Gray v. State

• Decision Date: 16 March 1943
• Docket Number: 19.
• Citation: 30 A.2d 744,181 Md. 439
• Parties: GRAY v. STATE.
• Court: Maryland Court of Appeals

30 A.2d 744

181 Md. 439

GRAY v. STATE.

No. 19.

Court of Appeals of Maryland

March 16, 1943

Appeal from Circuit Court, Allegany County; D. Lindley Sloan and William A. Huster, Judges.

Vernon Elwood Gray was convicted of manslaughter, and he appeals.

Affirmed.

Edward J. Ryan and William A. Gunter, both of Cumberland, for appellant.

Robert E. Clapp, Jr., Asst. Atty. Gen. (William C. Walsh, Atty Gen., and Morgan C. Harris, State's Atty., and Paul Fletcher, Asst. State's Atty., both of Cumberland, on the brief), for appellee.

Before DELAPLAINE, COLLINS, MARBURY, GRASON, and MELVIN, JJ.

GRASON Judge.

On the 12th day of June, 1942, at about 11:30 A. M., Vernon Elwood Gray killed Norman Emerick at Allegany County, and was subsequently, by a Grand Jury of said County, indicted for murder. He pleaded 'not guilty', went to trial before a jury of his selection, in the Circuit Court for said County, on the 13th day of July, 1942, and on the 16th day of July following the jury, by its verdict, found him 'guilty of manslaughter and not guilty of murder'. On the 23rd day of July he was sentenced by the Court 'to confinement in the Maryland House of Correction for the period of three years'. From this judgment and sentence the Traverser brings his appeal to this Court.

This homicide occurred at a little village called Corrigansville not far from the city of Cumberland. Gray and his wife, who had no children, lived next door to the deceased who was married and had several children.

Almost immediately after the occurrence Gray requested a neighbor to inform the authorities and very shortly thereafter the sheriff and other officers appeared at the scene of the killing, procured the shotgun, the discharge from which killed Emerick, and the shell which had been fired. He was taken into custody by the authorities and brought to Cumberland. Terrence J. Boyle, who was at the time County Investigator, testified that Gray told him: 'that the gun had laid unloaded until the night of the 11th of June (this affair happened at nearly noon of the 12th) that the night of the 11th, he loaded the gun because he wanted some protection around the house; that Gray said so far as he knew, Mrs. Emerick and the children saw the shooting; that Gray said the next thing he did after shooting Emerick, was to strike him with the gun, with the stock of the gun; that Gray said the reason he did not stay in the house when he went in was because he wanted to have it out with him, that he knew it would be renewed if they didn't settle it that day and there; that Gray identified the gun and the shell'. This evidence was given on direct examination and without an objection on the part of the defense. On cross-examination he testified that he took a statement from Gray and that he imagined the State's Attorney had it. Whereupon the defense called for this statement and moved to strike out the evidence of Boyle quoted above, on the ground that it was not the best evidence; which motion the Court overruled and this ruling is the subject of the First Bill of Exceptions. Thereafter the Court stated: 'With regard to offering the statement, we haven't passed on that. Mr. Harris used that like any other notes. Mr. Boyle didn't read anything. Mr. Boyle didn't read it as a confession. It didn't go into evidence, but he had this confession.' The Court further said: 'We think as far as you can go under the circumstances--he has already recited the fact that he had certain conversations with him and that he said certain things. He can be asked on cross examination what else he said, and you have your client sitting behind you who knows all of what was said or ought to know.'

Mr. Gunter, of counsel for accused, then said: 'We understand that. We still think that when he takes that confession and reads a part of it to Mr. Boyle----' Mr. Harris: 'I read nothing from it.'

The Court then said: 'If he had introduced part of the confession, he would have had to offer all of it or give it to the Defendants so that they could use it.'

Mr. Ryan, of counsel for the defense, said: 'That is all right, but can he do----'

The Court: 'That is what was said in the Walters case [infra].'

And counsel for the defense asked: 'Can he do indirectly what he tried to do----'

Whereupon the Court said: 'The point with us is that he didn't offer the confession as such.' 'We will sustain the State's objection to its production.'

This constitutes the Second Bill of Exceptions.

After this Boyle went into a long and detailed account of Gray's confession, which embodies two pages of the printed record. He stated that this confession was reduced to writing and signed and sworn to by Gray. Without detailing this evidence it is sufficient to say that it constituted a confession by Gray that he unlawfully killed Emerick. The witness further stated that if he saw the statement (the written confession) it would refresh his recollection as to any further statements that were made. Again the defense called for this written statement, which was objected to by the State and sustained by the Court. This ruling constitutes the Third Bill of Exceptions.

Mr. Boyle was recalled by the defense for further cross examination. He was asked by Mr. Ryan: 'When you testified this morning concerning your recollection concerning the statement made by Mr. Gray in the State's Attorney's office, how long before you testified was it that you had refreshed your recollection by reading that statement?' This was objected to by the State and sustained by the Court as 'immaterial'. This constituted the Seventh Bill of Exceptions. These rulings may be considered together.

It is the contention of counsel for Traverser that the Court in allowing the witness to give his verbal account of the confession constitutes a violation of the best evidence rule, in that the written confession which had been read over, signed and sworn to by the prisoner, was, in fact, the best evidence of what it contained. This was the sole objection to the series of rulings now considered. This subject has been dealt with by many of the courts of this country and the decisions are not harmonious. A number of states have provided by statute that written evidence must be produced and that verbal contents thereof is inadmissible unless a proper foundation is laid. Mr. Wharton, in his work on Criminal Evidence, at page 384, states the rule as follows: 'Primary evidence, or as it is more accurately termed, the best evidence, is that kind of evidence which assures the greatest certainty of the fact sought to be proved. In criminal prosecutions it is an essential requisite that only the best evidence shall be received to prove the charge against the defendant, which means that no evidence is to be received that indicates that there is still better proof of the fact in the possession or under the power of the party producing it.' Further: 'The reason of the rule that secondary evidence shall not be substituted for evidence of a higher nature which the case admits of is that an attempt to submit the inferior for the higher implies that the higher would give a different aspect to the case of the party introducing the lesser. The ground of the rule is a suspicion of fraud.'

In Williams v. State, 26 Ala.App. 531, 163 So. 663, at page 664, it was said: 'When declaration is reduced...