Thomas v. State

• Citation: 47 A.2d 43,186 Md. 446
• Decision Date: 15 May 1946
• Docket Number: 123.
• Parties: THOMAS v. STATE.
• Court: Court of Appeals of Maryland

47 A.2d 43

186 Md. 446

THOMAS v. STATE.

No. 123.

Court of Appeals of Maryland

May 15, 1946

Appeal from Circuit Court for Queen Anne's County; J. Owen Knotts, Chief Judge, and Wm. R. Horney, Judge.

William Albert Thomas was convicted for second-degree murder, and he appeals.

Reversed and new trial awarded.

John Palmer Smith, of Centreville (Richard T. Earle, of Centreville, on the brief), for appellant.

J Edgar Harvey, Asst. Atty. Gen. (William Curran, Atty. Gen and Harry C. Butler, State's Atty. for Queen Anne's County, of Centreville, on the brief), for appellee.

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

DELAPLAINE Judge.

On November 15, 1945, William Albert Thomas was found guilty of murder in the second degree by the Circuit Court for Queen Anne's County, sitting as a jury, and was sentenced to the Maryland Penitentiary for the period of 18 years. He is appealing from the judgment of conviction.

On July 16, 1945, shortly after 6 p. m., James Furbush, an elderly man who lived alone at Price, was found in the living room of his home with his face covered with blood and a fracture of his skull, indicating that he had been brutally assaulted by a club. On July 20 he died in a hospital as a result of the fracture; and Wilbert Melvin, a farmer, aged 39, of Kent County, and his wife, Nellie Melvin, were arrested and taken to jail in Centreville on the charge of murder. On July 21 each of the prisoners signed a statement regarding the assault, and several days later they were held for the action of the grand jury. In September, however, Thomas was arrested in Salisbury on a warrant charging him with assault upon Furbush with intent to rob, and in November he was indicted for murder.

At the trial in the court below the State introduced in evidence a confession signed by the defendant in the presence of the sheriff and two State police officers; but the defendant, taking the stand in his own defense, swore that he was unable to read and that he thought the confession related to an assault upon another man, Hickey Cooper. Melvin, called as a witness for the defendant, testified that he went to Furbush's home on July 16, but left for Centreville to get some liquor, and when he returned he found that Furbush had been injured. He denied that he had quarreled with Furbush, and stated that he called to his wife, who was on the porch, to see how badly the man was hurt, but she would not come in. The Court did not allow Melvin to answer whether he had been arrested by Corporal Andrews of the State Police upon the death of Furbush, or whether he had signed a statement regarding the murder. When shown the statement purporting to have been signed by him on July 21 in the presence of Sheriff Perkins and two other officers, he acknowledged that the signature looked like his, but the Court refused to admit the statement in evidence.

Mrs. Melvin, also produced as a witness for the defendant, testified that she accompanied her husband to Furbush's home on the evening of July 16, but did not enter. The Court did not allow her to state whether she had been arrested by Corporal Andrews, or whether she had signed a statement regarding the murder of Furbush. She was shown a statement dated July 21 purporting to have been made by her regarding the assault upon Furbush, and when asked whether the signature on the statement was her signature, she replied: 'Yes, sir, I guess it is.' But the Court did not allow her to say whether she had signed the statement freely and voluntarily, or whether any offer or inducement had been made to her to sign it. The Court refused to admit the statement in evidence.

In England during the eighteenth century, when the rule against hearsay evolved, the courts formulated the exception of declaration against one's own interest where the declarant has since died or otherwise become unavailable as a witness. This exception is based upon the grounds (1) that the hearsay rule might exclude the only available evidence, and result in great injustice unless exception were made, and (2) that no person would be likely to make such a statement unless true, and hence the statement would be free enough from the risk of untrustworthiness to make the requirement of cross-examination a work of supererogation. In the nineteenth century, however, the House of Lords engrafted an important limitation upon the exception. In 1811 a witness in the Berkeley Peerage Case, 4 Campb. 401, was not allowed to testify to a declaration which had been made by a clergyman, since deceased, that he had performed the marriage of the late Earl and the Countess of Berkeley. Then in 1844 in the Sussex Peerage Case, 11 Clark & F. 85, 8 Eng. Reprint 1034, 1043, the son of a deceased clergyman was not allowed to testify that the father had stated that he had performed the marriage of the deceased Peer and his alleged wife. The question to which the declaration related rested partly on an Act of Parliament, which contained a penal clause, and it was surmised that the clergyman had committed an unlawful act in performing the marriage. The rule was then enunciated that an extrajudicial declaration, to be admissible as a declaration against interest, must be against pecuniary or property interest; and a confession of guilt does not constitute a declaration against interest within the purview of the exception to the hearsay rule. In accordance with the English limitation, the courts in the United States have held almost universally that in a trial of a criminal case a confession by a third person out of court that he committed the crime charged against the defendant is inadmissible, unless it constitutes a part of the res gestae. Munshower v. State, 55 Md. 11, 39 Am.Rep. 414; Baehr v. State, 136 Md. 128, 110 A. 103; State v. Totten, 72 Vt. 73, 47 A. 105; Commonwealth v. Densmore, 12 Allen, Mass., 535; Commonwealth v. Wakelin, 230 Mass. 567, 120 N.E. 209, 213; State v. Hack, 118 Mo. 92, 23 S.W. 1089; Tillman v. State, 112 Ark. 236, 166 S.W. 582, 586; People v. Raber, 168 Cal. 316, 143 P. 317; State v. Fletcher, 24 Or. 295, 33 P. 575; 20 Am.Jur., Evidence, sec. 495; 22 C.J.S., Criminal Law, § 749.

This rule of evidence was criticized by Professor Wigmore as a 'barbarous doctrine.' He said it is absurd because the only...