Allen v. State

• Decision Date: 15 November 1944
• Docket Number: 9.
• Parties: ALLEN v. STATE.
• Court: Maryland Court of Appeals

39 A.2d 820

183 Md. 603

ALLEN v. STATE.

No. 9.

Court of Appeals of Maryland

November 15, 1944

Appeal from Criminal Court of Baltimore City; Eugene O'Dunne Judge.

Paul Lawrence Allen was convicted of assault with intent to rape and he appeals.

Judgment reversed and new trial awarded.

Michael F. Freedman and Robert P. McGuinn, both of Baltimore (George W. Evans, of Baltimore, on the brief), for appellant.

J Edgar Harvey, Asst. Atty. Gen., and Thomas N. Biddison, Asst State's Atty., of Baltimore (William C. Walsh, Atty.

Gen., and J. Bernard Wells, State's Atty., of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, BAILEY, and CAPPER, JJ.

MELVIN, Judge.

The appellant, Paul Lawrence Allen, was convicted in the Criminal Court of Baltimore City of assault with intent to rape and was sentenced to death. At the trial, which was before the Court without a jury, three exceptions were taken, all being to the admissibility of evidence. Two of these were abandoned at the argument here, leaving the appellant's case dependent entirely on the remaining exception. This relates to the ruling of the trial court requiring the accused, while on the witness stand in his own behalf and under cross-examination, to try on a hat which had been found at the scene of the crime and which, concededly, had been worn by the culprit, whoever he was.

The State claimed that the appellant was the guilty one and lacking positive identification, undertook to make out a case against him on circumstantial evidence, relying strongly on his alleged ownership of this hat to connect him with the crime. On this point the State's testimony was that when the appellant was arrested he was shown the hat by the police officers and then not only admitted it to be his but, after trying it on, actually claimed it. At the same time he asserted that it was one that had been stolen from him several days before the date of the assault, as mentioned to him by the officers. Another State's witness had directly identified the hat as belonging to the appellant. With that testimony in the record against him he took the stand as a witness in his own behalf and categorically denied ownership of this hat. Immediately, upon cross-examination, came the testimony and the exception which form the basis of this appeal, as follows:

'Q. Now, what kind of a hat was it that you lost? A. Well, the hat I lost was a kind of narrow rimmed hat.

'Q. And it didn't look like this one (indicating) at all? A. No. sir.

'Q. Try this hat on, will you? (Handing hat to the witness)

'(By Mr. Evans) Just a minute, we object. We object.

'(By the Court) I will overrule the objection and you may have an exception.

'(By the Witness) Put it on?

'(The Court) Yes.

'(By the Witness) O. K. (witness puts hat on head). You see it's too big. It don't fit the way my hat did on that day. If the wind would blow you see where I would have to put it. Which you can see what I would look like in that hat. If I would put my hat on like that my ears would stop it from going down. Besides, I would not buy a hat with that broad brim.

'To which actions of the Court the Counsel for the Defendant then and there excepted.'

The issue of law directly raised by this exception is whether or not the Court's ruling thereon was a violation of the guaranty of the Maryland Declaration of Rights, Article 22, 'That no man ought to be compelled to give evidence against himself in a criminal case.' In pari materia with this article is the Fifth Amendment to the Constitution of the United States, which provides that no person 'shall be compelled in any Criminal Case to be a witness against himself.'

The determining of this issue leads into a broad field of constitutional law and one wherein authoritative guideposts of precedent are lacking, except along the general outlines of it. For instance, in Maryland there is no adjudicated case at all precisely in point, and the decisions of the courts of other states are widely divergent and often conflicting in applying the general principle. The guaranty itself is found, originally, in the maxim of the common law 'Nemo tenetur se ipsum accusare.' It was re-affirmed in Magna Charta, transmitted to our country as a birthright and protected as such as a part of the Constitution of the United States and of most of the several states. Even without this express constitutional safeguard, the individual may rely upon the common law to secure him against compulsory self-incrimination. The principle has always been liberally construed in order to give the fullest effect to this immunity, and the protection thus afforded adheres to the accused throughout the trial. Blum v. State, 94 Md. 375, 381, 382, 51 A. 26, 56 L.R.A. 322; 22 C.J.S., Criminal Law, § 425, p. 659.

As well expressed in the Court's opinion in Ward v. State, 27 Okl.Cr. 362, 228 P. 498, 499: 'The right intended to be provided by the constitutional provision that no person shall be compelled to give evidence which will tend to incriminate him is so sacred, and the pressure toward its relaxation so great when the suspicion of guilt is strong and the evidence weak and obscure, that it is the duty of the courts liberally to construe the prohibition in favor of personal rights, and to refuse to permit any steps tending toward their invasion.'

While this doctrine is thus firmly embedded in our system of laws and is universally recognized and upheld, the danger of its being misapplied and abused has caused some of the courts to be less liberal in their interpretation of it than others. Consequently, groups of cases have resulted which are distinctly of the border-line variety and furnish no certain rule for applying the principle in any particular case.

There is one point, however, upon which the authorities do agree, and that is that the constitutional guaranty extends to all testimony utterances by the defendant. They go even further in agreeing that, on the other hand, it has no application to such physical evidential circumstances as may be revealed by an open exhibition of the witness' body or by ordinary observation of his person. He may be ordered to be fingerprinted, for instance, or to stand up in Court for the purpose of identification. Wharton's Crim.Ev., 11th Ed., Vol. 3, p. 1979.

Just how far the prosecution may go beyond this, without invading the rights of the accused, in compelling him to perform some affirmative act to aid the State in connecting him with the crime, such as trying on a hat or making impressions of his feet for comparative purposes, presents the problem which has caused the various courts to diverge so widely in their decisions, even when the respective factual situations are practically the same.

For example, some courts have held that the constitutional privilege of the accused is not invaded by compelling him to remove his glasses (Rutherford v. State, 135 Tex.Cr.R. 530, 531, 121 S.W.2d 342); or by placing a hat on accused at victim's request to supply additional aid to identification (People v. Pecho, 362 Ill. 568, 200 N.E. 860); or to remove any article of dress which denies that opportunity for observation which has commonly existed for those coming in contact with him, such as his hat or an article of dress hiding his face (People v. Gardner, 144 N.Y. 119, 38 N.E. 1003, 28 L.R.A. 699, 43 Am.St.Rep. 741); or to remove a shirt to exhibit scars and to don a torn garment found at the scene of the crime for the purpose of showing to the jury the coincidence of the rents therein and the accused's scars. State v. Oschoa, 49 Nev. 194, 242 P. 582.

The Court in the case last cited rested its decision on a former decision of that same court in the case of State v. Ah Cheuy, 14 Nev. 79, 33 Am.Rep. 530, in which the trial court compelled the defendant, against his objection, to exhibit his arm so as to show certain tatoo marks thereon to the jury. In passing upon this (the Oschoa) case, the court said [49 Nev. 194, 242 P. 587]: 'We are satisfied that the constitutional provision invoked by appellant relates solely to testimonial compulsion', and relied largely upon the case of Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 6, 54 L.Ed. 1021, 20 Ann.Cas. 1138.

In that case a question arose as to whether a blouse belonged to the prisoner. A witness testified that the prisoner put it on and it fitted him. The court held that the objection to this testimony was based upon 'an extravagant extension of the 5th Amendment', and overruled it. It is to be noted that the evidence sought was not from the defendant as a witness or from any affirmative act of his in open court, as in the case at bar, but was testimony furnished by another witness.

As against the aforegoing interpretation of the doctrine there is equally respectable authority to the effect that the constitutional privilege is directed not merely to the giving of oral testimony but embraces as well the involuntary furnishing of evidence by the accused by some affirmative act in open court which might aid in establishing his guilt. A will-reasoned case directly in point is that of Ward v State, supra. One of the appellants there having been charged with the crime of manufacturing intoxicating liquors was a witness in his own behalf and, during his cross-examination, the county attorney handed him a coat which had been found near the illegal still and asked him to put it on. Appellant objected and the court overruled the objection and required him to put on the coat in the presence of the jury. After the appellant had done so, the county attorney remarked: 'The coat found at the still fits the defendant like the paper on the wall.' It was held that the action of the trial...