until.each has been tried and acquitted, the readiest and most natural moans of defence is taken from the accused, and suspicion is equivalent to conviction.

How are the inferences of guilt from circumstantial evidence drawn by indignant virtue, talent, and zeal, against a prisoner charged with some revolting crime, to be dissipated, if the net which encloses the one, also, so entangles his associates, that they cannot depose in his favor ?

In ancient times, the jurors taken “de vicineto,” were the witnesses, or “ compurgatores” of the accused. Row the jury are taken as far as possible from the neighborhood, and the less they know of the prisoner, the better they are qualified to decide his fate.

Conceding, that the testimony of confederates, and accessories, etc., is justly subject to great suspicion of being rendered under influences adverse to the truth, yet it is consistent with the modern theory of the science of evidence to admit, rather than exclude it.

It is urged on the part of the State, that as an accessory cannot be tried (except by his own consent) before the principal, and the acquittal of the latter, is a discharge of the former; the accessory has a direct interest in the record of the conviction or acquittal of the principal, and in testifying in behalf of his principal, he testifies directly in his own behalf and for his own interest; that the interest which at common law rendered a party incompetent as-a witness, was tested not only by tbe fact, that he was actually a-party to the record, and was then on trial, but where he was clearly interested in the result of the case, even though no party to the record, he was disqualified ; and a party was interested in the result where the record could be used for any purpose for or against him; the record of the trial of the principal is prima facie evidence for or against the accessory; ergo, the accessory is so far interested in the result of the trial of the principal as to render him incompetent at common law. “He is giving evidence for himself.” The disqualification or incompetency of parties to the record,.in criminal cases, to be witnesses at common law, was not founded upon interest in the record, as a means of evidence, but on the maxim of the common law, that no man should he compelled to testify against himself: therefore all traversers on trial were held incompetent. Interest in the record, as a means of evidence, was another and distinct ground of exception. The evidence amendment Acts in Great Britain and Maryland, clearly destroy the disqualification from interest,, but still leave the parties to the record incompetent. It is therefore no argument against the admissibility of the accessory to say, he had an interest in the record as evidence, that ground of incompetency being expressly taken away by the text of the first section of the Acts above referred to.

It is said, if the accessory testify, he cannot be compelled to answer any question which would tend to criminate himself.

It is no anomaly in criminal proceedings to exempt a witness from answering questions which tend to criminate him. It is a privilege guaranteed to all witnesses, by the common law, and which was adopted, and declared as an inviolable principle of justice by the Bill of Rights. 1 Green. Evid., 451; Bill of Rights, sec. 22. Taylor, the author of the Act of 14 and 15 Vict., ch. 99, in his work on Evidence (4th edition,p. 1145,) commenting on the proviso in the third, section, declaring nothing therein contained, shall render any person competent or compellable to give evidence for or against himself, remarks : “By the general law of the land, every witness is protected from answering questions where the answers would tend either to criminate himself or expose him to any penalty, * * * and as the Act simply makes parties witnesses, it is obvious that without any special enactment, they might have claimed the same protection as all other persons under examination.”

It is clearly deducible from the observations of the same writer, in his 6th edition, vol. 2, sec. 1223, on the proviso of sec. 3, of 14 and 15 Vict., ch. 99, that he construed that section as applying only to parties on the record. His language is: “It has been seen that Lord Brougham’s Act of 1851, in making parties to the record admissible witnesses, has expressly provided in sec. 3, that nothing in the Act shall render any person who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself.”

Now this proviso calls for three observations. In the first place, it does not say that the persons specified in it shall not be rendered by the Act competent or compellable to give evidence at all, but merely that they shall not be allowed or forced to testify for or against themselves.

In the event therefore, of several persons being jointly indicted, it would seem to be no unreasonable proposition to contend, that any one of them might, under section 2, be called as a witness either for or against his co-defendants, excepting only in those few cases, where the indictment was so framed, as to give him a direct interest in obtaining their discharge. Indeed, for some years, this was considered to be the law by many Judges, though some doubted, and at last, in 1872, on the point being reserved for the Court of Criminal Appeal, that Court, after much discussion, decided that Lord Brougham's Act was not intended to alter, and did not in fact alter the ancient law of England, which prohibited any attempt to examine or cross-examine any prisoner on his trial; referring to Reg. vs. Payne, 41, L. J.

This case is referred to by the Attorney-General, to sustain his construction of the third section of the Act of 1864, viz: that “no one charged with an indictable offence” can be either “examined or cross-examined in any case where he is interested, and it is wholly immaterial, whether such interest arise from a direct interest in the result of the case, or by being a party to the record.” He says: “The Maryland statute seems to be copied from the British Evidence Act, and the force and effect of the third section has received a judicial interpretation by the sixteen Judges sitting as a Court of Criminal Appeals, as late as January 1872, in the case of The Queen vs. Payne, etc. In that case it was expressly declared that the exception in 14 and 15 Vict., ch. 99, sec. 3, was introduced to prevent any possibility of its being thought that the law as it had existed from the earliest times, was altered by the Act.”

I have no disposition to deny the great ’moral weight which the united legal judgment of the eminent jurists of England should have in a case parallel with that now before us.

But although the law they were interpreting was essentially the same, the facts to which it was applied were entirely different, and the language used by them, to be correctly understood, must be taken in connection with the facts, circumstances and relation of the parties to the record.

The declaration, that the 3d section of Vict. “was introduced to prevent any possibility of its being thought that the law as it had existed from the earliest times was altered by the Act,” was necessarily limited to the case of parties to the record, (the case then before them) and qualified by other expressions, showing that c‘ parties charged” in their view, were those !<given in charge to the jury” or on trial, as a more particular statement of the case will show.

In Reg. vs. Payne, the prisoner Payne and three others, (including one Curtis, the proposed witness,) were jointly indicted for poaching. On the trial all four prisoners were sworn to by various witnesses, as having formed part of the gang of poachers; the defence was an alibi, and the counsel for Payne, proposed to call Curtis, to prove the alibi. The Judge held he was incompetent. The prisoners were convicted and the questions reserved for the opinion of the Court were,

1st. Whether a prisoner jointly indicted with another, can, after they have been given in charge to the jury, be called as a witness for the other, without having been either acquitted or convicted, or a nolle prosequi entered?

2d. Whether upon the present form of indictment, and under the circumstances of the case, the prisoner Curtis was competent, and ought to have been called as a witness for the prisoner Payne?

The opinion of the Court was announced by Oockbuun, O. J., in the following concise and explicit terms :

“ We are all of opinion that the evidence rejected, was properly rejected. We are all agreed that the exception in Id and 15 Vict., ch. 99, sec. 3, was introduced to prevent any possibility of its being thought that the law as it had existed from the earliest times was altered by the Act. By that law, it was a distinguishing characteristic of our criminal system, that a prisoner on his trial, could neither be examined nor cross-examined. We think it impossible to suppose that it could have been intended to change this rule by a mere side-wind by means of this exception.”

It is thus proclaimed, by the highest judicial authority in England, that sec. 3d of 14 and 15 Vict. which corresponds in terms with sec. 3d of 1864, ch. 109, was intended to prevent the impression, that the Evidence Amendment Acts, changed the common law in its distinguishing characteristic, “that a prisoner on his trial could neither be examined nor cross-examinedin other words, that it applied to parties on the record, alone.

The fifteenth bill of exceptions shows, that the appellant offered to prove by J. Hamilton Shew, facts tending to establish an alibi; the State objected to the competency of Shew to testify in behalf of the prisoner, and in support of its o'bjection, produced and relied on the transcript of the record of an indictment by the G-rand Jury of Carroll county, charging Shew as an accessory before the fact, of the prisoner, which indictment was still pending and undetermined; whereupon, the Court sustained the objection and refused to permit said Shew to testify, to which ruling the prisoner excepted.

Shew was not jointly indicted with Davis, was not convicted of the crime of perjury, was not subject to any objection (in my opinion,) affecting his competency, but stood in the position of one interested in the event of the trial, an objection going to his credit alone.

The prisoner was entitled to the benefit of his testimony however clouded with suspicion; the letter and spirit of the Act of 1864, in my judgment, rendering such persons competent and compellable to testify.

The object of the amendment in the law of evidence, was to make parties in interest, ■ witnesses, and not interested witnesses, parties. For these reasons I think, the Court below erred in excluding the testimony of ¡Shew.

The sixteenth exception presents the very common occurrence of a witness being cross-examined, and after-wards impeached by a contradictory statement of another witness, as to the facts which he first detailed in his cross-examination.

The traverser’s witness being thus contradicted, he called another to prove that the general character of the first for truth and veracity was good. Whereupon the State offered to prove by the same witness, that the character of the impeaching witness for truth and veracity was good also, to the admission of which the traverser objected, but the Court overruled the objection and admitted the same.

In my opinion, the endorsement of the traverser’s witness, was no imputation on the character of the State’s; the tendency of such testimony was to multiply collateral issues, to put the witnesses on trial, rather than the accused, and according to the principles laid down in the text-books as I understand them, there was no foundation for introducing the supporting testimony on the part of the State.

Case Details

Case Name: Davis v. State

Court Name: Court of Appeals of Maryland

Date Published: Apr 18, 1873

Citation: 38 Md. 15

Court Abbreviation: Md.