Gray v. State

Prescott, J., delivered the opinion of the Court. This case was here before on a former appeal. Gray v. ²⁸⁸ State, 219 Md. 557 , 150 A. 2d 221 . In order to pass upon the questions now raised, it will be unnecessary to set forth in any great detail the facts that allegedly occurred.

The appellant, Gray, and two others were tried and convicted in the Circuit Court for Allegany County on a charge of armed robbery. Gray, alone, appealed, and, for the reasons assigned in the former opinion, his conviction was reversed and the case remanded for a new trial. Tittle space need be consumed in disposing of the appellant’s first contention, as he now seems to concede that the question is not properly before us. He filed a motion for a change of venue on the ground that his case had “had wide publicity.” The trial court denied the motion without a hearing or the taking of testimony thereon.

However, the record extract fails to disclose that the appellant requested a hearing on the motion, or an opportunity to adduce evidence to show that he could not have a fair and impartial trial in Allegany County, or that any objection was made to the court’s ruling on the motion. Moreover, the appellant failed to print the motion or the court’s ruling thereon in the record extract. Maryland Rule 828 b. Clearly, the question is not properly before us for determination.

The next question, however, gives us more difficulty. As stated above, Gray, on his first trial, had been found guilty with two other defendants, one of whom, Howard Iser, had received a ten-year prison sentence. In the trial of Gray’s present case below, the State’s Attorney called the deputy clerk of the court who testified, over the appellant’s objection, that the court records disclosed: “On October the 17th, 1958, the prisoner [s] arraigned, John Anthony Gray and Howard Maurice Iser sentenced to confinement” for ten years. The court instructed the jury to disregard the sentence with reference to Gray, but that they were at liberty to consider the sentence of Iser.

Iser had not been called as a witness; hence no question of impeachment was involved. The court below held this evidence was admissible under the provisions of Code (1957), Article 35, Section 11, which states: “If any person or corporation charged with com ²⁸⁹ mitting any crime is found guilty thereof, such fact shall be admissible as evidence in any proceeding, criminal or civil, in which another person, firm or corporation shall be charged with committing the same crime or act.” The above statute was passed in 1933. In construing the same, we are unable to obtain any assistance from its title as to the purpose or intention of the legislation in its enactment; and we find no decision of this Court prior to the time of its passage that may have inspired its introduction and enactment. We have not discovered a like statute in a sister State, nor does there seem to have been any previous decision of this Court that has considered the same.

It will be noted that we are dealing with a criminal prosecution wherein the conviction and sentence of a coindictee for the same crime (Iser) predicated upon an offense by joint actors was introduced on behalf of the State as tending to establish the guilt of Gray. We shall strictly limit our discussion and holding to the facts herein presented. It seems clear that a literal reading of the statute would render the evidence objected to admissible; but such a construction of the statute, under the circumstances of this case, would make testimony admissible against a defendant in a criminal case that, apparently, is universally held to be inadmissible, 1 and cause the statute to be so unreasonable as to cast serious doubt upon its validity. Even when the defendant himself has been previously convicted of other crimes, it is well-established law that these previous convictions are inadmissible against him as tending to show that he committed the crime whereof he stands indicted, unless they show knowledge, motive, intent, a common scheme or identification [and under some circumstances sexual crimes].

Jones v. State, 182 Md. 653, 656 , 35 A. 2d 916 . This court said in Rogan v. B. & O. R. R. Co., 188 Md. ²⁹⁰ 44, 53, 52 A. 2d 261 , that, “[i]f the language of a statute is open to either of two constructions, the court should adopt that construction which will best tend to make the statute effectual and produce the most beneficial results.” And, in Scherr v. Braun, 211 Md. 553, 561 , 128 A. 2d 388 , Judge Hammond for the Court said: “This C.ourt has held that if necessary to carry out