Jackson v. State

• Decision Date: 17 June 1942
• Docket Number: 9-11.
• Citation: 26 A.2d 815,180 Md. 658
• Parties: JACKSON et al. v. STATE.
• Court: Maryland Court of Appeals

26 A.2d 815

180 Md. 658

JACKSON et al. v. STATE.

Nos. 9-11.

Court of Appeals of Maryland

June 17, 1942

Appeals from Criminal Court of Baltimore City; Samuel K. Dennis Judge.

Wilbur Jackson, Frank Williams and Freeman Holton were convicted of murder, and they appeal.

Affirmed.

William Curran, of Baltimore, for appellant Jackson.

Morton P. Fisher, of Baltimore, for appellant Williams.

E. Paul Mason, of Baltimore, for appellant Holton.

Robert E. Clapp, Jr., Asst. Atty. Gen., and Joseph G. Finnerty Asst. State's Atty., of Baltimore (Wm. C. Walsh, Atty. Gen., and J. Bernard Wells, State's Atty. and Douglas N. Sharretts, Asst. State's Atty., both of Baltimore, on the brief), for appellee.

Before BOND, C.J., and SLOAN, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.

SLOAN Judge.

This appeal is from sentences of death imposed on the appellants, three young colored men, Wilbur Jackson, alias Will Jackson, Frank Williams, alias Zipp Williams, and Freeman Holton, all of whom had been jointly indicted, and charged with the murder on August 4, 1941, of Louis Pertnoy. They did not ask for a severance and were jointly tried. They were without the financial ability to employ counsel, and the Court appointed three able and experienced attorneys, who could not have given better service for any amount of compensation. Not only that, they have paid for a large and expensive record at their own cost.

The case was tried by a jury. Thirty-one exceptions were taken during the trial, the first during the selection of the jury on a challenge to the array, the 30th and 31st to statements made by the State's Attorney, during his closing address to the jury, the others to rulings on the evidence.

During the selection of a jury, the jurors drawn for the criminal court had been exhausted, and panels from other courts had been called into the criminal court; and when the panel from the City Court, Part III was being examined on their voir dire, counsel for defendants challenged the array, on the ground that the composition of the jury was in violation of the Federal and State Constitutions, counsel saying that 'Out of the whole fifty-two so far submitted, there were only two colored men.' There is nothing else in the record concerning the personnel of the jury, and from this we are asked to declare that there was prejudice in the selection of the jury. It is argued that prejudice can be assumed from the presence as petit jurors of two colored men out of fifty-two, or one-twenty-fifth, in a city where about one-sixth of the population is colored; and from this alone, we are asked to declare that there was prejudice in the selection of the jury. Jurors are selected in Baltimore under and in accordance with sections 687-711 of the Baltimore City charter, sections 602-620, Article 4, Local Code, and subject to the provisions of sections 1-5, Article 51, of Code (1939). The judges of the Supreme Bench first select 750 'or thereabouts,' from the tax and poll books. From these twenty-three are selected as grand jurors, of the remainder, 400 are selected by lot, to serve on the several panels required for the term, and in addition 100 are selected subject to call if the business of the Courts requires their services. The record does not contain any evidence that colored men were excluded, either from the ground jury or from the remaining seven hundred or more from whom the petit jurors are drawn. Where the jurors are drawn by lot, no one can know what names will come out or on what juries any of those drawn will sit. In this case the complaint, on which the challenge was based, was that the names of two colored men had been submitted out of 52 called to that time. The composition of the panel cannot determine the question of prejudice; it is whether the large list out of which the juries are drawn shows that colored men are excluded because they are colored. Bush v. Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354; Franklin v. South Carolina, 218 U.S. 161, 30 S.Ct. 640, 54 L.Ed. 980; Lee v. State, 163 Md. 56, 64, 161 A. 284. It is not the mere fact that they are colored and their names omitted from the jury lists that determines the question of prejudice, but it must appear from some substantial evidence that the manner and practice of selecting jurors shows that they are intentionally excluded. When this appears, prejudice is inferred. Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567; Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757; Lee v. State, supra.

There is no evidence of prejudice in this record, and the challenge to the array was properly overruled.

Louis Pertnoy, the man who was murdered, on August 4, 1941, was acting as cashier at the Radio Theatre, on Eden Street, Baltimore, which was operated by his father. He left about 10:20, with the day's receipts, and headed for his automobile parked near the theatre. As he reached it, he threw a bag containing the money on the front seat; and as he was about to get in the car, he was held up, and the money demanded. Whether he refused or resisted doesn't appear, except that Williams is reported to have said, that he had shot a man; and if he had given the money, he would not have shot him. Whoever did it was scared off and ran without getting the money, which was found on the front seat of the car after Mr. Pertnoy had been shot, and escaped in an automobile which was driven by Jackson, and evidently stolen by him. Suspects were taken in by the police as found, and it was three days before the three defendants were found and arrested. The defendants, and other suspects, were all questioned at the Northeastern Police Station by Captain William J. Forrest, the questions and answers being taken and transcribed by police stenographers.

The statement of Jackson was interspersed by frequent, brief, statements from all of the other suspects, all of whom, including the defendants, exception two, one called 'Nusie Boy,' one, James Ruff, testified at the trial. The statement of Holton was confined to an examination of him by the Police Captain. The first statement to get into the record was that made by Chase, the State's leading witness, and was introduced at the instance of Williams, obviously for the purpose of reflecting on his credibility, and to contradict statements he had testified to. Objections were made by the other defendants. The Court then said to counsel objecting, 'So far as your client is concerned, the paper is not in. It could not be in as to any of them, but Williams could not object as it was read into Chase's evidence, at his (Williams) instance.'

The major part of the contentions of the defendants, and most strongly urged at the trial and in the argument on appeal, was to the introduction of the confessions of Jackson and Holton. Before they were received in evidence, the Court, out of the presence of the jury, took evidence of the officers, of a police stenographer, and of the defendants, as to the voluntariness of the statements made by Jackson and Holton. They both testified that they had been assaulted by the officers with a piece of rubber hose, and cursed at and otherwise abused. Williams, who did not confess, said, 'I had marks and scars on me (indicating). Jackson's mouth was bleeding. * * * I have marks now on my forehead, over my nose, on my right cheek, and a big scar on my right eyelid. The only time I saw Jackson was at the Captain's office. I don't know what they were doing in the Captain's office. The lady was writing it down.'

Captain Forrest, Sergeant McHale, Officer Roche, and James T. Holden, stenographer, whose evidence is all set out in the record, all denied that there were any threats or promises or that they had been beaten or abused. As Officer Roche said, 'it wasn't necessary.' Sergeant McHale said of Holton, 'This boy just opened up and told everything.' Two other sergeants and two other officers, whose testimony is not set out at length, according to the record, 'testified that no threats, promises, or inducements were made' to Jackson, and no violence committed on Jackson, while in their presence and custody.

A reading of the statements of Jackson and Holton shows very clearly that, because neither of them had fired the gun by which Pertnoy was killed, they were not as guilty as Williams, on whom they seemed to be anxious to fasten the murder, and they were not backward in telling all they knew.

The first defendant arrested was Holton. When he was brought into the Captain's office, according to the Captain and Sergeant McHale, the Captain said, 'Freeman, I am here to listen to anything you have to tell me,' to which he replied, 'I didn't do any shooting. Can't I be State's evidence?' the Captain saying he had 'nothing to do with that' and 'couldn't promise him anything.' He 'persisted that he didn't shoot the man.' Asked if he knew who did, 'He said Zip.' Jackson made the same accusation in his statement.

It has been held in this Court and many others, that it was not an improper inducement to tell a suspect that another had already made such a statement, even if not true. The innocent to not confess crimes they have not committed. As a rule, they only make them when they think they have the evidence of their guilt.

There is no contention that it is not the province of the Court to pass upon the admissibility of the confessions. Rasin v. State, 153 Md. 431, 432, 441, 138 A. 338; Biscoe v. State, 67 Md. 6, 10, 8 A. 571; Lubinski v. State, 180 Md. 1, 22 A.2d 455.

After hearing the officers and the defendants, the Court admitted first, the statement or confession of Holton, but, before it was read to the...