Luray v. State

Oeeutt, J., delivered the opinion of the Court. Emanuel Luray was convicted in the Circuit Court for Carroll County of the crime of larceny, and on February 2nd, 1929, sentenced to eight years in the Maryland Penitentiary. This appeal is from that judgment and sentence. It submits four exceptions.

In the course of his direct examination, C. H. Ridgely, a witness offered by the State, testified that three men, strangers, travelling in a Ford coupé, had come to his house and inquired the way to the “place” of John Shiflett, a neighbor; that one of the men, he subsequently learned, was known as Dan Koontz, but that he did not know and could not identify either of the other two. After this testimony had been given without objection, the traverser moved to strike it out, but the court overruled the motion, and that ruling is the subject of the second exception. While it is impossible from the isolated excerpt from the evidence offered at the trial which the record contains to discover any possible connection between that testimony and any issue formed by the pleadings, neither in the record nor in the oral or written arguments of counsel does it appear 'that the appellant was injured by the ruling. The record, which ⁶³⁷ is fragmentary and incomplete, fails to show who Shiflett was, what if any connection he had with the traverser, or how the more fact that Koontz, accompanied by two unidentified men, inquired the way to' Mr. Shiflett’s home, could have prejudiced Luray, and, since injury and error must concur to justify a reversal, and as injury will not be presumed in the absence of facts from which it may be inferred, we find no reversible error in that ruling.

The first, third and fourth exceptions are to remarks made by the state’s attorney in the course of his opening statement and closing argument to the jury. In opening the case he said : “I expect to prove that Emanuel Luray is the greatest thief and receiver of stolen goods in this part of the United States.” Counsel for the traverser promptly objected to that statement, and the court then said to the jury: “Mr. Brown, there is no reason in the world to do something in the start of a case that might cause a mistrial. Gentlemen of the jury, don’t pay any attention to that last statement. The particular case we are trying is the case for which the party is indicted.” Thereupon counsel for the traverser excepted to the “action of the state’s attorney in making said statement,” and that is called in the record “Exception No. 1.” In the course of his closing argument to the jury, the state’s attorney referred to the traverser as “that confessed thief”.

Counsel for the traverser at once objected, and the court addressing the jury, said: “Gentlemen, the most that the court can say to you is, don’t pay any attention to that last remark, ‘that confessed thief’. It was an improper remark and should not- have been made to you. Don’t let that influence you in deciding this case.” Again the traverser excepted to the “action of the state’s attorney in making said statement,” and that is the third exception presented by the appeal. Later, during the same argument, the state’s attorney referred to the traverser as “this convicted dope-peddler”.

Counsel for the traverser again objected, and the court then said to the jury: “Gentlemen, there was no proof ⁶³⁸ that there was a conviction. The proof was that he was brought before the court. What happened after he was brought before the court was not proven.” The traverser also excepted to the “action of the state’s attorney in making that remark, which is the subject of the fourth and final bill of exceptions. While the remarks involved in the first and fourth exceptions were improper and wholly inconsistent with the obligation incident to the official position of the prosecuting officer who made them, and may have been highly prejudicial to the accused, they cannot on this record be reviewed in this court.

It appears from what has been stated that the exceptions were not taken to any ruling of the trial court, but to the “action” of the state’s attorney. But if the accused was injured by the action of the state’s attorney, it was incumbent upon him to complain of such injury to the trial court, and to ask of it such appropriate relief as would be adequate to protect his right to' a fair and impartial trial, and, if such relief was refused, to accept to the action of the court in refusing it. In no other way could the propriety of the action of the trial court be presented to this court for x*eview. Eor manifestly this court can not review the propriety of some act done in the course of a trial, upoxx which the tx*ial court neither ruled nor was requested to rule, for that would be an exercise of original and not of appellate jurisdiction.

Althoxxgh no specific action of any kind was suggested to the trial court by couxxsel, the learned and careful judge who presided at the trial promptly informed the jury that the remarks complained of were improper*, and instructed its members to disregard them. If, in the judgment of the traverser*, the remarks had so affected the jury as to prevent them from giving him a fair and impartial trial, he should have moved the court to discharge the jury and continue the case, as was done in Neusbaum v. State, 156 Md. 162 . Or, if he felt that the