Miller v. State, 227
| Decision Date | 02 April 1963 |
| Docket Number | No. 227,227 |
| Citation | 189 A.2d 635,231 Md. 215 |
| Parties | James Bernard MILLER v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Davis N. Bates and Norman N. Yankellow, Baltimore (Joseph Rosenthal, Baltimore on the brief), for appellant.
Harrison M. Robertson, Jr., Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., William J. O'Donnell, Benjamin L. Brown and Abraham H. Adler, State's Atty. and Asst. State's Attys, respectively, for Baltimore City, Baltimore, and Frank H. Newell, III, and John Moyer, State's Atty., and Asst. State's Atty., respectively, for Baltimore County, Towson, on the brief), for appellee.
Before BRUNE, C. J., and PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.
The appellant, James Bernard Miller, was jointly indicted with two other defendants for rape, which allegedly occurred on November 7, 1961, in Baltimore City. He requested a removal and the case was transferred to Baltimore County. A severance was granted, he was tried before a judge without a jury on June 13, 1962, resulting in his being found guilty of rape, and sentenced to imprisonment for ten years. On appeal from this judgment and sentence he contended only that the trial judge committed prejudicial error by permitting an extra-judicial statement of a codefendant to be introduced into evidence.
The appellant was arrest on November 9, 1961, and was interrogated concerning an alleged rape which had occurred on November 7, 1961. He denied any actual participation in the crime and in a statement reduced to writing named his companions of the evening involved. On this information warrants were obtained, and Chester Johnson and Dale Husk were arrested by the police. Johnson at first denied any knowledge of a crime, but after he learned that Miller had made a statement he agreed to make a statement if Miller were present. Thereupon Miller was brought into the room in the police station and, in the presence of Miller and a number of police officers, Johnson gave a statement in which he said that Miller was the person who had intercourse with the victim. At the trial there was conflicting testimony as to whether or not Miller denied the accusation. Sergeant Treherne, who took the statement from Johnson, testified that when Johnson pointed out Miller as the person who had intercourse with the victim, and was asked: 'Did Miller make any replies at that time?' answered, 'He just looked down at the floor.' Johnson in his testimony stated that 'When it came to the part where I implicated Miller in the statement, he denied it, and Sergeant Treherne told him to shut up.' There was thus conflicting testimony as to whether Miller denied the statement.
During the trial of Miller the State offered to introduce the statement of Johnson, made in the presence of Miller. Timely objection was made to the admissibility of the statement, but the trial judge permitted the statement to be admitted into evidence. At the close of the entire case, the judge in his remarks placed great weight on the statement and considered it as substantive evidence of the facts asserted, and used it as a basis for his finding of guilty, even though Johnson, in his testimony at the trial, repudiated it, saying that he made that part of the statement concerning Miller because he had been informed by the officers that both Miller and Husk had given them statements placing all blame for the crime upon him.
It is generally held that if a statement is made by another person in the presence of a party to the action, be it civil or criminal, containing assertions of facts which, if untrue, the party would under all the circumstances naturally be expected to deny, his failure to speak is circumstantial evidence that he believes the statements to be true, and his conduct is thus receivable against him as an admission of such belief. Ewell v. State, 228 Md. 615, 618, 180 A.2d 857; Zink v. Zink, 215 Md. 197, 137 A.2d 139; Barber v. State, 191 Md....
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