Kiterakis v. State

Adkins, J., delivered the opinion of the Court. Joseph Latvanas and Stanley Kiterakis1 were, on April 28th, 1922, jointly indicted for manslaughter for negligently running down and killing with an automobile, on Pennington Avenue in Baltimore City, one Joseph Domisiewicz. A severance was granted, and each elected to be tried by the court without a jury. Each was convicted and sentenced to serve two years in the Baltimore City jail.

Each appealed and the appeals were sent up> in one record. The appeal of Latvanas was dismissed by the Cburt; so We are concerned only with the appeal of Kiterakis. There are nine bills of exception. We are unable to consider the first, third, sixth, seventh and eighth exceptions, because they were all taken to the overruling by the lower court of objections to questions, the answers to which do not appear in the record, and consequently we cannot say whether or not they were prejudicial.

The second and ninth were to the admission of certain photographs taken and produced ‘by Sergeant Harry J. Foreman of the Baltimore police department, and to the description of them and what they represented by the witness Ida Fialkoski. The photographs are not produced before us, but it appears that they represented the locus m quo, and that they purported to represent the position of the deceased at the ⁸³ time of the accident. While the method of making the objections and taking the exceptions are in some respects irregular, it is reasonably apparent that the objections applied to the whole of this testimony. We think the photographs should have been excluded, and also the testimony of Ida Fialkoski in regard to them.

But the admission of this testimony was not prejudicial error. The gravamen of the offense charged was the criminally negligent killing; of the deceased; and there was abundant testimony, admitted without objection, and uncontradicted, so far as the record indicates, to prove this, whether the deceased at the time he was killed was in tie position shown by the photograph or not. It was shown by other testimony, and not controverted, that he was in the gravel walk, and that he was run down without warning by the defendant, who, while drunk, was driving the automobile at a reckless speed; and that the street at that point was well lighted. When there is enough admissible and apparently credible testimony to prove a fact, and the