Birkenfeld v. State

Pearce, J., delivered the opinion of the Court. . This record presents cross appeals from the Criminal Court of Baltimore City. The appellant in No. 25 was indicted for the murder of his brother, and was convicted of murder in the second degree, and sentenced to confinement in the peniten ²⁵⁴ tiary for fifteen years. Two exceptions were taken by the traverser, each of which was to the admission of his own statements as to the reason why he shot his brother on February 27th, 1906.

The traverser was a native of Russia, sixteen years of age, who had been in this country about two years, and who understood and spoke the English language imperfectly. He testified in his own behalf, through an interpreter, that beginning about Christmas, 1905, the deceased, who occupied the same room and bed with him, had frequently attempted to commit the crime of sodomy upon him, and that he shot his brother in the effort to resist the commission of that crime; that he was a tailor by occupation and lived in Baltimore on Albemarle street; that he had never been to school except in Russia, and his only instruction there was in the Hebrew language; that he did not understand the English language, and could only speak some' simple words of that language, and that he had not talked in English with warden Noonan of the city jail. Warden Noonan testified that he had once or twice talked with the prisoner while he was in jail, and he replied in English; that he had that morning asked the warden to take him to the toilet, to give him a drink of water, and to let him take or.e of his oranges into Court; and that when Dr. Keirle.came upon the stand he asked if he was a doctor; and also that he had seen the prisoner talking with a colored man who could speak only English. Officer' Steinberger testified that he had a general conversation with him in English while he was in jail, and that when he asked him something about his case he replied, “you will have to see my lawyer.” Sergeant McGlynn testified that on February 27th, about half past seven in the morning, he was on Albemarle street at No. 16, and learned a man had been shot there; that on going up stairs he found Abraham Birkenfeld in bed with blood all over the clothes; that the traverser was standing in the next room, and he asked him why he had shot his brother, and he offered the pistol which was in his pocket, to which the wit ²⁵⁵ ness replied, “never mind, keep the pistol in your pocket.” McGlynn further testified that when he asked the traverser about the shooting, he was under arrest and on the street about thirty feet from his house, and that no inducements were offered or threats made to make him say anything, and this was confirmed by Sergeant Keneally who was present from the first, and heard all that passed.

Sergeant McGlynn was then asked the following question: “When you asked Solomon Birkenfeld why he shot his brother, what did Solomon Birkenfeld say to you?” Objection was made to this question, but the objection was overruled and the witness answered, “Because he fights me all the time.” Officer McGlynn testified that he took the prisoner down to the station house upon his arrest, and that while on the way he told him the same he told Sergeant McGlynn. He was then asked, “What did you say to him and what did he say to you?” This question also was objected to, but the objection was overruled, and the witness answered, “He said his brother and he had been fighting, and his brother went and got two boys to lick him on Saturday night previous. I said what did you shoot him for, and he said he shot him on account of that. I said where did you get that pistol at?

And he said I got it out of my brother’s pocket. I said, who does it belong to, your brother? and he said, yes.” This witness also testified that the traverser told him on the way to the station house there was no one in the room but his brother and himself; also that when he and McGlynn went into the room where the wounded man was lying on the bed, that he was in his night clothes, which were pulled up upon his person, and that the traverser was in the next room, ready dressed with his cap oil his head, and standing alongside the bed. The two excptions thus taken present but one question, viz, whether the confessions were free and voluntary, and therefore admissible as confessions. It will be seen from the testimony, which has been substantially recited in full, that the State discharged the burden of ²⁵⁶ showing by affirmative proof that these confessions were not obtained by any improper means.

It is conceded by the appellant, and settled upon authority, that a confession cannot be excluded as not free and voluntary, merely because it is made in reply to a question assuming guilt, unless the question is designed, or so framed, as to trap the accused and inspire hope or fear. Ross v. State, 67 Md. 288 ; Green v. State, 96 Md. 386 . In the latter case, the circumstances were stronger than in this. There, a Justice of the Peace went to the place where the prisoner was lying, after shooting a woman, and immediately afterwards shooting himself.

The j ustice asked him if he was willing to give a statement, to which he replied that he was. The Justice then asked him" “why he shot Carrie Price,” and he said, “he shot her because she would not do as he wished, and that he went and got the pistol on purpose to shoot her with it.” It is also settled that the fact that the confession was made