Ford v. State

Grason, J., delivered the opinion of the Court. On March 31, 1942, an indictment was returned by the grand jury of Baltimore City charging James Ford with the following crimes committed upon the body of Mary Stewart at said city on the 22d day of March, 1941: First count, rape; second count, assault with intent to rape; third count, assault with intent to murder, and the fourth and last count, common assault. Upon his arraignment, Ford pleaded not guilty. A jury trial was waived and at his election he was tried before two judges.

He was represented by counsel and went to trial on May 4, 1942, and the following day the judges found him guilty on the first and second counts in the indictment, not güilty on the third count. A motion for a new trial was filed, which was heard by the Supreme Bench of Baltimore City and overruled. On July 15, 1942, the court imposed its judgment that Ford be hanged, and from this judgment he appeals to this court. Mrs. Mary Stewart, a white woman, lived with her husband and family at 33 East York Street.

On the evening of March 22, 1942, she visited friends at 633 South Charles Street. She started for her home about ³⁰⁵ 9.25 P. M. and was returning by way of Quay Alley in order to stop at a small confectionery shop conducted on that alley. As she was passing along the alley she was seized by a man. He grabbed her in such a way that she reclined and she could look her assailant in the face.

So held, and with a hand over her mouth, this small woman, who weighed only ninety pounds, was dragged to a vacant lot. Along the way was a light, by which she could see her assailant Was a colored man with a mustache. Beyond the light is a vacant lot, littered with bricks, lumber, and big pipes or mains. There he released his hand from her mouth, and she “hollered.” Her assailant then picked up a brick and hit her on the head, rendering her unconscious.

When she recovered consciousness she was inside one of these large mains and her assailant was on top of her. He told her to stay still, and fled. She crawled out of the main and sat on a pile of bricks. With the exception of her stockings, she was entirely nude.

Her coat, which was evidently under her when she was assaulted, was taken by her as she dragged herself out of the main and with this coat she covered herself. She heard two young men crossing the lot and called to them for help. They carried her, together with her clothes, to her home, which was close to the scene of the assault; and shortly thereafter her clothes were turned over to the police. Sergeant Kirwan had trouble that night in this neighborhood, which caused him to clear the block.

He and Officer Lijewski saw Mrs. Stewart as she passed along the street shortly before the assault. He also saw Ford go into a saloon about that time. In September or October, 1941, two young white women reported a colored man entered their bedroom at night. They were unable to identify the man, but the sergeant suspected Ford.

Ford was held at the station house, charged with disturbing the peace, and the sergeant talked with him. He told Ford that the ladies did not want to prosecute, and Ford then said to the sergeant that when he drank he had a ³⁰⁶ “yen” for white women. This evidence was elicited in answer to a question asked on cross-examination. The sergeant heard of this assault at 10.45 P. M. and went to the home of the victim immediately. “On the left side of her forehead was a terrible laceration, and blood was all over her face and hair.” She gave a description of her asasilant.

It fitted Ford, and with the sergeant’s additional knowledge that Ford entered a saloon in the neighborhood shortly before the crime, and that when Ford was drinking he had a “yen” for white women, he and Officer Lijewski set out to find Ford. At 11.50 P. M. they found him. He said: “I ain’t done nothing. I am not guilty of anything,” and at “six o’clock I went to Goldfield Movie.

I have just gotten out of there.” There were “some blood stains on his coat and on the backs of his hands,” which the sergeant saw with his flashlight. Ford was taken to the Southern Police Station and at 1.05 A. M., March 23, signed a statement in the presence of Lieutenant Koch, Sergeants Deal and Wietzel and Officer Mina. In this statement he said: “I met a white woman corner Sharp and Hill Streets about 10 or 10.30 P. M. on Sunday night, the woman’s head was bleeding when I met her. She asked me if I would help her.

I told her, lady I don’t mind, but I was afraid of walking along the street with you I would get in trouble holding you up. She said that if I didn’t she would holler murder, then we walked on down Sharp to York. We walked down York and crossed Charles Street and we walked into another dark alley. She told me if I didn’t be with her, she would holler.

When she lay down against something and pulled her clothes up, I ran, and came back up to Mike’s Bar, and from there to Paul’s Bar. That is when Doctor Thomas Pitts, the floor manager, at Paul’s Bar, told me that the sergeant was looking for me. Then I went to look for the sergeant, and I met him at Hill and Charles Streets.”- He said he had been drinking. When asked: “How did the blood get on your shirt and undergarments?” he ³⁰⁷ answered: “This woman fell against me, and when she fell up against me she held her head down and to keep her from falling I put my arm around her.” He said he got the blood on his undergarments up town on Pennsylvania Avenue.

This statement was offered in evidence. The defense objected to its admission, apparently on the ground that it was a confession of guilt by Ford. Before this statement (State’s Exhibit No. 11) was offered by the State, and before it had closed its case, Ford was called and asked about the statement. He said, in substance, he signed a blank sheet of paper and the statement was thereafter typed above his signature; that he read the statement.

The officers testified his verbal statement was taken down, typewritten and then signed by Ford. Explaining blood on his clothes, he testified he got it: “From a friend of mine named Floyd on Pennsylvania Avenue. I tied up his arm, that is how that blood got on the sleeve.” The court was correct in receiving in evidence this written statement by Ford. (State’s Exhibit No. 11.) It was not a confession and does not admit guilt of the crime. “The distinction between a confession and an admission, as applied in criminal law, is not a technical refinement, but based upon the substantive differences of the character of the evidence educed from each.

A confession is a direct acknowledgment of guilt on the part of the accused, and, by the very force of the definition, excludes an admission, which, of itself, as applied in criminal law, is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt, but of itself is insufficient to authorize a conviction.” State v. Guie, 56 Mont. 485, 492 , 186 P. 329, 331 . “Exculpatory statements, denying guilt, cannot be confessions. This ought to be plain enough, if legal terms are to have any meaning and if the spirit of the general principles is to be obeyed.” “Guilty conduct, exculpatory statements and acknowledgments of subordi ³⁰⁸ nate facts, colorless with reference to actual guilt,” “fall without the meaning of the term confession.” Heneé, an admission to having had an appointment with the deceased was held not a confession. So an admission to having been present at thé place and time of the commission of a crime was held not to be a confession. When a person only admits certain facts from which the trier may not infer guilt, there is no confession.

A confession of guilt is an admission of the criminal act itself, not an admission of a fact or circumstance which together with other facts warrant an inference of guilt. And' the conduct of an accused in fabricating evidence falls without the rules regarding confessions. A full treatment of this subject will be found in Wigmore on Evidence, 3d Ed., Vol. III, Sec. 821.

About 8.30 A. M. the same morning Ford was brought into the office of Captain Kriss. In the office at the time were Sergeants Kirwan and Deal. The statement (State’s Exhibit No. 11) made by Ford was read to hiffi by the captain. He said to Ford: “You would want me ' to believe that the lady was a prostitute and I don’t believe it.” “That lady was from a modest home, a good family, and she had five or six children.” “If what you say here is not true, the woman * * ** through an ordeal probably she won’t forget as long as she lives.

Yet if you say this is true, at least be fair and try to shield her children. If the children would learn of such a charge, and yet not true, prevent some future reaction or a stigma on the family. I said Ford, do you know what I mean? He said, ‘Yes, I do.’ He said: ‘Take that statement and destroy it and tear it up, and I will tell you the whole truth.’ I said: If you want to tell me now from .the beginning to the end, I will be glad to get it down, but you tell everything.

I said: Is it true, • first, whether or not this- woman did solicit you or did as you stated here. (State’s Exhibit No. 11.) He said: ³⁰⁹ ‘No.’ Then he went in detail and I penciled notes briefly as he went on until he came to the point when he said he had been arrested.” When Ford said: “Take that statement (State’s Exhibit No. 11) and destroy it and tear it up and I will tell you the whole truth,” the captain turned the statement over and used it as a pad to take down Ford’s confession. . After the confession had been made, the captain sent for his typewriter and wrote up the confession, which was later offered in evidence as State’s Exhibit No. 12. As he wrote on the typewriter he read from time to time to Ford, who invariably affirmed its truth.

When it was finally typewritten a copy was given Ford and the captain read it back to him, he following the captain from the carbon copy given him. It was then signed. In the office at the time it was signed, in addition to those heretofore named, were Lieutenant Leineman and Frank G. Ellerman and Frederick Markoff. There is no evidence that this confession was obtained by any promise, hope, fear or inducement of any kind.

On the contrary, the testimony is uncontradicted that it was not so obtained. It is objected to on the sole and only ground that because State’s Exhibit No. 11 was not destroyed or torn up, the confession (State’s Exhibit No. 12) was rendered