Moxley v. State

• Decision Date: 19 November 1954
• Docket Number: No. 20,20
• Citation: 109 A.2d 370,205 Md. 507
• Parties: Henry M. MOXLEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 507

205 Md. 507

109 A.2d 370

Henry M. MOXLEY v. STATE of Maryland.

No. 20.

Court of Appeals of Maryland.

Nov. 19, 1954.

C. Orman Manahan, Ellicott City, for appellant.

Ambrose T. Hartman, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., and Daniel M. Murray, Jr., State's Atty., Howard Co., Ellicott City, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from a judgment and sentence on the charges of assault with intent to murder and common assault. The case was tried before the trial judge without a jury.

So far as here relevant, Rose Williams, the prosecuting witness, testified as follows. She had met the appellant, Henry M. Moxley, for the first time at a bar known as the Stardust, in Baltimore, on September 5, 1953. She also entered this bar on September 6th about 1 p.m., and again met the appellant who was in the company of a woman named Grace Webb. The appellant left the bar alone and Rose Williams departed about fifteen minutes thereafter. As she stood on the corner near the bar, the appellant drove up in his automobile and asked her to ride with him to look over a painting job that had been offered to him. She sat on the front seat and they drove west on Frederick Road. They finally stopped at a house where he talked to a man about the painting job and was told to come back the next morning and start work. They then proceeded back toward Baltimore. Appellant pulled off the road into a wooded area. He invited her to have a drink which she refused. He made an indecent proposal which she also refused. She started to open the door and he grabbed her around the neck and hit her on the head with a claw hammer. She fell out of the car and he followed and continued to beat her with the hammer. When she attempted to ward off her blows, her arm was broken. She lost consciousness, pleading for mercy. She does not remember where she was found or who found her. On cross-examination she was asked whether she 'gave to someone a description of your assailant as being a tall man with dark hair, approximately thirty years of age?' After this question the trial judge stated that he thought the defense should 'pin it down to the person and the time and place.' The defense attorney stated that he could not do this. An objection was then registered by the State which was overruled by the court in saying 'Well, see what she says.' Another objection was registered by the State in the following words: 'I don't think he ought to fish that way, sir,' to which the court replied: 'Well, let him fish.' The prosecuting witness was then asked: 'Did you describe your assailant as being a tall man to anyone, as being a tall man, dark hair, about thirty? Did you make that identification?' to which she answered: 'I don't remember if I did or not.'

Other testimony shows that after being released from the hospital she took the police to the place where the attack occurred. She was also taken by the police to a parking lot where she identified appellant's automobile, a black 1939 Oldsmobile, from a 'whole bunch of cars'. She then described various physical characteristics of the car by which she identified it. Certain things were in the car at that time which she had formerly said were also there at the time of the attack, namely: two cushions, an old sweater, a fishing rod, a tool box, and a pair of 'paint overalls'. She also identified the seat covers of the automobile. She identified the appellant as her assailant when he was brought to the hospital by the police, and also pointed him out in the courtroom. The appellant was a man over sixth-five years of age, of medium build, with gray hair.

John J. Fitzgerald testified that on September 6, 1953, while driving in Howard County, he passed a woman 'staggering up the road'. He stopped and found that she was bleeding profusely from the head. She mumbled and was very incoherent. When he asked her what happened, she replied: 'They worked me over with a hammer.' He called the police and she was taken to St. Agnes Hospital.

The hospital records revealed that she was admitted at 5 p. m. on September 6th and the doctor who examined her stated: 'The patient was fully conscious on entering the Accident Room, answered questions rather clearly. She stated that approximately one hour prior to admission she was struck on the head repeatedly with a hammer by a man she could not identify.' The hospital records also stated that on September 7th 'the patient was moving about in bed in a semi-conscious state', and at 8 a. m. 'she was aware of surroundings and apparently conscious'. On September 11th at 12:15 a. m. 'patient attempted to climb out of bed talking irrationally'. At 2:30 a.m. 'she climbed out of bed and was calling out irrationally'. On September 13th at 9 p. m. 'restraints were applied to the patient'. On September 14th at 2 a. m. 'the patient was awake and restless'. At 3 a. m. on September 14th 'the patient was removed to 'B' Room (an isolation room) because of disturbance caused'.

Sergeant Harry M. Harrison, called as a witness by the State, testified in part as follows. He went to the accident room of St. Agnes Hospital on September 6, 1953, about 4:45 p. m. Rose Williams was on the accident table. The doctor was shaving her head. He tried to talk to her because he did not know whether was going to live or not and he wanted to get any information he could. She would become unconscious and then be about half conscious. He asked her questions and would get a few mumbled words and then she would become unconscious and he would not get any answer at all. He spent probably three quarters of an hour with her, questioning her during that time. She was very hard to understand and he could not get too much information from her at that time.

'Q. Did you at any time that evening, or soon thereafter, secure any kind of a description from her while she was in that condition? A. Yes, sir. I was naturally interested in getting as much description as I could. At that time, she told me she thought the man was tall----

'(Mr. Murray) (for the State) He's going to help you, Mr. Manahan. You'll like this. Don't object to it.

'(Mr. Manahan) (Attorney for appellant) I don't know whether I will or not.

'(Mr. Murray) Go ahead.

'A. She said the man was tall and had dark hair, would be in his early thirties, and that he had a white shirt on, and tanned pants. I believe that's about all she said about him.

'Q. Tell me, Sergeant, when did she tell you that? A. That was while she was laying on this table in the accident room.

'Q. While she was still on the table? A. Doctor Thompson was still working on her at that time.

'Q. Was that pronounced in a clear voice, or was it mumbled in an incoherent way? A. The information was obtained over this period of time, three quarters of an hour or an hour.

'Q. You mean you only got that over three quarters of an hour? A. Yes, sir. I will add that she kept saying that 'Grace knew him'.

'(Mr. Manahan) I object to that. I object, and move it be stricken out.

'(Mr. Murray) Why do you move that?

'(Mr. Manahan) The defendant was not there.

'(Court) All right, strike it out.

'Q. All right, now, Sergeant----

'(Court) Do you want it all stricken out?

'(Mr. Hanahan) No, sir.

'(Court) Then, I'm going to let 'Grace knew him' stay in. You can't throw out part and keep in part. You've got to play one way or the other. Now, which way do you want to play?

'(Mr. Manahan) It's a right hard choice, if your Honor please.

'(Court) It's your job to choose.

'(Mr. Manahan) I don't want the hearsay in.

'(Court) All right, strike it all out then.

'(Mr. Murray) All right, sir.

'Q. Now, Sergeant, did you see her----

'(Mr. Manahan) I'd like to have an exception to that ruling.

'(Mr. Murray) What's the exception?

'(Court) I don't know what it is. But he wants it, so give it to him.

'(Mr. Murray) I though he asked that it be stricken out.

'(Court) No, he only asked that a certain part be stricken out.

'(Mr. Murray) Oh.

'(Court) I struck the whole thing out.

'(Mr. Murray) I see.

'(Mr. Murray) I make no objection to the Court's actions, understand that.

'(Court) I understand.'

The appellant objects to the action of the trial judge in striking out all of this quoted testimony. Neither the State nor the defense objected to any of the testimony of Sergeant Harrison previous to the answer 'Grace knew him', as above. The previous testimony was admitted without objection and therefore was properly before the court. It was said in Martin v. State, 203 Md. 66, 72, 98 A.2d 8, 11, a case tried by a trial judge, without a jury: 'We think, however, that the appellant waived this right by failing to object to the evidence at the time it was offered. The principle governing the time for objection, which has been stated and restated, is that the one against whom evidence is offered must object as soon as the applicability of the evidence is known or should reasonably have been known to him. Wigmore on Evidence, Third Edition, Section 18. In Dick v. State, 107 Md. 11, 68 A. 286, 288, 576, the defendant in a criminal case, at the close of the questioning of a witness, objected to testimony. Objection was overruled. The Court held that the evidence 'was given without any objection, and so went to the jury, and the objection as made came too late.' In Klecka v. State, 149 Md. 128, 131 A. 29, it was held that an objection to the admissibility of evidence containing a specific question, must ordinarily be made as soon as the question is stated and before the answer is given or there is a waiver. See also Deibert v. State, 150 Md. 687, 693, 133 A. 847; Courtney v. State, 187 Md. 1, 4, 5, 48 A.2d 430; Asner v. State, 193 Md. 68, 65 A.2d 881; O'Connor v. Estevez, 182 Md. 541, 35 A.2d 148; Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344.' Of course, where the answer is not...