Connor v. State

Horney, J., delivered the opinion of the Court. Aggrieved by his conviction of second degree murder as a result of his having run over his former wife in an automobile, the defendant, Edward Richard Connor, appealed and has assigned numerous errors with respect to the method of examining jurors on voir dire and in rulings on the evidence (some of which are subdivided into several parts) and in the instructions to the jury. The defendant and the deceased had been married for many years. They had had five children, but had been divorced.

At the time of the homicide—October 25, 1959— she resided in Baltimore as did the children. He resided in Camden. On the day before in a telephone conversation between them it was agreed that the defendant would come to Baltimore to attend a birthday party for one of the older daughters, that he should stay with that daughter and that he would bring $25 to his former wife. The defendant came to Baltimore in his automobile.

Upon his arrival, he and his former wife talked together on friendly terms. Thereafter, she left the house and the defendant, with several of the minor children, watched television until he went to bed in an upper room. When the former wife returned to the house about 2:00 a.m. and found him ⁵⁴⁸ sleeping upstairs she smacked him on the face and informed him that downstairs was good enough for him. The defendant arose immediately, dressed hurriedly, went down the back stairs, grabbed a few other things and left the house.

After the defendant had opened the door of his automobile, parked in front of the house, and had started the motor and turned on the parking lights, he saw his former wife standing at the left hand door. She demanded the $25 he had promised her and when he responded that he had no intention of giving it to her then or later, an altercation ensued as he attempted to drive slowly off while she followed alongside of the automobile and got in front of it. At this point he idled the motor long enough to tell her that he would give her the money on the next day and then, putting the automobile in gear, he again “started to move slowly” while she “insisted on staying in the same spot,” but he continued to move forward about ten feet with her moving backward and still yelling for the money until there came a time when he did not “see her any more.” Then he “gave it [the automobile] the gas” and moved away rapidly for about a hundred feet. In so doing—■ though he claimed he was not aware of it-—the defendant drove over his former wife, crushed her chest and pelvis and dragged her body for at least a part of the distance he had traveled.

She died at 5:40 p.m. on the same day. There was other evidence that the deceased was a heavy drinker at times, and the defendant, claiming that he was afraid of her, related the details of numerous other affrays between them in former years. But since it is not claimed that the evidence was insufficient to sustain the verdict of the jury, it is not necessary to relate more at this point. Such parts of the evidence and of the proceedings as may seem necessary to understand a question then under consideration will be set forth when and as required.

On the appeal it is claimed (i) that it was prejudicial error for the trial court to refuse to propound the questions on voir dire to each prospective juror separately and/or out of the presence of the other prospective jurors; (ii) that it was prejudicial error to admit the dying declaration of the ⁵⁴⁹ deceased as evidence; (iii) that it was error to admit the statements of the defendant to the police into the evidence (a) because the police had obtained his signature to the first statement at a time when, though it was known to the police, it was not known to the defendant that his former wife had died; and (b) because the second statement was involuntary-in that it was not complete when it was given; (iv) that it was error to exclude testimony (a) as to a fifteen-year-old assault on the defendant by the deceased on the ground of remoteness; and (b) as to a conversation between a witness and the defendant on the day before the homicide on the ground that it was hearsay; (v) that it was error not to allow a psychiatrist to testify (a) as to the history taken from the defendant during an examination of him; and (b) as to the subjective symptoms of the defendant; and (vi) that the court erred (a) in refusing to instruct the jury that it could render a verdict of not guilty of murder and also of manslaughter under Code (1957), Art. 27, § 387 (manslaughter generally) but guilty of manslaughter by automobile under § 388 (of Art. 27); (b) in refusing by its instructions to distinguish between voluntary and involuntary manslaughter; and (c) in specifically instructing the jury to the effect that if it found the defendant guilty of gross negligence then its verdict must be not guilty. (i) The propounding of the voir dire questions to the prospective jurors collectively rather than separately was not improper. While this practice does not prevail in most of the counties, it has been the customary procedure in Baltimore City for many years; and, since no prejudice was shown to have resulted from the refusal of the court to examine each juror individually, we see no reason to disturb the prevailing practice. There are jurisdictions where not to propound the questions separately has been held to be reversible error.

See, e.g., Plair v. State, 279 S. W. 267 (Tex. Crim. 1926) ; and see 50 C.J.S., Juries, § 276 c. But in other jurisdictions, the refusal to ask the voir dire questions individually has been upheld. See People v. Crump, 125 N. E. 2d 615 (Ill. 1955); State v. Welch, 247 Pac. 1053 (Kan. 1926); Shively v. United ⁵⁵⁰ States, 299 Fed. 710 (C.C.A. 9th 1924).

In the absence of a statute or rule regulating the procedure, we think the matter should be left to the sound discretion of the trial court. See 5 Wharton, Criminal Law and Procedure, § 1964; 50 C.J.S., supra. While it would also be discretionary, it has never been, so far as we know, the practice anywhere in this State to examine each juror separately out of the presence of the remaining jurors. (ü) Early in the trial of the case, the court over objection admitted into evidence as a dying declaration 1 (but not as a part of the res gestae) a statement made by the deceased to a police officer (Horace Erwin) while she was lying in the street awaiting arrival of an ambulance.

In pertinent parts the statement was as follows: Q. What, if anything, did Mrs. Connor, the person lying in the street say to you or to anyone in your presence? A. * * * With the information I had received [from passers by], I asked Mrs. Connor certain questions at that time. Q. Was she conscious at the time? A. Yes, sir.

Q. What did you ask her and what did she answer? A. I asked Mrs. Connor: “Did your husband do this to you?” Q. What did she answer? [At this point, after counsel for the defendant had stated that the answer would be hearsay, a colloquy ensued between the prosecutor, the defense counsel and the court as to whether the statement was a part of the res gestae or a dying declaration. Thereafter, the reporter read back the answer of the ⁵⁵¹ witness to the penultimate question: “I asked Mrs. Connor: ‘Did your husband do this to you?’”] (The Witness.) She answered yes. I asked her at that time “Was this an accident?” This was acting on information I had received from passers-by.

I asked: “Was this an accident or was it deliberate?” She answered: “It was no accident.” Prior to this testimony there had been testimony by another witness (Erwin Behlert) that he had heard the injured woman say “get a priest.” There was also prior testimony by another officer (Sanford Trojan) to the effect that the woman kept saying “take care of my baby.” The claim is that the statement was neither a dying declaration nor a part of the res gestae and that the admission of the statement was prejudicial. The defendant has stated eight reasons why the declaration was inadmissible. All are without merit. First: The deceased was fully aware of her impending death.

Her anguished entreaty that someone take care of the baby plus the fact that she had called for a priest before making the declaration was strong evidence that she was aware of her condition. “It is not necessary to prove expressions implying apprehension of death, if it is clear that the person does not expect to survive the injury. This expectation may be indicated by the circumstances of [her] condition, or by [her] own acts, such as sending for a priest of [her] church, before making the declaration.” 1 Wharton, Criminal Evidence, § 306. The text is supported by the cases. See Carver v. United States, 164 U. S. 694 (1897); Hammil v. State, 8 So. 380 (Ala. 1890); State v. O’Brien, 46 N. W. 752 (la. 1890); Cook v. State, 3 S. W. 749 (Tex.

Grim. 1886). Nor was it necessary for the victim to state that she expected to die. It is sufficient if her condition is such (and she is aware of it) as to warrant an inference of impending death. Hawkins v. State, 98 Md. 355 , 57 Atl. 27 (1904); State v. Proctor, 269 S. W. 2d 624 (Mo. 1954).

See also Wharton, op. cit., § 306, supra; 2 Jones, Evidence, § 301; McCormick, Evidence, § 259. ⁵⁵² Second: Even if the statement was an opinion, and not a collective fact as the State suggests, the declaration was admissible. The majority rule—that “statements which amount merely to an expression of the declarant’s mental impressions, estimates, opinions, and conclusions are not admissible in evidence as dying declarations if a witness could not testify in that manner in court,” as stated in Wharton, op. cit., § 309 —is not supported by the better reasoning, and we decline to follow it. We agree with the minority and with Professor Wigmore that the majority rule against the admission of an opinion as evidence ought not to apply to dying declarations. In 5 Wigmore, Evidence, § 1447, it is said: “The Opinion rule has no application to dying declarations.

The theory of that rule * * * is that, where-ever the witness can state specifically the detailed facts observed by him, the inferences to be drawn from them can equally well be drawn by the jury, so that the witness’ inferences become superfluous. Now, since the declarant is here deceased, it is no longer possible to obtain from him by questions any more detailed data than his statement may contain, and hence his inferences are not in this instance superfluous, but are indispensable.” Both Virginia and Pennsylvania have accepted the Wigmore view. In Pendleton v. Commonwealth, 109 S. E. 201, 209 (Va. 1921), it was said that a “dying declaration is not inadmissible in evidence merely because it states a conclusion of fact.” And in Commonwealth v. Knable, 85 A. 2d 114, 117 (Pa. 1952), there is an unequivocal statement that “the opinion rule has no application to dying declarations.” See also Commonwealth v. Plubell, 80 A. 2d 825 (Pa. 1951), and Commonwealth v. Perry, 73 A. 2d 425 (Pa. 1950). 2 ⁵⁵³ Third: The dying declaration was complete and it was not improper for the court to exclude what the declarant had said with respect to the residence of her former husband and as to her continued concern over the welfare of her children. The record shows that Officer Erwin attempted to question her further as to what had actually occurred, but “she went off on a different subject.” On the contrary, instead of her statement being only a part of the whole, it was all she had to say about the injury she had sustained and, as such, was all the court was required to admit as evidence.

Dying declarations “are admissible only insofar as they relate to the circumstances of the killing and to the events * * * leading up to it.” McCormick, op. cit., § 260. See also Wigmore, op. cit., § 1448. Fourth: Instead of reflecting her mental state when she declared that the homicidal act of the defendant “was no accident,” the record is clear that the declarant was merely answering a direct question as to causation. Moreover, the only evidence of her state of mind is that she was conscious when Officer Erwin was questioning her.

Fifth: Like the preceding claim, there is no evidence at all to indicate or even suggest that the declarant was not sane and rational at the time the dying declaration was made. On the contrary, since there was evidence that she was aware of her plight, it would have been improper to have excluded the declaration. The question of whether the declarant had sufficient understanding was for the jury. Meno v. State, 117 Md. 435 , 83 Atl. 759 (1912).

Sixth: The statement by the declarant that her injuries had not been accidentally inflicted was certainly not vague or indefinite. Instead, though the statement may not have been as specific as might be desired, it was, for all its brevity, direct and to the point in response to a specific question. It was for that reason clearly admissible as evidence. Cf.

Worthington v. State, 92 Md. 222, 48 Atl. 355 (1901). Also compare ⁵⁵⁴ Wroe v. State, 20 Ohio St. 460 (1870); State v. Gile, 35 Pac. 417 (Wash. 1894). Seventh: Even if the statement was in response to a leading question, it was clearly admissible under the rule laid down in the Worthington case, supra. In that case it was specifically held that a dying declaration may be made