Edwards v. State

Delaplaine, J., delivered the opinion of the Court. . Thomas Alexander Edwards, appellant, a Negro, 23 years old, was indicted by the grand jury of Anne Arundel County for the murders of John H. Mahlan and Mary C. Kline, of Glen Burnie, on September 17, 1948. The cases were removed to the Criminal Court of Baltimore, where he has been tried twice. At the first trial, which was held in February, 1949, he was found guilty of murder in the first degree and was sentenced to be hanged.

The Court of Appeals reversed the judgments on the ground that appellant’s confessions were obtained by offering an inducement to him and therefore were improperly admitted in evidence. Edwards v. State, 194 Md. 387 , 71 A. 2d 487 . At the second trial, which was held in June, 1950, he was again found guilty of murder in the first degree and sentenced to be hanged. On the present appeals his main contention is that.the evidence was not sufficient to sustain the convictions.

The record shows that Mahlan, 25, took Miss Kline, 18, for a ride in his Pontiac sedan on Friday evening, September 17, 1948, about 9:15 o’clock, and they did not return. On Saturday morning about 7 o’clock a Pontiac sedan was seen in a bean field along, the Old Annapolis Road several hundred yards north of the Mountain Road. A garage man at Lipin’s Corner notified the Anne Arundel County Police and three officers went promptly to the scene. They found the right side of the front seat and the floor in the back of the automobile soaked with blood.

There was a bullet hole in the right front window and another in the left front window. There were also fragments of a bullet on the floor in front of the front seat. A woman’s shoe was wedged under the rear of the front seat. Chief John H. Souers, ¹³⁷ who arrived about 8 o’clock, observed footprints leading from the automobile.

He followed them for about 250 feet until they were lost in the weeds near the little stream that runs through the field. The girl’s father, John Edward Kline, identified the automobile as Mahlan’s and the shoe as his daughter’s. Kline made a search along the stream, and when he reached the two-plank bridge on the path leading to the Negro settlement of Freetown, he found Mahlan’s motor vehicle operator’s license torn into five pieces. Two of the pieces were on the bridge and the other three were on the ground.

On Sunday, September 19, Ernest Geisler, of Severna Park, one of many persons who searched for incriminating articles, found a bunch of keys in a hole more than a foot deep near the bridge. The keys were Mahlan’s. The theory of the State is that the murderer abandoned the automobile and fled across the field toward the bridge, and tore up the operator’s license evidently intending the pieces to fall in the stream, but in his haste dropped them and the keys on the ground. On Monday afternoon, September 20, the bodies of Mahlan and Miss Kline were found by George Aisquith, a road worker, in a clearing about 175 feet from the Chesterfield Road near its intersection with the Defense Highway.

This place was about 26 miles from the place where the automobile had been abandoned. There was no clothing on Miss Kline’s body from the waist down except a shoe on her right foot. It was found at the autopsy that a bullet had entered the back of her head. Her left index finger had been nearly cut off by a bullet.

On the right side of her head there was a hemorrhage, which indicated the probability that a heavy blow had been struck. There were also bruises on both knees. A bullet had entered Mahlan’s left temple. The bullets which were extracted from the two heads and also the fragments of the bullet found on the floor of the automobile were sent to the Federal Bureau of Investigation in Washington for examination with the object of determining the type of weapon from which ¹³⁸ they were fired.

In making the barrel- of a pistol, a hole is drilled through a bar of metal, and after the hole has been finished a rifle cutter is passed through the barrel with a twisting motion, so that it cuts and scrapes away a thin shaving of the metal as it goes, thus leaving in the barrel a spiral of grooves. The spaces between these grooves are called lands. When the pistol is fired, these grooves and lands leave their marks upon the bullet. Robert A. Frazier, special agent of the F..

B. I. assigned to the laboratory, found that each of the bullets had faint rifling characteristics with no definitely defined dimensions or physical characteristics. While the rifling characteristics were not distinct, he found that the bullets had streaks faintly indicating that the weapon which fired them had been rifled with six lands and grooves turned in a right-hand or clockwise direction. On Sunday afternoon, September 26,1948, Carl Phelps, a Prince George’s County farmer, found an empty cartridge case in the weeds where Miss Kline’s body had lain. He gave the cartridge case to Mr. and Mrs. Russell Wade; of Millersville, and they immediately went to the Ferndale Police Station and turned it over to Chief Souers.

The Chief examined it, put it in an envelope, and locked it in the safe. The next morning he handed the envelope to Officer Praley with instructions to take it to the F. B. I. in Washington. Frazier received the cartridge case on September 27 and designated it Q-4. On September 28 Officer Praley got it back from the laboratory and returned it to Chief Souers, who again locked it in the safe.

On October 7 Chief Souers again delegated Officer Praley to take it to the F. B. I. laboratory. Frazier returned it to Sergeant Meade on November 10. It was thereafter in the custody of Chief Souers until the first trial. On October 10 Officer Praley, accompanied by two other officers, went to appellant’s home along Marley Creek near Freetown to look for empty cartridge cases,- and they found one in the yard.

On the following day -he took it to the F. B. I., where it was designated -as Q-l2¡ ¹³⁹ It was a 9-millimeter short cartridge case, commonly known as .380-caliber. On October 18 the F. B. I. reported: “No microscopic marks were present on this cartridge case for comparison with the cartridge case found near the body of Miss Kline.” On September 20 David Weishwar, of Millersville, found three unfired cartridges in a root beer bottle near appellant’s home. The bottle was under a bag of crab shells in a pine bush about ten feet from the Marley Neck Road. He turned the cartridges over to the police.

Robert M. Zimmers, special agent of the F. B. I. assigned to the laboratory, found that all three bullets were Czechoslovakian. By spectrographic examination he compared the three bullets with the bullets extracted from the bodies of the victims and found that they were of the same chemical composition and identical in all observable characteristics. On October 9 appellant, who was known to be the owner of a pistol, was arrested as a suspect. On October 12, when he was interrogated by State and Baltimore City police at the Ferndale Police Station, he claimed that on the night when the murders were committed he went to a moving picture show in Baltimore.

When he was asked where his pistol was, he said that he had sold it in August to one of the workmen at the American Sugar Refinery in Baltimore, where he was employed. The officers took him to the plant, but he could not find the man who he said had bought his pistol. He was released on October 12 and given two weeks to find the purchaser. Appellant was arrested the second time on October 25, and was held in custody about two hours.

On November 8 he was arrested the third time and taken to the Waterloo Barracks of the Maryland State Police for further interrogation. There it was found that he had previously lied to the police, for he now admitted that he had never sold his pistol. He asked Sergeant Cassidy what would happen if they found his gun. Cassidy told him: “The gun would be sent to ¹⁴⁰ where there would be a scientific examination made of it.

It would depend on that examination as to just what would happen.” Appellant finally decided to tell where his pistol was. He said that he had put it in the bottom of the cupboard in the kitchen of the house of his brother James where he lived. The officers went there and found the pistol where he said it was. It was a Czechoslovakian pistol of 9-millimeter short caliber, known as .380-caliber.

While in custody at the Waterloo Barracks, appellant also told the police that they could find a box of .380-caliber cartridges in the attic above his bedroom. The officers went there again and found the cartridges. On November 9 Officer Praley took appellant’s pistol to the F. B. I. He also took again the cartridge case found in appellant’s yard. This time the cartridge case was designated Q-23.

Frazier found (1) that the cartridge case picked up where Miss Kline’s body had lain matched a test cartridge fired from the pistol as to firing-pin impressions, and (2) that the cartridge case picked up in appellant’s yard also matched a test cartridge fired from the pistol. The F. B. I. thereupon made the determination that the two cartridge cases were fired from the same weapon. Appellant contended that the cartridge case found where Miss Kline’s body had lain should not have been admitted in evidence. It is a settled rule that an instrument of crime found at or near the place of the crime need not be positively identified as the instrument used in the commission of the crime before it may be admitted in evidence.

A lack of positive identification of such an instrument affects the weight of the evidence rather than its admissibility. Wilson v. State, 181 Md. 1, 5 , 26 A. 2d 770 ; Cox v. State, 192 Md. 525, 539 , 64 A. 2d 732, 738 . It was contended by appellant, however, that there was no mark of identification on the cartridge case to show that it was the case found near the Chesterfield Road. Of course, a cartridge case, like any other instrument, should not be admitted in evidence until it is adequately identified.

But appellant made the same ¹⁴¹ contention on the first appeal, and we ruled that the cartridge case was sufficiently identified to be admissible. Edwards v. State, 194 Md. 387 , 71 A. 2d 487 . Appellant cited People v. Berkman, 307 Ill. 492 , 139 N. E. 91 , where a physician testified that he could not identify a bullet as the one extracted from the body of the victim because he had handed the bullet to a nurse and no witness gave the name of the nurse. That case is quite different from the case at bar.

It is true that the Wades did not put any mark on the cartridge case, but they turned it over to Chief Souers, and he put it in an envelope and wrote on the envelope “Shell found by Wade.” Chief Souers explained that the case was still in the envelope when he sent it to Washington the second time on October 7, and he kept it in that envelope until the first trial. He explained that the original envelope was folded and placed in a new envelope typed by Sergeant Meade before the first trial. At the second trial an envelope contained the words: “Cartridge taken from under Mary Kline’s body at the scene.” There was some uncertainty about the wording on the envelopes. Frazier said there may have been a smaller envelope in the one which carried his initials and the F. B. I. file number.

However that may be, the fact that the cartridge case was received by the F. B. I. one day after it was found, and was the only one of its kind received by the F. B. I., whereas the case found in appellant’s yard was not found until October 10, made it improbable that one case was confused with the other. Moreover, Frazier examined the cartridge case under a strong light at the trial and testified that he could positively identify it. He definitely testified: “That cartridge case was delivered to me at the F. B. I. laboratory by Officer Praley of the Anne Arundel County Police Department on September 27, 1948. * * * I received it again in the F. B. I. laboratory. * * * I returned it to Sergeant Meade of the Anne Arundel County Police Department on November 10, 1948.” Because of the clear evidence of chain of custody of the cartridge case, ¹⁴² and its positive identification by the ballistics-..expert who examined it, we repeat that it was sufficiently identified to be admissible in evidence. ... Appellant objected to the admission of the cartridge case for the further reason 'that it was not picked up until six days after the bodies were found and hence some one could have put it there after the murders were committed in order to incriminate him.

We are not impressed by that suggestion. It is not disputed, that in the evening after the bodies were found, the -police officers searched for several hours as well as they could with lights, and in the morning they again searched through the weeds looking primarily for a weapon, but the officers recalled that it was difficult to find anything on account of the weeds. Sergeant Meade said that it was not until October 11 that a thorough search was made for all types of evidence by raking the underbrush and digging up and sifting the ground. . Appellant sought to discredit the F. B. I. laboratory experts by showing that in October the Bureau reported that there were no microscopic marks on the cartridge case found in appellant’s yard for comparison with the cartridge case found where the body of Miss Kline had lain, whereas in November the Bureau reported that they were both fired from the same weapon.

For many years ballistics has been a science of great value in ferreting out crimes that otherwise might not be solved. When a pistol is fired, a pressure is developed within the shell which drives the bullet out of the barrel, and the shell is driven back against the breech of the pistol with similar force. The markings on the hard breech of the pistol are thereby stamped on the soft butt of the shell. Testimony to identify the weapon from which a shot was fired is admissible where it is shown that the witness offering such testimony is qualified by training and experience to give expert opinion on firearms-and ammunition.

The testimony now in question is not discredited by the circumstance that the comparison of . the two cartridge cases, which had been exposed to - the ¹⁴³ elements, with the test cartridge supported the inference that could not be drawn from comparison of the two alone. In Commonwealth v. Best, 180 Mass. 492 , 62 N. E. 748, 750 , where it was claimed that two bullets extracted from the body of the murdered man had been fired from a Winchester rifle, the Court permitted the Commonwealth to show that another bullet had been fired from the same rifle. The bullet was admitted in evidence to show that the marks thereon coincided so closely with the marks on the two bullets as to prove that all three had been shot from the same barrel. It was contended by the defense that the conditions of the experiment did not correspond accurately with the conditions at the time of the murder because the rifle barrel might have been rusted in the two weeks that intervened, and because the gun had been fired three times after the murder, which would have increased the leading of the barrel.

In rejecting those contentions, Chief Justice Holmes said: “We see no other way in which the jury could have learned so intelligently how that gun barrel would have marked a lead bullet fired through it, a question of much importance to the case. Not only was it the best evidence attainable but the sources of error suggested were trifling.” Likewise, the Court of Appeals of Kentucky has held that a witness skilled in ballistics may be permitted to testify that he identified the pistol from which a bullet found at the scene of the homicide was fired, as a result of comparison of markings on the bullet and on shells also found at the scene of the homicide with those markings found on bullets and shells fired by the witness through the pistol, the test upon which he based his observations and formed his opinion being described to the jury. Evans v. Commonwealth, 230 Ky. 411 , 19 S. W. 2d 1091 , 66 A. L. R. 360. Frazier explained that comparison of two cartridge cases is. made by means of a special microscope so constructed that microscopic marks on the two cases can be. seen with one eye at the same time.

He then gave the ¹⁴⁴ following satisfactory explanation: “Every time a weapon fires a cartridge case, the firing pin may impress to different depths. Therefore, the cartridge case will pick up additional marks on a cartridge case in which the firing pin makes a deep impression as contrasted with one in which a shallow impression is made. So that an insufficient number of microscopic marks might be present on one cartridge case from a certain weapon for comparison with another cartridge case fired from the same weapon. I examined the specimen when it was originally submitted as Q-12 and found there were very few microscopic marks in the firing pin impression.

At that time I concluded they were too few for comparison with another cartridge case. However, when I received the: weapon and fired the test cartridge case from it, I found on this cartridge case microscopic marks which were the same as the microscopic marks I found on the cartridge case submitted to me as having been recovered in Edwards’ yard, indicating that that cartridge case * * * was fired from this particular weapon.” It was admitted by Frazier that the bullets extracted from the bodies had faint rifling marks, whereas appellant’s pistol did not contain any lands and grooves when it was submitted to him. It was also admitted that there are other makes of pistols, such as the 9-millimeter Luger automatic, the barrels of which have six lands and grooves with a right-hand twist. It was reported that test bullets which were fired by the F. B. I. from a Luger had the same general rifling marks as the bullets extracted from the bodies.

Hence, it was admittedly possible that the bullets could have been fired from a Luger. On the other hand, Frazier made it clear that appellant’s pistol would normally contain six lands and grooves with a right-hand twist, and that it is possible to completely remove the rifling from a pistol by running steel wool through the barrel. He added, however, that if the barrel is in good condition, running a piece of steel wool through it only two or three times would not remove the lands and grooves; but if the ¹⁴⁵ barrel is rusted, the lands and grooves could be removed more easily. Appellant, who was a gunner in the quartermaster corps in Europe during the Second World War and knew about filing out pistol barrels and the use of steel wool in removing rifling, admitted at the trial that he had filed out the barrel of his pistol in 1947, and that after the murders were committed he ran steel wool through the barrel of his pistol.

He admitted also that his pistol had become rusted. He testified as follows: “It was raining, * * * the oil come to the top and the water sink to the bottom. It rusts some part of the gun.” At one time in his testimony he said that he ran the steel wool through the barrel “several times only,” but at another time he said that he did not know how many times he ran it through the barrel. Appellant’s admismissions and the explanatory testimony of the expert were sufficient to warrant the Court in finding that the lands and grooves in the pistol were completely removed after the murders were committed.

Arthur B. Wilson, a guard in the death house at the Maryland Penitentiary, testified that he had overheard conversations of appellant with two other prisoners. One of the conversations was with a prisoner named Delmas Bozman on October 19, 1949, between 5:30 p. m. and 10:15 p.m. The guard testified as follows: “Edwards said Bozman sneaked up on a cab driver in an alley and shot him in the back. Bozman replied that what he did was not as bad as what Edwards did in sneaking up on those people when it was dark and shooting them.

Edwards replied he was a damn liar, the moon was shining bright. He said he fixed it so nobody could prove he did it anyway. He wasn’t as dumb as Bozman because he did not plead guilty.” The second conversation was with Edward Greer on December 11,1949. From this conversation, which lasted several hours, the guard recalled the following: “He stated to Greer that the Seminarians could not help him and he did not want to talk to them as he had done everything he knew to keep Chief Souers from proving any ¹⁴⁶ thing- on him.

He stated to Greer that he was too smart for the hick cops in Anne Arundel County and had disposed of everything that could prove anything on him. He said he had thrown the watch overboard.” Appellant urged that these utterances should not have been admitted in evidence. It is a universally accepted rule that in proving oral utterances verbal precision is not required, but the substance or effect is sufficient. The reason for the rule is that the importance of single words in oral discourse is comparatively much less than in writings, and memory does not retain precise words except of simple utterances and for a short time.

Green v. State, 96 Md. 384, 389 , 54 A. 104 ; Worthington v. State, 92 Md. 222, 243 , 48 A. 355 , 56 A. L. R. 353; 7 Wigmore on Evidence, 3d Ed., secs. 2094, 2097. In this case the witness said that the death house in the Penitentiary was so arranged that he could be within ten feet of the cells, and he had a table and chair which enabled him to take notes. He testified that he gave careful attention to everything that was said and took notes of the main points of the conversations, from which he made a formal report to the Warden of the Penitentiary. While he repeated only a few sentences from conversations that lasted several hours, he swore that he could remember the main points of practically the entire conversations.

He used his notes to refresh his recollection at the trial. Appellant placed reliance on O’Neill v. United States, 8 Cir., 19 F. 2d 322 , 325, wherein it was held that the trial Court had erroneously admitted in evidence a summary of statements alleged to have been made by the appellant. But in that case it was explained that the so-called summary of statements was not the substance of what the appellant had said at all, but was a statement of conclusions which the witness had deduced from a conversation with narcotic officers. In the case at bar the witness gave the substance of appellant’s conversations as far as it related to the case, and he did not give ¹⁴⁷ his own deductions.

For these reasons we hold that the oral utterances were admissible. It is significant that the utterances were characteristic of appellant, as he was a garrulous braggart who had utter contempt for the police. In addition, the utterances substantiate other pieces of evidence in the case. For instance, according to the official report of the United States Weather Bureau, there was a full moon on the night of September 17, 1948.

Likewise, the statement about the watch coincided with the testimony of Mrs. Kline that her daughter wore a wrist watch, which has never been found. The guard swore that this was the first time he had heard any mention of a watch in this case. Appellant testified at the first trial that he arrived at Camp Kilmer, New Jersey, on December 31, 1945, and that he bought his pistol from another soldier at that camp with money which he had made by shooting craps on the voyage back from Europe, and after moving from the home of his aunt in Curtis Bay to the home of his brother James near Marley Neck, he tried to shoot it. In the summer of 1947, after he was unable to get Czechoslovakian ammunition for the pistol, he went to a friend’s machine shop and tried to enlarge the barrel with a rat-tail file.

He was able to get the cartridge into the chamber, but the pistol would not fire, as the cartridge was too large for the mechanism. Later, when he succeeded in locating smaller bullets, he practiced shooting at targets on his father’s property and at other places around Marley Neck. He admitted that in the spring of 1948 he bought a dozen or more rounds of Remington bullets, and about a week later bought a whole box of shells, and afterwards bought a box of 9-millimeter Czechoslovakian cartridges. He admitted that he had carried his pistol to the sugar refinery because of some quarrel he had with one of the workmen there.

He also admitted that he carried his pistol with him when he went about the country at night. ., ¹⁴⁸ . The trial Court evidently did not believe appellant’s story that he put his pistol in an icebox outside his father’s home before the murders were committed and did not take it out of the box until the first week in October. We see no reason to believe this story. Appellant showed himself to be a brazen liar on a number of occasions and some of his stories are not plausible.

He testified that after he read in the newspaper that the police had found some foreign-made shells, and he heard that the police were searching houses for weapons, he took his pistol out of the icebox, put it in an oil can and covered it with oil, and put the can between some trees along the path leading from his father’s house to his brother’s house. He then testified that early in November, after he had been arrested twice, he took the pistol out of the can, oiled it, and wrapped it in a piece of cloth and put it in the cupboard in his father’s house, where the police found it. Appellant admitted that he had put the bullets in the bottle and left it along the road. In explaining this incident, he said that he had three bullets in his pocket, and one of them dropped through a hole in his pocket.

When he heard it fall, he stopped and picked it up. Seeing some bottles along the road, he put the three bullets in one of the bottles, left the bottle alongside the road and continued on his way. He told the Court that it was his intention to go back for the bullets and “pick them up some time,” but soon afterwards he read in the newspaper that the police had found three bullets, and he thought they may have been the bullets which he had put in the bottle. When he went to look for them, they were gone.

He declared that he did not “hide” the bottle. Nevertheless, the trial Court had the right to believe that when he put the bullets in the bottle and left the bottle in the bush, he feared that the police might find the bullets in his pocket. He admitted that he did not have a hole in any other pocket. For his alibi appellant testified that on the evening of September 17, 1948, he went to his mother’s home about ¹⁴⁹ 7:30 o’clock, and while listening to the radio fell asleep and woke up about 10:30, and then walked to Kinder’s store on the Solley Road, reaching there shortly before 11:30.

He said that he did not go into the store because Kinder had criticized him for shooting his pistol near the store, and in anger he told Kinder that he would never enter his store again. For that reason he asked a boy named Stevenson to go in tire store and buy some peanuts and potato chips for him. He then testified that shortly after 11:30 he met William A. Jackson and his wife near their home on the Solley Road, and then continued to the home of William Sedgewick, with whom he talked for several minutes, and then went to the Freetown Hall, where a promenade party was being held. He said that he arrived there about midnight but remained outside about two hours.

He said that he left there about 1:50 a. m. with George Kess and walked to the Kess home in the woods between the Solley Road and the Marley Neck Road. He said that he finally walked to the home of his brother James, where he read the newspaper and went to bed. He said that he arose at 6 and worked at the sugar refinery