89 A. 1100 | Md. | 1914
Lead Opinion
The record in this case presents for the consideration of the Court sixteen exceptions, all relating to testimony. Of these the 4th, 5th, 6th, 7th, 8th, 9th, 10th, 15th and 16th in one way or another are with regard to an alleged confession of the traverser of the crime of murder, committed in the City of Hagerstown, in the month of August, 1912, and will be considered one in connection with the others. The traverser was indicted by a Grand Jury of Washington County, and the case was subsequently removed to Montgomery County, where it was tried before the three judges of that circuit without the intervention of a jury. The trial resulted in a verdict of murder in the first degree, and the accused was sentenced to imprisonment for life in the penitentiary. The importance of the case rests not alone upon the seriousness of the crime charged, but on the fact that it *397 presents for the consideration of the Court, the admissibility of a confession of the accused, alleged to have been procured by what are sometimes spoken of as "sweating," "sweat box" or "third degree" methods.
The first exception was to permitting Dr. Wroth, a physician who was present at the autopsy, to state his opinion of the cause of the death of Mrs. Henry, the alleged victim. No sufficient reason has been advanced why this evidence should have been rejected. The doctor had been shown to have the requisite technical training, he was present observing the conduct of the autopsy, and the question called for, and only called for, his opinion, from what he had seen, as to the cause of the death. The ruling of the trial Court in permitting the question was clearly within the limits of proper expert testimony.
The second exception related to the finding of a sheet in the jail where the prisoner was confined. It is claimed by the defense that the first night that the traverser was in the Hagerstown jail, an attempt was made to terrorize him by the use of a sheet, by some one connected with the jail, so as to create an impression of ghosts. But it was not claimed by the defense that the sheet, in regard to which evidence was sought to be introduced, was found until about six months after the traverser was confined there, or that the defense would be in any way able to connect up the sheet referred to, as being the sheet claimed to have been used the night that McCleary was brought to the jail. The evidence of the sheriff's son was to the effect that no sheet had been used in connection with any prisoner until sometime after McCleary had been incarcerated, and the proposed offer on the part of the defense was, therefore, too remote, and the application for the writ of habeas corpus ad testificandum was properly refused.
The 11th, 13th and 14th exceptions all relate to a letter testified to have been written in Washington, by a daughter of the deceased Mrs. Henry, and addressed to her mother, in *398 Hagerstown. The 11th exception is directed to the point that no such letter was found at the residence of the deceased when the door was first forced open, although other mail was found there; the 13th and 14th exceptions had to do with the addressing and mailing of the letter in question, and to what it contained with regard to the Washington address of Miss Henry. The effect of these several questions was to show that after Miss Henry's arrival in Washington she wrote to her mother, that the letter was properly addressed and deposited in the mail, but that it was not found in the residence of the deceased by those who first entered there after the death of Mrs. Henry was discovered, although other mail was found, from which it might be inferred that the letter had been abstracted by some one after the death of Mrs. Henry and before the discovery of her death. All of this was clearly competent evidence, though only circumstantial in its nature, and it laid a proper foundation for the offering of secondary evidence as to the contents of said letter, which, so far as the traverser was concerned, would be admissible as showing one mode by which he might have obtained the address of Miss Henry in Washington.
Nor is there any error perceived to have been committed by the trial Court in admitting the evidence involved in the 12th bill of exceptions; if, as claimed by the State, a murder had been committed, the movements and declarations made by the traverser between the time of the commission of the crime and the time of his arrest could hardly be other than important as reflecting upon his culpability vel non, and especially was this the case when those movements or declarations had reference in any manner to one so nearly related to the deceased as a daughter.
As already noted all of the remaining exceptions have reference in one way or another to the admissibility of a confession by the accused of his connection with Mrs. Henry's death. The subject of the admission of confessions of one accused of a crime is one which has been before this Court *399
in a number of cases, to some of which reference will hereafter be made, and is very elaborately and fully discussed in a particularly able note to the case of Ammons v. State, 18 L.R.A. (N.S.) beginning on page 768. At the outset it is to be observed that the burden of showing that a confession of crime has not been obtained by improper means, that it is the voluntary act, uninduced by hope of favor or fear of harm, is one which the law casts upon the State. Nicholson v. State,
In some States this has been left to the jury to be determined by that body as a question of fact, whether or not, that which is offered as a confession, was in fact free and voluntary, or whether it was the result of representations, inducements or threats, and therefore, to be excluded. In other States, among which is Maryland, this is held to be a question to be determined by the Court, as a ruling upon admissibility of evidence, before the confession itself can be offered, Biscoe v. State,
Three reasons are assigned by the counsel for the appellant as the grounds of objection to the admissibility of the confession; these are: (1) That the appellant during the day of the alleged confession, and prior thereto, was demanding the advice and assistance of counsel, and that the State prevented his securing counsel at that time by intercepting and suppressing the prisoner's written message to counsel; (2) That the alleged confession was involuntary; (3) That at the time of the making of the alleged confession the appellant was mentally irresponsible. These will be considered seriatim.
Upon the first of these branches the case has been unfortunately complicated by acts which cannot be regarded in any other light than an excess of zeal on the part of the prosecuting officers of Washington County. It is of course the right of one accused of crime to be represented by counsel of his own selection, and it is equally true that the State's Attorney in this case did intercept, interfere with and to a large extent prevent the accused from communicating with counsel, for which there can be no justification advanced; but the question is not the propriety or the impropriety of the action of the State's Attorney of Washington County, but the admissibility or inadmissibility of a confession made by the accused in this case. The fact that one accused of crime makes a confession when unrepresented by counsel, has been before the Courts in several cases, and it has been held to constitute no valid ground for the rejection of the confession. State v. Gorham,
What is offered as the confession was made by McCleary in the sheriff's office attached to the jail, to which he had been brought handcuffed to an officer. It was undeniably made when in custody, possibly, probably — handcuffed or in some manner bound. But none of these conditions are sufficient of themselves to render the confession inadmissible. Birkenfeld v. State,
The third reason advanced on behalf of the traverser against the admissibility of the confession is his supposed mental irresponsibility at the time when the confession was made. He had been arrested in the City of Washington on the Thursday following the finding of Mrs. Henry's body, had been confined in the station house in Washington on Thursday night, where according to his own story he obtained but little rest or sleep. He was taken to Hagerstown on Friday and placed in jail, and apparently slept but illy on that night. According to testimony of other prisoners in the jail he did a great deal of "hollering," talked of seeing the corpses of his parents lying on the stairs, imagined himself to be fighting wild beasts, spoke of hearing groans about his cell, of seeing a woman in it with tongue protruding, or of there being a lizard about; is described by his counsel who saw him on Sunday as showing marked evidence of nervous excitement, with blood-shot eyes, irrational in his talk, incoherent in his statements, and by physicians who *402
saw him subsequently, and who testified for the defense, as being in an irresponsible condition. He had also on Saturday evening set fire to and burned the blankets in his cell. As opposed to this we have the evidence of the State's Attorney, and of those attached to the jail, including the jail physician, to the general effect that while excited he was far from being irrational, in fact was quite the reverse on Saturday evening, at the time when the confession is testified to have been made and signed. William Logan, an entirely disinterested witness, who saw him on Sunday morning, and who had known him for a long time, gives strong evidence in favor of his entirely rational condition at the time when he saw him, some fifteen or eighteen hours after the confession is claimed to have been made. It is true that the jail physician, had, either on Friday or Saturday night, given him morphine, apparently for the purpose of quieting his nerves; that he was in a condition of mental excitement is undoubtedly true, but the question is not simply, whether he was mentally agitated, but was he so far deprived of his sense of reason as not to be responsible for what he may have done or said. It is to be borne in mind, that he was placed in jail only a few days after the middle of August, when the weather was warm, and that for twenty-four hours he had been in solitary confinement, a fact which would not of itself render the confession inadmissible, and these physical discomforts which might tend to produce a condition of sleeplessness may have been augmented by the setting fire to his blankets a short time before making the confession, with the necessary accompaniment of added heat and smoke; but the one factor which stands out prominently is the traverser's own testimony with regard to all that took place, to statements made to him and by him during this period of assumed mental irresponsibility. In a long line of cases where there was a condition of greater or less absence of mental faculty as the result of intoxication such fact has been held not to constitute a valid objection to the admission of the confession. *403 State v. Berry, 50 La. An. 1309; Lester v. State,
This leaves for consideration the second of the objections of the defense, viz., that it was not the voluntary act of the traverser. As was said in State v. Willis,
Does this chain of circumstances indicate that the confession was produced as the result of the hope of favor or fear of harm?
Allusion has already been made to the excess of zeal of the State's Attorney in this case. Whether in that zeal he transcended his duties and infringed on the rights of the accused must be answered from the adjudicated cases as we find them. In the case of Biscoe v. State, supra, the accused was interviewed five times by the committing magistrate for the purpose of obtaining a confession, and although pressed time and again, and that too by one in authority, he persisted in denying his guilt, until he was told it would be better for him to tell the truth and have no more trouble about it, whereupon the confession was made, but held by this Court as improper to go to the jury. In the case of Watts v. State, *406 supra, the accused was told by a reporter that "it would bepossibly better for him if he would make a clean statement," which this Court construed as an inducement and excluded the confession. In the case of Ross v. State,
Let us now examine in view of the law, the facts of this case.
The evidence of the traverser and of the State's Attorney is in direct conflict at many points, points many of them vital to the determination of the case. Thus, as to the caution given to the accused before any statement had been made by him; the question of threats or inducements, and to some of the surrounding circumstances attending the interview between the State's Attorney, Miss Henry and the accused. Naturally considering the situation in which he was placed there was the strongest motive for the accused to color his testimony in a manner most favorable to himself, and if this case were in a position of doubt because of an even balancing of the testimony of the accused and the State's Attorney, authority is ample for the rejection of the confession. On the most vital part of the case there is, however, evidence tending to corroborate the State's Attorney; thus the chief of police and the witness, Barber, testify to the caution given to the accused that anything which he might say would be used against him; the traverser is corroborated by a fellow prisoner, to the effect that the State's Attorney told the accused to "come across" during the interview at which Miss Henry was present, but this witness did not hear the statement which the traverser alleges to have been made to him, *408
that it would be easier for him if he did, language which would in itself have imported a promise. The other language which the traverser gives is attributed to a detective in Washington, to the effect, "You might as well take the God damn liar back and lock him in the cell"; but this was in Washington, and cannot be held to have been operative two days later in Hagerstown under different surroundings. He further testified that in Hagerstown the State's Attorney, after urging him to confess, "said something about sending you back until you did say it," though the traverser seems a little in doubt as to what may have been meant by the expression. The evidence of the traverser himself abounds in contradictions, but a careful examination and re-examination of the evidence results in the conclusion so aptly stated by JUDGE URNER in his dissenting opinion upon the admissibility of the confession, when he says, "I think it proper to state that my individual opinion has not been influenced by any suggestion or testimony tending to support the theory, or offered for the purpose of supporting the theory, that there was any attempt on the part of the officials of Washington County to terrorize the prisoner." The evidence in this case has been examined with much care upon this point, following the precedent laid down in Nicholson v. State,
This Court is not to be understood as even passively sanctioning the treatment of the prisoner preliminary to the making of the confession. All that this Court has to do, is to deal with the admissibility vel non of the confession. The confession was admitted below by a divided Court, but the verdict of guilty was pronounced by a unanimous Court. It is impossible to say that the circumstantial evidence in the case was not in itself sufficient to have justified the finding of the verdict of guilty, though that is a question which does not enter into this appeal.
It follows from what has been said that no reversible error is found in the admission of the confession, and the judgment below will be affirmed.
Judgment affirmed, with costs.
Memorandum, upon motion for a re-argument:
Addendum
Since the rendering of the opinion in this case on the 14th of January, there has been filed an unusually elaborate motion for a rehearing, and also an affidavit intended to be in support of the motion. The substance of the affidavit is that since the filing of the opinion, in a conversation with the attorney for the traverser, Dr. Branham, a witness who was present at the autopsy and had testified for the State as to the cause of death, had said that he had committed an error in his evidence. Assuming everything contained in the affidavit to be true, it is impossible to see how it can properly be considered by this Court. The matter contained in the affidavit was not before the Court below at the time of the trial there. Even if the facts set out in the affidavit could properly be regarded in the light of newly discovered evidence, which *410 they clearly are not, they would constitute at best a ground upon which to found a motion for a new trial in the lower Court, if they had been presented at the proper time, but not a basis for a re-argument in this Court.
It appears from the motion for a re-argument that the counsel for McCleary misapprehended the language of this Court in its opinion when it was said, "that the evidence produced on behalf of the defense is not sufficiently clear as to the involuntary character of that confession to exclude the admission of it." There was no intent to depart from the well recognized rule that where the confession of the commission of a crime is sought to be offered in evidence, the burden is upon the State to show that the confession so offered was the voluntary act of the accused, but in the view of this Court that burden had been met. The rule does not of course mean that such evidence shall be absolutely uncontradicted. In most cases where an alleged confession is offered there is some contradiction as to the circumstances under which it was made, and it then becomes necessary for the trial Court to weigh the evidence, as was done in Nicholson v.State,
The motion for a re-argument will be overruled. *411