Carey v. State

• Decision Date: 22 June 1928
• Docket Number: 25.
• Citation: 142 A. 497,155 Md. 474
• Parties: CAREY v. STATE.
• Court: Maryland Court of Appeals

142 A. 497

155 Md. 474

CAREY v. STATE.

No. 25.

Court of Appeals of Maryland

June 22, 1928

Appeal from Criminal Court of Baltimore City; Joseph N. Ulman Judge.

Charles P. Carey was convicted of first degree murder, and he appeals. Affirmed.

Adkins J., dissenting.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Fendall Marbury, of Baltimore, for appellant.

John Hubner Rice, Asst. Atty. Gen., and Herman M. Moser, Asst. State's Atty., of Baltimore (Thomas H. Robinson, Atty. Gen., and Herbert R. O'Conor, State's Atty., of Baltimore, on the brief), for the State.

PATTISON J.

The appellant, Charles P. Carey, was jointly indicted with Benjamin F. Spragins in the criminal court of Baltimore city for murder.

The case of Spragins was removed to the circuit court for Baltimore county, where he was tried and convicted of murder in the first degree, and sentenced to death.

Carey's case remained in the criminal court of Baltimore city, where he was tried and likewise convicted of murder in the first degree, and sentenced to be hanged. It is from that judgment that the appeal in this case was taken.

In the trial of the case, twenty-three exceptions were taken to the court's rulings upon the admissibility of evidence.

Both Carey and Spragins were, at the time of the commission of the offense, confined in the Maryland penitentiary, Carey serving a life sentence, and Spragins a term of years.

On July 5, 1927, they attempted to escape from that institution, and in the attempt Alfred H. Walker, a guard, was killed, and Carey was twice shot. After the excitement incident thereto had subsided, Carey was carried to the prison hospital for treatment, and, while there, he, on the 8th day of July following, made a statement, in the form of questions and answers, of his participation in the attempted escape and the killing of Walker, to Herbert R. O'Conor, state's attorney for Baltimore city, in the presence of Herman M. Moser, his assistant, Patrick J. Brady, warden of the Maryland penitentiary, and Robert B. Ely, one of the official court reporters, who reduced the statement to writing.

The third exception was taken to the admission of this statement in evidence; the ground of the exception being that the state had failed to show that it was voluntarily made by the appellant, and that it was not obtained from him by improper means.

The law is well settled, in this state, that, before a confession, or statement of the character of the one before us, becomes admissible in evidence, it must be shown, to the satisfaction of the court, that it was freely and voluntarily made and not obtained by threats, or promises of advantage to the defendant, to be derived therefrom, and the burden of showing affirmatively that it was freely and voluntarily made, and not induced by wrongful means, is upon the state. Nicholson v. State, 38 Md. 140; Biscoe v. State, 67 Md. 6, 8 A. 571; Ross v. State, 67 Md. 289, 10 A. 218; Rogers v. State, 89 Md. 424, 43 A. 922; Deems v. State, 127 Md. 624, 96 A. 878; Dobbs v. State, 148 Md. 34, 129 A. 275.

As was said in Biscoe v. State, supra:

"There is no difficulty in regard to the rule itself, the trouble is in the application of the rule to the facts of each particular case, that is, whether it was a free and voluntary confession, or whether it was procured by the influence of another under a hope of favor or advantage is made, or fear of harm or disadvantage of some kind if withheld. It is not, of course, an easy matter to measure in all cases the force of the influence used, or to decide as to its precise effect upon the mind of the prisoner; much, very much, we may add, depends upon the age, the experience, the intelligence and character of the prisoner. And it may be, that courts leaning to the side of mercy, have, in some cases, excluded confessions, when it is difficult to see how the alleged inducement had any influence on the mind of the prisoner."

The reasons for the rule are very clearly and convincingly told in Wharton's Criminal Evidence, par. 622e, and the ultimate test in all cases is:

"Was the situation such that there was a reasonable probability that the accused would make a false confession?"

In this case, the state, in the assumption of the burden so imposed upon it by this rule, placed upon the stand as witnesses those persons who had been in immediate charge of Carey between the time of the shooting and the confession. These were Earl H. Owens, who was on duty between 8 a. m. and 4 p. m., Charles A. Schultz between 4 p. m. and midnight, and William F. Denton between midnight and 8 a. m.

Owens testified that, while the appellant was in his charge, neither he nor any one else said anything to Carey about the case. Schultz testified that nothing was said by him or by any other persons to Carey about the shooting, while witness was on duty. Denton, when asked if he, or any one else, had conversations with the defendant, said he had never heard it mentioned, while the appellant was in his charge. Patrick J. Brady, the warden, who saw Carey every day during the period between the shooting and the time when the confession was made, testified that only on two occasions, the 5th and the 8th of July, was the case discussed, and at neither of those times did he or any one else make any promises to the defendant.

It was said by Brady that before the statement was made the state's attorney said to Carey "something along the line that it (the statement) may be used against him, and was asked if he wanted the stenographer to take it down," and Carey said, "Yes." After the statement was made, the state's attorney said to Carey, "Well, now, Country (Charles P. Carey), let me make this plain to you. If there is anything you want to say, even anything I haven't asked you about, that would explain your position, you can do so, you are at perfect liberty to say it. Of course, as I told you from the outset, I can't offer you anything?" Carey replied, saying, "Well, you know me well enough to know that I don't want any immunity or anything." It is contended by the defense that the evidence produced by the state was not sufficient to show that the statement was voluntarily made without threats or improper inducements.

The question as to the admissibility of the statement in this case, like other preliminary questions, was one to be determined by the court upon the facts and circumstances produced in evidence, and, to have held it admissible, the court should have been satisfied from such evidence, that the statement was freely and voluntarily made and not obtained by wrongful means, and in the determination of this question is involved the inquiry, "Was the situation produced by that evidence such that there was a reasonable probability that the accused would make a false statement" or confession? and this, as we have said, was the ultimate test to be applied in determining the admissibility of the statement, and, if it were found that there was no such reasonable probability, then the court was right in its ruling in admitting the statement.

In this case it is not claimed by the defense that any threat or wrongful inducement was made to obtain the statement. It contends, however, that the state has not produced evidence sufficient to show that there was no threats or improper inducements made inducing the appellant to make the statement. The omissions complained of by them are: (1) That while Brady testified that he "made no promises on the 8th (July) or promise or threat between the 5th and the 8th," and that he also "made no promise on the 5th * * * he nowhere says that he made no threats either on the 5th or 8th"; (2) that Schultz testified that he had no conversation with Carey, but he did not say no one else had a conversation with Carey concerning the...