Lubinski v. State
| Decision Date | 06 November 1941 |
| Docket Number | 18. |
| Citation | 22 A.2d 455,180 Md. 1 |
| Parties | LUBINSKI v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from Criminal Court of Baltimore City; Samuel K. Dennis Judge.
Stanley Lubinski was convicted of robberies with a deadly weapon and he appeals.
Affirmed.
Marion A. Figinski, of Baltimore, for appellant.
Robert E. Clapp, Jr., Asst. Atty. Gen., and Paul C. Wolman, Asst State's Atty. for Baltimore City, of Baltimore (William C. Walsh, Atty. Gen., and J. Bernard Wells, State's Atty for Baltimore City, of Baltimore, on the brief), for appellee.
Argued before BOND, C.J., and SLOAN, DELAPLAINE, COLLINS, FORSYTHE, and MARBURY, JJ.
The appellant was tried in the Criminal Court of Baltimore City before the judge sitting as a jury on three indictments heard together by agreement. He was found guilty on several counts in each of two indictments, and found not guilty on all counts in the third, and was sentenced to nine years in the Maryland Penitentiary on each indictment on which he was found guilty, the sentences to run concurrently. The charge in each case was robbery with a deadly weapon, the two convictions being in the two cases known in the record as the Virgil Blair case, and the Bernard Freeze case.
This appeal is from the rulings of the court on evidence, and the specific points are made in three exceptions, the first of which relates to the admission in evidence of a gun, and the second and third to the admission in evidence of an alleged confession.
Virgil Blair was a taxicab driver in the employ of the Belle Isle Texi Company and on December 2, 1936, he was held up by two passengers, who took his money and his car. Bernard Freeze was also a taxicab driver for the same company, and he was similarly held up on December 8, 1936, by two passengers, who took his money, watch, chauffeur's hat, shield, badges, and car. The appellant was arrested in Geneva, New York, sometime in December, 1936, and Sergeant Considins, a New York officer, first saw him at Geneva police headquarters on December 24, 1936. He and another Sergeant took the appellant and another boy from Geneva to Niagara Falls. The appellant was not returned to Baltimore until February, 1941, apparently on account of some confinement in New York, as the evidence shows that a detainer was placed against him. He was delivered to Lieutenant Vogelsang at Attica, New York, on February 4, 1941.
Sergeant Considins testified that during the trip with the appellant from Geneva to Niagara Falls in December, 1936, he and another Sergeant questioned the appellant in regard to the guns that were found in the car, when the appellant and the other boy were arrested by Lieutenant McDonough of the Geneva police. The Sergeant testified the appellant did not seem reluctant to talk about his escapades, but no threats or promises were made to him; that he talked of his own free will; that the Sergeant asked him where he got these guns, and he said that they had brought them from Baltimore with them, and that as to the particular revolver to which his attention was directed, the appellant said that it was his, and that he had used it in Baltimore.
The Sergeant further said that the rest of the conversation involved the information that the boys had held up some Belle Isle Cabs in the City of Baltimore before they came to Niagara Falls, and they even gave the streets where they abandoned the taxicabs. That he was not able to remember the streets, but did remember some reference being made to a ball park. On this testimony the Court admitted the gun in evidence, and this is the subject of the first exception.
It seems to require little authority to hold that where a traverser has admitted that a certain gun found in the car with him was his, and that he had used it in Baltimore, and that in Baltimore he and his companion had held up some Belle Isle cabs, then the gun is admissible in evidence against him on his trial for holding up the Belle Isle cabs in Baltimore. The objection is made that the revolver was not identified by any of the victims, nor was there any mark of identification given as to the gun. Several cases from other jurisdictions were cited by the appellant in which it was held that the admission in evidence of guns, knives, and automobile tires, found in the possession of the several defendants in these cases, when they were arrested, was prejudicial error. The point in each of these cases, however, was that there was no evidence whatever to connect the articles so found with the charges upon which the respective traversers were being tried. In the case before us there is definite testimony of an admission that this particular gun was used in Baltimore where the traverser also admitted he had held up some Belle Isle cabs. The weight to be given to this testimony, if any, was a matter for the court sitting as a jury, but we think the gun was properly admitted in evidence.
The second and third exceptions relate to the admission in evidence of an alleged confession made by the appellant in February 1941 at detective headquarters in Baltimore. The appellant was examined prior to the admission and his testimony was that he came to headquarters with Lieutenant Vogelsang, and the latter said to him, 'Stanley, whatever you say to me will be used against you in court'. The appellant asked him if it was necessary for him to make a statement and Lieutenant Vogelsang said, 'No, but it will help you a lot', and that he understood by that it meant freedom. Lieutenant Vogelsang was then asked whether he ever told the appellant if it would help him a lot if he made a statement, and he said no. On that conflict of testimony the court permitted Lieutenant Vogelsang to repeat his conversation with the appellant and this ruling constitutes exception number 2. When the witness started to tell what had happened, he said that after the appellant and his sister and brother and two other men had talked at headquarters, and the visitors had left, he asked the appellant if he wanted to give him a statement; that he warned him about his constitutional rights; that no promises or threats were made; that the appellant said, 'I will tell you everything'. At that point another objection was made and to the ruling permitting the witness to proceed, the third exception was taken.
There is no doubt that in this State the determination of whether or not a confession shall be admitted in evidence is a preliminary matter for the court to decide. Markley v. State, 173 Md. 309, 196 A. 95. The burden of proof is upon the State to show that a confession is freely and voluntarily made, and is not obtained by any improper inducements. Robinson v. State, 138 Md. 137, 113 A. 641, Hammond v. State, 174 Md. 347, 198 A. 704, Wright v. State, 177 Md. 230, 9 A.2d 253.
In this case it is the appellant's word against the word of one officer, although the latter is later corroborated by Detective Tarr, who was present. If the appellant's statement were uncontradicted, we believe that the confession should not hae been admitted.
In the early case of Biscoe v. State, 67 Md. 6, 8 A. 571, a prisoner charged with murder was told by the committing magistrate 'that it would be better for him to tell the truth, and have no more trouble about it'. Thereupon the prisoner confessed. This court said, ...
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...(1961); State v. Hill, 193 Kan. 512, 394 P.2d 106 (1964); Redmon v. Commonwealth, 321 S.W.2d 397 (Ky.Ct.App.1959); Lubinski v. State, 180 Md. 1, 8, 22 A.2d 455, 459 (1941). For a striking case in which hardly anyone agreed upon what occurred at the lineup, including who identified whom, see......
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...that a confession thus obtained was not admissible. This case is very similar to the one at bar. In the recent case of Lubinski v. State, 180 Md. 1, 22 A.2d 455, 457, appellant claimed that in obtaining a confession the police officer said to him: 'Stanley, you say to me will be used agains......
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