Munshower v. State

• Decision Date: 09 December 1880
• Citation: 55 Md. 11
• Parties: FELIX MUNSHOWER v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

55 Md. 11

FELIX MUNSHOWER v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

December 9, 1880

APPEAL from the Circuit Court for Frederick County.

The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., MILLER, ALVEY, ROBINSON and IRVING, J.

James McSherry for the appellant.

The question excluded by the ruling of the Court below, as stated in the first exception, was admissible to discredit the witness. It is held that upon an indictment for murder the admissions of other persons that they killed the deceased, are not evidence. But where the party making the admissions is produced as a witness against the accused, the witness' declarations that he is guilty of the offence are admissible to discredit the witness. Smith vs State, 9 Alabama, 990; State vs. Duncan, 6 Iredell, 326. See also 1 Wharton's Crim. Law, sec. 662.

As to the second exception, the best evidence of which the case in its nature is susceptible, is always required. The almanac in question was certainly not the best evidence, nor indeed any evidence of when the moon rose on that night. 1 Starkie's Ev., sec. LXXV.

It is said in 1 Chitty's Pleading, 218: "The Courts take notice of the days of the week, &c., on which particular days fall, and the almanac is part of the law of the land, having been established by different statutes."

But the almanac referred to by Chitty is that annexed to the Common Prayer Book. HOLT, C.J., in Brough vs. Perkins, 6 Mod., 80.

By 24 George 2, ch. 23, the calendar annexed to the Common Prayer Book was declared erroneous, and a new calendar, tables and rules were substituted therefor.

It is of these matters that the Court takes judicial notice, and the calendar, tables and rules mentioned by this Act of Parliament are evidence; but the question involved in the exception under consideration is quite a different one. No such calendar or almanac was offered by the State, but one published without any sanction, and depending for its accuracy entirely upon the capacity of the individual who prepared the calculations. Besides, if the author of the work is living and accessible, he himself should have been produced, so that his means of knowledge might have been ascertained. Morris & Gwynne, vs. Harmer's Heirs, 7 Peters, 554.

The object of the evidence of Fisher, as stated in the third exception, was to show that the prisoner had attempted to set up an alibi, which was in point of fact false; and that, therefore, failing in his alibi, he was the guilty party. Wills' Circumstantial Ev., side page 83.

Having adduced this inculpatory evidence against the appellant, it was clearly competent for him to show that the mistake was not his, but another's; that when he asserted that he was at Motter's Station, about nine o'clock, A. M., he was acting in good faith, because acting on information which had been imparted to him from a source that he had a right to credit. The sincerity of his statement was what was material. Though false in fact, if made bona fide, it was no evidence of guilt. 1 Wharton's Crim. Law, sec. 663; 1 Greenl. Ev., sec. 101; Friend, et al. vs. Hammill, 34 Md., 308.

Charles J. M. Gwinn, Attorney-General, for the appellee.

Upon the first exception: the rules of evidence are the same in civil and criminal cases. 1 Bishop on Crim. Prac., 3 rd Ed., 1880, sec. 1046.

The question at issue was whether the appellant was guilty of the murder whereof he stood charged. It neither tended to prove the guilt, or innocence of the accused, to show that a person, produced as a witness in the case, had stated in conversation with a stranger, before the body of Wetsell had been found, that Wetsell had been murdered and buried under leaves in Myers' woods; and that his head had been "mashed in." If the witness ever made such a remark, it might have tended to show that some facts, or circumstances, had been brought to his knowledge which induced him to form that opinion before the body was found. But it was not admissible to ask him whether he had expressed such an opinion; for to do this was to permit the witness to give utterance to an opinion without disclosing the grounds upon which that opinion was formed.

The question was not admissible for the purpose of impeaching the credit of the witness, by contradicting him, because the question was irrelevant to the issue. 2 Taylor on Evidence, 6 th Ed., sec. 1292; and because the witness, in his examination in chief, had made no statement inconsistent with the opinion which the question implied that he had expressed as to the manner of Wetsell's death, and the place where his body was concealed.

The question was not admissible, upon cross-examination, because the witness upon his examination in chief had not made any statement as to his belief or opinion as to the manner of Wetsell's death, or the place, or mode, of his interment. Phila. and Trenton R. R. Co. vs. Stimpson, 14 Peters, 461.

Upon the second exception: the Act of 24 George 2, ch. 23, regulating the commencement of the year, and for correcting the calendar then in use, is in force in this State. Kilty's Report on Stats., 252; Alexander's Brit. Stat., 767.

Under that statute the period primarily determined is the day on which the new year shall commence. 24 George 2, chap. 23, section 1. The statute does not say on what day each succeeding day of the new year shall fall. That is left to be computed from the fixed date supplied by the statute.

Now it must be conceded that a Court may inform itself of the day of the week on which a particular day of the month will fall, though that be matter of calculation, from the data furnished by the statutory beginning of the year, and may permit the jury, under its observation, to derive evidence of such fact, from a computation of such succession of days found in an almanac. Page vs. Fawcett, 1 Cro. Eliz., 227; 1 Stark. on Ev., 3 rd Eng. Ed., 509; 2 Saund. Pl. & Ev., 722; Kilgour vs. Miles and Goldsmith, 6 H. & J., 274; Sasscer vs. Farmers' Bank, 4 Md., 420.

The designation of days in the computation of time, made in an almanac, necessarily involves the computation of the times marked by the natural divisions of each day--that is to say, among others, the periods of the rising and setting of the sun. The designations of the time of the full moon in each lunar month necessarily involves the computation of the times of the rising and setting of the moon in each day of each lunar month. These are not contingencies, which may, or may not happen, and the proof of the occurrence of which depends upon evidence. The precise periods at which the sun, or the moon, will rise or set, during any particular period of twenty-four hours of the future, is as absolutely certain as the occurrence of the day in which such rising, or setting will take place. If the computation of each day in its season, made in an almanac, is evidence that such day will recur in such season, is not the equally certain computation of the rising and setting of the sun or moon, on such day, made in an almanac, equal evidence of the times when such events will occur? These events are all equally matters of computation from data, which the statute provides in its designation of periods in the statutory year.

Weather reports, kept at an asylum, De Armand vs. Neasmith, 32 Mich., 231; reports of the state of the markets, Sisson vs. R. R. Co., 14 Mich., 497; Lush vs. Druse, 4 Wend., 317, and price currents, have been held to be admissible in evidence, Cliquot's Champagne, 3 Wall., 140, though these are records which are not capable of mathematical demonstration, which cannot be tested by any certain law, and which may or may not, omit the record of changes which have actually taken place. But an almanac forecasts with exact certainty planetary movements. We govern our daily life by reference to their computations. No oral evidence, or proof, which we could gather as to the hours of the rising, or setting, of the sun or moon, could be as certain, or accurate, as that which we may obtain from such source. Why should not these computations, which are, after all, but parts of the ordinary computations of the calendar, be admitted as evidence?

Upon the third exception: the question and proposed offer were not admissible, because the failure of an accused person to maintain a particular defence, upon which he relied when he was first suspected, or arrested, or on his trial, is not a circumstance which creates any legal presumption against him; and both question and answer were, therefore, immaterial. No evidence is admissible in a criminal trial, which does not tend to prove a fact,--or to rebut proof offered as to a particular fact,--or to rebut some presumption of law.

MILLER J., delivered the opinion of the Court.

The appellant was indicted and tried for the murder of James L. Wetsell, and the jury, by their verdict, found him guilty of murder in the first degree. At the trial, his counsel took three exceptions to the rulings of the Court upon questions of evidence, which this appeal brings up for review, and we shall dispose of them in their order.

First Exception. The State proved that early on Tuesday morning, the 5th of August, 1879, Wetsell left the house of Knode, where he was making his home, and proceeded up the public road towards Emmittsburg. On the Sunday following, Wetsell not having made his appearance, Knode went to the house of one Rentzell, where the prisoner was staying, and inquired of him whether he had seen anything of Wetsell, and the prisoner said he saw him on Tuesday, talked with him on the hill, when he left, saying he was going to Tom Shorb's, and from there to town, and that he, the prisoner, then went to Motter's Station. On Tuesday,...