Contee v. State

Decision Date17 October 1962
Docket NumberNo. 27,27
Citation184 A.2d 823,229 Md. 486
PartiesGordon Leon CONTEE v. STATE of Maryland.
CourtMaryland Court of Appeals

Robert C. Heeney and Victor L. Crawford, Rockville (Fairbanks, Heeney & McAuliffe, Rockville, on the brief), for appellant.

Robert C. Murphy, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and Leonard T. Kardy, State's Atty. and James Miller, Asst. State's

Atty., for Montgomery Co., Rockville, on the brief), for appellee.

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

HENDERSON, Judge.

The appellant was convicted of rape in a former trial and on appeal the judgment was reversed. Contee v. State, 223 Md. 575, 165 A.2d 889. Upon remand the case was removed for trial to another county and the accused was again convicted and sentenced to life imprisonment.

No question of the sufficiency of the evidence of rape is raised in this appeal, and it will suffice to say that there was evidence that it was performed, under threat with a knife, in the presence of an off-duty nurse occupying the same apartment as the prosecuting witness, who was then an outpatient at a mental institution.

The first point raised on this appeal is the refusal of the trial court to ask the jurors upon their voir dire the following questions: '(3) If you considered all the evidence in this case and then had a reasonable doubt as to the guilt of the accused, would you nevertheless vote for conviction because you felt you would be subject to the scorn of your fellow man because you would be voting for the acquittal of a negro accused of raping a white woman?

'(4) Would the fact that a white woman accuses a negro of a rape of her person so prejudice your mind that you would return a verdict of guilty on less or slighter evidence than if the accusing person was a negro and the defendant was a white man?'

The trial court did, however, unlike the situation in the prior appeal which caused the reversal and in Brown v. State, 220 Md. 29, 150 A.2d 895, propound a general question on the subject of racial prejudice. That question was: '3. If chosen as a juror, will you in this case render a fair and impartial verdict based on the law and evidence without bias or prejudice, and without regard to the race, creed or nationality of the accused?'

The matter of the examination of jurors on their voir dire, to probe for the possible existence of racial prejudice as a ground for disqualification has been so recently and so completely discussed that it is unnecessary to deal with it here at length. In Giles v. State, 229 Md. 370, 378, 183 A.2d 359, the most recent case on the subject, we held that a general question in a rape case, along the lines of that propounded in the instant case, would suffice, even though the court might well have propounded a more specific question in regard to prejudice where the prosecuting witness was white. In Humphreys v. State, 227 Md. 115, 120, 175 A.2d 777, we left open the question answered in the Giles case, pointing out that failure to ask a question, in addition to the general question, as to 'less or slighter evidence' in case of a Negro charged with raping a white woman, was not prejudicial because the jurors knew that the case involved such a charge. In the instant case it clearly appears from the docket entries that the accused was arraigned in the presence of the jurors, who knew his race, but it is not as clear as in the Humphreys case as to the race of the alleged victim, although the form of the court's question would seem to suggest it. In any event, we think the Giles case is controlling, and we find no prejudice in the failure to ask the more specific question, or to propound the other question as to 'scorn of your fellow man,' which was simply designed to accomplish the same end in more dramatic language. See also Glaros v. State, 223 Md. 272, 164 A.2d 461 and Lee v. State, 164 Md. 550, 165 A. 614. The cases all agree that the matter rests in the sound discretion of the trial court, and we find no abuse of discretion.

The appellant next contends that the transcript of the testimony of the prosecuting witness, taken at the prior trial and transcribed by the Court Stenographer should not have been read to the jury. At the outset of the second trial the State offered the testimony of Dr. Jacob J. Miller, a qualified psychiatrist and the Clinical Director of Northville State Hospital in Michigan, that Nancy Somers, the prosecuting witness, had been permanently committed to said institution by order of the Probate Court of Wayne County, Michigan, and that she had been adjudicated to be insane by that tribunal. He testified that he had examined her on numerous occasions, the last time being a few days before the trial, and expressed the opinion that she was suffering from mental illness and psychosis, and that she was 'incapable at this time'. That she had exhibited suicidal tendencies was only one of the factors on which this opinion was based. He further testified that under the McNaghten rule, with which he was familiar, she was unable to distinguish between right and wrong or to understand the nature and consequences of her acts, and that she 'would be legally insane' under that test.

It is well settled that testimony taken at a former trial may be admitted, if it be shown that the witness is dead, insane, or beyond the jurisdiction of the court, or on diligent inquiry cannot be located, or that some other circumstance exists which shows that the witness who gave the testimony at the former trial cannot be procured as a witness at the second trial. This general rule was stated in Hendrix v. State, 200 Md. 380, 387, 90 A.2d 186, and in somewhat different form in Bryant v. State, 207 Md. 565, 587, 115 A.2d 502. See also Marshall v. Haney, 9 Gill. 251, 257; Rogers' Lessee v. Raborg, 2 Gill. & J. 54, 60; Bowie v. O'Neale, 5 Har. & J. 226, 234. For a discussion of the principles involved and the authorities elsewhere, see 5 Wigmore, Evidence (3rd ed.) § 1406 et seq.; 2 Jones, Evidence (5th ed.) § 313; 2 Wharton, Criminal Evidence (12th ed.) § 479; Notes 15 A.L.R. 495; 79 A.L.R. 1392; 122 A.L.R. 425; 159 A.L.R. 1240. The writers and authorities all agree that where there was an opportunity to cross-examine the witness in the former trial, there is no violation of the right to be confronted with the witnesses against the accused, under Art. 21 of the Maryland Declaration of Rights or under the Due Process clause of the Fourteenth Amendment to the Federal Constitution. Since there is no constitutional right involved, there has been a discernible tendency, we think, to liberalize the rule, which was first applied ex necessitate in case of death.

The appellant argues, however, that there was no sufficient predicate laid by way of proof of insanity or unavailability. It is true that the preliminary proof of insanity cannot rest upon mere hearsay that the witness is in a mental institution. Bielski v. Rising, 163 Md. 492, 495, 163 A. 207. But there was direct testimony in the case at bar by the Director of the Institution to which she had been committed as to the status of the witness. We think the McNaghten test of criminal...

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22 cases
  • Huffington v. State
    • United States
    • Maryland Court of Appeals
    • September 1, 1984
    ...rule be admitted at a subsequent trial where it is satisfactorily shown that the witness is unavailable to testify. Contee v. State, 229 Md. 486, 184 A.2d 823 (1962); Bryant v. State, 207 Md. 565, 115 A.2d 502 (1955); Hendrix v. State, 200 Md. 380, 90 A.2d 186 (1952). These cases generally ......
  • Gregory v. State, 1411
    • United States
    • Court of Special Appeals of Maryland
    • September 6, 1978
    ...In neither case was the admission of the report objected to on confrontation grounds. 18 See, for example, Contee v. State, 229 Md. 486, 491, 184 A.2d 823, 825 (1962), Cert. denied 374 U.S. 841, 83 S.Ct. 1895, 10 L.Ed.2d 1062 (1963): "It is well settled that testimony taken at a former tria......
  • Crawford v. State
    • United States
    • Maryland Court of Appeals
    • March 27, 1978
    ...rule be admitted at a subsequent trial where it is satisfactorily shown that the witness is unavailable to testify. Contee v. State, 229 Md. 486, 184 A.2d 823 (1962); Bryant v. State, 207 Md. 565, 115 A.2d 502 (1955); Hendrix v. State, 200 Md. 380, 90 A.2d 186 (1952). These cases generally ......
  • Wilhelm v. State
    • United States
    • Maryland Court of Appeals
    • September 26, 1974
    ...the hearing of the jury which is likely or apt to instigate prejudice against the accused,' Contee v. State, 223 Md. 575, 584, 165 A.2d 889, 894-895 (1960), 229 Md. 486, 184 A.2d 823 (1962), cert. denied, 374 U.S. 841, 83 S.Ct. 1895, 10 L.Ed.2d 1062 (1963); or, in derogation of the defendan......
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