Lambert v. State

• Decision Date: 10 January 1951
• Docket Number: No. 65,65
• Citation: 197 Md. 22,78 A.2d 378
• Parties: LAMBERT v. STATE.
• Court: Maryland Court of Appeals

Page 22

197 Md. 22

78 A.2d 378

LAMBERT v. STATE.

No. 65.

Court of Appeals of Maryland.

Jan. 10, 1951.

Louis S. Ashman Baltimore (Ashman & Link, Baltimore, on the brief), for appellant.

Hall Hammond, Atty. Gen., Kenneth C. Proctor, Asst. Atty. Gen., and Henry L. Constable, State's Atty., Cecil Co., and Gifford Scarborough, Asst. State's Atty., Cecil Co., both of Elkton, on the brief, for appellee.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

DELAPLAINE, Judge.

The Rev. Percy K. Lambert, of Elkton, has appealed here from a judgment of conviction entered in the Circuit Court for Cecil County on the charge of violating the statute which makes it unlawful to erect or maintain any sign intended to aid in the solicitation or performance of marriages. Laws of 1943, ch. 532, Code Supp. 1947, art. 27, sec. 444A.

This is the second time the case has been tried and brought here on appeal. The case was first tried in December, 1948. It was shown by the State that in 1947 defendant maintained a sign with the name 'Rev. P. K. Lambert' at the entrance to his home on East Main Street. The Court admitted in evidence a bulletin of marriage information which had been issued by defendant, and it appeared that 4,000 of these bulletins had been printed in 1946. Defendant was found guilty and was fined $50.

In November, 1949, the Court of Appeals held that the Circuit Court had committed prejudicial error in admitting the testimony of the Rev. Walter A. Hearne, pastor of the Methodist Church of Elkton, that defendant was not a member of the Cecil County Ministerial Association, which was composed of 32 Protestant clergymen. We reversed the judgment and remanded the case for a new trial. Lambert v. State, Md., 69 A.2d 461.

The case was tried the second time in December, 1949. The evidence was substantially the same as at the first trial, except that the testimony that defendant was not a member of the Ministerial Association was omitted. Defendant was again found guilty. In January, 1950, the trial judge, after overruling a motion for a new trial, again imposed a fine of $50.

First. Defendant contends that his conviction violates his constitutional rights. We have already held otherwise. Another resident of Elkton, the Rev. William F. Hopkins, was convicted in 1948 on a similar charge. In his case no objection was made in the Circuit Court to the testimony that he was not a member of the Ministerial Association. As there was no ruling by the trial judge on the testimony, there was no justification for holding that he had committed reversible error. As we held that the Act of 1943 does not violate the First and Fourteenth Amendments of the Constitution of the United States, we affirmed the judgment of conviction. Hopkins v. State, Md., 69 A.2d 456. The Rev. Mr. Hopkins appealed from our decision; and on April 24, 1950, the Supreme Court of the United States dismissed the appeal 'for want of a substantial federal question.' Hopkins v. State of Maryland, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357.

Second. Objection is made to the testimony of the Rev. Mr. Hearne that defendant was not the pastor of any church in Elkton and did not perform any ministerial duties in the town except marrying couples. We decided on the former appeal that this testimony was admissible. Lambert v. State, Md., 69 A.2d 461, 463. Defendant now insists that the answers given by the witness indicated that he did not posses sufficient information to testify on the subject. The witness was asked whether the Rev. Mr. Lambert was the pastor of any church in Elkton; and he replied, 'Not to my knowledge.' He was then asked in what activity the Rev. Mr. Lambert was engaged; and he replied, 'So far as I know, he is in the business of marrying couples that come to Elkton.'

Defendant relied on the ruling of this Court in Jacobs v. Disharoon, 113 Md. 92, 100, 77 A. 258, that where the issue is whether or not a person has been in possession of land, a witness cannot testify that 'as far as he knew' the person was in possession, unless he discloses what knowledge he has on the subject, or by what acts possession was taken. The reason for that ruling, of course, was that it would have been impossible for the jury to properly weight such vague testimony. We do not deny that observation of the matters to be testified to is an essential conception in the qualifications of every witness. By 'observation' we mean that direction of attention which is the source of impressions, and thus of knowledge. But the result of the observation of a witness need not be positive or absolute certainty. It is sufficient if the witness had an opportunity of personal observation and got some impressions from this observation.

In the case at bar the witness had been serving as the pastor of the Methodist Church in Elkton since June, 1945. It is reasonable to believe that a man who has been the pastor of a church in Elkton for nearly five years knew whether or not defendant was serving as the pastor of a church in that town. The testimony was not too vague and uncertain to have probative value. It is substantially the same as that introduced at the first trial one year before. We see no reason to cause us to change the ruling we made upon the testimony on the first appeal.

Third. The chief objection is to the comment which the trial judge made in his charge to the jury that defendant did not take the witness stand. The complete instruction was as follows: 'Another matter to which I must call your attention is that the accused in this case did not take the stand. Under the Constitution of this State and of the United States, a person is not compelled to give evidence against himself. Therefore, the failure of an accused person to take the stand is not a ground for any inference that by reason of his failure to do that he is guilty. You have no right to infer guilt from the failure of the defendant in this case to take the stand.'

In recent years there has been strong sentiment in this country in favor of the enactment of legislation allowing comment upon the fact that a defendant in a criminal case did not testify. In 1931 the American Law Institute approved the proposition that 'the judge, the prosecuting attorney, and counsel for the defense may comment upon the fact that the defendant did not testify.' 9 Proceedings, American Law Institute, 202. In the same year the American Bar Association approved a resolution 'that by law it should be permitted to the prosecution to comment to the jury on the fact that a defendant did not take the stand as a witness; and to the jury to draw the reasonable inferences.' 56 Reports, American Bar Association, 137.

In 1936 the Supreme Court of South Dakota, by a vote of three to two, held that an Act of the Legislature declaring that the failure of a person charged with crime to testify in his own behalf shall be a proper subject of comment by the prosecuting officer was a violation of the constitutional provision that no person shall be compelled in any criminal case to give evidence against himself. The majority opinion pointed out that South Dakota was the only State with a constitutional provision against...