Judy v. State

• Decision Date: 14 November 1958
• Docket Number: No. 29,29
• Citation: 146 A.2d 29,218 Md. 168
• Parties: Jesse Casper JUDY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 168

218 Md. 168

146 A.2d 29

Jesse Casper JUDY v. STATE of Maryland.

No. 29.

Court of Appeals of Maryland.

Nov. 14, 1958.

Gilbert S. Birnbach, Baltimore, for appellant.

Clayton A. Dietrich, Asst. Atty. Gen., (C. Ferdinand Sybert, Atty. Gen., J. Harold Grady, State's Atty., James W. Murphy, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HORNEY, Judge.

A jury found Jesse Casper Judy (Judy or the defendant) guilty of an attempt to rob with a dangerous and deadly weapon, and he was sentenced by the Criminal Court of Baltimore to the maximum penalty of twenty years. This appeal is from the judgment and sentence.

On January 4, 1956, at 9:20 p. m., an attempt was made to hold up the Shell Service Station in the 1300 block of Washington Boulevard in Baltimore City. The proprietor, James E. Grice (Grice or the victim), was working in the grease pit at the station when he was approached by Leo Hays (Hays or the accomplice), and was told that the accomplice's automobile had broken down. As Grice came into the station office Hays, who was in the company of another person, drew a pistol from his jacket and attempted to rob Grice. The other person did not do or say anything at the time to either Grice or Hays. When the pistol was drawn, Grice tussled with Hays, and the other person fled. After subduing Hays, the police were called. For three days after his arrest Hays insisted that he acted alone at the scene of the attempted robbery. Subsequently, when he realized that Judy by fleeing had let him down, he identified the defendant as the person who had been with him during the episode. The accomplice testified that he and the defendant had been drinking in a tavern in West Baltimore all day, that the defendant had given him a pistol which he kept on his person the entire day, and that in the evening of the same day they left the tavern together and walked to the service station. There is a conflict in the testimony as to what transpired in the tavern with regard to planning the crime. Hays testified that the defendant had participated in the conception of and preparation for the robbery, and that he and the defendant had a prior understanding to the effect that they were going to hold up the service station for money and that neither would reveal the other's identity in the event either was apprehended by the police. On the other hand, the defendant, although he admitted that he was in the tavern with Hays, denied drinking with him and that he had left the tavern with him. He said he left alone between 10:30 and 11 p. m. and visited several other taverns in an effort to buy more to drink but was refused, and that he finally went home to bed around 2 or 2:30 a. m. the next day. He further testified that he left Baltimore believing the police were looking for him on a non-support charge. The defendant was apprehended in Pine Bluff, Arkansas, in June of 1957 , but denied any knowledge of the robbery except what he had read in the newspapers. At the trial both the victim and the accomplice identified the defendant as the person who was immediately behind the accomplice at the scene of the attempted robbery. Hays had been previously tried and convicted of attempted robbery and, at the time of the trial of the defendant, was serving a twenty-year sentence in the Penitentiary.

During the course of the trial, the accomplice was finally permitted to testify, over a series of objections made by the defendant, that three days after his arrest he had identified a photograph of the defendant for the police from among other photographs. The State contends that the defendant's objections to every phase of this part of the testimony were expressly limited to the hearsay aspect of such testimony, and for that reason cannot raise new and additional grounds in this Court. The defendant insists that his objections were intended to preclude the introduction of any testimony of the previous identification by the accomplice out of the presence of the defendant on the ground that it was not only hearsay but way unfair and unreliable. We think that the objections to the admissibility were broader than that it was hearsay, so we shall assume there was a general objection--indeed the record indicates there may have been a general objection--and consider the question or point of law presumably posed by the objections.

At the conclusion of the evidence offered by the State, the defendant moved for a directed verdict of not guilty on the ground that the evidence was insufficient in law to show that he had in any way participated in, encouraged, prompted or lent moral support to the perpetration of the attempt to rob charged in the indictment or that he participated in a conspiracy to commit the offense alleged therein. The motion was denied. The defendant offered evidence in his defense. But at the close of the whole case, he renewed the motion. It was again overruled by the trial court. The defendant contends that the court erred in refusing to grant the motion for a directed verdict.

(i) Extrajudicial Identification.

It was proper to permit the witness, who had on a previous occasion identified a photograph of the defendant, to subsequently testify in court as to such previous identification. The authorities are by no means in agreement as to the propriety of permitting evidence of extrajudicial identification in a trial where the identity of the accused is an issue. Formerly the general rule was that such testimony was inadmissible as hearsay. The courts are still divided on the question, but, in recent years, the rule had been extensively relaxed. Now testimony as to extrajudicial identification is admissible in many jurisdictions both as substantive and corroborative evidence. See 20 Am.Jur. Evidence § 353; 22 C.J.S. Criminal Law § 725; 1 Wharton Criminal Evidence (11th ed 1935) § 439; Note entitled 'Criminal Law-Evidence-Testimony of Extrajudicial Identification,' 36 Minn.L.Rev. 530 (1952). See also Note 27 N.Y.U.L.Rev. 367 (1952). By statutory anactment in some jurisdictions, testimony of a previous identification constitutes substantive proof of identification. See People v. Spinello, 1951, 303 N.Y. 193, 101 N.E.2d 457; 1 Wharton Criminal Evidence (12th ed. 1955) § 181.

In this State, the modification of the strict general rule is evident. In Blake v. State, 1929, 157 Md. 75, 145 A. 185, we adhered to the former rule that evidence of an extrajudicial identification was hearsay. In that case the victim of a rape who had identified a photograph of the accused out of his presence had also identified him in his presence. A majority of the Court took the view that the testimony of a police officer concerning the statement made by the prosecutrix when she saw the accused at the police station 'was a reproduction of statements as proof of the facts asserted [by her], and should have been excluded as hearsay testimony.' Judge Parke, in a dissenting opinion, ¹ would have allowed the testimony to stand because as he stated (157 Md. at page 85, 145 A. at page 188,) 'the best evidence of identification is usually the first identification.' Chief Judge Bond, who wrote the majority opinion, concurred with Judge Parke on this point because he believed that the testimony of the officer should have been regarded as a reply to the attack on the ability of the prosecutrix to identify the accused with certainty rather than as hearsay. After the lapse of approximately thirty years, this Court, by its decision in Basoff v. State, 1956, 208 Md. 643, at page 650, 119 A.2d 917, at page 921, substantially modified its former rule as to extrajudicial identification when we declared in a unanimous opinion written by Judge Delaplaine:

'[W]e accept the rule that where it appears that the prosecuting witness had identified the accused prior to the trial under circumstances precluding suspicion of unfairness or unreliability, the prior identification is admissible in evidence.'

From what we said in the Basoff case it is clear we now recognize that an extrajudicial identification of the accused made under proper circumstances may be admitted in evidence as an exception to the hearsay rule, and, if admitted, would constitute corroborative evidence. The reason for the holding as stated in the Basoff case, 208 Md. at page 651, 119 A.2d at page 921, is:

'[I]t is evident that an identification of an accused made by a witness for the first time in the courtroom may often be of little testimonial force, as the witness may have had opportunities to see the accused and to have heard him...