Wolf v. State

Urner., J., delivered the opinion of the Court. There are one hundred and twenty exceptions in the record presented on this appeal. They relate to the admissibility of evidence in a trial which resulted in the conviction of the appellant under an indictment charging him and others with having engaged in a conspiracy to obstruct the administration of justice. The issues of fact and law in th© case were tried before Ciitef Judge Gorter, and Associate Judges Boyd, Duffy Staytoy and Steiy of the Supreme Bench of Baltimore City.

It is earnestly contended that, their decision against the appellant was improperly influenced by the admission of the testimony to which the numerous exceptions refer. In the brief submitted by the appellant’s able counsel it is further insisted that, reg-ardlessi of the exceptions in the. record, there was such manifest error in the conviction, in view of all the evidence, as to justify a reversal of the judgment and a remand of the case for a new .trial. ⁴⁹³ This Court has no authority to decide as to the appellant’s guilt or innocence. That duty and responsibility rested upon the five judges before whom, as a jury, the case was tried iu the lower Court. Under the Constitution of our State, and in their capacity as a jury, they were “the judges of law, as well as of fact” in the ease.

It is therefore; not within our jurisdiction, as an appellate tribunal, to determine as to tbe legal sufficiency of the evidence upon which the vferdiet was rendered. Weeks v. State, 126 Md. 223 ; Jessup v. State, 117 Md. 119. The only judicial concern we can have; with respect to the evidence, is. to ascertain whether any ruling of the trial court as to the admissibility of any portion of it was erroneous and tended to prejudice the appellant’s! interests. In the indictment under which the appellant was tried it is charged that he conspired with John Keller and Walter Socolow to convey certain misleading information to police officers and to the State's Attorney of Baltimore City for the purpose of obstructing the prosecution of Socolow and others for the murder of Willi ami B. Korris, by discrediting a confession obtained from E'rank L. Allers, one of the participants in tbe robbery in the. course of which the homicide occurred.

Those implicated by tbe confession, besides. Allers himself, were Socolow, John L. Strath, Charles. P. Carey and James Hart. When the confession was made Socolow and Hart were still at large.

Keller had no part in the robbery or murder, but subsequently aided Socolow and Hart while they were evading arrest. The plan of deception, which the appellant was alleged to have agreed to> and promoted, was to have Keller first secure the confidence of the prosecuting officers, by conducting Police Captain Inverton to the place where the cash box taken in the robbery, and the license tags of the automobile used by the bandits, had been secreted, and then make the statement, that he had heard Allers say he was “framing” Socolow. The suggestion of this scheme is said to have been made by Socolow, and to. have been accepted by ⁴⁹⁴ the appellant and Keller, in an interview' at the appellant’s home on the evening of the day on which the confession of Allers appeared in the newspapers. On the following day Keller met Oaptain Leverton at the appellant’s law office and went with the officer to a pond from which the cash box and license tags sought for were recovered.

Soon afterwards, at the Central Police Station, Keller told Inspector Hurley and Mr. O’Oonnor, Deputy State’s Attorney, that he heard Allers say: “Mow is the time to frame Socolow, Wiggles (meaning Smith) and Carey.” This statement is proved to have been false, and Keller testified, in effect, asi a witness for the State, that it was planned in the interview with the appellant and Socolow on the occasion we have mentioned.' There was a positive contradiction of Keller on this- point by the appellant and by Socolow in their testimony. The admissibility of the evidence with which the exceptions are concerned must, of course, be considered with- particular reference to the precise nature of the charge sought to he proved. The specific purpose of the conspiracy into which the appellant is accused of having entered- was to obstruct jus-ticei by means of -a false and misleading' statement to be made to the prosecuting officers by one of the conspirators. Any evidence having a legitimate tendency to- support that accusation was not subject to a valid exception.

Tn discussing and disposing of the exceptions we shall follow generally the order and classification adopted in the appellant’s brief. There are ten exceptions which relate to the admission of evidence that, in the interval between the murder of Mr. Morris, on August 18-th last, and the -time of the interview of Keller and Socolow with the appellant, which occurred on the night of August 23rd, the police had been searching for Socolow, Hart, Smith and Lewis, who were suspected of having participated in the -crime, that the automobile used by those who committed it had been located, that Smith and Lewis had been arrested, that Allers had voluntarily surreal ⁴⁹⁵ dered and had confessed, that on the afternoon of August 23rd his confession had been published in the Baltimore Evening Sun, and that the appellant had represented Socolow in a criminal case, in April, 1921. In order that the significance of the alleged conspiracy might, be understood it was proper that the State should prove the conditions to which it related. The principal facts to- which the evidence just referred to was directed were averred in the indictment.

They were proved, as they had been alleged, for the purpose of presenting the case in its proper perspective. To support the theory of the indictment, that the appellant conspired to defeat the prosecution of Soeolow, and his associates in the robbery and murder of Mr. Norris, it was permissible to offer evidence of the fact that such, a prosecution was impending. As, the appellant was. charged with having conspired to discredit a confession upon which the- State would rely, it was material to prove that the confession had been made and had been given such publicity as to- justify the inference that it had come to the appellant’s knowledge before the interview in which rbe conspiracy is said to have had its inception. The evidence that the appellant had previously acted as Soeolow’s attorney was unobjectionable.

Til,ero are three exceptions in the second group to be considered. They refer to admitted testimony of Keller to the effect that he was with Hart and Soeolow on the night of August 20th and went with them to a, garage^ where the money box and license tags already mentioned had been concealed, and helped them to take those articles to- thei pond from -which they were afterwards recovered by the police with Ms aid. This testimony describes conditions directly related to the conspiracy charged. The association of Keller with the men who disposed of the. cash box and license tags, and his knowledge of the place where they had been deposited, were facts to he used, according to Ihe State’s theory, in the promotion of the unlawful project with which it proposed to ⁴⁹⁶ prove the appellant to have been identified.

It was to those facts that the statement made by Keller to the police primarily had reference. He testified that they were narrated to the appellant in the interview at his home. The alleged suggestion by Socolow, in which the conspiracy is said to have originated, was to have Keller tell the police that it was Allers whom he accompanied to the garage and the pond when the cash box and license tags were disposed of, and the declaration to he attributed to Allers, as to his Intention to “frame” Socolow, was to he reported as having been made on that occasion. It seems clear to us that the evidence on this subject was competent.

Seven exceptions relate to testimony of Police Oommissioner Gaither as to offer’s made by the appellant, on the day of the murder of Mr. Harris, and on the following day, to aid the Police Department in discovering the perpetrators of the crime, and as to' a statement by the appellant of his belief that it was not committed by local mien but by certain persons from other cities whose presence' in Baltimore he had heard of and whose movements he regarded as suspicious. There are two exceptions to testimony of a representative of the Baltimore Sun that ait his request, on the night of August 18th, the appellant promised to give any aid in his power to the efforts being made to locate and arrest the men guilty of the murder. The declarations of the appellant, to which the nine last noted exceptions relate, were made some days before the occasion for the alleged conspiracy had arisen or could have been anticipated. The effect of the testimony .as to those declarations was to prove an interest on the part of the appellant which appears to have been free of any ulterior motive and which did not tend to support the specific charge with which he was confronted at the trial.

It could not he reasonably inferred from his offer of assistance to' the Police Department, and his suggestion as to the probability of the crime having been committed by men who had come from other cities, that he was entertaining the thought of ⁴⁹⁷ entering into a scheme which was only made possible by the unforeseen conditions which subsequently arose. But we are unable to. hold that this evidence was altogether immaterial, as it reflected upon the appellant’s relation to the general situation with respect to which .the conspiracy is alleged to have developed. In any event we cannot see how this testimony injured the appellant. It referred to his own conduct, and Avas apparently consistent with his innocence.

Its. admission certainly affords no ground for a reversal. There were six exceptions to testimony of police officials that the appellant AA'as at the Central Police Station on the • day after the murder and saAV Smith and Lewis, avIio had been arrested the previous afternoon, and that lie expressed an interest in having them released on the ground that he did not believe them to be guilty. Another1 exception refers to the proof of a 'Statement by the appellant to one of the officers, on the afternoon of the day succeeding1 the crime, in Avhich he criticized the arrests made in the case as “pinhead policing.” Other expressions by the appellant to police officials indicating an interest in certain men who' had been arrested and released, and bis remark to Captain Burns, on the afternoon of August 23rd: “I may have something for you tomorrow,” AArere the subject of testimony to Avhich four exceptions were directed. There is nothing in the record to suggest that when the statement just quoted was made the appellant bad any reason to expect that. some, hours later lie avouM be visited at. his borne by Heller and Socolow and would have an interview in which a plot to deceive the, prosecuting officers, might be proposed.

But the .acts, and declaration's to which the eleven exceptions of this group refer were provable as manifesting an interest which might reflect upon the question of niotÍAre for the appellant’s alleged participation in the scheme which the indictment describes. Apart from this possible effect the testimony would be altogether harmless even though it be regarded as immaterial. Tt was for the trial court to determine as to the weight of this proof. In our opinion it was admissible. ⁴⁹⁸ It was testified, by Keller that when be and Socolow called ait the borne of the appellant on the night of August 23rd, the latter greeted Socolow with the„ exclamation: “My God, boy, what are you doing here,” and then asked “Who is this kid; is this Hart?” and Socolow replied: “Ho, it is a kid by the name of Kelly, wanted for an automobile case.” They were then taken to the kitchen to wash and be given some food.

Afterwards they went out on a porch where they were rejoined by the appellant, who said: “That was a brutal thing you did, Socolow.” According to Keller’s testimony Socolow admitted His guilt and described the homicide, though the appellant and Socolow, on the contrary, testified that he protested his innocence, and then the appellant went to another entrance to .see a detective who had called. In reference to what transpired upon the appellant’s return the testimony of Keller proceeds as follows: “Q. How, when Mr. Wolf came back what occurred; what did Walter (Socolow) say to him or Mr. Wolf say to Walter ? A. Asked him how would this sound: how would this do ? Q. What was it he said there ?

A. I siaid I heard Allers. say he was framing Socolow. I just said to Socolow what would be all right for me to say. Then he told me to say instead of Hart and 'Socolow taking me to the box, Frank Allers took me there. Then the telephone rang.

Q. Was anything said about the name of Allers? A. Chicago. Q. Then the telephone rang?' A. Yes, sir. Q. What happened then ?

Did Mr. Wolf sit. there or go out; A. Went to the telephone. Q. And when he oamá back what happened; A. He said: C didn’t get you; tell me it again.’ And so I told him again. Q. How, wha.t did you tell him? A. Told him the same thing I told him the first time.

Q. What did you tell him the first time? A. About Allers taking' me to the box instead of Hart and SoColow, and that I heard Allers say he was framing Socolow. Q. How, what was said, if anything, by anybody, about having nerve or not having nerve ?” ' To this question an objection was made on the ground that it was leading. The objection being overruled, the witness ⁴⁹⁹ quoted the appellant as having said: “If you have got the nerve, it is all right.” A leading question is one which, embodies a