Smith v. State

• Decision Date: 16 January 1948
• Docket Number: 71.
• Citation: Smith v. State, 189 Md. 596, 56 A.2d 818 (Md. 1948)
• Parties: SMITH v. STATE.
• Court: Maryland Court of Appeals

56 A.2d 818

189 Md. 596

SMITH v. STATE.

No. 71.

Court of Appeals of Maryland

January 16, 1948

Appeal from Circuit Court, Dorchester County; W. Laird Henry, Chief Judge, and Edmond H. Johnson and Levin C. Bailey, Judges.

Ollie Smith, Jr., was convicted of rape, assault with intent to rape, and common assault, and he appeals.

Affirmed.

p>Page Calvin A. Douglass, of Baltimore (Donald G Murray, of Baltimore, on the brief), for appellant.

J Edgar Harvey, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

GRASON Judge.

On May 14, 1947, the Grand Jury for Dorchester County returned an indictment against Ollie Smith, Jr., which contained three counts.The first count charged rape, the second assault with intent to rape, the third count, common assault upon Florence May Henry on the 3rd day of May, 1947, at Dorchester County Maryland.

Smith was arraigned on May 21st.The record shows, on that day the court stated it had appointed Messrs. McAllister and Trice to defend him, and the case was immediately called for trial before a jury, at the election of the accused.

The next day the jury found him guilty under all three counts in the indictment, and the court thereupon sentenced him to be hanged.He appeals here.Thereafter Messrs. McAllister and Trice struck out their appearance for the accused, and Mr. Calvin A. Douglass entered his appearance for him, and has prosecuted the appeal in this court.

Five points were argued in this court, viz.:

1.Was there error in the admission of the confession by the accused?

2.Was the taking of the testimony in the presence of the jury, for the purpose of laying a foundation for the admission of the confession, reversible error?

3.Was there error in the admission of photographs showing footprints at the scene of the crime?

4.Was the evidence submitted to the jury sufficient to warrant their verdict?

5.Was there a failure of due process of law in that counsel was appointed for the accused by the court on the same day he was put upon trial?

The facts of this case, stated in narrative form, are as follows: Florence May Henry, her brother, Norman Henry, her sister, Mary Elizabeth Henry, and a small child of Florence, lived in a small two story house situate on a country road in a rural section of Dorchester County.There is a short lane leading from the road to the house.They had resided there for about four years before this crime occurred.Florence was twenty-two years old, Norman was twenty years old, and Mary would have been seventeen the following July.About a quarter of a mile from their home, on this road lived their uncle, Frank Henry, and about a half mile from his home is the town of Hurlock.There is a woods about a quarter of a mile from the road in front of the Henry home, and between the road and the woods is a field.A stream, known as Gravel Branch, runs through the woods.A short distance from the entrance to the Henry home, a road called Gravel Branch Road runs down to a railroad trestle that spans the branch.The railroad crosses this country road at an angle.

On the evening of May 2nd these young women went to Federalsburg to see a moving picture, and arrived home, with two young men, at about ten o'clock.Their brother was home when they arrived.These young men left shortly thereafter, and the family retired for the night.The two girls and the child slept in one room and the brother in another.He had obtained work at a sawmill, and was anxious to be at work on time the next morning.Later in the night he left the home and went to the home of his uncle, Frank Henry, so that Frank Henry could awaken him early the next morning.At or about one o'clock in the morning the uncle heard Mary screaming.He went to the door and there found her with the child.She informed him that a colored man had broken into the house and dragged Florence away.

Gus Webb and his sister, Grace, live a short distance from the uncle's home.At their home at the time was a man called Frank.These are colored people.Webb heard Mary screaming, and backed his automobile out to the road, and he, his sister, the man Frank, Frank Henry, Norman Henry, Mary, and the child were driven by Webb, in his car, to the Henry home.Parked a short distance from the entrance to the Henry home, on the country road, was a red truck marked with the numeral '7.'Norman and his uncle started to hunt for Florence, but did not find her.Norman then went to a store conducted by James R. Brown, at Hurlock.He resided at the store building.Brown called the State Police and then went with Norman to the Henry home.He was shown a broken lamp that Mary said was kicked out of her hand by the colored man.Brown and Norman started to search for Florence.They went down Gravel Branch Road to the trestle, crossed the trestle and proceeded along a sandy way that runs along the woods to a stream that flows into Gravel Branch.Along this sandy way they saw footprints and, with the sid of a flash light, traced the footprints some distance until they came to the stream, when they heard a crackling of bushes.They halted, in the hope they would apprehend the assailant.

Brown called Florence and she answered, and came to them.She was crying, her nightgown was torn, she was barefoot, and she complained that she had been attacked by a colored man, and that he had accomplished his purpose.They proceeded to the Henry home by way of the trestle, and when they arrived at the trestle they heard a car start and proceed in the direction of Hurlock.At about that time Webb saw this red truck start.He and these people were in his car, watching this truck.He followed it.It proceeded through Hurlock, down to a colored settlement called Bobtown, circled around it, and went to the back entrance of Mr. James Andrews' place, and entered it.Webb returned to the Henry home.State Trooper Dodson and Sheriff Robinson were there.The Trooper, the Sheriff, Brown, and Norman Henry went immediately, in the Trooper's car, to the home of Mr. Andrews, and found a red truck marked with the numeral '7' parked there.Its engine was warm.

Smith's parents lived on the Andrews place and the accused, who worked for Mr. Andrews, lived with his parents, with whom the officers talked.From there they proceeded to Bobtown, to the home of a colored man named Clifford Dodson.A colored woman came to the door and took the Trooper and the Sheriff upstairs to a bedroom, where there were several colored people sleeping.Among them was the accused.He had all his clothes off except his underclothes.They aroused him and told him he was under arrest.His coat, overalls, and shoes on which were rubber shoes, were under the bed.These, together with his hat, the officers took.The overalls were wet up to the knees.They borrowed some clothes for the accused, took him to the Trooper's car, and placed him in the back seat between Brown and Norman Henry.He was handcuffed.The Trooper and the Sheriff got in the front seat of the car, the Trooper driving, and they returned to the Henry home.There they left Brown and Norman Henry, and took the accused to the jail at Cambridge.It was getting around daybreak at that time.The evidence is that the accused was not questioned at all until they arrived at the jail

After Florence got back home, she was immediately taken in an automobile to the office of Dr. Anderson, in Federalsburg, who examined her.This examination revealed that the patient was very nervous and agitated and was crying.Upon examination of her body, the doctor found numerous scratches, abrasions, and bruises on both arms and both legs.The right wrist showed evidence of being bruised, as well as being scratched or pinched.She complained of her right shoulder and right elbow bothering her, but there was nothing found on her right arm, other than bruises on her right wrist.There was no evidence of fracture.There was muscular soreness.Her vagina contained semen.It was evident from this examination that this woman, shortly before, had intercourse with a man.

The evidence further showed that on the early morning of May 3rd the Henry home was broken into and a man entered, came up the steps and beat on the door of the room in which these young women and the child were sleeping.They heard him coming up the stairs, got up and tried to hold the door, but this man pushed it open, grabbed Florence and pulled her down the steps.Mary immediately lit a lamp, and came down the steps holding the lighted lamp in one hand, with the young child at her side.She saw it was a colored man.He told her to put out the light, and then kicked it out of her hand.He had Florence by the wrist, which he twisted, and dragged her out of the house, across the field, and into the woods through which Gravel Branch flows.There he raped her, and she was subsequently found as we have described.The accused was identified by Florence and Mary.

At around seven o'clock in the morning of May 3rd the prisoner was seen at the jail by State's Attorney Harrington.Present at the time were Sergt.Dodson and the Sheriff.The State's Attorney told the prisoner that he need not answer the questions if he did not want to, but if he did answer the questions, what he said would be used against him at his trial.The State's Attorney didn't stay long.There is no evidence in the case of any improper action on the part of the State's Attorney, nor the Sheriff, nor Dodson, when he talked with the accused, and apparently the accused has no complaint about his talk with the State's Attorney, for no point was made in this regard in the brief, nor at the argument.

At about...