Butz v. State

• Decision Date: 10 December 1959
• Docket Number: No. 31,31
• Citation: Butz v. State, 221 Md. 68, 156 A.2d 423 (Md. 1959)
• Parties: John R. BUTZ v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 68

221 Md. 68

156 A.2d 423

John R. BUTZ v.STATE of Maryland.

No. 31.

Court of Appeals of Maryland.

Dec. 10, 1959.

Leonard J. Kerpelman, Baltimore, for appellant.

Shirley Brannock Jones, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Saul A. Harris, State's Atty. for Baltimore City, Norman Hochberg, Asst. State's Atty. for Baltimore City, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

PRESCOTT, Judge.

John R. Butz was found guilty in the Criminal Court of Baltimore of common-law burglary in two cases.The cases were tried together by the court, sitting without a jury, and Butz received a sentence of seven years' confinement in the Penitentiary in one case and eighteen months' in the other, the latter sentence to run concurrently with the former.

In the first case, Virginia Campion, 100 Jeffrey Street, Brooklyn, Maryland, testified that on December 2, 1958, some time after 11:00 o'clock at night, her apartment was broken into and sundry articles of personal property stolen therefrom.These articles consisted of a jewel box containing numerous items of jewelry valued in excess of $100; a black tweed coat valued at $75; a red topper or half-length coat; an electric iron; a purse containing $110; a lady's watch which had been in the jewel box; and a gold ring.

Gloria Konski, 3442 Second Street, Brooklyn, Maryland, testified that on December 7, 1958, between 11:10 o'clock P.M. and 1:10 A.M. the following morning her home was broken into, entrance having been gained through a side window of the house, which was jimmied and the glass broken.Taken from her home in the burglary were a 17-inch table model Crosley television set for which she had paid $185, a pocketbook, a toaster, a quilt which she was in the process of making, some clothes which were on the kitchen table, a record player, two Bibles and a coat.Additional facts will be added as the questions to be decided progress.

I

The appellant first contends that the trial court erred in permitting the witness Curry to testify, over the objection of the defendant, to certain matters that the defendant claimed tended to criminate the witness.

Anna Mae Curry lived with Butz, to whom she was not married, at 41 S. Fulton Avenue.When the State began interrogating this witness, appellant's counsel raised the question that her testimony might be self-incriminating and she was advised by the court that she had the right to refuse to answer any questions which she thought would tend to criminate her.She was further advised by the court that during the luncheon recess she could consult an attorney concerning her rights.Upon the resumption of the trial, the Assistant State's Attorney advised that the State was granting immunity to this witness, and the court concurred in the granting of the immunity and ruled, without objection from the witness, that she must testify as immunity had been granted.Anna Curry said that she had seen the jewel box which was offered in evidence and its contents in her apartment at 41 S. Fulton Avenue while she was living there with Butz.She could not recall the exact date, but it was in December and possibly around Christmas time (she later testified she had one of the rings pawned about December 16), Butz gave her the jewel box and told her not to say anything about it, and she left it on the dresser until she was told by him that it had been stolen.He told her this when the police came to the apartment of one Fleenor, who lived on the floor beneath the apartment occupied by her and Butz.She thereafter took the jewel box to a 'woman's house' and then to another woman's residence; she'hocked' the lady's wrist watch, which had been in the jewel box for $7 and the ring for $2.The coat taken in the Konski burglary was in her closet until she discovered that it had been stolen, and she then took it, together with the jewel box, to the 'woman's house.'Following her direct testimony, the witness was questioned by the appellant's counsel as to her desire to testify, and with 'yes' and 'no' answers to counsel's leading questions she indicated that she would not have testified had she not been told by the judge to do so.

The appellant argues (a) that neither the court nor the prosecutor, without conferral of power by statute, can grant immunity to a witness, not an accomplice of the defendant, claiming the privilege against self-incrimination; and (b) that in Maryland, contrary to the great weight of authority elsewhere, the rule is that a defendant in a criminal case may, on appeal, take advantage of an erroneous ruling of the trial court in compelling a witness, who has claimed the privilege against self-incrimination, to testify.

The privilege against self-incrimination is a personal one and must be asserted by the witness, and, although it is by no means certain that Mrs. Curry properly claimed the privilege, for the purposes of this casewe shall assume that neither the court nor the prosecutor, without conferral of power by statute, could grant her immunity and that she properly claimed the privilege.With both of these assumptions in favor of the appellant, it avails him nothing.The privilege belonged to the witness, not to the defendant.Roddy v. Finnegan, 43 Md. 490, 502;Raymond v. State ex rel. Younkins, 195 Md. 126, 130, 72 A.2d 711.Cf.Richardson v. State, 103 Md. 112, 117, 63 A. 317.It is intended for the protection of the witness only and does not involve any right of the parties to litigation (unless, of course, the witness is also the party).8 Wigmore, Evidence (3rd Ed.), Secs. 2196, 2270.The testimony given by a witness, who has a proper claim of privilege, is not subject to objection on the ground of privilege at the instance of the defendant, but is competent evidence and admissible against him, if material.Chesapeake Club of Annapolis City v. State, 63 Md. 446, 455, 458.And if a witness makes a claim of privilege and it is improperly disallowed by the court, it is not reversible error on behalf of a party to the action.Wigmore, ibid, and other authorities named below.

In making the above ruling, we realize that it is not in conformity with one phase of the Chesapeake Club case, just referred to, and, insofar as that case is to be construed as a general holding to the effect that a defendant in a criminal case is entitled to a new trial because privileged, though material testimony of a witness, who is not a party, has been admitted in evidence, we decline to follow the same.That case involved a prosecution under the local option laws of Anne Arundel County.A rather unusual statute provided that no corporation should sell or give away any liquors within the county without being subject to penalty, and, in case of any violation of the provisions of the statute by a corporation, 'each or any member of such * * * corporation * * * shall be liable' and suffer imprisonment.Laws 1882, c. 112.The Chesapeake Club, a corporation, was indicted alone under the statute and a witness, who was a member of the club, was compelled to testify after personally claiming that his testimony would tend to criminate him.The court held that this was error and, without stating any other or specific reasons for granting the club a new trial, reversed and remanded the case for a new trial.

The ruling that we are now making is the one adopted by the English Courts, R. V. Kinglake, 11 CoxCr. 499, and is in accord with the overwhelming weight of authority in this country.Morgan v. Halberstadt, 9 Cir., 60 F. 592, 596;Beauvoir Club v. State, 148 Ala. 643, 42 So. 1040;State v. Cassady, 1948, 67 Ariz. 48, 190 P.2d 501;State v. Davis, 1945, 208 La. 954, 23 So.2d 801, 811;Parker v. Board of Dental Examiners, 1932, 216 Cal. 285, 14 P.2d 67;Samuel v. People, 164 Ill. 379, 45 N.E. 728;State v. Cobley, 128 Iowa 114, 103 N.W. 99;Cloyes v. Thayer, 3 Hill, 564, 566;State v. Morgan, 133 N.C. 743, 45 S.E. 1033;Phelin v. Kenderdine, 20 Pa. 354, 363;State v. Butler, 47 S.C. 25, 24 S.E. 991;3 Wharton, Criminal Evidence (12th Ed.) Sec. 729.Cf.2 Underhill, Criminal Evidence(5th Ed.) Sec. 357;Adams v. State, 200 Md. 133, 143, 144.

In the Cassadycase, supra, the Supreme Court of Arizona stated (190 P.2d 509): 'There is no merit to this assignment [witness compelled to give testimony after claiming privilege] for the reason that the privilege against incrimination is personal to the witness, and the accused is not entitled to have such evidence excluded which is claimed to have incriminated the witness.'Blackburn, J., in the Kinglake case tersely said, 'Granting that a wrong was done to the witness, it is a ground of complaint for him and no one else.'The New York court in Cloyes v. Thayer, supra, stated the principle thus: 'The privilege belongs exclusively to the witness, who may take advantage of it or not at his pleasure. * * *. If order to testify in a case where he is privileged, it is a matter exclusively between the Court and the witness.The latter may stand out and be committed for contempt, or he may submit; but the party has no right to interfere or complain of the error.'The other cases and text-writers cited above affirm the doctrine in similar language.

Insofar as we have been able to discover, Massachusetts is the only state that holds otherwise.In the early case of Com. v. Kimball, 1837, 24 Pick. 366, 368, it was held that if the evidence were incompetent by reason of seasonable objection by the party the verdict was not supported by legal evidence.This case was followed by another early case in Wisconsin, State ex rel. Hopkins v. Olin, 23 Wis. 309, 318; but, thereafter, the Supreme Court of Wisconsin has made two rulings in accordance with the majority rule.Ingalls v. State, 48 Wis. 647, 4 N.W. 785, 791;State ex rel. Kennon v. Hanley, 1946, 249 Wis. 399, 24 N.W.2d 683, 684.

II

The appellant, next, attacks the...