Davis v. State

Bowie, J.,

delivered the following dissenting opinion.

. Having heard the second argument of this cause only, and had but little leisure for the consideration of the numerous exceptions and examination of authorities, I very reluctantly dissent from the conclusions as to the fifteenth and sixteenth bills of exception, reached by the majority of the Court, who have had larger opportunities, and given the case more mature reflection.

Respect for the opinion of my brothers, as well as the importance of the principles involved, compels me to state, however imperfectly, the reasons upon which my dissent is founded.

The exclusion of testimony on the ground of interest in the event of the suit, or in the record, as an instrument of evidence, or on account of conviction for crime, being found by long experience, in the judgment of the most enlightened jurists of Great Britain, to defeat rather than promote the administration of justice, a series of enactments tending to relax the rigid rules of the Common Law, was initiated in the reign of William IV., (1838,) and culminated in that of Victoria, (1851,) in the Act known as Lord Brougham’s Act, by which all incapacities from interest or crime, (except in a few specified cases,) were abolished.

No act of legislation, since the adoption of the Bill of Rights, has had more important influence on the administration of justice.

*63 The preamble of Lord Dustman’s Act, 6 & 7 Vict. 1843, indicates the object and policy of the radical change in the law of evidence, in the following significant and emphatic terms. “Whereas the inquiry after truth, in Courts of justice, is often obstructed by incapacities created by the present law, and it is desirable that full information as to the facts in issue, both in criminal and civil cases, should be laid before the persons who are appointed to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced, and on the truth of their testimonyBe it enacted that “No person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest from giving evidence, either in person, or by deposition, according to the practice of the Court, on the trial of any issue joined, etc., in any suit, action or proceeding, civil or criminal, etc., but that every person so offered, may and shall bo admitted to give evidence, etc.; notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question or inquiry, or of the suit, action, or proceeding in which he is offered as a witness, and notwithstanding that such person offered as a witness, may have been previously convicted of any crime or offence: Provided this Act shall not render competent any party to any suit, named in the record," etc.

These provisos (says Taylor,) engrafted on the general rule, that no interested witness should be incompetent to give evidence, were “after the wisdom of this great alteration in the law had been tested and thoroughly proved by the experience of six years," swept away by Lord Brougham’s Act, 14 (h 15 Vict.: “which carried out the principle to its legitimate extent."

Whatever individual opinions of their wisdom may be, it is manifest from their origin, and progressive advance *64 ment by successive enactments to their present state, that the alterations in the law of evidence, were not the result of any temporary impulse, but the steady and gradual development of principles, directly opposed to the common law maxim, “ nemo debet esse testis in sua propria causa.” The advocates of the new system say the common law rule was founded upon ignorance and distrust of humanity ; the supposed omnipotence of self-interest, and the narrowest view of evidence, as a science. On the other hand, the modern doctrine, that no exclusion shall exist from interest or crime, is based upon confidence in man; in the sagacity and discrimination of judges and jurors, and the self-evident proposition, that exclusion and inquiry after truth are irreconcilable.

The changes in the law of evidence, effected in English jurisprudence, by the statutes referred to, were, after an interval, of twenty-five years, introduced into this State, by an amendment of the Code, by the Act of 1864, ch. 109: which, although not prefaced by any preamble, being as it is said, almost a literal transcript of the 14 and 15 of Victoria, may, from its purview, be regarded, as a legislative adoption of the theory of evidence therein embodied. The 1st section of the Act of 1864, ch. 109, enacts that !CNo person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest, from giving evidence, ****** but that every person so offered may and shall be admitted to give evidence, notwithstanding that such person may or shall have an interest in the question, or in the event of the trial, * * * * in which he is offered as a witness; and not-, withstanding that such person offered as a witness, may have been previously convicted of any crime or offence,” (the crime of perjury excepted,) and the parties litigant, and all persons in whose behalf any suit, action or other proceeding may be brought or defended, themselves, and their wives and husbands, shall be competent, and *65 compellable, to give evidence in the same manner, as other witnesses,” except as thereinafter excepted.

The 3d section enacts, “No person, who in any criminal proceeding, is charged with the commission of any indictable offence, or any offence punishable on summary conviction, shall be competent, or compellable to give evidence for or against himself, nor shall any person be compellable to answer any question tending to criminate himself, nor, in any criminal proceeding, shall any husband be competent or compellable to give evidence for or against his wife,” etc.

The question is, how far does the third section qualify or restrain the language of the first. We are required now, for the first time in this State, to decide whether the Act of 1864, ch. 109, constituting the 1st and 3rd sections of the 37th Art. of the Code of Public General Laws, shall be liberally interpreted in consonance with its policy and spirit, or shall be literally construed, so as to contract its operation. The State contends that the third section incapacitates any person, who is charged in any criminal proceeding, with an indictable offence, from testifying/or another, if that testimony tends to exonerate the witness, in any other case in which he is charged.

The appellant insists that the true meaning of the section is, he shall not testify for himself in the case in which he is charged ; in all others he is a competent witness and compellable to testily. The rules for the interpretation of statutes, as laid down by the Barons of the Exchequer, in Heydon’s case, (3 Rep. 7,) and sanctioned by universal consent since, are

“ 1st. What was the common law before the making of the Act ?

“2d. What was the mischief and defect against which the common law did not provide ?

“3d. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth? and,

*66 . “ 4th. The true reason of the remedy.

“It was there held to be the duty of Judges, at all times, to make such construction as should suppress the mischief, and advance the remedy ; putting down all subtle inventions and evasions for the continuance of the mischief, ‘et pro privato commodo,’ and adding force and life to the cure and remedy, according to the true intent of the makers of the Act, cpro bono publico.’ ” Dwarris on Stats., 695.

Interpreting the Code by these sound maxims, adopted by the sages of the law in their palmiest days, the meaning or intention of the Legislature is next to be sought in the language of the several sections cited.

The Common Law, as we have seen, excluded as witnesses all persons interested in the event of the suit, and all parties to the record, as well as persons convicted of crime.

Experiencei showed that these incapacities obstructed the search after truth and defeated the administration of justice.

The remedy designed was, the removal of these restrictions, and rendering all persons competent to testify, as far as compatible with other great principles of justice. The great impediments to full information as to the facts, in the trial of causes technically classified were “ conviction for crime,” “interest in the question or issue,” and being “parties of record.”

The first section of the Act of 1864, ch. 109, “Ex vi termini,” absolutely removes incapacity from crime, or interest, in all cases civil or criminal, “ notwithstanding such person shall have an interest in the matter in question,” or in the event of the trial of any issue, or in any trial, in which he is offered as a witness, and notwithstanding he may have been previously convicted of any crime, perjury excepted.

In civil cases/ all parties (when both the original parties to the cause of action are alive,) their husbands and wives, *67 are made competent, and compellable to testify for others, and may testify for themselves.

Thus, it may be said, with trivial exceptions, all objections to the competency of witnesses, for crime, or interest, are annulled in civil or criminal cases.

No conviction for crime, however infamous, (except perjury,) no interest, however controlling, excludes the witness ; so that, all the fountains of knowledge, whether pure or poisoned, all sources of information, are designed to be open to the judge or jury, before whom the trial is had. For whose benefit are the limits of investigation so extended, and the barriers of exclusion broken down?

For the protection of the rights of the parties and “pro bono publico,” not for the advantage of the witness, or “privato commodo.”

It should be borne in mind, that the terms of this Act of Assembly are negative, the strongest form of inhibition, viz : “No person, etc.,” shall hereafter be excluded by reason of incapacity, etc. ; they are absolute, explicit, and peremptory, showing no discretion was intended to be given. Dwarris on Statutes, (715.) If, as we have seen, all incapacity from “conviction for crime,” (except perjury,) and from “interest,” is abolished by the 1st section of the Act of 1864, ch. 109, in both civil and criminal cases;. is it consistent with the established canons of construction to adopt a reading of the third section which renders the first inoperative in a large and most important class of cases, included within its letter and spirit; when the third is susceptible of being gratified without violating the first. It is admitted in the brief of the Attorney-General, that the first section standing alone, is broad enough to include not only persons having an interest in the result of the issue, but parties to the record, severally or jointly charged, or indicted, and therefore the third section was enacted to qualify its meaning and except the latter class.

*68 If he is correct in this view, the object and office of the third section'was merely explanatory and saving, confining the alteration of the common law rules of evidence in criminal cases, to persons interested, or convicted of crime, not parties to the record, but retaining the disability of those who were parties of record.

This construction seems to us, not only consonant with the declared objects of the amendment of the law of evidence in Great Britian, but the spirit and letter of the two sections of the Act of 1864, above cited.

No verbal criticism can render the third section clearer than it is. A person not indicted jointly, cannot be said to be charged with crime in a proceeding against another, however that prosecution may be related to some other proceeding against himself, and therefore, in testifying for another, is not testifying for himself.

The language of the third section is not, no person who is'indicted, etc., shall be competent or compellable to give evidence for or against himself, but “ No person who in any criminal proceeding is charged;” that is, “ given in charge or put on trial.” Tobe “charged,” technically, is to be put on trial, and in this sense, it will appear from the language of commentators on the English statutes, hereinafter cited, to have been used.

As a remedial Act, designed to eiilarge investigation and gather information from every source, to eviscerate the truth in vindication of life, liberty and property, it is entitled to a' liberal construction. It was one of its special objects to give persons accused, the benefit of the testimony of their supposed confederates. In cases of accusation founded on circumstantial evidence, the necessity of this means of eliciting the facts is self-evident.

From the infinite complexity of human affairs, the innocent are often involved in the darkest shadows of suspicion, whilst the guilty assume the shape of angels of light. The law, in its wisdom and mercy presumes all *69 men to be innocent until convicted in due course of law, to protect them from the effect of fallacious appearances. Men are judged by the company they keep. Associates are supposed to have common objects and purposes, and when one is charged with crime, his most intimate companion and friend is not unfrequently suspected, and prosecuted as his confederate or accessory. If according to the rule of the common law, the accessory cannot testify for the principal, or vice versa, until.each has been tried and acquitted, the readiest and most natural moans of defence is taken from the accused, and suspicion is equivalent to conviction.

How are the inferences of guilt from circumstantial evidence drawn by indignant virtue, talent, and zeal, against a prisoner charged with some revolting crime, to be dissipated, if the net which encloses the one, also, so entangles his associates, that they cannot depose in his favor ?

In ancient times, the jurors taken “de vicineto,” were the witnesses, or “ compurgatores” of the accused. Row the jury are taken as far as possible from the neighborhood, and the less they know of the prisoner, the better they are qualified to decide his fate.

Conceding, that the testimony of confederates, and accessories, etc., is justly subject to great suspicion of being rendered under influences adverse to the truth, yet it is consistent with the modern theory of the science of evidence to admit, rather than exclude it.

It is urged on the part of the State, that as an accessory cannot be tried (except by his own consent) before the principal, and the acquittal of the latter, is a discharge of the former; the accessory has a direct interest in the record of the conviction or acquittal of the principal, and in testifying in behalf of his principal, he testifies directly in his own behalf and for his own interest; that the interest which at common law rendered a party incom *70 petent as-a witness, was tested not only by tbe fact, that he was actually a-party to the record, and was then on trial, but where he was clearly interested in the result of the case, even though no party to the record, he was disqualified ; and a party was interested in the result where the record could be used for any purpose for or against him; the record of the trial of the principal is prima facie evidence for or against the accessory; ergo, the accessory is so far interested in the result of the trial of the principal as to render him incompetent at common law. “He is giving evidence for himself.” The disqualification or incompetency of parties to the record,.in criminal cases, to be witnesses at common law, was not founded upon interest in the record, as a means of evidence, but on the maxim of the common law, that no man should he compelled to testify against himself: therefore all traversers on trial were held incompetent. Interest in the record, as a means of evidence, was another and distinct ground of exception. The evidence amendment Acts in Great Britain and Maryland, clearly destroy the disqualification from interest,, but still leave the parties to the record incompetent. It is therefore no argument against the admissibility of the accessory to say, he had an interest in the record as evidence, that ground of incompetency being expressly taken away by the text of the first section of the Acts above referred to.

It is said, if the accessory testify, he cannot be compelled to answer any question which would tend to criminate himself.

It is no anomaly in criminal proceedings to exempt a witness from answering questions which tend to criminate him. It is a privilege guaranteed to all witnesses, by the common law, and which was adopted, and declared as an inviolable principle of justice by the Bill of Rights. 1 Green. Evid., 451; Bill of Rights, sec. 22. Taylor, the author of the Act of 14 and 15 Vict., ch. 99, in his work on *71 Evidence (4th edition,p. 1145,) commenting on the proviso in the third, section, declaring nothing therein contained, shall render any person competent or compellable to give evidence for or against himself, remarks : “By the general law of the land, every witness is protected from answering questions where the answers would tend either to criminate himself or expose him to any penalty, * * * and as the Act simply makes parties witnesses, it is obvious that without any special enactment, they might have claimed the same protection as all other persons under examination.”

It is clearly deducible from the observations of the same writer, in his 6th edition, vol. 2, sec. 1223, on the proviso of sec. 3, of 14 and 15 Vict., ch. 99, that he construed that section as applying only to parties on the record. His language is: “It has been seen that Lord Brougham’s Act of 1851, in making parties to the record admissible witnesses, has expressly provided in sec. 3, that nothing in the Act shall render any person who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself.”

Now this proviso calls for three observations. In the first place, it does not say that the persons specified in it shall not be rendered by the Act competent or compellable to give evidence at all, but merely that they shall not be allowed or forced to testify for or against themselves.

In the event therefore, of several persons being jointly indicted, it would seem to be no unreasonable proposition to contend, that any one of them might, under section 2, be called as a witness either for or against his co-defendants, excepting only in those few cases, where the indictment was so framed, as to give him a direct interest in obtaining their discharge. Indeed, for some years, this was considered to be the law by many Judges, though *72 some doubted, and at last, in 1872, on the point being reserved for the Court of Criminal Appeal, that Court, after much discussion, decided that Lord Brougham's Act was not intended to alter, and did not in fact alter the ancient law of England, which prohibited any attempt to examine or cross-examine any prisoner on his trial; referring to Reg. vs. Payne, 41, L. J.

This case is referred to by the Attorney-General, to sustain his construction of the third section of the Act of 1864, viz: that “no one charged with an indictable offence” can be either “examined or cross-examined in any case where he is interested, and it is wholly immaterial, whether such interest arise from a direct interest in the result of the case, or by being a party to the record.” He says: “The Maryland statute seems to be copied from the British Evidence Act, and the force and effect of the third section has received a judicial interpretation by the sixteen Judges sitting as a Court of Criminal Appeals, as late as January 1872, in the case of The Queen vs. Payne, etc. In that case it was expressly declared that the exception in 14 and 15 Vict., ch. 99, sec. 3, was introduced to prevent any possibility of its being thought that the law as it had existed from the earliest times, was altered by the Act.”

I have no disposition to deny the great ’moral weight which the united legal judgment of the eminent jurists of England should have in a case parallel with that now before us.

But although the law they were interpreting was essentially the same, the facts to which it was applied were entirely different, and the language used by them, to be correctly understood, must be taken in connection with the facts, circumstances and relation of the parties to the record.

The declaration, that the 3d section of Vict. “was introduced to prevent any possibility of its being thought *73 that the law as it had existed from the earliest times was altered by the Act,” was necessarily limited to the case of parties to the record, (the case then before them) and qualified by other expressions, showing that c‘ parties charged” in their view, were those !<given in charge to the jury” or on trial, as a more particular statement of the case will show.

In Reg. vs. Payne, the prisoner Payne and three others, (including one Curtis, the proposed witness,) were jointly indicted for poaching. On the trial all four prisoners were sworn to by various witnesses, as having formed part of the gang of poachers; the defence was an alibi, and the counsel for Payne, proposed to call Curtis, to prove the alibi. The Judge held he was incompetent. The prisoners were convicted and the questions reserved for the opinion of the Court were,

1st. Whether a prisoner jointly indicted with another, can, after they have been given in charge to the jury, be called as a witness for the other, without having been either acquitted or convicted, or a nolle prosequi entered?

2d. Whether upon the present form of indictment, and under the circumstances of the case, the prisoner Curtis was competent, and ought to have been called as a witness for the prisoner Payne?

The opinion of the Court was announced by Oockbuun, O. J., in the following concise and explicit terms :

“ We are all of opinion that the evidence rejected, was properly rejected. We are all agreed that the exception in Id and 15 Vict., ch. 99, sec. 3, was introduced to prevent any possibility of its being thought that the law as it had existed from the earliest times was altered by the Act. By that law, it was a distinguishing characteristic of our criminal system, that a prisoner on his trial, could neither be examined nor cross-examined. We think it impossible to suppose that it could have been intended to change this rule by a mere side-wind by means of this exception.”

*74 It is thus proclaimed, by the highest judicial authority in England, that sec. 3d of 14 and 15 Vict. which corresponds in terms with sec. 3d of 1864, ch. 109, was intended to prevent the impression, that the Evidence Amendment Acts, changed the common law in its distinguishing characteristic, “that a prisoner on his trial could neither be examined nor cross-examinedin other words, that it applied to parties on the record, alone.

The fifteenth bill of exceptions shows, that the appellant offered to prove by J. Hamilton Shew, facts tending to establish an alibi; the State objected to the competency of Shew to testify in behalf of the prisoner, and in support of its o'bjection, produced and relied on the transcript of the record of an indictment by the G-rand Jury of Carroll county, charging Shew as an accessory before the fact, of the prisoner, which indictment was still pending and undetermined; whereupon, the Court sustained the objection and refused to permit said Shew to testify, to which ruling the prisoner excepted.

Shew was not jointly indicted with Davis, was not convicted of the crime of perjury, was not subject to any objection (in my opinion,) affecting his competency, but stood in the position of one interested in the event of the trial, an objection going to his credit alone.

The prisoner was entitled to the benefit of his testimony however clouded with suspicion; the letter and spirit of the Act of 1864, in my judgment, rendering such persons competent and compellable to testify.

The object of the amendment in the law of evidence, was to make parties in interest, ■ witnesses, and not interested witnesses, parties. For these reasons I think, the Court below erred in excluding the testimony of ¡Shew.

The sixteenth exception presents the very common occurrence of a witness being cross-examined, and after-wards impeached by a contradictory statement of another *75 witness, as to the facts which he first detailed in his cross-examination.

The traverser’s witness being thus contradicted, he called another to prove that the general character of the first for truth and veracity was good. Whereupon the State offered to prove by the same witness, that the character of the impeaching witness for truth and veracity was good also, to the admission of which the traverser objected, but the Court overruled the objection and admitted the same.

In my opinion, the endorsement of the traverser’s witness, was no imputation on the character of the State’s; the tendency of such testimony was to multiply collateral issues, to put the witnesses on trial, rather than the accused, and according to the principles laid down in the text-books as I understand them, there was no foundation for introducing the supporting testimony on the part of the State.