Robinson v. State
| Decision Date | 30 June 1881 |
| Citation | 57 Md. 14 |
| Parties | JOHN S. ROBINSON v. THE STATE OF MARYLAND. |
| Court | Maryland Court of Appeals |
APPEAL from the Circuit Court for Washington County.
The case is stated in the opinion of the Court.
The cause was submitted to BARTOL, C.J., GRASON, MILLER ROBINSON, IRVING, RITCHIE, and MAGRUDER, J.
Edward Stake and A. K. Syester, for the appellant.
Charles J. M. Gwinn, Attorney-General, for the appellee.
The appellant (a mulatto,) was indicted for forcibly abducting taking, and carrying away four children of one James McKee, aged seven, six, five, and three years, respectively. Another count charged him with persuading and enticing the children away from the father.
The bill of exceptions presents the sole point of the propriety of the rejection of certain testimony offered by the appellant.
At the trial the State produced as a witness Joseph McKee, a son of the said James McKee, (not one of the children alleged to have been abducted) who testified that in August, 1880, his mother, Mrs. McKee, was living with the said children in the mountains above Clearspring, in Washington County, and his father was temporarily absent, in Montgomery County, engaged at work, leaving his family at his house; that during the absence of his father, the prisoner came to the house and brandishing a revolver, said to witness and his mother that he was going to be boss now for awhile; that the prisoner then loaded the furniture in the house on a wagon belonging to the father, and harnessed the horse thereto, and against the wishes, and in spite of the remonstrances, tears and crying of the mother, about eleven o'clock at night made her and the children go with him, and drove away the horse and wagon; that his mother said she did not want to go away, but was compelled to do so through fear of the prisoner, who was armed with a revolver; that they went down the road, passing several houses named, and came to Philip Householder's, where they remained over night; that the wagon broke down on the road, and they walked then to Householder's; that on the way the prisoner said he would shoot Mrs. McKee and witness if they tried to go back or run away.
The State also called James McKee, the husband and father, who testified to being away at the time, and also among other things that he had written to his wife sometime before, that if she had more pigs than she needed she could sell some.
The prisoner called Ella Schrader, who testified that she was living at the time with Mrs. McKee, as a servant; that two days before Mrs. McKee and the children left home, the prisoner came and bargained with Mrs. McKee for two pigs and went away, leaving the pigs; that on the morning Mrs. McKee went away, she and her son Joseph, the witness for the State, about six o'clock in the morning, commenced to load the wagon with furniture and harnessed the horse to the wagon; that after the wagon was loaded and the horse harnessed to it, the prisoner came along and asked Mrs. McKee about the pigs he had bought, and she told him the pigs were in the wagon, and if he would drive the horse down the mountain for her, the pigs would be hauled in the wagon; the prisoner then drove the wagon away from the house with Mrs. McKee and the children.
The prisoner then produc ed Mrs. Mary Householder, and offered to prove by her, that when Mrs. McKee and the children came to her house, about ten miles from McKee's house, in the evening, Mrs. McKee told witness that she had made up her mind not to live with her husband any longer, and had left home and taken with her her children, and had gotten the prisoner to drive the wagon, and that the prisoner drove it at her request, and also that she declared these things to the witness in the absence of the prisoner; to which offer the State, by its counsel objected, (the said Mrs. McKee being alive and residing in Washington County, within reach of the process of the Court,) which objections the Court sustained, and refused to allow the testimony to go to the jury, to which the defendant excepted; and this ruling is the point for decision upon this appeal.
Here was a direct conflict between the witness on the part of the State, and the witness on the part of the prisoner, as to the nature of the occurrence, which was the subject-matter of the indictment; and the prisoner sought to sustain his witness' version of the affair by proof of declarations of the wife made at a casual stopping place on the journey, and before the project was at an end so far as we can see from the proof, and out of the presence and control of the prisoner, going to explain the transaction and her motives and purposes and the agency of the prisoner, and certainly having an important bearing upon the transaction, if believed by the jury.
Why should the prisoner not have been entitled to the benefit of this testimony? It is objected that it is hearsay. That Mrs. McKee could have been called as a witness. But is she any better able to testify to what she said than the proposed witness who heard her? And if the wife has returned to the husband's control, why should the prisoner take the risk of the testimony of a witness presumably under coercion, and at all events under a temptation to testify against him to screen herself, and who to testify for him would have to testify to her own shame and disgrace. What she said at the time characterizes the act, is a part of the res gestæ, and can be as well proved by another witness as by herself.
The ground upon which declarations like these, attending an act and...
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