Smith v. State

Bailey, J., delivered the opinion of the Court. The appellant, Sidney Smith, was indicted by the Grand Jury of Baltimore City for the murder of his wife,' Mae K. Smith, on February 7, 1943. The indictment was returned on March 8, 1943. On March 17, 1943, he was arraigned, entered a plea of not guilty, waived a jury trial and at his election was tried before the judge then sitting in Criminal Court, Part 2, of Baltimore City.

He was found guilty of murder in the first degree. After a motion for a new trial was overruled by the Supreme Bench of Baltimore City, he was, on April 12, 1943, sentenced to be hanged, and it is from this judgment that he has appealed to this court. While the record is somewhat confused, it appears that six exceptions were taken at the trial, five to rulings on the admissibility of evidence, and the sixth to the refusal of the court to direct a verdict of not guilty at| the conclusion of the State’s case. The exceptions to the evidence are as follows: First: To the admissibility of testimony of a witness that a terrible thumping noise “was the breaking of cement” and that “it came from the first floor next door.” Second: To the admissibility of a conversation with the appellant relating to the absence of his wife from her home.

Third: To the admissibility of evidence relating to blood stains on certain articles in the home of the appellant. Fourth: To the admissibility of a. pick, shovel, hatchet and axes found in the appellant’s apartment and in the cellar immediately under it. Fifth: To the admissibility of a photograph of the deceased taken shortly after the discovery of her body. ¹⁷⁹ The appellant and his wife resided in the first floor apartment of a three-story house at 425 North Carey Street. The second-floor apartment was occupied by Rose Adams and Catherine Harris, and the third-floor apartment by Alberta Hall.

Under the house there is a cellar about sixty-six feet long, sixteen feet wide and seven feet high. The cellar has a cement floor. On the night of February 3rd or 4th a little after eleven o’clock, Elizabeth Young, who lives in 423 North Carey Street, a row house adjoining the house occupied by the appellant and his wife, heard a terrible thumping noise. We quote her testimony: “It was the breaking of cement.

And I don’t know where it came from exactly, but I know it came from the first floor next door. I took off my shoe and rapped on the wall three or four times very loud. Then the noise ceased. I just heard a swish.

I went to bed and stayed there. “Q. That was on February 3rd and February 4th ? A. At night, yes. That was between eleven o’clock and two a. m. the next morning. “Q. How long did the noise last? A. About an hour and a half to two hours. “Q. Did you hear any noise in your house again?

A. I heard the same noise on Saturday night after eleven o’clock. That kept up until nearly two o’clock a. m. Sunday morning.” The admission of that part of the above testimony that “it was the breaking of cement” and “it came from the first floor next door” is the basis of the first exception. Appellant’s wife was last seen alive on Saturday, February 6.

Her sister, Artilla Jones, went to the house at 425 North Carey Street, rang the door bell and was met by the appellant, who stated that his wife was not home. However, the wife was there and asked her sister to come in. She was crying at the time. Daisy Mae Heath also saw her twice on February 6, once at six o’clock and again at eight-thirty in the evening. ¹⁸⁰ Catherine Harris, who occupied the bedroom on the second floor right over the Smiths’ bedroom, testified that “on February 6th I heard a noise right under me.

It sounded, like someone was arguing, by being someone underneath I thought it was Mr. and Mrs. Smith. It lasted about five minutes. After that I heard another noise. It sounded like something had fallen.

After that I did not hear any more.” On Monday, February 8, between two and three o’clock in the afternoon, Daisy Mae Heath saw the appellant putting locks on the cellar windows that opened on' Carey Street. Artilla Jones missed her sister on Tuesday, February 9. She asked the appellant “if Mae had come from work. He said no, Mae is working longer hours.” On Wednesday she talked with appellant again in the presence of her husband and her brother, Horace Keith, and at that time appellant said that Mae was in New York and that he was going to New York to look for her.

On the same day he talked with Mae’s mother, Viola Keith. Viola testified that “I asked him where was my daughter. He said that he didn’t know, that he was going to New York to find her. I said, you had better find her and bring her back or hear something from her.

He said, I am going to New York and if she is dead what are you going to do about it? That is what he told me.” Horace Keith was asked about the above conversation between the appellant and Artilla Jones. His answer was as follows: “I asked him had he seen anything of Mae. Had he found her yet.

He said, no, he ain’t seen her.” There was then an objection, and the action of the court in overruling the objection constitutes the second exception. ■ On Saturday, February 13, Artilla Jones again talked with the appellant and he told her that “he saw Mae in New York going in a cafe with another man and she was coming out with a man. I said, did she tell him to tell me anything? He said, yes, she told me to tell you not to worry, when she gets there she will tell you.” ¹⁸¹ Alberta Hall, the occupant of the third-floor apartment at 425 North Carey Street, also talked with the appellant on Thursday, February 11 and on Saturday, February 13. On the first occasion he told the witness that “he was going to New York.

She (Mae) had some people in New York, he was going to see if she was in New York.” On the second occasion he said “that he had been to New York, had seen her and she was all right. When she got where she was going, she would write.” Lieutenant Frank J. Plum, desk lieutenant at the Southwestern District, testified as to the following conversation with the appellant on Saturday, February 13: “He said, I saw my wife last night. I said, where? He said, in New York.

I said, where is she stopping in New York. He said, I don’t know. He said she had told him as soon as she got settled and she got a place permanent she would write to him. I said, when did you come back from New York?

He said, this morning. He had been drinking.” On Monday, February 15, Sergeant Joseph G. Zaruba of the Baltimore police, went with Artilla Jones and George Still to 425 North Carey Street. The front door was unlocked, but it was necessary for the sergeant to break a lock before entering the Smith apartment. He examined the room closely and saw blood spots on the bed, on the wall above the bed and on a picture hanging over the bed.

The mattress was covered with blood. Continuing, the witness testified as follows: “I then went with George Still to the cellar. I found where some concrete was broken in front of the furnace. I got the woman out.

I asked permission to go to the third floor and called in to Lieutenant Rusk and asked for No. 71 radio car with Officer Leyh and Officer Heisenbuttle. They came down with Officer Roche and they immediately went in the cellar, all five of us and started to dig. We found a pick and shovel down there. We started to get the dirt out.

About two foot down was a board, that board there (indicating). It was lying midway of the ¹⁸² grave. We got that board out. We went down further.

That is when we found the body.” Lieutenant John G. Rusk was called to the premises by Sergeant Zaruba and he described what he found as follows: “In the bedroom on the first floor, the mattress was covered with blood and this picture (indicating) hanging above the bed, there were spots of blood on it and also on the wall near the picture were several spots of blood.” It was at this point that a motion was made to strike out the testimony concerning the blood, and the court’s refusal to do so constitutes the third exception. Lieutenant Rusk further testified to the finding of a pick and shovel in the cellar, which were identified by the appellant as his property, and an ax with a broken handle in the cupboard in the back room of the Smith apartment. Sergeant John C. White testified that he found a hatchet in the kitchen of the first-floor apartment and the ax with the handle in the cellar. The action of the court in admitting the pick, shovel, hatchet and two axes in evidence is the basis of the fourth exception.

After the body was discovered in the grave in the cellar it was partially removed and the legs placed on the concrete, with the head down. It was in this position that a photograph of the body was taken in the presence of the police officers. When this photograph was offered in evidence there was an objection and the action of the court in admitting the photograph constitutes the fifth exception. An autopsy was performed by Dr. Robert Lee Graham, Assistant Medical Examiner of Baltimore City, on February 16.

Dr. Graham testified that the body had been dead approximately a week. He found two enormous gaping wounds on the right side of the face, one about five and one-half inches long and about two inches wide, beginning at the lower tip of the right ear, extending ¹⁸³ to the nose, practically splitting the right side of the face in half, and penetrating through the jaw bone into the roof of the mouth, the other back of the right ear going into the base of the skull and severing a bone three-quarters of an inch in thickness. He stated that the wounds were caused by a sharp instrument and that either of them could have caused death. We think the evidence objected to in the first exception is clearly admissible.

The witness testified that on two occasions she heard a terrible thumping noise. She then proceeds to tell the effect that it produced upon her mind. To her the sound was the breaking of cement, and came from the first floor next door. It is stated in Wharton’s Criminal Evidence, 11th Ed., Vol. 2, Par. 1011: “Opinion, so far as it consists of a statement of an effect produced on the mind, becomes primary evidence, and hence admissible, whenever a condition of things is such that it cannot be reproduced and made palpable in the concrete to the jury.

This is particularly true with regards to noises and odors. A person need not be an expert to be able to testify that he smelled chloroform, or that a certain liquid smelled or tasted like whisky. Sound, incapable as it is of description except by comparison with some other familiar sound, must frequently be the subject of non-expert opinion if any testimony at all is to be had upon certain points. A non-expert witness may testify as to his impression of the nature and location of sounds, as, for example, whether shots sounded as though fired inside of a building or in the open air, or whether they sounded like a drum or something deep.

A witness may characterize a sound as being like the report of a rifle or shot-gun, or that shots sounded like those of a rifle even though he cannot say definitely that he knows the difference between a rifle shot and a pistol shot. Such evidence is simply a statement as to the nature of the impressions of sound left upon the ear, and is not opinion evidence.” ¹⁸⁴ The same general rule is stated in Wigmore on Evidence, 3rd Ed., Vol. 7, Par. 1977. In