Dobbs v. State

Because of the serious character of this case and the importance of the principles involved, I feel constrained to state at some length the reasons which led me to concur in the per curiam order of this Court. At about half past three o'clock in the afternoon on Tuesday, May 13th, 1924, a touring automobile was standing at the curb in front of the jewelry store of Louis Cohen, 728 East Baltimore Street, in Baltimore City. The front of that store has two windows facing on the north side of Baltimore Street, one on either side of a door. At or about that time two men were discovered in front of that store, one at each window.

One of these men thrust some hard instrument, supposed to be an iron bar wrapped in paper, against one of these windows, broke the glass, and seized a quantity of the jewelry displayed in it. Cohen, who was in the store, hearing the noise, rushed out and approached the man with the jewelry. The man at the other window, who had a pistol, then shot Cohen in the hand, and, as Cohen continued to advance, the man with the pistol shot again and killed him. The two men then entered the waiting automobile in which there was a third man, the chauffeur, and it was driven rapidly west along Baltimore Street to the Fallsway, thence north on the Fallsway, and later an automobile having the same license number, "of a sort of maroon color," was found *Page 36 abandoned at the corner of Chase Street and Homewood Avenue.

On May 16th, Thomas J. Foran was arrested in Philadelphia, and Claude F. Dobbs, George Gross, and Charles Mullen were on May 22nd arrested at Fredericksburg, Virginia. These four men were brought to Baltimore, where on June 2nd they were indicted for the murder, and on that indictment they were tried and convicted in the Criminal Court of Baltimore City. A motion for a new trial filed on behalf of each of the traversers was overruled, and Gross, Dobbs, and Foran were each sentenced to death, and Mullen to be imprisoned for life in the Maryland Penitentiary. After that judgment had been entered the traversers filed a petition for a writ of error coram nobis on the ground that Mrs. Herman Caples, a material identification witness for the State, had committed perjury, and filed a number of affidavits in support of that petition.

On the State's motion, the court refused to consider that petition or the accompanying affidavits, and from that order and the several judgments in the case against them the traversers have appealed. The record contains one hundred and twenty-two exceptions, of which twenty-one have been abandoned by the appellants. Most of the remaining exceptions fall naturally into groups and may be discussed under three heads, which are (1) the opening statement of the State's attorney, (2) the admission in evidence of certain statements offered as confessions against one or more of the traversers, and (3) the admission of evidence concerning other crimes not related to or connected with the crime charged in the indictment. Before dealing particularly with these exceptions, in order to show their significance, I will refer in somewhat general terms to facts which may be inferred from the evidence to which they relate, and the purpose for which it was apparently offered.

The traversers were known to the police before the Cohen murder, and indeed even then Gross, Dobbs, and Foran were *Page 37 wanted on other charges. Up to that time much of the short span of their lives had been spent in violating the law, in undergoing punishment for such violations, or in endeavoring to evade it. They appeared to have had no fixed occupation, and they seem to have been regarded with well founded suspicion by the police and their photographs appear to have been in their hands. Three of them, Gross, Dobbs, and Mullen, lived in Baltimore and Foran in Philadelphia.

Two of them, Dobbs and Foran, had been confined at St. Mary's Industrial School at the same time, and all of them were acquainted before the 13th of May, 1924. Shortly after the murder, Benny Zublouski, a twelve-year-old newsboy who witnessed the crime, was shown by the State's attorney about fifty photographs of young men, and out of that collection he said that he recognized two photographs, those of Gross and Dobbs, as pictures of the two men who had robbed the Cohen store and committed the murder. Later a similar collection was shown to Ernest Homberg, who was also present when the crime took place, and he picked out the photograph of Foran as a picture of the man who drove the car. No witness who was present when the crime was committed identified Mullen as present on that occasion, but on the contrary they all testified that they saw but three persons engaged in it, of whom one remained in the car whilst, of the other two, one broke the window and seized the jewelry while the other shot and killed Mr. Cohen.

No part of the stolen property was found in the possession of any of the traversers, traced to them or in any way accounted for, nor was any weapon or other article identified as having been used in the commission of the crime or in the possession of the criminals who committed it found in the possession of the traversers or traced to them. Under such circumstances, it was incumbent upon the State to show (1) by the testimony of persons who witnessed the crime that the traversers committed it, or (2) that they themselves admitted that they had committed it. *Page 38 or (3) circumstances which would support a rational inference of their guilt. To meet that burden the State's testimony was in the main directed, first, to the identification of the traversers as persons actually seen while engaged in the crime; second, to showing that they were in Baltimore at a time when they could have committed it, and, third, to showing that they confessed that they had committed it. And we will briefly refer to so much of the testimony as is relevant to those issues.

Four eyewitnesses of the crime testified that one or another of three of the traversers, Gross, Dobbs, and Foran, was present when the crime was committed; no one of them saw Mullen there at that time. The first identification witness called was Mrs. Herman C. Caples, of Stevenson Station, in Baltimore County. She testified that she was crossing from the south to the north side of Baltimore Street opposite the Cohen store when she heard the crash of the broken glass, and saw a man "robbing jewelry out of a window." That she continued directly towards the store, and as she reached the "north car track" she heard a shot, and still walking directly towards the bandits she heard a second shot as she reached the curb, and the falling man "brushed" her shoulder. She identified Gross, who she said was wearing a brown pin-striped suit, with a lighter cap, and brown shoes, as the man who broke the window, and Dobbs, who was she said dressed in blue, as the man who killed Mr. Cohen.

She said that the man in the brown suit broke the window with "something wrapped in blue" which tinkled when it fell to the pavement. This witness, who was, at the time when she witnessed the crime, in a highly hysterical condition, had in 1921 been taken by an uncle for a thirty days' visit from an "asylum for the feeble-minded" in New Jersey where she had been confined for three years, and "she never went back because she did not belong in that state." *Page 39 Benny Zublouski, aged twelve, a newsboy, was at the corner of Front and Baltimore Streets when "it all happened." He testified that he saw two men in front of the Cohen store, and that he saw one of them, dressed in brown and wearing light gloves with black arrows on the backs, break the window with an iron bar wrapped in yellow paper, and that he saw a man dressed in blue shoot Mr. Cohen, and he identified Dobbs as the man in the brown suit who broke the window and Gross as the man in the blue suit who shot Mr. Cohen. He further said that after the shooting the two men got in a waiting automobile in which there was a third man and were driven away. That he only saw three men in the automobile and that he could not say that Foran was the third man.

He described the automobile as black or dark blue in color and gave its license number. Carroll Peterson, a waiter in a restaurant at 726 East Baltimore Street, said that he heard the window break, walked to the front and saw two men getting in an automobile. That one of them, whom he identified as Dobbs, dressed in blue, had a pistol in his hand which he was pointing at the witness and the crowd, and that there were about twenty people there. That the automobile was a Chevrolet of a faded dark blue color, and he only saw three persons in it.

He said that the pistol which he saw was a thirty-eight army pistol. Ernest F. Homberg, a vocational school teacher, was walking west along the south side of Baltimore Street at the Fallsway, and was about ten feet from the southwest corner of Baltimore Street and the Fallsway when he heard two shots. He thought they were automobile noises and may have gone a few steps further, when he turned and looked east and saw a man fall on the pavement, and then suddenly he saw an automobile turn the corner of Baltimore Street and the Fallsway with three men in it, one of whom he "thought" was standing on the running board, and he identified Foran as the driver of that automobile, which he said was a weatherbeaten car of a faded olive green color. When *Page 40 asked if he could identify the man on the running board he said, pointing to Dobbs, "I think that that there — I am not sure — I won't be positive of this, but I think that is him there." He first said that the man was on the left running board and then changed his testimony and said that he was on the right running board, and when asked how certain he was that it was Dobbs who was on the running board he said: "Well, to come right out — down — I can't say just exactly that I would just swear on a stack of Bibles that he was." He was unable to say how that man was dressed, whether he wore a cap or whether what he thought was hair was a hat or whether he had anything on his head.

He further said on his cross-examination that he could identify the driver of the car by the expression of his face and of his eyes, although he could not see what color they were, nor was he able to say how he was dressed. He too said that he only saw three men in the automobile when it turned the corner. It will be noted that three persons identified Dobbs, Mrs. Caples and Peterson, who said he was dressed in blue, and that he shot Mr. Cohen, and Benny Zublouski, who said that he was dressed in brown and that it was he who broke the window; that two persons identified Gross, Mrs. Caples, who said he was dressed in a brown suit, and that he broke the window, and Benny Zublouski, who said that he was dressed in a blue suit and that it was he who shot Mr. Cohen; that one person, Homberg, identified Foran as the driver of the car, by the expression of his eyes and face, although he did not know how he was dressed, and was so far away that he was unable to distinguish between the hat and the hair of a man on the running board of the car and he only saw him as he turned the northeast corner of the Fallsway and Baltimore Street, in a rapidly driven automobile, the witness being near the southwest corner of those two streets. The State, anticipating that the defendants would undertake to establish an alibi, as part of its case in chief, undertook to show that the four traversers were in Baltimore *Page 41 when the murder was committed.

It was conceded that the four were together in Wilmington, Delaware, on the morning of May 13th, and the theory of the State seems to have been that they left Wilmington in time to arrive in Baltimore at 12.50 P.M.; that between that time and 3.20 o'clock P.M. they "perfected their plans" for the crime, procured food, stole an automobile, proceeded to the Cohen store, and committed the robbery and murder and then drove to Homewood and Chase Streets, where they abandoned the automobile, and from there walked to Union Station, where they arrived in time to take the four o'clock train for Philadelphia, where they arrived at about six o'clock. To prove that the defendants were in Baltimore on the day the crime was committed two witnesses were called, Fannie Caplan and Rudolph Timmerman. Timmerman had a grocery store at Wilkens Avenue and Payson Street, and he testified that on either the 12th or the 13th of May, at about half past one or a quarter of two Mullen, one of the defendants, bought a couple of pounds of pork steak from him at his store. When pressed to say whether it was the 12th or the 13th, the witness was apparently unwilling to commit himself definitely to either date.

He said: "Well, I think it was on the 13th, but I couldn't say — but I think it was on the 13th. * * * Yes, I think it was on the 13th of May. I think it was, but I could not say for sure. It was on the 12th or 13th, I know that, * * * that he fixes it as the 13th because he bought it on the 12th; that every Monday he buys it; that the Monday before that they had a small piece and they roasted that whole piece, didn't sell any of it at all; that he is the fellow that the detectives came around to see and tried to get him to sign a statement, but he didn't sign nothing; that he would not sign anything because he could not say for sure." Fannie Caplan testified that at about one-thirty or a quarter of two on the day of the murder she was sitting on a box outside her father's grocery store, which was opposite *Page 42 the Timmerman store, when she saw a shabby looking five-passenger automobile drive up. That three young men about eighteen, nineteen or twenty years old left the car, and a fourth who remained in it drove it away.

That the three men who left walked down an alley very close to her and made some remark to her as they passed. Those men she identified as Foran, Mullen and Dobbs, while she identified the fourth man who drove away in the car as Gross. That she did not mention it to anyone that she had seen the men or boys until she was interviewed by Detective Roche on or about June 2nd. That her father had hired a Mrs. Myerwitz on May 27th; "that after her father hired Mrs. Myerwitz witness would go down and help her and let her eat her lunch at her daughter's house; that it was before that day she saw in the paper those pictures; that the 27th of May was exactly two weeks after the murder; that it was in those two weeks that she first came to realize that these were the boys; that she could not tell how long before the 27th; that the first thing she did when she did realize it was she just looked at them and said, `Oh, leave it go by, I don't know whether they were really murderers or not.

I just saw it in the paper'; * * * that she first began to think they were when she saw the pictures in the papers; that when she saw the pictures in the papers and thought they were the men she did not mention it to any soul in the world, did not have time to; that she was not going around gabbing all day long, she stayed in the store; that the people that came in the store told her about it, but what could she do, she could not get the murderers, she told them it is terrible; that one Jewish customer came in and said, `Fannie, what do you think about the murder?' and I said, `What can I think about it? He is killed, that is all'; * * * that after she knew in her breast and in her mind was the knowledge that these were the boys and that those boys had passed her place on the day of the murder. She never told that to a living soul because she did not want to get in the trial, because she had no time, and she knew that if she *Page 43 would say something they would gabble all around, they would say she knew something about this murder and then she guesses they would put her in the trial, and she did not want to get in it because she didn't have any time; * * * that when she saw the pictures she was not so sure; that when Mr. Roche came and took her around and showed them to her then she was more certain; that it could not have been on any other day than Tuesday, May 13th, that she saw those boys; that when she took the paper and saw the pictures she thought they were the fellows, but she was not sure, and that was in the two weeks, she don't know when it was, it was the same day, in the two days." In connection with this testimony it may be noted that Mullen admitted having bought the chops from Timmerman, but he said that they were purchased on the 12th of May, instead of on the 13th. Joseph J. O'Neill was on May 13th, 1924, conductor on a Baltimore Ohio Railroad train arriving at Mt.

Royal Station from Wilmington at 12.50. That train was composed of eight cars, of which two were ordinary day coaches and one a "combined," that is, it was used partly for baggage and partly as a smoking car, and it was a train that race track followers used to go to the races on. The witness was called twice for the State. When first called he said that he had collected on May 13th seven tickets from Wilmington, but was not asked to identify anyone.

Later he was recalled and identified Dobbs, Mullen and Foran as three of a party of four men who boarded the train at Wilmington. He further said that before he testified on the first occasion he had been shown photographs by the State's attorney and asked if he could identify them as pictures of the men who rode on his train on May 13th, but he said he could not from the pictures. He said that his attention was attracted to them because they were "loose looking" characters. Harry F. Stein, an employee of the Pennsylvania Railroad Company, testified that on May 13th, 1924, one train *Page 44 was scheduled to leave Union Station, Baltimore, for Philadelphia at 4 o'clock P.M. and one at 4.12.

That the four o'clock train was scheduled to arrive at West Philadelphia at 6.04 and at North Philadelphia at 6.17 standard time, and that the 4.12 train was scheduled to arrive at Broad Street Station at 6.55 standard time. Mrs. Evelyn Wayne testified that between seven-thirty and eight o'clock, daylight saving time, on the evening of May 13th, Gross, Mullen, and Dobbs rented a room from her at 702 Pine Street, Philadelphia. Joseph J. Weller, superintendent of transportation of the Baltimore News, testified that he was crossing the Fallsway at Fayette Street at about 3.20 o'clock P.M., Tuesday, May 13th, when he saw a "baby grand" Chevrolet automobile painted green, containing four boys, driven north along the Fallsway at about thirty-five miles an hour. In addition to this, the State called a number of witnesses to prove various details and incidents tending to corroborate the confession of Mullen, as well as to show the circumstances under which that confession and the admission of the other traversers were obtained.

The defense was an alibi. It was contended by the defendants that they were in Wilmington, Delaware, on the 13th of May; that on that morning they were tried and fined in a police court there for trespassing on railroad property; that after that they took the 1.30 boat on the Wilson Line for Philadelphia; that they rented a room from Mrs. Wayne, at about 5.30 or 5.45 daylight saving time, and remained in Philadelphia that night, and until the following Thursday. In support of that contention they called a number of witnesses, who gave testimony tending to support it. In their natural order the first exceptions to be considered are those which relate to rulings of the trial court made in connection with the opening statement of the State's attorney of Baltimore City.

In opening the State's case, over the objection of the defendants, he was permitted to state to *Page 45 the trial court, sitting as a jury, first that one or the other of the several defendants had committed a series of crimes in no way connected with the crime charged in the indictment, and, second, that they had planned to commit a number of other crimes, all of which he described in detail. In considering that statement, it must be remembered that the Vulgaris and Denhardt mentioned in it have no connection with the crime charged in the indictment in this case. The State's attorney, in the course of his statement, informed the court that Dobbs, Gross, and two other men, Denhardt and Vulgaris, stole an automobile to drive to Philadelphia, and wrecked it on the way; that they went on to Philadelphia, and while there they met Foran; that those four and Foran planned to return to Baltimore and rob a store on North Avenue, a building association, a relief fund at a drug store, "hold up" a magazine collector, and "knock off" a Mr. Shehan. That later Vulgaris and Denhardt were arrested, and after their arrest Mullen joined Dobbs, Gross, and Foran and was with them when they were arrested in Wilmington on May 12th on the charge of trespassing on railroad property; that subsequent to April 8th Dobbs and Denhardt burglarized a school and a store to get clothes; that Dobbs, Denhardt and Gross stole a number of automobiles and drove them about the City of Baltimore; and that they burglarized the Littman store on Marsh Market Space to get guns; that they were arrested apparently for trespass with Denhardt while at a house to which they had been invited by Denhardt, who had permission to go there, and that they escaped from the police; that Dobbs, Denhardt, Gross, Foran, and Vulgaris stole automobiles nightly after their return to Baltimore from Philadelphia and used them to drive about the city and to sleep in, and that the same five men robbed a drug store at Hamilton, a suburb of Baltimore City.

The action of the court in allowing these statements to be made is the basis of the first three exceptions. In dealing with these exceptions there are two things to *Page 46 be considered, — one, whether the rulings involved in them were erroneous, and the other, whether the error, if there was error, was injurious or reversible error. Concerning the first proposition there cannot in my opinion be any reasonable doubt. These general rules appear to be almost universally recognized, first, that the character of a defendant in a criminal case is not an issue until he puts it in issue; second, that evidence of unconnected and unrelated crimes which do not show knowledge, motive, intent, a common scheme, or identification, is inadmissible against a defendant in a criminal case as tending to show that he committed the crime whereof he stands indicted in such case.

McClelland v. State, 138 Md. 536 ; Underhill, Cr. Ev., (2nd ed.), par. 78; 16 C.J., 586, 580, note 1, 581; Wharton, Cr. Ev . (10th ed.), par. 487; ibid., pars. 30, 31; Hochheimer, Cr.

L., par. 175; 8 R.C.L., p. 198; ibid., p. 212. Third, that where the character of a defendant in a criminal case is in issue it may not be attacked by proof of specific bad acts, each forming a constituent offence, Wharton, Cr. Ev., par. 618; R.C.L., par. 205; Underhill, Cr. Ev., par. 82; 16 C.J . 582; and, fourth, that the prosecuting attorney for the State may not, in opening the case for the State, state facts which are clearly irrelevant or incompetent; attack the defendant's character or reputation before it has been put in issue, charge him with the commission of other crimes except where the commission of such crimes would be admissible to show motive, intent and the like as an exception to the general rule, or state any other thing or matter which would likely improperly and unfairly prejudice the court or jury against the defendant. 16 C.J., 890; Wharton, Cr.

Proc . (10th ed.), par. 1496. Applying these principles to the facts before us, in my opinion the trial court erred in the rulings involved in these exceptions. The State's attorney was permitted, over the repeated objections of the defendants, to violate every one of these rules, for not only did he in that statement attack the characters of the several defendants before they were *Page 47 put in issue, but he charged them with having committed unrelated crimes in no way connected with the crime charged in the indictment, and he narrated to the court the circumstances and details of such unrelated crimes.

The second proposition is one of more difficulty, and the difficulty arises from the fact that the defendants were tried before the court, composed of three judges, instead of before a jury. The defendants had a constitutional right to be tried before a fair and impartial jury, and they had a statutory right to waive that mode of trial and elect to be tried before the court. C.P.G.L., art. 27, sec. 91. In such case the court is "substituted for a jury and has the same duties and functions to perform in passing upon the guilt or innocence of the accused" ( League v. State, 36 Md. 258 ); and should be controlled by the same consideration of law and facts as would a jury under similar circumstances, Alexander v. Capital Paint Co., 136 Md. 666 .

The judges who constituted the trial court in this case therefore exercised dual and independent functions, — first, they sat as a court of criminal jurisdiction to pass upon such matters of law as arose in the trial of the case, and then they sat as a jury to determine the issues of fact tendered by the pleadings in accordance with the weight and value of the evidence before them, and rulings made by them on questions of law as a court are reviewable notwithstanding that they sat also as a jury, for in electing to have their case tried before the court the defendants waived none of the rights assured to them by the Constitution, statutes, and the laws of the State, to be tried upon legal evidence and according to the law of the land. To determine whether a court sitting as a jury in a criminal case was affected to the prejudice of the prisoner by errors committed by it in its function as a court is a delicate and difficult question, concerning which there seems to be no definite rule or much authority. On the one hand, it is proposed that it is unlikely that three judges of high character, wholly impartial, influenced only by a desire to do *Page 48 justice, learned in the law, and trained in the administration of its processes, would be influenced or affected by incompetent evidence or irrelevant or improper statements. While on the other hand it is said that, granting all that to be true, that nevertheless the judges acting as jurors are as other men, and to some extent at least incapable of divesting themselves of those natural sentiments, prejudices and dispositions which affect the judgment of the usual and average man, or at least that it would be unsafe to conclusively presume that they are capable of doing so.

Because it is reasonable to assume that they would not allow such statements to be made or such evidence to be introduced unless they believed them proper and material to aid them in determining the case, since to assume anything else it is necessary to believe a manifest absurdity, which is that they admitted such statements or evidence knowing them to be improper, arbitrarily without any reason, and without intending to be bound by them. There is undoubtedly force in both of these positions, but in my opinion the better rule and one more in keeping with common sense and experience lies between the two. It would be unreasonable to assume that every trivial or inconsequential error committed in the trial of a case would have a controlling and decisive influence on the mind of a learned and able judge trained and experienced in the administration of justice, and, on the other hand, it would be dangerous to assume that a judge, no matter how able or experienced, who in his capacity of judge erred in his rulings on vital and important legal principles bearing a substantial relation to the issues in the case, could not in his capacity as a juror be influenced by the error, for that position would reduce the defendant's right to be tried according to law to a mockery, since it would assume that the judge as a juror could not possibly be influenced by his errors as a judge, and that such errors were necessarily harmless. In my opinion, therefore, when the errors are of such a character, and so interwoven with the case, as to lead a fair *Page 49 and impartial mind, trained and experienced in judicial investigation, upon an examination of the whole case and all the rulings involved therein, to the conclusion that there is a reasonable probability that such errors may have affected the determination of the case, they are prejudicial and reversible.

It may be noted in connection with the question immediately before us, that the objectionable statements were made with the sanction and approval of the court, over the repeated objections of the defendants, that they cover many pages of the printed record, and that they constituted a wholly improper but nevertheless damning indictment of the characters of the several defendants. They are therefore quite different from the statements with which the court was dealing in such cases as Esterline v. State, 105 Md. 629 , where the court instructed the jury to disregard the objectionable statement, and the Toomer case, 112 Md. 285 , where the remark did not refer to the defendant. Nor do I think that that rule as stated is at all inconsistent with the Cothron case, 138 Md. 101 . What was said by the court in that case must be read in connection with the facts with which the court was dealing, and so regarded it is not inconsistent with the rule I have stated.

It is difficult to measure even with approximate accuracy the effect of such a statement by an attorney justly enjoying the confidence of the court, occupying a position of grave responsibility and dignity, upon the judicial mind. The human mind is so constituted that no matter what its training or capacity may be it is difficult to divest it entirely and always of extraneous and confusing impressions. And character is so vital and important a factor in the investigation of crime, that it is always easier to believe that a vicious and dangerous criminal committed a crime of the character under investigation here, than to believe that one whose character was unimpeached had committed it, and yet the law requires that the quality and quantity of evidence required to convict shall be the same in either case, because *Page 50 unless he himself puts it in issue, the character of the accused in such a case as this cannot be attacked or impeached, except in so far as the relevant and material evidence has that effect. In dealing with the exceptions relating to the admission of evidence of unrelated crimes it may be assumed as a general rule that one crime cannot be proved by proof of another (16 C.J., p. 586; Underhill, Cr.

Ev., par. 87; Wharton, Cr. Ev., par. 30; Avery v. State, 121 Md. 229 ; Meno v. State, 117 Md. 435 ), except for the purpose stated in my reference to the first three exceptions. That rule is so firmly established and so generally recognized that any extended discussion of the plain and obvious reasons upon which it rests seems uncalled for if not unwarranted. Applying it to the facts of this case, I find that it was repeatedly violated in the rulings involved in the exceptions now under discussion.

The defendants were indicted for a murder, and while they were required to meet that charge, they were not required without warning or notice to be prepared to defend themselves against charges relating to alleged offenses wholly independent of and in no wise connected with that crime, for even if they were gangsters, thieves, or homeless vagabonds, that did not tend to prove that they committed the specific crime for which they were indicted, and the evidence in the case should have been confined to the only issue before the court, which was whether they had in fact committed that crime. That it took a wider range will be apparent from a brief reference to the testimony included in these bills of exception. Edward Denhardt, under arrest on other charges, and who for a time occupied the same cell with Mullen, called as a witness for the State, was permitted over objection to testify that he and Dobbs had on April 8th escaped from St. Mary's Industrial School; that he, Gross, Dobbs, and Vulgaris went in a "machine" to Philadelphia on April 21st, where they met Foran, who came back to Baltimore in a "machine" with them six days later; that after they *Page 51 came back to Baltimore they constantly rode about in "machines" and that they kept that up until he was "caught." The admission of this testimony is the subject of exceptions sixteen to thirty-six. While much of it was wholly irrelevant and immaterial, its admission could not be considered as having prejudiced the defendants, but for the fact that it followed so closely objectionable parts of the opening statements of the State's attorney and was apparently designed to support it.

He said in that statement that the witness, Dobbs, Gross, and Vulgaris rode to Philadelphia in a stolen automobile, that they and Foran returned to Baltimore in a stolen "machine" and that they nightly stole other "machines" and drove about Baltimore. In the course of the testimony to which I have referred the State again and again asked questions which could have had no purpose other than to show that they were riding in stolen machines. The court refused to permit some of these questions, but allowed the witness to say that they drove to Philadelphia in a "machine," that they returned in a "machine," and that after their return they remained together riding about in "machines." It was of course permissible and proper to show that the defendants knew each other, how long they had known each other, where and when they met, c., but this testimony went much further than that. Its natural effect and only apparent purpose was to show that for a time two of the defendants, and for a time three of the defendants, were members of a gang of automobile thieves, operating in Baltimore and Philadelphia, and it was offered generally as against all of the defendants, although one of them had no connection with it at all.

The test of the relevancy of evidence in a criminal case is whether it tends to prove the issue, and the test of this evidence was whether the fact that Gross, Vulgaris, Denhardt, Foran, and Dobbs up to the 29th of April were members of a gang of automobile thieves, if that was a fact, or the fact that Dobbs escaped from a penal institution, if that was a fact, proves that Dobbs, Gross, Foran, and Mullen murdered Mr. Cohen *Page 52 on the 13th of May. Measured by that test, the evidence relating to the exceptions numbered sixteen to twenty-three, inclusive, twenty-nine and thirty and thirty-six, was irrelevant and in my opinion improperly admitted. Exceptions numbered forty to fifty-nine, inclusive, relate to rulings of the court allowing the witness, Denhardt, to describe in the most minute detail the robbery of the Littman store on Marsh Market Space in the City of Baltimore by Dobbs, Gross, Foran, and the witness, and exception eighty-three involves the same question. That testimony was offered upon two theories, one indicated by a remark of the deputy State's attorney, that the similarity of the two crimes indicated that they were committed by the same persons.

The other that the testimony was admissible to show that the persons who murdered Cohen procured pistols at the Littman store. But obviously neither of these theories is tenable. There is nothing in the facts found in the record to take this case out of the general rule that "on a prosecution for a particular crime, evidence which in any manner shows or tends to show that accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible." 16 C.J., 586, n. 1; 8 R.C.L., p. 198; Meno v. State, 117 Md. 435 . Nor was there any evidence which could justify the inference that the two offences were part of a single plan or scheme, or that the one supplied a motive or had any connection whatever with the other.

Nor was it admissible for the purpose of showing that the pistols obtained were used at the Cohen murder, because there is no evidence in the case which shows that the pistols used in the commission of that crime were obtained from the Littman store, other than the alleged confession of Mullen, which could not have affected the other defendants, and indeed the only evidence in the case is that they were not. The testimony is that Cohen was shot with a .38 calibre pistol, while the pistols found on the defendants were of a different calibre, and the witness Peterson positively stated *Page 53 that the pistol with