Smith v. State., 32.

• Citation: 32 A.2d 863
• Decision Date: 16 July 1943
• Docket Number: No. 32.,32.
• Parties: SMITH v. STATE.
• Court: Court of Appeals of Maryland

32 A.2d 863

SMITH
v.
STATE.

No. 32.

Court of Appeals of Maryland.

July 16, 1943.

Appeal from Criminal Court of Baltimore City; Eugene O'Dunne, Judge.

Sidney Smith was convicted of murder, and he appeals.

Affirmed.

Julius P. Robinson and James M. Hoffa, both of Baltimore (Joel J. Hochman, of Baltimore, on the brief), for appellant.

Robert E. Clapp, Jr., Asst. Atty. Gen. (William C. Walsh, Atty Gen., and J. Bernard Wells, State's Atty., and Bernard G. Peter, Asst. State's Atty., both of Baltimore, on the brief), for appellee.

Before SLOAN, C. J., and DELAPLAINE, COLLINS, MARBURY, GRASON, MELVIN, ADAMS, and BAILEY, JJ.

BAILEY, Judge.

The appellant, Sidney Smith, was indicted by the Grand Jury of Baltimore City for the murder of his wife, Mae K. Smith, on February 7, 1943. The indictment was returned on March 8, 1943. On March 17, 1943, he was arraigned, entered a plea of not quilty, waived a jury trial and at his election was tried before the Judge then sitting in Criminal Court, Part 2, of Baltimore City. He was found guilty of murder in the first degree. After a motion for new trial was overruled by the Supreme Bench

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of Baltimore City, he was, on April 12, 1943, sentenced to be hanged, and it is from this judgment that he has appealed to this Court.

While the record is somewhat confused, it appears that six exceptions were taken at the trial, five to rulings on the admissibility of evidence, and the sixth to the refusal of the Court to direct a verdict of not guilty at the conclusion of the State's case.

The exceptions to the evidence are as follows:

First: To the admissibility of testimony of a witness that a terrible thumping noise ‘was the breaking of cement’ and that ‘it came from the first floor next door’.

Second: To the admissibility of a conversation with the appellant relating to the absence of his wife from her home.

Third: To the admissibility of evidence relating to blood stains on certain articles in the home of the appellant.

Fourth: To the admissibility of a pick, shovel, hatchet and axes found in the appellant's apartment and in the cellar immediately under it.

Fifth: To the admissibility of a photograph of the deceased taken shortly after the discovery of her body.

The appellant and his wife resided in the first floor apartment of a three story house at 425 North Carey Street. The second floor apartment was occupied by Rose Adams and Catherine Harris, and the third floor apartment by Alberta Hall. Under the house there is a cellar about 66 feet long, 16 feet wide and 7 feet high. The cellar has a cement floor. On the night of February 3rd of 4th a little after eleven o'clock, Elizabeth Young who lives in 423 North Carey Street, a row house adjoining the house occupied by the appellant and his wife, heard a terrible thumping noise. We quote her testimony:

‘It was the breaking of cement. And I don't know where it came from exactly, but I know it came from the first floor next door. I took off my shoe and rapped on the wall three or four times very loud. Then the noise ceased. I just heard a swish. I went to bed and stayed there.

‘Q. That was on February 3rd and February 4th? A. At night, yes. That was between eleven o'clock and two a. m. the next morning.

‘Q. How long did the noise last? A. About an hour and a half to two hours.

‘Q. Did you hear any noise in your house again? A. I heard the same noise on Saturday night after eleven o'clock. That kept up until nearly two o'clock a. m. Sunday morning.’

The admission of that part of the above testimony that ‘it was the breaking of cement’ and ‘it came from the first floor next door’ is the basis of the first exception.

Appellant's wife was last seen alive on Saturday, February 6th. Her sister, Artilla Jones, went to the house at 425 North Carey Street, rang the door bell and was met by the appellant, who stated that his wife was not home. However, the wife was there and asked her sister to come in. She was crying at the time. Daisy Mae Heath also saw her twice on February 6th, once at 6 o'clock and again at 8:30 in the evening.

Catherine Harris, who occupied the bedroom on the second floor right over the Smiths' bedroom, testified that ‘on February 6th I heard a noise right under me. It sounded like someone was arguing, by being someone underneath I thought it was Mr. and Mrs. Smith. It lasted about five minutes. After that I heard another noise. It sounded like something had fallen. After that I did not hear any more.’

On Monday, February 8th, between 2 and 3 o'clock in the afternoon, Daisy Mae Heath saw the appellant putting locks on the cellar windows that opened on Carey Street.

Artilla Jones missed her sister on Tuesday, February 9th. She asked the appellant ‘if Mae had come from work. He said no, Mae is working longer hours.’ On Wednesday she talked with appellant again in the presence of her husband and her brother, Horace Keith, and at that time appellant said that Mae was in New York and that he was going to New York to look for her. On the same day he talked with Mae's mother, Viola Keith. Viola testified that ‘I asked him where was my daughter. He said that he didn't know, that he was going to New York to find her. I said, you had better find her and bring her back or hear something from her. He said, I am going to New York and if she is dead what are you going to do about it? That is what he told me.’

Horace Keith was asked about the above conversation between the appellant and Artilla Jones. His answer was as follows: ‘I

32 A.2d 865

asked him had he seen anything of Mae. Had he found her yet. He said, no, he ain't seen her.’ There was then an objection, and the action of the Court in overruling the...