Davis v. State

Stewart, J.

s delivered the following dissenting opinion:

As this is a capital case, and I do not concur in the judgment of a majority of the Court, it is due to my brethren, and all concerned, that I should in this form, record the extent of my dissent.

I shall therefore take the occasion, briefly, to state my conclusions as to the various bills of exceptions, hut *53 shall not undertake an elaborate discussion of the grounds or reasons therefor, — or refer to authorities for their support.

In the first exception, no objection is taken to the testimony of Doctor Manakee, who was the physician who had examined the wounds of the deceased; and who was offered by the State as an expert; but the exception was as to the character of the testimony sought to be obtained from him by the State, as to the kind of instrument inflicting the wounds upon the deceased.

The witness was asked by the State, to “state to the jury, what kind of instrument could in your opinion have inflicted those wounds.”

The prisoner’s counsel objected; insisting as we understand, that it was incompetent to prove the possibility of certain instruments having inflicted the wounds, but that proof, to be admissible in regard to the instrument occasioning the death of the party, must be within the limits of probability.

The prisoner’s counsel suggested that the proper enquiry was, “what kind of instrument would have been likely to inflict the wounds? ”

It was competent for the State to prove the character of the wounds, and by what sort of an instrument inflicted, and if the jury could find from the probability, or possibility of any instrument inflicting the actual wounds, that the prisoner was the party beyond a reasonable doubt, that used the instrument inflicting the wounds, such fact was relevant and legitimate. The question was remotely connected with the ultimate fact to be proved, and unless the preliminary information sought, (whether in the one mode or the other, was not material,) was followed up by additional proof, the answer, whether founded on probability or possibility, could not benefit the State or injure the prisoner.

*54 All enquiries relevant in any degree to the investigation of the main issue are legitimate, and I do not perceive upon what grounds the testimony proposed could he excluded from the jury.

Much latitude' is allowed on cross-examination, hut the question propounded to the witness by the prisoner’s counsel in the second exception, if permitted to be answered, would have introduced inadmissible testimony to some extent at least, — the statement of the hook in question, — and the Court below very properly refused to allow the question.

The objection to the competency and proposed testimony of Dr. Herring referred to in the third exception, was properly overruled. It was competent for the State to prove the guilt of the prisoner by circumstantial testimony. The deceased might have been murdered, or his death the result of accident. It was incumbent on the State to establish the former theory, and to exclude and negative the possibility of any other reasonable hypothesis. If the death of the party was the result of accident, the State must fail, because utterly inconsistent with the theory of guilt. Any relevant testimony to prove the death was not, occasioned by accident, was admissible.

In the fourth exception, Dr. Herring had testified for the State, that the wound on the back part of the skull, was on the occipital bone and involved the occipital protuberance. The prisoner’s counsel in his cross-examination, asked him in substance, if the skull below the occipital protuberance, was liable to be fractured by accident.

The preface to the question, “ leaving out of view the description of the wound, etc.” did not render it an abstraction. The prisoner’s counsel had the right, on the cross-examination of Doctor Herring, as an expert, introduced on the part of the State,-to propound the question without reference to Dr. Manakee’s testimony. 1 do not perceive upon what legal grounds, the State. *55 could interpose objection; and in my judgment the Court erred, in not overruling the State’s objection.

Unless some reason can be given for the exclusion of testimony, it ought to he admitted; and the fullest investigation allowed — such is the policy and reason of the law of evidence, in the administration of justice.

The prisoner’s question, by his counsel, in the fifth exception, to the witness as an expert, would have been clearly unobjectionable if it had omitted the reference to the rules stated by judicial authority. The question was complex, aud although the witness could give his own opinion, founded on information from all sources, the answer to the question as propounded would have left it uncertain, whether he was giving his own opinion or that of others, unsworn and incompetent, and therefore such question was inadmissible aud properly ruled out.

I see no valid objection to the rulings in the sixth and seventh exceptions.

The eighth exception is disposed of in the review of the third exception.

The testimony of the expert, Doctor Billingslea, referred to in the ninth exception, ought not to have been received. He was required to give his opinion merely as an expert upon the state of facts, testified to by Doctor Manakee.

Doctor Manakee had been cross-examined by the prisoner’s counsel, as they had the right to do, and his testimony as a witness, as the basis for the opinion of an expert, must be taken in its entirety. The testimony on cross-examination should be received and considered by the Court, quite as admissible as the evidence in chief. It is irregular to separate the one from the other. The witness heard but a part of his testimony as to the series of facts upon which he was to give his opinion as an expert. There was, therefore, no sufficient and legal data for his opinion, and his testimony ought to have been excluded. Any other rule, it seems to me, would lead' to very irregular results.

*56 The question propounded to the witness, Doctor Martin, introduced by the State, on his cross-examination by the prisoner’s counsel, referred to in the tenth exception, was one not difficult of an answer, and the prisoner was entitled to have it answered.

It was conceded to be competent. The explanation of the witness, that the answer he gave, was his only answer, was totally insufficient, unless he had further stated, that he was unable to give any other answer — the decision of the Court that it was a proper answer, and no further answer -should be given, deprived the prisoner of the benefit of testimony to which he was entitled, and there was error in this ruling of the Court.

The alleged admission of the State in the eleventh exception, did not meet the purposes sought by the prisoner’s counsel in his question to the witness, and the objection of the State, notwithstanding, ought not to have been sustained. The clear object of the prisoner’s counsel, was to have the inference drawn by the jury, from the absence of any proof on the part of the State, of blood-marks on the wall of the mill, or clothes of the prisoner, that none existed, inasmuch as Professor Tonry had been employed by the State to analyze the supposed blood-marks ; and after having done so, found none, as thei'e was no report from him. Such would probably be the conclusion of the jury, as conjectured by the prisoner’s counsel. The alleged admission by the State, that the Professor had been employed, but had not applied any test directly, antagonized or excluded any such inference as sought by the prisoner’s counsel.

There was no reasonable objection to the testimony of the expert referred to in the twelfth and thirteenth exceptions, as that evidence was based upon all the proof adduced.

The testimony of Dr. Scott, offered in the fourteenth exception, should- have been ruled out, because based upon a partial knowledge of what the witness had sworn to.

*57 He ought not, for the reason stated in the ninth exception, as to Doctor Billingslea’s testimony, to have been allowed to give his opinion as an expert, without a proper foundation had been first laid.

The testimony of Shew, a witness offered by the prisoner in the fourteenth exception, should have been received. He was separately indicted as an accessory to the commission of the alleged murder, and although the record of the conviction of Davis, the principal, might have been used against him, if put on trial, yet anything he swore in this case, or that of any other witness, could not have been adduced on the trial of Shew, as accessory.

By no legal intendment could it follow, that by giving testimony in this case, he was testifying for himself, although his testimony might acquit the principal, Davis, who was entitled to his testimony, unless there is some legal point of objection.

But if, in fact and in law, Shew, when testifying for the prisoner, was giving evidence for himself, his testimony could not be excluded, on the ground, that he was giving such testimony; because by the 1st sec. of the Act of 1864, ch. 109, any interest he might have in the result of Davis’ trial, could not affect his competency.

The exceptions recognized in the 1st section of that Act, have reference to litigants, or parties having a trial pending, — the 2d section, having reference to one description of litigants, those in civil causes, and the 3d section' to criminal proceedings, where a person is charged with the commission of an indictable offence, &c. The exception of that section, is to a party on his own trial, and in such case, he is rendered incompetent to testify, where, otherwise under the 1st section he would labor under no disability, no matter how greatly and directly interested.

The object and policy of this law so radically changing the ancient rules of evidence, was to abrogate the restrictions upon testimony on the score of interest or crime, *58 recognized by’the common law, and to admit the testimony of all witnesses, to be estimated for what it was worth under the circumstances of interest or crime ; as a better means of eliciting truth, and advancing the purposes of substantial justice, than the principles and modes of the common law allowed'.

It must be conceded, to give a fair construction to the provisions of this law of. evidence, that every witness is clearly competent^ unless within the exceptions, and should not be excluded by any rule of the common law, and only by virtue of the statutory disabilities.

If there were any doubt upon the subject, the rule of the statute should govern and not the exception. The prisoner is entitled to the benefit of all reasonable doubts in this case.

This new principle of evidence has been extended in some quarters, so as even to allow a party to testify in his own favor, when actually on trial. But the-provisions of the law of this State must govern in this case.

There has been no decision of the British Courts, where they have a similar law to ours, or rather our Statute is very much a transcript of the English law upon the subject; nor has there been any judicial ruling anywhere, excluding the testimony of an accessory in the trial of his principal.

The case of The Queen vs. Payne and others, relied upon by the Attorney-General, settles nor affirms any such construction.

According to my best apprehension of the tenor of the Act of 1864, the very obvious construction of its provisions, admits the testimony of an accessory, and I think the prisoner was entitled to have the testimony of Shew, and that the Court below committed an error in his exclusion.

I refer to the very lucid opinion of my brother Bowie, for a more satisfactory and detailed exposition of the reasons for this construction.

*59 The objection of the prisoner’s counsel to the testimony of the witness Shriver, referred to in the sixteenth exception, ought to have been sustained.

The State had permitted the prisoner to sustain his witness, Harrison, by Shriver, as if he had been impeached by the State’s witness, Sweitzer, who, on the other hand had not been impeached, in fact, or by any concession of the prisoner, and therefore, the State had no right to undertake to sustain its witness, when not impeached. I know of no rule or practice, or authority to sustain the ruling of the Court below in this exception. The mere disagreement of witnesses in their testimony, is not an impeachment. See Vernon vs. Tucker, 30 Md., 456 .

I concur fully with the reasoning and conclusion of Judge Bowie, upon this exception in his dissenting opinion.

There is-some reasonable ground of objection on the part of the prisoner’s counsel to the ruling in the seventeenth exception.

The counsel for the prisoner having reserved exceptions during the progress of the trial to the rulings of the Court, on portions of evidence, after the trial, prepared exceptions, in which all the evidence was embraced, according to their view of the same, and asked the Court to sign and seal 1he same, stating they deemed it important to the full presentation of the questions involved, that all the evidence should be incorporated.

The Court thought such course unnecessary, and declined to sign the exceptions thus prepared, but required them to be prepared in accordance with the 5th Rule prescribed by the Court of Appeals. 29 Md., 2 .

The Court thereupon revised the exceptions themselves, which had been framed by the counsel for the prisoner, and signed and sealed the exceptions thus revised in lieu of the exceptions of the prisoner’s counsel.

*60 The recent law, authorizing exceptions in criminal cases, applies the same rule, governing exceptions in civil cases, and the 5th Rule of the Court of Appeals referred to is applicable. That Rule ought to have a reasonable interpretation, to accomplish the purposes designed.

The object of the rule, together with the 6th and 7th Rules, was to prevent the insertion of useless matter, which had been done under the former practice, so as not to have the record encumbered with anything not necessary or material to the full and fair presentation of the question to be reviewed by the Appellate tribunal.

This rule ought to be carried into effect according to its spirit and intent, not merely that the record may be abridged as much as possible, but to subserve the purposes of substantial justice. To accomplish this, mere forms must yield to matters of substance. A large discretion is given to the Judges, who have the control in the preparation of bills of exceptions, and they are required to see that all the necessary facts are stated in the exceptions, to enable the Court of Appeals fully and fairly to comprehend the bearing of the rulings upon the question involved.

It is manifest that a very strict abridgment of the statement of the facts might hazard the proper presentation of the questions to be adjudicated. If a more full statement is made, and unnecessary matter incorporated, the surplusage would not vitiate the proceeding — under such circumstances, it seems to me in this criminal proceeding, involving the life of the prisoner, and more especially, where a very large portion of the testimony was that of experts, whose opinions were admitted as evidence, predicated upon facts testified to by others, the effort to abridge the statement of the evidence to accord with a rigid construction of the 5th Rule, and at the same time, to furnish the Appellate Court with full and adequate information for the review of the questions decided below, *61 was a very embarrassing duty, devolved upon the Court, and which might in the performance be attended with some injustice to the accused.

In such case, where the counsel of the prisoner, having charge of his interests, had prepared the exceptions embracing all the evidence and represented to the Court, tliat such course was deemed necessary, for the full presentation of the questions to this tribunal; in my judgment the purposes of justice between the State and the prisoner, would have been better subserved by giving to the Eule such operation as would admit of no question, rather than to have the statement of fact so abridged by a meagre presentation, as to afford ground of complaint, and possible disability in this Court, fully to determine the questions involved.

The statement of the evidence is reduced to a narrow compass, and I doubt if it is sufficently comprehensive to enable this Court, properly to review the rulings below, as to the admissibility of the testimony of the experts, whose opinions upon facts testified to by others, not embraced in the record, formed a large portion of the evidence.

A large discretion is of course to be allowed to the Court below; still in a case where the purposes of justice require a revision of their determination in such a proceeding, this Court, where the exception is taken, has the power of correction.

This Court, as well as the Legislature, has authority under the 18th sec. of the 4th Art. of the Constitution, to change or modify the Eule adopted, if it require revision to adapt it to the exigencies of criminal proceedings. But as it stands, I doubt not a reasonable construction of its provisions in their application to criminal cases, authorizes this Court to review the exercise of authority under it, given to the Court below in regard to this matter. According to my apprehension, the Court below erred in *62 its ruling, in this exception, disallowing all the evidence to he incorporated in the exceptions. Concurring with the majority of the Court on the first, second, third, fifth, sixth, seventh, eighth, twelfth and thirteenth exceptions, but being of opinion for the reasons stated, that there was error ■in the rulings of the Circuit Court iii the fourth, ninth, tenth, eleventh, fourteenth, sixteenth, and seventeenth exceptions, I think the case ought to be, remanded and a new trial ordered.