McCleary v. State
| Decision Date | 14 January 1914 |
| Parties | McCLEARY v. STATE. |
| Court | Maryland Court of Appeals |
Upon Motion for Reargument, March 19, 1914.
Appeal from Circuit Court, Montgomery County; Hammond Urner, Edward C. Peter, and Glenn H. Worthington, Judges.
"To be officially reported."
Norman Bruce McCleary was convicted of murder in the first degree and he appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, STOCKBRIDGE and CONSTABLE, JJ.
Charles D. Wagaman and Frank G. Wagaman, both of Hagerstown (J. Lloyd Harshman, of Hagerstown, and Thomas Dawson, of Rockville, on the brief), for appellant.
Scott M. Wolfinger, of Hagerstown, and Edgar Allan Poe, of Baltimore (W. Outerbridge Spates, of Rockville, on the brief), for the State.
The record in this case presents for the consideration of the court 16 exceptions, all relating to testimony. Of these the fourth, fifth, sixth, seventh, eighth, ninth, tenth fifteenth, and sixteenth in one way or another are with regard to an alleged confession of the traverser of the crime of murder, committed in the city of Hagerstown, in the month of August, 1912, and will be considered one in connection with the others. The traverser was indicted by a grand jury of Washington county, and the case was subsequently removed to Montgomery county, where it was tried before the three judges of that circuit without the intervention of a jury. The trial resulted in a verdict of murder in the first degree, and the accused was sentenced to imprisonment for life in the penitentiary. The importance of the case rests, not alone upon the seriousness of the crime charged, but on the fact that it presents for the consideration of the court the admissibility of a confession of the accused, alleged to have been procured by what are sometimes spoken of as "sweating," "sweat box," or "third degree" methods.
The first exception was to permitting Dr. Wroth, a physician who was present at the autopsy, to state his opinion of the cause of the death of Mrs. Henry, the alleged victim. No sufficient reason has been advanced why this evidence should have been rejected. The doctor had been shown to have the requisite technical training; he was present observing the conduct of the autopsy; and the question called for, and only for, his opinion as to the cause of the death from what he had seen. The ruling of the trial court in permitting the question was clearly within the limits of proper expert testimony.
The second exception related to the finding in the jail, where the prisoner was confined, of a sheet. It is claimed by the defense that, the first night the traverser was in the Hagerstown jail, an attempt was made to terrorize him by the use of a sheet, by some one connected with the jail, so as to create an impression of ghosts. But it was not claimed by the defense that the sheet in regard to which evidence was sought to be introduced was found until about six months after the traverser was confined there, or that the defense would be in any way able to connect up the sheet referred to as being the sheet claimed to have been used the night that McCleary was brought to the jail. The evidence of the sheriff's son was to the effect that no sheet had been used in connection with any prisoner until some time after McCleary had been incarcerated, and the proposed offer on the part of the defense was therefore too remote, and the application for the writ of habeas corpus ad testificandum was properly refused.
The eleventh, thirteenth, and fourteenth exceptions all relate to a letter testified to have been written in Washington, by a daughter of the deceased, Mrs. Henry, and addressed to her mother in Hagerstown. The eleventh exception is directed to the point that no such letter was found at the residence of the deceased when the door was first forced upon, although other mail was found there; the thirteenth and fourteenth exceptions had to do with the addressing and mailing of the letter in question, and to what it contained with regard to the Washington address of Miss Henry. The effect of these several questions was to show that, after Miss Henry's arrival in Washington, she wrote to her mother; that the letter was properly addressed and deposited in the mail; but that it was not found in the residence of the deceased by those who first entered there after the death of Mrs. Henry, although other mail was found, from which it might be inferred that the letter had been abstracted by some one after the death of Mrs. Henry, and before the discovery of her death. All of this was clearly competent evidence, though circumstantial only in its nature, and it laid a proper foundation for the offering of secondary evidence as to the contents of said letter, which, so far as the traverser was concerned, would be admissible as showing one mode by which he might have obtained the address of Miss Henry in Washington.
Nor is there any error perceived to have been committed by the trial court in admitting the evidence involved in the twelfth bill of exceptions; if, as claimed by the state, a murder had been committed, the movements and declarations made by the traverser between the time of the commission of the crime and the time of his arrest could hardly be other than important as reflecting upon his culpability vel non, and especially was this the case when those movements or declarations had reference in any manner to one so nearly related to the deceased as a daughter.
As already noted, all of the remaining exceptions have reference in one way or another to the admissibility of a confession by the accused of his connection with Mrs. Henry's death. The subject of the admission of confessions of one accused of a crime is one which has been before this court in a number of cases, to some of which reference will hereafter be made, and is very elaborately and fully discussed in a particularly able note to the case of Ammons v. State, 18 L. R. A. (N. S.) beginning on page 768. At the outset it is to be observed that the burden of showing that a confession of crime had not been obtained by improper means, that it is the voluntary act, uninduced by hope of favor or fear of harm, is one which the law casts upon the state (Nicholson v. State, 38 Md. 140; Green v. State, 96 Md. 384, 54 A. 104; Bram v. U. S., 168 U.S. 571, 18 S.Ct. 183, 42 L.Ed. 568; Watts v. State, 99 Md. 30, 57 A. 542; Toomer v. State, 112 Md. 292, 76 A. 118); and, where this obligation is not satisfactorily met, it is improper to admit the confession. As was said by the late Judge Robinson in Biscoe v. State, 67 Md. 6, 8 A. 571:
In some states this has been left to the jury to be determined by that body as a question of fact whether or not that which is offered as a confession was in fact free and voluntary, or whether it was the result of representations, inducements, or threats, and therefore to be excluded. In other states, among which is Maryland, this is held to be a question to be determined by the court, as a ruling upon admissibility of evidence, before the confession itself can be offered ( Biscoe v. State, 67 Md. 6, 8 A. 571), and this rule seems eminently proper. It is the fundamental duty of the court in all cases to pass upon the admissibility of evidence. A confession alone constitutes no crime; it is only evidence tending to show that a crime has been committed, and it may or may not be believed by the jury, or by the court sitting as a jury, in any particular case; but the admissibility of it as evidence to be submitted to the jury is distinctly, under the system of law prevailing with us, a question for the court.
Three reasons are assigned by the counsel for the appellant as the grounds of objection to the admissibility of the confession. These are: (1) That the appellant, during the day of the alleged confession, and prior thereto, was demanding the advice and assistance of counsel, and that the state prevented his securing counsel at that time by intercepting and suppressing the prisoner's written message to counsel; (2) that the alleged confession was involuntary; (3) that, at the time of the making of the alleged confession, the appellant was mentally irresponsible. These will be considered seriatim.
Upon the first of these branches the case has been unfortunately complicated by acts which cannot be regarded in any other light than an excess of zeal on the part of the prosecuting officers of Washington county. It is, of course, the right of one accused of crime to be represented by counsel of his own selection, and it is equally true that the state's attorney in this case did intercept, interfere with, and to a large extent prevent, the accused from communicating with counsel, for which there can be no justification advanced but the question is not the propriety or the impropriety of the action of the state's attorney of Washington county, but the admissibility or inadmissibility of a confession...
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Sargent v. State
...making a confession." Id. at 481. In deciding whether Hoey was mentally capable of making a confession, the Court considered McCleary v. State, 122 Md. 394 (1914), a case where "the defendant claimed that his confession was inadmissible because he was mentally irresponsible at the time he c......