State v. Ellwood

• Decision Date: 02 July 1892
• Citation: 24 A. 782,17 R.I. 763
• Parties: STATE v. ELLWOOD.
• Court: Rhode Island Supreme Court

24 A. 782

17 R.I. 763

STATE

v. ELLWOOD.

Supreme Court of Rhode Island.

July 2, 1892.

Exceptions from court of common pleas, Providence county.

George A. Ellwood, alias James Martin, was convicted of burglary, and excepts. Exceptions sustained.

Robert W. Burbank, Atty. Gen., for the State.

Charles F. Baldwin and Edward A. L. Gannon, for defendant.

TILLING HAST, J. The defendant, who was convicted of the crime of burglary at the September term, 1891, of the court of common pleas, brings up this case by bill of exceptions, and prays for a new trial on the ground of erroneous rulings by the court below, during his trial. The numerous exceptions taken by the counsel for the defendant are summed up by them in the following points, which we will treat as single exceptions, viz.: First, the state had no right to prove his previous bad character until he himself had put his good character in issue; second, that the defendant had the right to cross-examine any government witness to test his recollection, and to show the probabilities of bis being able to recollect the alleged fact to which he had testified in his direct testimony; third, that the state had no right to introduce testimony tending to show that the defendant might have been engaged in the commission of some other offense; fourth, that the defendant could not be required to testify to any former conviction, except upon the production of the record of such former conviction; fifth. that the court in charging the jury had no right to presume that a witness for the defense was either willfully falsifying or ignorantly mistaken; sixth, that the state had no right to exhibit and parade before the jury the implements ordinarily used in the commission of such offenses as that charged against the defendant, until such implements were proved to be the property of the defendant; seventh, that the court erred in admitting immaterial testimony prejudicial to the defendant; eighth, the court erred in allowing the state to introduce and present to the jury a picture taken of said defendant, said picture being taken to be placed in the rogues' gallery.

The first and third exceptions may properly be considered together. Of course there is no contention between the defendant's counsel and the attorney general as to the correctness of these points as matter of law, and the only question, therefore, is whether the state was allowed to prove the defendant's bad character, and his connection with the commission of some other offense, in the manner suggested. Walter Smith, a detective of the police department of Hartford, Conn., was permitted to testify, against the defendant'! objection, that he heard Mr. O'Day say to the prisoner, "Your name is George Ellwood. You are wanted in Ohio. Isn't that so?" and that Ellwood made no answer. That in answer to the question, "What conversation did you have regarding who he was?" the witness answered, "As I said, Mr. O'Day said his name was George Ellwood, where he belonged, and that he was wanted in Ohio. He walked up to him, and says, 'George Martin is not your name. Your name is George Ellwood. You belong in Ohio, and you are wanted there.' Mr. Ellwood did not answer." Patrick O'Day was asked to state what was said by him or by the defendant in relation to who the latter was. He answered as follows: "I said to him, 'I understand that you have informed the officers that yon were shot in Worcester.' 1 told him I did not think bis name was Martin. Question. How did you know about James Martin? Where did you get hold of the name? Answer. He had told me that his name was James Martin, on Friday morning. Q. Beginning on Friday morning, tell me about the conversation that was had as to his identity. A. I went into his room on Saturday. I saw him twice on Friday, and said I was satisfied that he was not James Martin, and told him about some other matter. On Saturday, after making investigation, I went to the hospital after dinner, and I said to him,' Now Jim,—I will call you Jim, but your name is not Jim,—of course you won't acknowledge who you are. You are wanted in Columbus, you are a fugitive from justice, and you are known as "Gentleman George, "—George Ellwood.' He dropped his hands down, trembled, and returned me no answer."

Patrick Parker, a police detective of the city of Providence, was permitted to testify, against the defendant's objection, as follows: "I then said to him that that chain and those studs had been identified as those that came out of Mr. Humphrey's house in Providence. He wanted to know who Mr. Humphrey was. I said he was the gentleman downstairs who had talked to him. * * * Mr. Watts finally came in from Boston. Watts is the principal police inspector of Boston. Ellwood was on the bed when Watts came in. Watts asked Ellwood several questions. He looked over some memoranda he had, and Anally said very suddenly, 'You are the masked burglar, George Ellwood, known as "Gentleman George." You are wanted in Ohio.' Mr. Ellwood seemed excited. He afterwards smiled, and said, 'No, I am not; you are mistaken.' Mr. Watts said, 'I was in New York when you were arrested for burglary; you had whiskers on at the time and I am satisfied you are the man.' He said he was not the man. Mr. Watts said, 'You resemble him very much. Those eyes and that nose resemble George Ellwood very much.' He denied that be was the man at the time." The same witness was allowed to give a conversation which he had with the prisoner, about his being arrested in the city of New York, in which conversation the prisoner stated that, after his arrest in that city, he was taken to Toledo, and convicted under the name of George Ellwood, and was sentenced to 10 years in the Columbus penitentiary. Testimony was also admitted that Mr. Porter, the deputy warden of the Ohio penitentiary, said at the central police station in Providence, in the presence of the prisoner, that he was George Ellwood, and that he was the man they were after, and that they were going to take him back to Ohio, and that said deputy told them of the prisoner's escape from there. This testimony, together with other of a similar character, tended strongly to show that the defendant was a man of bad character, that he had been previously convicted of the crime of burglary, and that he was an escaped convict from the Ohio penitentiary. In short, it was placing before the jury, in advance of his becoming a witness in the case, a portion of the previous record of the defendant as a criminal, which record in no way connected him with the crime here charged against him. Moreover, a considerable portion of the testimony, if such it may be called, given by the detectives and other officials against the defendant, consisted of mere voluntary statements made by them to him, or to others in his presence, to which he made no reply. In other words, it practically amounted to the manufacturing, on the part of the state, of ex parte evidence against the defendant of a highly prejudicial character. If it be said that most of this evidence was offered for the purpose of identifying the defendant, it is enough to reply that, while most of it doubtless tended very strongly to identify him as the perpetrator of another crime, yet we fail to see how it tended to connect him with this one. In so far as the testimony related to what the defendant had said about his name, or the name that he was assuming, it was doubtless admissible, as tending, in some degree, to establish his identity. Thus the flight of the accused shortly after the commission of the offense, acts of disguise, concealment of person, the use of fictitious names, and similar ex post facto indications of a desire to evade prosecution, may be shown by the state. Whart. Crim. Ev. (9th Ed.) § 750, and cases cited; Barron v. People, 73 Ill. 256; Lanahan v. Com., 84 Pa. St. 80; People v. Hope, 62 Cal. 291. The testimony offered, however, went far beyond an attempt to establish these facts, and it was evidently so intended by the attorney general. The first and third exceptions must therefore be sustained.

As to the defendant's second exception, we do not think it should be sustained. The witness Edgar W. Martin, a manufacturing jeweler, was asked in cross-examination to give the amount, approximately, of the business of his firm in the course of the year. It had appeared in evidence that the chain in question was sold...