Niemoth v. State

Urner, J., delivered the opinion of the Court. The numerous exceptions in this record were taken in the course of the appellant’s trial on a charge of robbery. The crime in which he was alleged to be a participant was committed on the morning of October 1st, 1926, in front of the Henry Sonnebom Company’s plant on South Paca Street in the City of Baltimore. A taxicab, in which four employees of the company were conveying from a bank .about $46,000 ⁵⁴⁸ in currency, to be used at the plant for payroll purposes, had just reached its destination before the entrance to the company’s building, when several men alighted from a car in the rear of the taxicab, and, by sudden intimidation of its occupants, through the display of firearms, robbed them of the money in their custody.

The victims of the robbery were forced to remain in the taxicab until the crime was accomplished. The bandits quickly re-entered the green Cadillac car in which they had come to the scene of the raid, and drove away so hurriedly that a door ’of the car, not yet being closed, was broken off by coming in contact with the taxicab. When the escaping car had proceeded only a short distance, one of the robbers was killed by the discharge of a weapon in their possession. The car was abandoned in the city at the intersection of George and Ogsten Streets.

In it the police found the body of the robber who had been killed, some firearms, a' top coat, several caps, and a “gray slouch hat.” Under the lining of the hat was a piece of paper on which was written the name and address, in Chicago, of the defendant, William JSTiemoth. The dead man in the car was identified as J. W. Danko, and a search of his lodging place in Baltimore brought to light a telegram sent to him' ten days before the robbery from Delphos, Ohio, reading: “On our way. Will arrive in time,” and signed “Bill.” It was proved by the State, and admitted by the defendant, that after his arrest he acknowledged having written his name and address on the slip of paper found in the hat, to which we have referred, and there was expert testimony that the telegram was in his handwriting. The defendant testified that the address slip was one of a number which he gave to patrons of his work as an automobile mechanic in Chicago, that he did not own the hat in which it was found, that he did not write or send the telegram, and that he had no part in the robbery, but was in Chicago at the time it was committed.

Three witnesses in addition to the defendant himself supported his alibi, while two on behalf of the State testified that they saw the defendant participate in the robbery, and two others identified him as one of the occu ⁵⁴⁹ pants of the ear which had jnst previously been used in the perpetration of the crime. The exceptions reserved at the trial, which resulted in the defendant’s conviction, include questions as to the admissibility of evidence, and as to the propriety of remarks by the trial judge, in connection with his rulings, and by counsel for the prosecution in their statement and argument of the case to the jury. The first two' exceptions were noted because the court allowed witnesses, who had testified that they saw the defendant taking part in the robbery, to be asked on examination in chief whether they had any doubt as to his identity. There was no error in those rulings.

The third, fourth, fifth, and sixth exceptions were not pressed. Each of the rulings which they refer to was correct. A witness for the State, having testified that he saw the defendant on the morning of the robbery driving a car with the right rear door off, and the feet of a prostrate man projecting from it, as the witness was about to cross a street intersection where the car passed him closely and very slowly, being impeded by other traffic, and having further testified that he was positive in his identification of the defendant, was asked by the state’s attorney: “Are you certain of it?” And replied: “Yes, sir; or I would not be here.” A motion to strike out the words “or 1 would not be here” was overruled. The expression might well have been stricken out as immaterial, but the ruling could hardly have been held to involve reversible error, especially in view of the emphatic terms in which, without objection, the witness had stated his certainty that the car which he described was being driven by the defendant.

Exceptions seven and eight refer to this ruling. The manager of the telegraph office at Delphos, Ohio, from which was sent the telegram to J. W. Danko, heretofore mentioned, having testified ons cross-examination that she did not recall the person who sent the message, or that she had ever seen the defendant prior to his arrest, was asked whether she had any independent recollection that he was the man who wrote the telegram. As the witness had not ⁵⁵⁰ attempted to identify the defendant as the sender of the message, continuéd inquiry on that point was unnecessary, and the court’s adverse ruling', shown hy the ninth exception, was without error or injury. The original telegram to Danko was returned to the telegraph company after being photographed hy the Bertillon bureau of the Baltimore police department.

It was subsequently destroyed by the company, after the lapse of a year, in accordance with its regular practice. Detective E'eehley tsetified that he was present when the photograph of the telegram was made, and by comparison at that time had found the picture to be an exact reproduction of the original. Counsel for the defendant then objected that the witness had not been shown to' be competent to testify as an expert in regard to the accuracy of the copy. The following colloquy then occurred, in the course of which the tenth exception was reserved : (The Court) : “When a man has seen two pieces of paper with writing upon them he can say he knows one to be an exact copy of the other from which the photographic copy was made.

(Mr.' 0'’Brien) : Was he present when the picture was made? (The Court): Yes, he says he was there. He remembers the original and then he is shown a photographic copy and he says the original and copy are identical. Ho expert testimony is needed for that; any man on the street can do that.

(Mr. O’Brien) : I take exception to your Honor’s remark. (The Court) : To' what remark ? (Mr. O’Brien): In this way. It is my contention that that is not the way to prove any photograph or any photographic copy.

(Mr. O^Conor) : We are going to' bring in the photographer. (The Court) : That will all fee covered, I am sure, If it is not, I will strike it out. That will be to your advantage. I admit it simply because you cannot ask the state’s attorney to put more than one witness on the stand at a time.

If it is not properly proven it will not be allowed to stay in the case. (Mr. O’Brien) : I just want to* make the objection at.this time.” ⁵⁵¹ The photographer who made the photostatic copy of the telegram was called as a witness, and testified that the reproduction was accurate, and the original was duly identified as the telegram sent to Danko from Delphos, and heretofore quoted. In the argument no point was made as to the use of the photostatic copy of the telegram for the purpose of comparison with the defendant’s proved and admitted writing. It was held in Hensel v. Smith, 152 Md. 380 , 136 A. 900 , that such a copy, properly authenticated, may he used for that purpose, when the original is not accessible.

Alor was it argued that the eleventh exception was directed or sustainable against the comparison made by the witness then under examination, who had testified on that point without objection. But the contention is that the remark, “any man on the street can do that,” was prejudicial and a ground for reversal. That does not appear to have been the basis of the exception' as understood and explained by counsel then in charge of the defendant’s case. While the quoted remark was part of a statement by the court to which an exception was noted, it was stated by Air.

O’Brien, when asked what remark the exception referred, that his objection was to that method of proving a photograph. The words now said to be prejudicial were used by the court in the expression of its view that a witness was not required to- be an expert to make an admissible comparison of the original and the photostatic copy of the telegram in question. The general statement to that effect could hardly have been construed by the jury, as suggested in the brief for the appellant, to indicate that the court was placing “its stamp: of approval” upon the testimony of the witness then being: interrogated. After the slip of paper, found in the hat of one of the bandits, and bearing the defendant’s name and address, had been offered in evidence, Detective Eeehley was asked whether he requested the arrest of any one by the Chicago police.

An objection to that question was overruled and tho witness answered: “Hiemoth’s arrest was requested five or six days after October 1st, 1926.” This was the occasion of the eleventh exception. It was permissible for the State ⁵⁵² to prove, preliminary to- later pertinent inquiries, that the apprehension of the defendant was requested after his name and address had 'been discovered in the hat abandoned by one of the robbers in his flight. During the cross-examination of Detective F'eehley, who had testified that the defendant had stated in Chicago after his arrest that his name and address on the paper just mentioned were in his handwriting, was asked: “What did he say in regard h> whether or not he made this card and. when he made it and how he made it and the circumstances.; what do you remember about what he said?” There was an objection by the State, and the court said: “He was only asked whether or not the card was in his handwriting’ and if he made it. That is all that was asked on direct examination.” The twelfth exception was concerned with the action of the court thus limiting the cross-examination on that point by sustaining the State’s objection.

The defendant’s version as to the origin of the card referred to was given in his own testimony, and has been stated earlier in this opinion. It was doubtless the purpose of the cross-interrogatory to prove that the defendant made a similar explanation in connection with the admission to which Detective F'eehley testified. In our opinion it would have been consistent with our decisions to have allowed the proposed inquiry (Koogle v. Cline, 110 Md. 587 , 73 A. 672 ; Smith v. Wood, 31 Md. 293 ) ; but as the defendant’s qualification of his admission was afterwards fully presented to the jury by his testimony, we are unable to find in the ruling adequate reason for awarding him another trial. The thirteenth exception was taken to testimony of the photographer who made the photostatic copy of the telegram.

The point of the objection was that the telegram had not yet been sufficiently identified. It was ruled that the testimony of the photographer be admitted subject to. further proof that the telegram was the identical one delivered by the Delphos manager of the telegraph company to the Baltimore police. This action of the court was unobjectionable. Sergeant Kakeska, of Chicago', testified that some time ⁵⁵³ after the defendant was arrested and released on hail, he told the witness that he would rather go to Mexico, or anywhere, than to Baltimore, and that his bail bond was “no good.” In reference to that conversation the witness was asked on cross-examination: “Did you, ask him whether he was guilty or innocent of this indictment?” An objection by the State to that question was sustained, and an exception, the fifteenth, was noted by the defendant’s counsel.

It was later testified by the witness that he had given all of the conversation with the defendant, so the ruling was not prejudicial. But after it had been made and the exception formally entered on the record, counsel for the defendant began to argue in support of his position, whereupon the court said: “You may tell that to the Court of Appeals. I do not want to hear it.” Mr. O’Brien said: “I take an exception to that remark. I hope we will never get to the 'Court of Appeals.” Exception Yo. 16 having been noted, the court then observed: “I have said that I do not want argument on objection to testimony, unless the court asks for it.” It is argued that by the remark of which the sixteenth exception complains, the trial judge revealed to the jury a belief that the defendant would be convicted, and that he was seriously prejudiced by such a disclosure.

If the jury must be presumed to have understood that only in the event of a conviction would the case be appealable to this court on the evidence rulings, there is equal reason to assume an understanding by the jury that the purpose of the exception reserved by the defendant’s counsel was to make a record for appellate review, if there should be occasion for an appeal. The fair implication of the judge’s remark was simply that, in the event of an appeal, the question upon which he had ruled and the defendant had taken an exception could be argued to this court. It would require a strained interpretation of the remark to give it the significance suggested in the argument, and it would impute to the jury a serious lack of discrimination if we shoixld conclude that they misconceived the utterance of the court to be an indication of belief in the defendant’s guilt. ⁵⁵⁴ Exceptions seventeen to twenty-seven, inclusive, were not argued, although the appellant’s brief states they were not abandoned. There was no error in any of the ruling's to which they refer.

One of the State’s witnesses, who had testified that he saw the defendant participating in the robbery, and who had been subjected to- cross, redirect, and recross examination, and dismissed, was later