Kinnard v. State

• Decision Date: 13 June 1944
• Docket Number: 24.
• Citation: 38 A.2d 92,183 Md. 377
• Parties: KINNARD v. STATE.
• Court: Maryland Court of Appeals

38 A.2d 92

183 Md. 377

KINNARD v. STATE.

No. 24.

Court of Appeals of Maryland

June 13, 1944

Appeal from Criminal Court of Baltimore City; Eugene O'Dunne Judge.

Willie Kinnard was convicted of larceny, and he appeals.

Affirmed.

Joseph Rosenthal and Leo M. Alpert, both of Baltimore, for appellant.

J Edgar Harvey, Asst. Atty. Gen., and Thomas N. Biddison, Asst State's Atty., of Baltimore (Wm. C. Walsh, Atty. Gen and J. Bernard Wells, State's Atty., of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, and BAILEY, JJ.

GRASON Judge.

The grand jury of the City of Baltimore returned to the Criminal Court of that city two indictments charging Willie Kinnard and James E. Evans, among other criminal offenses, with the crime of larceny. They elected to be tried before the Court. The cases were tried together, resulting in a verdict of guilty. Sentence was imposed as to each prisoner in each case, of nine years in the penitentiary, to run concurrently.

These men, while driving an automobile in the State of Virginia, were halted by a motorcycle policeman of that State. Evans was driving the car at the time. He got out of the car and walked around to its right where the policeman was standing. He exhibited to the officer his registration card and when asked for his driver's license walked to the left side of the car and, with the automobile between himself and the officer, fled. He was subsequently apprehended and turned over to the authorities of this State. After Evans fled, the officer inspected the rear of the car. It contained fifteen tires and eight tubes. The back seat had been removed and the tires and tubes were covered with canvas. Later 'Kinnard ran away but was caught'. In answer to the question: 'They shot over your head, didn't they?' he answered, 'I don't know which way they shot. I was down in the ditch.' He, too, was delivered to the Maryland authorities. He told the Virginia officer he didn't know the man that was with him. He testified at the trial that Evans called at his house and asked him to go on a ride to Virginia, and requested that he leave the back seat of his car in Kinnard's house. It was found by the police in a cupboard in his house. It is clear that the tires and tubes were not in the car at the time the back seat was removed. Kinnard denied any knowledge of the larceny. He stated he went along just for the ride, enticed by some whiskey that Evans possessed. The trial judge is of opinion that Kinnard, upon his evidence, together with the testimony of his mother, should have been acquitted. At the close of the State's case Evans took the stand, evidently confessed guilt, involved Kinnard in a racket operated jointly by them, of stealing automobiles, dismantling them, carrying the tires and tubes taken from the stolen automobiles to out of State markets and selling them. To this evidence there was no objection by counsel for Kinnard, nor was there a motion to limit this testimony solely to Evans' case. The trial judge, after imposing sentence, upon close and careful consideration of the question, confirmed the impression he entertained at the trial, that Evans, being a co-indictee, was incompetent to give testimony against Kinnard. A petition to strike out the judgment and sentence was filed by Kinnard, which was overruled, and it is from this ruling that the appeal is taken.

We are asked by both the State (appellee) and the accused (appellant) to rule on the question whether one co-defendant is competent to testify against another codefendant, on trial together, under a joint indictment.

'The common law excluded as witnesses parties to the record and persons interested in the result of the trial. The rule was applied in all its strictness to civil cases, preventing even a nominal plaintiff from testifying; and in criminal cases a defendant at common law could not be a witness for himself. He was permitted in capital cases, and, according to some authorities, in cases not capital, to make an unsworn statement to the jury, but not as a witness, and he was not subject to cross-examination. Whart.Cr.Ev. (9th Ed.), p. 359, § 427. A defendant, at common law, was ordinarily not permitted to be a witness for or against his co-defendant. The rule, however, was not applied with all the strictness of the similar rule in civil cases. If the co-defendant pleaded guilty, he was a competent witness, before sentence was pronounced on him to make him infamous, and to disqualify him, although nominally he was a party to the record. Id. p. 372, § 439, note 6. If he were acquitted, or if the government dismissed the case as to him, he was made a competent witness.' Wolfson v. United States, 5 Cir., 101 F. 430, 435.

In 1876 the legislature passed chapter 357, which is as follows: 'In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes and offenses, and in all proceedings in the nature of criminal proceedings in any court of this State, and before a justice of the peace or other officer acting judicially, the person so charged shall at his own request, but not otherwise, be deemed a competent witness; but the neglect or refusal of any such person to testify shall not create any presumption against him.' Annotated Code of Md. 1939, Article 35, Sec. 4.

Two years after the passage of this statute Congress of the United States enacted the following: 'In the trial of all indictments, informations, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors, in the United States courts, Territorial courts, and courts-martial, and courts of inquiry, in any State or Territory, including the District of Columbia, the person so charged shall, at his own request but not otherwise, be a competent witness and his failure to make such request shall not create any presumption against him.' 28 U.S.C.A. § 632.

It appears that the Maryland act and the act of Congress are in effect identical. This Court has not interpreted the Maryland act but the Federal act has been before the Federal Courts on numerous occasions. The learning of those Courts, and the identity of the two acts, would naturally cause this Court to give careful consideration to the opinions in the Federal cases, if not to follow them. In the case of Wolfson v. United States, supra, speaking of the Federal statute, the Court said: 'This statute in terms makes a defendant a competent witness. The statute does not say 'a competent witness for himself.' It does not say 'a competent witness for the government.' He is made simply 'at his own request, but not otherwise,' a competent witness. It would clearly be improper for the government, while he was on trial, in the absence of a request on his part, to call him as a witness. The purpose of the law was to make defendants competent witnesses, but at the same time preserve to them the right to remain silent without prejudice. When any defendant chooses to testify, the statute permits him to do so. It does not matter whether his testimony is for or against himself, or for or against his

co-defendant. The only limitation in the statute is that he shall not be made a witness except on his own request. Being sworn as a witness at his own request, he is amenable, generally, to the rules governing other witnesses. He could testify against or for his co-defendant on trial with him, because the only reason why he could not do so at common law was that he was a party to the record, and interested in the case. In other words, the only common-law reason for his exclusion was that he was a defendant also on trial. The statute clearly removes that objection. The fact that two defendants were on trial does not prevent the statute applying.'

The Supreme Court of the United States denied a petition for a writ of certiorari in this case. 180 U.S. 637, 21 S.Ct. 919, 45 L.Ed. 710.

The Wolfson case was decided in April, 1900, and it has been followed by the Federal Courts ever since. Ryan v. United States, 7 Cir., 216 F. 13; Heitler v. United States, 7 Cir., 244 F. 140, 144; Degnan v. United States, 2 Cir., 271 F. 291; Rowan v. United States, 5 Cir., 281 F. 137; Brown v. United States, 9 Cir., 56 F.2d 997; Freeman v. United States, 5 Cir., 96 F.2d 13; United States v. Beck, 7 Cir., 118 F.2d 178.

In 5 Cir., 102 F. at page 134, there is a dissenting opinion by Judge Boarman, in the Wolfson case, supra. The trial judge agrees with this dissenting opinion. But this dissent has stood alone and lonely for forty-four years and it does not represent the Federal law. We would hesitate to override all of the Federal cases on this subject, some of them having been approved by the Supreme Court of the United States by a denial of a writ of certiorari, and adopt this dissenting opinion as expressing the law of this State.

The following cases are in line with the Federal decisions. Commonwealth v. Brown, 130 Mass. 279; State v. Barrows, 76 Me. 401, 49 Am.Rep. 629; State v. Thaden, 43 Minn. 325, 45 N.W. 614; Ward v. State, 175 Ark. 870, 300 S.W. 451; Collins v. State, 37 Ariz. 353, 294 P. 625; Rounds v. State, 171 Tenn. 511, 106 S.W.2d 212; Morris v. State, 68 Okl.Cr. 147, 96 P.2d 88; State v. Smith, 86 N.C. 705; Smith v. People, 115 Ill. 17, 3 N.E. 733; Collins v. People, 98 Ill. 584, 38 Am.Rep. 105; People v. Lawson, 331 Ill. 380, 163 N.E. 149; Williams v. State, 42 Fla. 205, 27 So. 898.

This subject is treated by Mr. Wigmore in his work on Evidence 3rd Ed., Vol. II, Sec. 580. He concludes that section with this statement: 'There ought to-day to be no further question in any jurisdiction (except Georgia) that there is no limitation whatever on the...