Edwards v. State

• Citation: 83 A.2d 578,198 Md. 132
• Decision Date: 05 October 1951
• Docket Number: No. 147,147
• Parties: EDWARDS v. STATE.
• Court: Court of Appeals of Maryland

Page 132

198 Md. 132

83 A.2d 578

EDWARDS v. STATE.

No. 147.

Court of Appeals of Maryland.

Oct. 5, 1951.

Wm. J. McWillams and Ridgely P. Melvin, Jr., both of Annapolis, for appellant.

Robert M. Thomas, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and Anselm Sodaro, State's Atty. of Baltimore City, Baltimore, and Jas. C. Morton, Jr., State's Atty. for Anne Arundel Co., of Annapolis, on the brief), for appellee.

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

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PER CURIAM.

The vigor and earnestness which have marked the defense in this case are manifest in the motion for reargument. Counsel assail the conclusion reached by this court and its reasoning on the several matters of fact or evidence discussed in the opinion and previously in the briefs and at the oral argument. They say their 'most important single contention * * * was that the evidence, being entirely circumstantial, did not exclude to a moral certainty every other reasonable hypothesis than that of guilt. * * * this is the first time the question has been squarely presented to this court and it was hoped that the court would adopt or reject the rules which have been followed in other jurisdictions for many years. But it appears that the court has failed to give the question any consideration whatever. * * * The court's opinion becomes authority for the proposition that Maryland has no definite rules for the appraisal of circumstantial evidence, upon which, as in this case, a man's life may be forfeit * * *. If each trial court is to be allowed to adopt and apply its own conception of the proper circumstantial evidence rule how can this court ever say that the judgment of the trial court is clearly erroneous, especially when the trial court, as in this case, does not disclose which rule is followed, if any? * * * If trial courts can believe or not believe, as fancy dictates, undisputed and uncontradicted alibi testimony, especially where the state has not proved the presence of the defendant at the place and at the time of the crime, then alibi has become a vestigial defense. * * * for this court to say that the trial court can elect to believe or disbelieve, where there is no conflict, where the testimony is undisputed, uncontradicted, inherently credible and from unimpeached witnesses, is an act of appellate abdication.' If the opinion of this court warrants there assertions, then (aside from the vital importance of this case to Edwards himself) this court,

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in construing and applying its own rules which broadened--or were supposed to broaden--the scope of appellant review in criminal cases, has produced confusion worse confounded as to the relation of appellate review to credibility of testimony.

No case in this court has involved the application of the 1950 amendment of section 5 of Article 15 of the Maryland constitution, see Laws 1949, c. 407. In Wright v. State, Md., 81 A.2d 602, decided the same day as the instant case, application of that amendment was missed by one day. That case involved the application of Rule 6(b) (before it was amended in 1951) of the rules of criminal procedure effective January 1, 1950. Lambert v. State, Md., 75 A.2d 327, like the instant case, involved application of Rule 7. The terms of Rule 7 and the antecedents of that rule in this court and in the Supreme Court leave no doubt that the scope of appellate review, with respect to credibility of witnesses is exactly as stated in Rule 7(c), viz., 'Upon appeal the Court of Appeals may review upon both the law and the evidence to determine whether in law the evidence is sufficient to sustain the conviction, but the verdict of the trial court shall not be set aside on the evidence, unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' Even superficial comparison of Rule 7 of the criminal rules with Rule 9, pt. 3, subd. 3, of the civil rules, effective in 1941, the previous decisions of this court in equity cases, Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., effective in 1938 and Rule 23 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., effective in 1946, shows both the substantial identity of the scope of appellate review and also minor differences in procedural details with respect to credibility of witnesses, in law, equity and criminal cases, in Maryland and in the federal courts. Criminal Rule 7(c) provides that 'the verdict of the trial court shall not be set aside on the evidence, unless clearly erroneous, and due regard shall be given to the opportunity of the

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trial court to judge of the credibility of the witnesses.' Rule 7(a) provides, 'The Court [sitting without a jury] may render such verdict without comment, or it may state in open court the grounds for its decision.' Rule 9(c) of the civil rules provides, 'When a proceeding has been so tried by the court, an appeal from the judgment, if allowed by law, may be taken according to the practice in equity. Upon appeal the Court of Appeals may review upon both the law and the evidence, but the judgment of the trial court shall not be set aside on the evidence, unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. The Court of Appeals may affirm, reverse, modify, or remand, as in appeals from equity.' Rule 9(a) provides, 'The court shall dictate to the court stenographer, or prepare and file, a brief statement of the grounds for its decision and the method of determining any damages awarded.' Code 1947 Supp. page 2053. Rule 52(a) of the Federal Rules of Civil Procedure requires findings of fact and provides, 'Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' Rule 23(c) of the federal rules of criminal procedure provides, 'In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially.' In the instant case the defendant complains that the trial court gave no reasons for its verdict and made no special findings of fact. It is sufficient in this respect to note that criminal Rule 7 is different from civil Rule 9 and from the federal civil Rule 52(a) and the federal criminal Rule 23(c).

It is also to be noted that application of Rule 7 cannot be 'an act of appellate abdication', since Rule 7 is the first and only source of authority for appellate review of facts in criminal cases. Until adoption of the federal and Maryland rules of civil and criminal procedure there was (perhaps with special exceptions under federal

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statutes) no appellate review of facts at all in the federal or Maryland courts in civil cases at law or in criminal cases. The reason for this fact was historical and statutory, and Maryland and Congressional statutory history were different, but the fact is beyond question or doubt. Until Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, power to waive trial by jury in a criminal case in a federal court was doubted. Under Rule 23(a) criminal cases shall be tried by jury 'unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government'. Consequently, in Maryland trial of criminal cases without a jury is rare in the federal court, though trial by jury is relatively rare in the state courts.

Some years before the adoption by this court of the rules of civil or criminal procedure, but comparatively late in the history of Maryland, this court recognized that in an equity case the chancellor who 'had the benefit of the presence of the witnesses * * * was in a better position to judge of the credibility of testimony', Coburn v. Shilling, 138 Md. 177, 199, 113 A. 761, 769, and 'found occasion, in numerous decisions, to enunciate the rule that this court is loath to reverse the lower court upon a finding of fact, unless the evidence clearly demonstrates that such finding was erroneous, for the sufficient reason, often stated, that the chancellor has the benefit of seeing and hearing the witnesses, observing their manner of testifying and general demeanor; or, in other words, having the benefit of the atmosphere surrounding the trial.' Sporrer v. Ady, 150 Md. 60, 70, 132 A. 376, 380. Though this rule or similar rules had previously been enunciated by other courts, this court regarded the rule as a glimpse of the obvious and not as resting on authority from other jurisdictions. The application of the rule is not always obvious, but the rule was repeatedly enunciated in equity cases before (as it has been since) it was carried over, by rules of court, from equity procedure to cases at law and criminal cases. Oertel v. Oertel, 145 Md. 177, 178-179, 125 A. 545; Bortner v.

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Leib, 146 Md. 530, 546, 126 A. 890; Gimbel v. Gimbel, 148 Md. 182, 187, 128 A. 891; Pattison v. Brydon, 150 Md. 575, 584, 133 A. 328; Farmers' Milling & Grain Co. v. Urner, 151 Md. 43, 50, 134 A. 29; Moran v. O'Brien, 156 Md. 221, 222, 144 A. 257; McClees v. McClees, 160 Md. 115, 119, 152 A. 901; Jacobs v. Jacobs, 170 Md. 405, 413-414, 185 A. 109; Garner v. Garner, 171 Md. 603, 615, 190 A. 243. The reason for the comparatively late enunciation of this rule in equity cases was the opposite of the reason for the still later application of it, by rules of court, in cases at law and criminal cases. In the latter cases affirmative action was needed because there had been no appellate review of the facts at all in such cases. In equity cases on appeal (unlike writ of error) questions of fact as well as questions of law had always been reviewable, but until testimony was taken in open court the chancellor had no better opportunity than this court to judge of the credibility of the witnesses. Taking of...