Madison v. State

• Decision Date: 04 April 1952
• Docket Number: No. 148,148
• Citation: 87 A.2d 593,200 Md. 1
• Parties: MADISON v. STATE.
• Court: Maryland Court of Appeals

Page 1

200 Md. 1

87 A.2d 593

MADISON v. STATE.

No. 148.

Court of Appeals of Maryland.

April 4, 1952.

James S. Morrow, Jr., Baltimore (Thomas J. Kenney, Baltimore, on the brief), for appellant.

Francis D. Murnaghan, Jr., Asst. Atty. Gen. (Hall Hammond, Atty. Gen., Anselm Sodaro, State's Atty., Wm. H. Maynard, Deputy State's Atty. and Wm. C. Rogers, Jr., Asst. State's Atty., all of Baltimore, on the brief), for appellee.

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

MARKELL, Justice.

This is an appeal from conviction of murder in the first degree and sentence of death.

On Saturday, April 28, 1951 about half-past eight in the morning, Zelig Gerstein, the proprietor of a small grocery store at 417 North Fremont Avenue, between Mulberry and Franklin Streets, was killed by a bullet fired, at close range, from a pistol in defendant's hand. The court, in its advisory charge to the jury, advised the jury that it could not find a verdict of murder in the first degree unless it found beyond a reasonable doubt that defendant attempted to rob Gerstein and in the attempt shot and killed him. Defendant denies that he attempted to rob Gerstein or intended to shoot or kill him.

Defendant was twenty-three years old. He lived at 876 West Fayette Street. He testified that he was going to the Atlantic Waste Paper Company, in east Baltimore, where he had worked the day before and had worked previously for about seven months. He went into the Gerstein store to get some 'lunch meat', bologna. No one else than Mr. Gerstein was there. He told Mr. Gerstein he did not like the way the meat was cut and wrapped. After some words, in an 'argument', Mr. Genstein 'said a few words that I didn't like', viz., 'You niggers never are satisfied', told him to get out of the store, came from behind the counter to put him out, and a 'tussle' began. Mr. Gerstein got him down, was on top of him. He bit Gerstein in the face. His 'gun' fell out of his pocket. He was unaware it was in his pocket; he was cleaning it the day before and must have put it in one of the large pockets of the 'fatigue pants' of khaki that he was wearing. After getting away from Gerstein, he grabbed the gun, Gerstein grabbed him by the right arm, twisted his arm, and the gun, which was in his right hand, went off and killed Gerstein quickly, but not instantly. Gerstein called for help after he was shot. Defendant had bought the gun about two weeks before, from a white man on the street, who was very anxious to get what he could for it at once. Defendant walked out to the corner, turned the corner and soon began to run. He was arrested about half-past nine that night. He had no intention of robbery when he went in the store. He then had seven dollars in his pocket, which he had taken from a drawer at home out of forty-two dollars put there by Flora Smith, a woman he lived with. 'I considered her money my money; we spent alike and shared alike.' Other parts of his testimony seem to indicate he felt that what was hers was his and what was his was his own. He had been convicted of burglary twice and larceny once. He had first told the police a false story that he had been with a tall man, who has said he was 'broke', had gone with him into the store, and grabbed his gun out of his pocket; when the tall man said it was a holdup, he ran and after the shooting saw the man at Lexington Street and was given back his gun. He had since childhood known Gerstein and at times had helped him in his store. He mentioned no previous trouble or ill will between him and Gerstein.

The State called two witnesses, Johnnie Winder and Annie Woods, whose testimony was not intrinsically or extrinsically impeached, who testified that they saw defendant and Gerstein fighting, heard the shot, heard Gerstein call for help and saw defendant come out of the store after the shooting. Winder said Gerstein called for help before he was shot, Annie Woods said after he was shot. Winder said he was walking past the Gerstein store about two minutes before the shooting, heard noise, looked in the open door and saw Gerstein and defendant tussling. Annie Woods came to go in the store, Winder told her not to do so because the men were fighting. Neither saw anyone else in the store or coming out. Before the shooting Winder and Annie Woods walked a short distance from the store. After the shooting she says she went to a nearby store to have the police called. Winder says she went and returned before the shooting.

The State also called Dolores Wooden, twenty-one years old, who had been held in jail as a witness since soon after the shooting. She testified that she was in the store when defendant came in and at the time of the shooting and heard defendant tell Gerstein it was a hold-up. Her testimony is both intrinsically and extrinsically impeached, by lack of a good reputation, the fact that she first gave the police a different untrue story about two men, a 'tall man' and a short one, the fact that she hoped to get out of jail by what she said, and the fact that Winder and Annie Woods, as well as defendant, testified that they did not see her in the store or coming out. Defendant testified that he had heard of the first story Dolores Wooden had told, and he had made up his first story accordingly. He even 'identified' a 'tall man', who was held in jail until the trial. Dolores Wooden and other witnesses were examined and cross-examined at length, without objection, concerning her, her stories and how, why and when she was 'picked up' and held as a witness. Counsel for defendant even questioned a police captain about a newspaper report of what she had said. Obviously much of this testimony was not legally admissible, but there was no objection, and defendant at least was not prejudiced by it.

A number of other witnesses testified. We have not undertaken to state in full the testimony of any witness. What has been said may suffice to illustrate that the questions at issue were questions of fact, which in respect of credibility are practically reducible to the question how much of defendant's testimony could be believed. These questions were for the jury, and are not reviewable by us. No question was raised--or could be raised--as to the legal sufficiency of evidence of guilt.

The only question properly presented, by objection below, is the admissibility of a photograph of the deceased's body showing the bullet hole and marks on the face, including a bite on the cheek. A description of the body in the autopsy report had been offered in evidence without objection. Defense counsel objected to the admission of the photograph because (1) 'it might be inflammatory' and (2) 'we ought to wait until there is some evidence to connect it in the case'. Defense counsel disclaimed any contention that the photograph did not represent the condition of the body at the time the photograph was taken, and any requirement of testimony from the autopsy physician or any formal proof by the photographer. In the admission of the photograph there was no reversible error. The photograph was admissible. Snowden v. State, 133 Md. 624, 631, 106 A. 5; Smith v. State, 182 Md. 176, 187-188, 32 A.2d 863; Corens v. State, 185 Md. 561, 570-571, 45 A.2d 340; Consolidated Gas, Electric Light & Power Co. v. State, to Use of Smith, 109 Md. 186, 199-200, 72 A. 651. If the autopsy report had not sufficiently 'connected' the photograph with the case, any defect in this respect was subsequently cured by defendant's testimony that he bit the deceased and a bullet from his gun killed the deceased.

Defendant contends that by the ruling admitting the photograph in evidence and by other action or non-action which involves no ruling at all by the trial court, 'serious error may have been committed' and should be corrected without regard to the rules of law ordinarily governing appeals. The contention is that defendant's conviction of a capital offense depended on the testimony of one witness, Dolores Wooden, and that 'upon the single material issue of fact thus joined, * * * any side issues, any incidents during the trial which might have prejudiced the jury against defendant, took on an importance and significance of unusual proportions not common to ordinary criminal cases, nor even to the usual homicide case'. We are told that failure to raise below questions now raised was due to fear of prejudicing defendant before the jury by objections, especially objections which suggest guilt, e.g., the right of the jury to find a verdict without capital punishment. We are aware that some lawyers include such 'taboos' in their 'trial tactics'--and others, who have attained reputation as trial lawyers, make any objections they deem substantial and press them to the end. We are, however, without authority to review errors in trial tactics of defense counsel or to speculate as to possibilities that different tactics might have produced a different result.

The only statute or rule of court which makes special provision for review of capital cases is Chapter 1068 of the Acts of 1945, Code, 1947 Supp. Art. 5, section 88A, which authorizes appeals in forma pauperis and provides that 'the Court of Appeals shall review any reviewable errors therein [in the record], without regard to technical errors, defects or exceptions which do not affect the substantial rights of the parties'. We have held that 'reviewable errors', in this statute, does not include questions not previously reviewable. 'We are given authority only to review 'any reviewable errors.' No errors are newly made reviewable, nor is the long continued construction of a section of the Constitution a 'technical errors, defects or exceptions' which we are supposed to disregard. What the Legislature meant was, undoubtedly, that this Court in cases where a sentence of death has been imposed, shall disregard the method by which substantive questions are brought before us, and...