Wilkerson v. State

Johnson, J., delivered the opinion of the Court. On April 27th, 1936, Joseph Wilkerson was presented by the grand jury for Anne Arundel County with having obstructed justice by destroying certain evidence in the case of State of Maryland v. Frances Van Meter before Magistrate Kirkwood in the county and state aforesaid, on or about December 13th, 1935, and subsequently, on May 4th, was indicted by the grand jury of that county for the same offense. He pleaded not guilty, and elected to be tried before a jury, by whose verdict he was found guilty and sentenced by the court to pay a fine of $100 and costs and stand committed to the county jail until fine and costs were paid. From this sentence he has prosecuted an appeal to this court.

The record before us is very meager, much of it consisting of testimony purported to have been given at the trial in the lower court, which, however, is in no way certified in accordance with the requirement of Rule 5 of this court, relating to ²⁸⁹ appeals from courts of law, for which reason it cannot be considered on this appeal. See, also, Code, art. 5, sec. 12 (amended by Laws 1927, ch. 224) ; Crout v. State, 157 Md. 387 , 146 A. 241 . There are, however, two exceptions properly before us. The first of these relates to the action of the court in permitting a question to be asked a State’s witness during his examination in chief, but since this exception was not argued on appeal, we will, under 'section 4, Rule 39 of this court, treat it as abandoned, and this brings us to the second and final exception.

The case went to the jury solely upon the testimony offered by the State, the traverser himself not having testified nor produced any witnesses to deny the statements made by those who testified on behalf of the State. His counsel, during the course of his argument to the jury, made the statement that, “No presumption of guilt arose from the fact that traverser failed to take the witness stand,” whereupon the State’s Attorney objected to the statement and was sustained by the court, who also remarked that it was “not proper for counsel to comment in any way on the failure of the defendant to take the witness stand.” The court’s action, of course, prevented traverser’s counsel from stating to the jury the law applicable to the situation under consideration, notwithstanding section 5 of article 15 of