Day v. State

• Citation: 76 A.2d 729,196 Md. 384
• Decision Date: 15 November 1950
• Docket Number: 33.
• Parties: DAY et al. v. STATE.
• Court: Court of Appeals of Maryland

76 A.2d 729

196 Md. 384

DAY et al. v. STATE.

No. 33.

Court of Appeals of Maryland.

November 15, 1950

Louis E. Macht, Baltimore, for Gerald S. Day.

Ernest L Perkins, Baltimore, for Russell S. Lewis.

Kenneth C Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., J Bernard Wells, State's Atty., Baltimore City and W. H Maynard, Deputy State's Atty., Baltimore City, Baltimore, on the brief), for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARBURY, Chief Judge.

This is an appeal by Gerald Sylvester Day and Russell Sinclair Lewis from sentences of death, imposed after a joint trial and conviction by a jury in the Criminal Court of Baltimore for the murder of a trackless trolley operator. Day was represented by counsel employed by his family; Lewis was represented by counsel appointed by the court.

On October 5, 1949, at about 11:15 P.M., Officer Gardner of the Baltimore City Police Department, at that time off duty, saw a trackless trolley car at the curb with all lights off at the intersection of Carey Street and Westwood Avenue in the city of Baltimore. He went there and saw two men standing on the curb side looking in an open window. He recognized one of the men as Gerald Day. He had some words with him as to his presence there, and Day ran off. The other, a man whom the officer did not then know, but whom he later identified as Lewis, then also ran off. The officer looked into the trolley, saw someone lying on the floor, and noticed blood dripping out of the door. After an ambulance and other policemen arrived, he went into the trolley, found the driver stabbed, nearly dead, and a quantity of blood on the front platform. The driver was removed in the ambulance to a hospital where he was pronounced dead. Subsequently, in the early morning of the next day, Day was arrested, and later in the day, Lewis was arrested, both being taken on arrest to the Northwestern Police Station. After questioning, each of the appellants made statements. Their statements were first taken down by a police officer, then subsequently by a stenographer of the Supreme Bench in the presence of an assistant State's Attorney, and finally a joint statement was taken, all of which will be discussed later in this opinion. At the trial, four separate statements and part of the joint statement were admitted in evidence.

Petitions for severance were filed by each of the traversers on identical grounds, namely, that their interests were separate, that they had different counsel, and that the State had statements in its possession which, if offered and submitted in a joint trial, would be distinctly harmful and in violation of their rights guaranteed by the Constitution of the United States. These petitions were overruled and the joint trial then proceeded. During the course of the trial, the five statements were admitted, two by each of the defendants, and one, a joint statement, in all of which they contradicted each other. Each of the defendants admitted being present at the scene of the crime, that he knew the purpose of going to the trolley car was to rob the driver, but each accused the other of being the one who got in the car and, presumably, killed the operator. Each said that he, and not the other, remained outside and pulled the trolley pole from the wire so as to darken the interior of the vehicle. The court was advised at the time the motion for severance was made that these statements were to be offered, and it was obvious that if they were admitted, the only way the court could protect each traverser from the statements of the other against him was to instruct the jury (which was done) that each man's statement was evidence only against him and not against the other. The question before us is whether, in a case such as this, that was sufficient protection, or, in other words, whether, where the court knew that would be the only protection, should it have granted the motion for severance, and was its failure to do so arbitrary and in violation of defendants' right to a fair trial and, if so, is it subject to review by us.

It has been generally held in this State that the granting or refusing of motions to sever is within the discretion of the trial court under all the circumstances of each case. In Smith v. State, 106 Md. 39, 41, 66 A. 678, it is said that it is 'entirely' within the discretion of the trial court. As authority for this statement, the case of U. S. v. Marchant, 12 Wheat. 480, 6 L.Ed. 700, is given. In that case, in which the opinion was written by Justice Story on March 12, 1827, the history of the theory of severance is given to show that it was not a matter of right. It was so held, and, in conclusion, it was stated: 'In our opinion, it is a matter of sound discretion, to be exercised by the court with all due regard and tenderness to prisoners according to the known humanity of our criminal jurisprudence.' In Gray v. State, 173 Md. 690 (unreported), 195 A. 591, the general statement that severance is within the discretion of the trial court is made, and this case is cited as authority in the late case of Jones v. State, 185 Md. 481 at page 487, 45 A.2d 350. In the last mentioned case, however, there was an indication that some circumstances might justify this court in reviewing the action of the trial court. In that case the court said that there was no intimation that the defense of the respective defendants was hostile, and it might be assumed that it was not the case, that the matter was in the discretion of the court, there was no abuse of discretion, and the action of the court was correct.

There are a number of matters which are in the discretion of the trial court, but it is not true that in all of these matters there is no review. Thus, in a criminal case, where the question was whether the State might offer certain testimony in rebuttal, this court quoted Poe's Pleading and Practice, Vol. 2, § 287: 'The subject is one which is addressed to the sound discretion of the court; and the appellate court will not reverse for an error on this point, unless the ruling of the court below was both manifestly wrong and substantially injurious. Indeed, as a general rule, in such cases no appeal will lie.' (Emphasis supplied.) Jones v. State, 132 Md. 142, 149, 103 A. 459, 461. In another case, where the appellant had been sentenced to hang for murder, the same question arose and the same quotation from Poe was repeated. Snowden v. State, 133 Md. 624, 636, 106 A. 5. There is some confusion on the subject in both civil and criminal cases, and at times it has been decided flatly that there is no appeal from a matter in the discretion of the trial court. For example, Bannon v. Warfield, 42 Md. 22, 39; Watson v. Cook, 170 Md. 377, 381, 184 A. 908; Schneider v. Hawkins, 179 Md. 21, 25, 16 A.2d 861. We think, however, the correct rule is that stated by Chief Judge Bond in the case of Newcomer v. Miller, 166 Md. 675, 172 A. 242, 244, where he said: 'The existence of a discretion does not in all cases prevent review, however. While absolute in some cases, and not open to review, in others discretion is reviewable. (Citing cases.) The extent of discretion and the right of review differ according to the purpose of the discretion. Here the court is considering, not a mere regulation of order and progress in a proceeding in court, or in a matter in which the judge's close contact with the circumstances would give him an understanding preferable to that of judges on appeal, so that by reason of these or other circumstances it should defer to the judgment of the trial judge. It is considering an action which might have a much closer connection with essential justice.' The court in that case was considering the right of certain stockholders of a corporation to examine the books under circumstances in which receivers had been appointed who were claimed to be a debtor of the corporation and his counsel. It said '* * * it does not seem permissible to deny review on complaints of substantial wrong, as here' and reversed the lower court.

In the case of Northwestern National Insurance Co. v. Rosoff, Md., 73 A.2d 461, we held that our Rule Four of the General Rules of Practice and Procedure, Part Two, III, which gives the right to implead third parties in the discretion of the trial court does not necessarily mean that where the action of the trial court is clearly arbitrary, or has no sound basis in law or reason, it cannot be reviewed. We said, however, that we cannot reverse the judgment of a trial court unless there is grave reason for doing so.

A joint trial under the circumstances in this case would necessarily raise in the minds of the jury the question which of the defendants was telling the truth, or whether both were lying. Under such circumstances it would be a practical impossibility for the jurors to dismiss from their minds the statements of Lewis against Day when considering the Day case, and to dismiss the statements of Day against Lewis when considering Lewis's case. No juror, no matter how intelligent and how desirous of doing his duty, and obeying the instructions of the court could rid his mind of the impression necessarily made upon him by these statements of each of the defendants against the other. This court has said that an instruction given on behalf of one defendant to disregard statements made against him by another defendant is all that the court can do in a joint trial, but it has not passed upon the question whether the court could not or should not do more by way of granting a severance, if it is known to the court at the time the severance is asked that that situation is going to arise. In the case of Markley v. State, 173 Md. 309, at page 318, 196 A. 95 at...