Guy v. State

• Citation: 44 A. 997,90 Md. 29
• Parties: GUY v. STATE.
• Decision Date: 23 November 1899
• Court: Court of Appeals of Maryland

44 A. 997

90 Md. 29

GUY v. STATE.

Court of Appeals of Maryland

November 23, 1899

Appeal from circuit court, Harford county; James D. Watters, Judge.

George Guy was convicted for unlawfully selling intoxicating liquors, and he appeals. Affirmed.

Argued before MCSHERRY, C.J., and PAGE, PEARCE, FOWLER, BOYD, BOND BRISCOE, and SCHMUCKER, JJ.

John S Young and I. I. Archer, for appellant. Gaether, Atty. Gen W. W. Preston, and Geo. L. Van Bibber, for the State.

FOWLER J.

The defendant was indicted for unlawfully selling intoxicating liquors contrary to the local option law of Harford county. He was tried before a jury, found guilty, and sentenced to fine and imprisonment.

The state offered testimony by a competent witness tending to prove that during the month of March--some three or four months before the trial--the witness purchased whisky from the defendant. The state then rested. In order to meet the case thus made, the defendant went upon the stand of his own motion, and testified in his own behalf, to the effect that he did not sell any whisky as testified to by the prosecuting witness. Upon cross-examination by the state, the defendant was asked if he had a United States government or internal revenue license to sell spirituous or fermented liquors in Harford county. To the asking of this question the defendant objected, on the ground that the answer might criminate him, but his objection was overruled by the court, and the question was allowed to be asked, and the defendant was required to answer it. His answer was that he had not such a license for the sale of either spirituous or fermented liquors in Harford county. This ruling of the court forms the first exception. During the further progress of the trial the state called a witness in rebuttal, who testified that he had been a clerk in the internal revenue office for this state until the fall of 1898, and that the defendant had, at the time inquired of, an internal revenue license for the purpose above mentioned. The objection of the defendant to this question was overruled, and the witness was permitted to answer that the defendant had such a license to sell spirituous liquors in Harford county for one year, expiring on the 1st of July, 1899. This ruling constitutes the second exception. The defendant has appealed. We will briefly consider these two exceptions in the order in which they appear in the record.

1. That a witness cannot be compelled to answer a question, the answer to which it reasonably appears "will have a tendency to expose him to a penal liability or to any kind of punishment or to a criminal charge," has long been settled. It is also equally well settled that this "is a personal privilege of the witness, and must be claimed by him upon oath, and that, therefore, neither the party to the cause nor the counsel engaged will be permitted to make the objection." 1 Greenl. Ev. § 451. But while this general rule would undoubtedly control, and is recognized by our courts in the case of a witness who is summoned and compelled to testify (2 Poe, Pl. & Prac. 278), we do not think it should be allowed to prevail when, in a criminal case, the accused voluntarily testified in his own behalf. To apply the general rule to a case like the one before us seems to us not only contrary to reason, but against the weight of authority as well. In Maryland, as in other states, the person charged with a crime may by statute, at his own request, but not otherwise, be deemed a competent witness. And it would seem but right that, if a person so charged voluntarily becomes a witness in his own behalf, he should be held to have waived the privilege and protection which would otherwise have been afforded him by section 22 of the bill of rights and by the fifth amendment of the constitution of the United States. If he may tell the jury just so much as may make in his favor and keep back all that may make against him, on the ground that the facts so withheld may incriminate him, the statute which was passed to aid in ascertaining the truth would undoubtedly be used most successfully by criminals to conceal it, and thus enable them to deceive the jury and the court, and to escape punishment. In 8 Enc. Pl. & Prac. 147, it is said that "as a general rule, when the accused takes the stand in his own behalf, he changes his status from that of defendant to that of witness, and is subject to cross-examination as other witnesses. Consequently he waives his privilege of refusing to give evidence against himself as to all matters within the scope of proper cross-examination." This rule prevails in many of the states. It was said in Roddy v. Finnegan, 43 Md. 502, a civil case growing out of an alleged criminal act of one of the parties, although the question of privilege was not there presented, that, where one is both party and witness for himself, he must be held, on cross-examination, as waiving the privilege, as to any matter about which he has given testimony in chief. Having testified, said the court,...