Barber v. State., 26.
| Decision Date | 08 December 1948 |
| Docket Number | No. 26.,26. |
| Citation | 62 A.2d 616 |
| Parties | BARBER v. STATE. |
| Court | Maryland Court of Appeals |
OPINION TEXT STARTS HERE
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Appeal from Circuit Court, Cecil County;
J. Owen Knotts, Chief Judge, and William R. Horney and Floyd J. Kintner, Judges.
Spurgeon Barber, Jr., was convicted of assaulting and robbing another, and he appeals.
Louis S. Ashman, of Baltimore (Harry D. Barnes, of Elkton, on the brief), for appellant.
Harrison L. Winter, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and Henry L. Constable, State's Atty., of Elkton, on the brief), for appellee.
Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.
Spurgeon Barber, Jr., an ex-paratrooper 21 years of age, and Alfred Irvin Holmes, were jointly indicted on March 2, 1948, for assaulting and robbing George Hamilton, paymaster of a lumber company, in his own home in Cecil County, Maryland, on Friday, December 19, 1947, at about 3 P.M. Holmes plead ‘guilty’, Barber ‘not guilty,’ whereupon the court granted a severance and the trial of Barber proceeded before the court and a jury, resulting in a verdict of ‘guilty,’ with a recommendation of mercy. After a motion for a new trial had been overruled, the court sentenced Barber to the Maryland State Reformatory for Males ‘for an indeterminate period of time, not to exceed four years.’ From that judgment and sentence the appeal comes here.
Hamilton and his wife both testified that on December 19, 1947, at a few minutes after 3 P.M., two men, armed with pistols and dressed in tan overalls, with masks of a greenish, knitted material over their heads and faces, entered the house. Hamilton was sitting in the dining-room sorting payroll money on a card table. The eyeholes in the masks were sufficiently large for both Hamilton and his wife to observe that both men were white, one having blue eyes and one brown. The brown-eyed man laid his pistol on the table and started to pick up the money. Hamilton grabbed the pistol, and a scuffle ensued. He called to his wife to call the police. She went to the telephone and called the sheriff. The blue-eyed man picked up some of the money and made for the kitchen door, Mrs. Hamilton pursuing him with a broom. He knocked her down and made his escape. She then went to her husband's assistance, and hit the brown-eyed man over the head repeatedly with the broom handle. The brown-eyed man finally hit Mr. Hamilton over the head with the pistol and escaped through the kitchen door. No shots were fired.
At the trial both Mr. and Mrs. Hamilton testified that Barber's eyes were very similar to those of the brown-eyed man, the same color and the same expression. A police officer testified that when he arrested Barber the day after the robbery, he had a bump on his head, and an abrasion behind his left ear. Irvin Holmes took the stand and testified against Barber. Although a co-defendant, his testimony was clearly competent. Kinnard v. State, 183 Md. 377, 383, 38 A.2d 92. He testified that he had participated in the robbery, in company with Barber; that Barber had planned it and furnished him with a pistol and mask, made from an old army undershirt, and a suit of old army clothing to put over his own. They started from a diner where Barber worked, which was owned by Barber's father and located a short distance from the Hamilton home. Holmes returned there after the robbery and waited for Barber, then went off with Leonard Holmes, his brother, in their truck. On his way back to the diner he threw the army clothing in the creek, and the mask in the woods or creek. He ‘lost’ the pistol in the woods. After he had been arrested and had made a statement to the State police, he took them to the creek where the clothing was found, but not the mask or pistol. Some of the payroll money was also found in the woods.
The defense was based upon an alibi. Barber took the stand and denied any knowledge of the crime. He testified that he was not well and had gone to bed in the basement under the diner at about 2:40 P.M. and gone to sleep. He was called by Albert Kist, the short-order cook, about 6 P.M. Kist testified he sat in Barber's room from about 3 P. M. until about 4 P.M. His story was also verified by Barber's sister, Dorothy Johnson, who worked in the diner, and to some extent by his brother-in-law, Ernest Johnson. The jury evidently did not believe this story. Several character witnesses testified for Barber, who also proved that he had received an honorable discharge from the army.
Sheriff Boyd testified that he drove to the scene of the crime in response to a telephone call from Mrs. Hamilton, and called in the State police. Irvin Holmes was arrested on Saturday and made a statement at the Cecil County jail. At that time Barber was in the jail at Bel Air in Harford County. On Sunday morning Holmes, in company with the witness and officers Rudy and Hahn, led them to the place in the creek where the army clothing was found. On Monday, with Holmes and Barber, they went over the same ground. The witness was asked whether the statement made by Holmes was read in the presence of Barber. Over objection, he replied that it was. The witness explained that Barber was not present when the statement was made. He was then asked if the statement was later read to Barber, and without objection, replied that it was read to Barber at the county jail, ‘and he had nothing to say about it at all’; that ‘we informed Barber that we had a statement that implicated him in this hold up,’ and that Officer Rudy read it to him.
Officer Rudy testified, without objection, that the statement made by Holmes was read to Barber on Tuesday morning; ‘we told him he had a perfect right to say anything he wanted to say or he had an equal right to refuse to say anything’-that Barber said ‘I have nothing to say.’ The only objection made was to a question as to where this conversation took place. The witness also testified that they all went to the spot on the creek where the army clothing was found; that they showed the trousers to Barber and asked him if they were his trousers and he said ‘I have nothing to say.’ They asked Holmes whose trousers they were, in the presence of Barber and he said ‘Barber's.’ At this point there was an objection and motion to strike out the answer, which was overruled.
Rudy also testified that on Friday night they located an automobile, owned by Spurgeon Barber, senior, but customarily used by the accused and his brother-in-law, in back of a movie theatre in North East. Over objection, the State offered in evidence a piece of green knitted cloth, found in the rear seat. The witness Hamilton had previously identified the exhibit as being similar in color and texture to that worn by the robbers as masks.
In cross-examination, counsel for the accused brought out from the witness Rudy that not only was the statement made by Holmes read to the accused, but that one Herbert Alexander also made a statement, which was read to the accused, and that Barber told the witness ‘he wanted to make no statements unless his counsel was present.’ Holmes also testified, without objection, to the incident relating to the reading of his statement to the accused, and the trousers incident. The trousers were offered in evidence over objection.
Spurgeon Barber was cross-examined by the State and, without objection, testified to the reading of Holmes' statement to him, and that he told them he had nothing to say. He testified that his refusal to make a statement was based upon the advice of counsel whom he had consulted after his first interrogation by the police but prior to his arrest, and had talked to over the telephone from the police barracks at Conowingo after his arrest. He testified that Rudy referred to his lawyer in derogatory language but nevertheless permitted Barber to talk to him. The only objection made by counsel for the accused was to a repetition of the question, which was sustained. The accused also testified, without objection, that Alexander had accused him of burning a mask, after the robbery. He denied having done this.
It seems clear that the question put to Sheriff Boyd, as to whether Holmes' statement was read in the presence of Barber, was merely preliminary. Its relevance would necessarily depend, not upon the answer to that question, but upon further questions relating to the conduct of the accused in the light of the answer elicited. Yet there were no further objections, nor any motions to strike out that or subsequent answers, and the whole subject was explored, without objection, in the cross-examination of the accused. From the context, it would appear that the objection was based upon the previous testimony that Barber was in another jail when the statement was made. In any event, we cannot find that the accused was prejudiced by the court's ruling, in the light of subsequent testimony admitted without objection. Davis v. State, Md.; 55 A.2d 702; Courtney v. State, Md., 48 A.2d 430; Purviance v. State, 185 Md. 189, 44 A.2d 474; Smith v. State, 182 Md. 176, 184, 32 A.2d 863; Damm v. State, 128 Md. 665, 669, 97 A. 645. The same comment applies to the question put to Officer Rudy in regard to Holmes' statement. There were no objections to testimony regarding Alexander's statement; on the contrary the first reference to it was by counsel for the accused, in his cross-examination of Rudy.
The statement made by Officer Rudy as to what Holmes said, in the presence of Barber, about the ownership of the trousers found in the creek, stands on a somewhat different footing, because there was a seasonable motion to strike it out. This court has recognized ‘that the failure of one to deny a definite statement made in...
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