McCleary v. State

The record in this case presents for the consideration of the Court sixteen exceptions, all relating to testimony. Of these the 4th, 5th, 6th, 7th, 8th, 9th, 10th, 15th and 16th in one way or another are with regard to an alleged confession of the traverser of the crime of murder, committed in the City of Hagerstown, in the month of August, 1912, and will be considered one in connection with the others. The traverser was indicted by a Grand Jury of Washington County, and the case was subsequently removed to Montgomery County, where it was tried before the three judges of that circuit without the intervention of a jury. The trial resulted in a verdict of murder in the first degree, and the accused was sentenced to imprisonment for life in the penitentiary.

The importance of the case rests not alone upon the seriousness of the crime charged, but on the fact that it *Page 397 presents for the consideration of the Court, the admissibility of a confession of the accused, alleged to have been procured by what are sometimes spoken of as "sweating," "sweat box" or "third degree" methods. The first exception was to permitting Dr. Wroth, a physician who was present at the autopsy, to state his opinion of the cause of the death of Mrs. Henry, the alleged victim. No sufficient reason has been advanced why this evidence should have been rejected. The doctor had been shown to have the requisite technical training, he was present observing the conduct of the autopsy, and the question called for, and only called for, his opinion, from what he had seen, as to the cause of the death.

The ruling of the trial Court in permitting the question was clearly within the limits of proper expert testimony. The second exception related to the finding of a sheet in the jail where the prisoner was confined. It is claimed by the defense that the first night that the traverser was in the Hagerstown jail, an attempt was made to terrorize him by the use of a sheet, by some one connected with the jail, so as to create an impression of ghosts. But it was not claimed by the defense that the sheet, in regard to which evidence was sought to be introduced, was found until about six months after the traverser was confined there, or that the defense would be in any way able to connect up the sheet referred to, as being the sheet claimed to have been used the night that McCleary was brought to the jail.

The evidence of the sheriff's son was to the effect that no sheet had been used in connection with any prisoner until sometime after McCleary had been incarcerated, and the proposed offer on the part of the defense was, therefore, too remote, and the application for the writ of habeas corpus ad testificandum was properly refused. The 11th, 13th and 14th exceptions all relate to a letter testified to have been written in Washington, by a daughter of the deceased Mrs. Henry, and addressed to her mother, in *Page 398 Hagerstown. The 11th exception is directed to the point that no such letter was found at the residence of the deceased when the door was first forced open, although other mail was found there; the 13th and 14th exceptions had to do with the addressing and mailing of the letter in question, and to what it contained with regard to the Washington address of Miss Henry. The effect of these several questions was to show that after Miss Henry's arrival in Washington she wrote to her mother, that the letter was properly addressed and deposited in the mail, but that it was not found in the residence of the deceased by those who first entered there after the death of Mrs. Henry was discovered, although other mail was found, from which it might be inferred that the letter had been abstracted by some one after the death of Mrs. Henry and before the discovery of her death.

All of this was clearly competent evidence, though only circumstantial in its nature, and it laid a proper foundation for the offering of secondary evidence as to the contents of said letter, which, so far as the traverser was concerned, would be admissible as showing one mode by which he might have obtained the address of Miss Henry in Washington. Nor is there any error perceived to have been committed by the trial Court in admitting the evidence involved in the 12th bill of exceptions; if, as claimed by the State, a murder had been committed, the movements and declarations made by the traverser between the time of the commission of the crime and the time of his arrest could hardly be other than important as reflecting upon his culpability vel non, and especially was this the case when those movements or declarations had reference in any manner to one so nearly related to the deceased as a daughter. As already noted all of the remaining exceptions have reference in one way or another to the admissibility of a confession by the accused of his connection with Mrs. Henry's death. The subject of the admission of confessions of one accused of a crime is one which has been before this Court *Page 399 in a number of cases, to some of which reference will hereafter be made, and is very elaborately and fully discussed in a particularly able note to the case of Ammons v. State, 18 L.R.A.

(N.S.) beginning on page 768. At the outset it is to be observed that the burden of showing that a confession of crime has not been obtained by improper means, that it is the voluntary act, uninduced by hope of favor or fear of harm, is one which the law casts upon the State. Nicholson v. State, 38 Md. 140 ; Green v. State, 96 Md. 384 ; Bram v. U.S., 168 U.S. 532 ; Watts v. State, 99 Md. 30 ; Toomer v. State, 112 Md. 292 ; and where this obligation is not satisfactorily met, it is improper to admit the confession. As was said by the late JUDGE ROBINSON, in Biscoe v. State, 67 Md. 6 : "There is no difficulty in regard to the rule itself, the trouble is in the application of the rule to the facts of each particular case, that is whether it was a free and voluntary confession, or whether it was procured by the influence of another under a hope of favor or advantage if made, or fear of harm, or disadvantage of some kind, if withheld.

It is not of course an easy matter in all cases to measure the force of the influence used, or to decide as to its precise effect upon the mind of the prisoner, much, very much depends upon the age, the experience, the intelligence and character of the prisoner. And it may be the Courts leaning to the side of mercy have in some cases excluded confessions, when it is difficult to see how the alleged inducement had any influence on the mind of the prisoner." In some States this has been left to the jury to be determined by that body as a question of fact, whether or not, that which is offered as a confession, was in fact free and voluntary, or whether it was the result of representations, inducements or threats, and therefore, to be excluded. In other States, among which is Maryland, this is held to be a question to be determined by the Court, as a ruling upon admissibility of evidence, before the confession itself can be offered, Biscoe v. State, 67 Md. 6 ; and this rule seems eminently *Page 400 proper. It is the fundamental duty of the Court in all cases to pass upon the admissibility of evidence.

A confession alone constitutes no crime, it is only evidence tending to show that a crime has been committed, and it may or may not be believed by the jury, or by the Court, sitting as a jury, in any particular case, but the admissibility of it as evidence to be submitted to the jury is distinctly, under the system of law prevailing with us, a question for the Court. Three reasons are assigned by the counsel for the appellant as the grounds of objection to the admissibility of the confession; these are: (1) That the appellant during the day of the alleged confession, and prior thereto, was demanding the advice and assistance of counsel, and that the State prevented his securing counsel at that time by intercepting and suppressing the prisoner's written message to counsel; (2) That the alleged confession was involuntary; (3) That at the time of the making of the alleged confession the appellant was mentally irresponsible. These will be considered seriatim. Upon the first of these branches the case has been unfortunately complicated by acts which cannot be regarded in any other light than an excess of zeal on the part of the prosecuting officers of Washington County.

It is of course the right of one accused of crime to be represented by counsel of his own selection, and it is equally true that the State's Attorney in this case did intercept, interfere with and to a large extent prevent the accused from communicating with counsel, for which there can be no justification advanced; but the question is not the propriety or the impropriety of the action of the State's Attorney of Washington County, but the admissibility or inadmissibility of a confession made by the accused in this case. The fact that one accused of crime makes a confession when unrepresented by counsel, has been before the Courts in several cases, and it has been held to constitute no valid ground for the rejection of the confession. State v. Gorham, 67 Vt. 365 ; State v. Patterson, 68 N.C. 292 ; People v. Siemsen, 153 Cal. 387 . In Commonwealth *Page 401 v. Sturtivant, 117 Mass. 122 , the prejudicial statements were made to a State constable by the accused, while the latter was in jail, at a time when the traverser had no counsel, and was not informed that he need not answer, or in any way advised of his right to remain silent, but this was held not to render the statements inadmissible, it appearing that no inducement or influence of any kind was made to obtain the confession.

What is offered as the confession was made by McCleary in the sheriff's office attached to the jail, to which he had been brought handcuffed to an officer. It was undeniably made when in custody, possibly, probably — handcuffed or in some manner bound. But none of these conditions are sufficient of themselves to render the confession inadmissible. Birkenfeld v. State, 104 Md. 253 ; State v. Patterson, 73 Mo. 695 ; Stallings v. State, 47 Ga. 572 ; Fouse v. State, 119 N.W. 478 ; Pierce v. U.S., 160 U.S. 355 ; Sparf v. U.S., 156 U.S. 51 ; State v. Rogers, 112 N.C. 874 .

The third reason advanced on behalf of the traverser against the admissibility of the confession is his supposed mental irresponsibility at the time when the confession was made. He had been arrested in the City of Washington on the Thursday following the finding of Mrs. Henry's body, had been confined in the station house in Washington on Thursday night, where according to his own story he obtained but little rest or sleep. He was taken to Hagerstown on Friday and placed in jail, and apparently slept but illy on that night. According to testimony of other prisoners in the jail he did a great deal of "hollering," talked of seeing the corpses of his parents lying on the stairs, imagined himself to be fighting wild beasts, spoke of hearing groans about his cell, of seeing a woman in it with tongue protruding, or of there being a lizard about; is described by his counsel who saw him on Sunday as showing marked evidence of nervous excitement, with blood-shot eyes, irrational in his talk, incoherent in his statements, and by physicians who *Page 402 saw him subsequently, and who testified for the defense, as being in an irresponsible condition.

He had also on Saturday evening set fire to and burned the blankets in his cell. As opposed to this we have the evidence of the State's Attorney, and of those attached to the jail, including the jail physician, to the general effect that while excited he was far from being irrational, in fact was quite the reverse on Saturday evening, at the time when the confession is testified to have been made and signed. William Logan, an entirely disinterested witness, who saw him on Sunday morning, and who had known him for a long time, gives strong evidence in favor of his entirely rational condition at the time when he saw him, some fifteen or eighteen hours after the confession is claimed to have been made. It is true that the jail physician, had, either on Friday or Saturday night, given him morphine, apparently for the purpose of quieting his nerves; that he was in a condition of mental excitement is undoubtedly true, but the question is not simply, whether he was mentally agitated, but was he so far deprived of his sense of reason as not to be responsible for what he may have done or said.

It is to be borne in mind, that he was placed in jail only a few days after the middle of August, when the weather was warm, and that for twenty-four hours he had been in solitary confinement, a fact which would not of itself render the confession inadmissible, and these physical discomforts which might tend to produce a condition of sleeplessness may have been augmented by the setting fire to his blankets a short time before making the confession, with the necessary accompaniment of added heat and smoke; but the one factor which stands out prominently is the traverser's own testimony with regard to all that took place, to statements made to him and by him during this period of assumed mental irresponsibility. In a long line of cases where there was a condition of greater or less absence of mental faculty as the result of intoxication such fact has been held not to constitute a valid objection to the admission of the confession. *Page 403 State v. Berry, 50 La. An. 1309; Lester v. State, 32 Ark. 727 ; State v. Grear, 28 Minn. 426 ; Eskridge v. State, 25 Ala. 30 ; State v. Feltes, 51 Iowa 495 , where the accused was suffering from delerium tremens; People v. Kent, 83 N.Y.S. 948 ; and People v. Miller, 135 Cal. 69 , where the prisoner was not in full possession of his faculties, by reason of a bullet wound in his head at the time when the confession was made. Cases of excitement of a different character have been passed upon and the same rule has been followed.

Thus in the Birkenfeld case, 104 Md. 253 , the accused was a native of Russia, sixteen years of age, under arrest for murder and much excited; and the facts as testified to in Rogers v. State, 89 Md. 424 , where the confession was made in the presence of a weeping sister to a police sergeant in the station house, were calculated to produce an abnormal excitement, but the confessions were not held to be inadmissible upon this ground. In Young v. State, 90 Md. 579 , the defendants who were accused of murder, were called out of the house at dead of night by the sheriff, and charged with the crime, and were evidently much excited and frightened, but that fact was held not to render the confession inadmissible, no threat having been made and no hope or promise of benefit having been held out. See also Herndon v. State, 50