Richardson v. State , 90 Md. 109 ( 1899 )

The appellant was convicted in the Circuit Court for Washington County of assault with intent to kill Arthur L. Towson by shooting him with a pistol. During the course of the trial three exceptions were taken by the traverser to the exclusion of testimony offered by him, and these exceptions present the only questions for our determination. We will state such of the facts as are necessary to a proper understanding of the disposition of these exceptions. The shooting occurred at ten minutes after eight o'clock on the evening of May 2nd, in a lane in Smithsburg, and there was no one present but Towson and the person who did the shooting. Towson testified that as he passed down the lane, he saw a man behind a tree; that he had been shot at by some unknown person, near the same spot the night before; that he advanced to the tree, and saw the person full in the face, and recognized the traverser whom he had known for years; that the traverser stepped round the tree, and with his left hand fired at him and ran; that he returned the shot and pursued; that several running shots were exchanged, and the traverser escaped; that later, about nine o'clock, he went to the postoffice and saw the traverser sitting with Harry Embley, at Brenner's corner. On cross-examination, he said he had heard Marshall Hoffman said, he had seen the traverser at Brenner's corner, at the very time of the shooting, and that he went on May 4th to see Marshall's father, Charles Hoffman, about it, and had a conversation with him. He was asked if he did not tell Charles Hoffman if he would send Marshall away until after the traverser's trial, that he, witness, would pay him wages during that time and expenses, and he denied making such statement. He was also asked if he did not subsequently return and ask Charles Hoffman not to say anything about that conversation, to which he replied that he had heard Marshall was scared about being summoned, and he went back and told his father that Marshall could avoid being summoned by going away. Being then asked if he was concerned about Marshall, he replied, "one for him and two for me." Charles Hoffman, for the defence, testified that Towson came to his shop May 4th, and among other things, said: "I did not quite get him (meaning the traverser) last winter, but I will get him now," and offered further to prove by him, that at the same time Towson asked what Marshall was doing, to which he replied that he was working when he could get work, and that Towson said, "if you will send him away until after trial of Richardson's case, I will pay him wages and expenses," but that he rejected the proposition, and said his son should testify if summoned to whatever he knew; and that Towson then left, but subsequently returned and asked him to say nothing about what he had proposed to him. This proffered testimony was excluded, and its exclusion constitutes the first exception. To corroborate Towson's identification of the traverser, Blanche Donaldson and Claude Ferguson testified that on the evening of May 2nd they were sitting on a bench at the railway station at Smithsburg, and heard a pistol shot in the direction of Towson's lane, at 10 minutes after eight o'clock, and several shots a few minutes later; that about five minutes after the shooting, some person ran down the road to the railroad, and as he passed under the street lamp they both recognized him as the traverser, whom they knew well. To contradict this testimony, the traverser proposed to show by John Unger and three other witnesses, all young men with good eye-sight, that on Saturday and Sunday evenings, May 27th and 28th, at 8.45 o'clock, they were in the seat occupied by Blanche Donaldson and Claude Ferguson on May 2nd, and that each of those evenings was clear, and the same street lamp, in the same condition as on May 2nd, was burning with its usual brightness; that while they were thus seated, two persons, in pursuance of previous arrangement, both well known to all of them, but neither resembling the other, came, one at a time, from Towson's lane, passed over the railroad and under the street lamp, as it had been testified the traverser did, and that it was impossible for anyone of the four present to identify either person so passing, or to determine which of the two came first, and that no changes had taken place in the surroundings of the seat or of the lamp, except that the foliage of a locust tree near the lamp was denser on the last occasion, but that it did not obscure the view from the seat to the lamp; and proposed further to ask these witnesses from the observations made by them, whether in their opinion it would be possible to distinguish the traverser from Percy Embley, under the circumstances testified to by Blanche Donaldson and Claude Ferguson; Percy Embley having testified that he fired the shot in joke, and then ran past the station and street lamp in the manner described. The Court excluded the testimony thus offered, and its exclusion constitutes the second exception.

On cross-examination, Towson was asked if he did not call on M. Carper on May 4th at his hotel and ask him if he did not know something about Richardson shooting at him, to which Carper replied "nothing but hearsay, and that does not count," and if he, Towson, did not then say, "Mr. Carper, we propose to pay for our evidence, and pay well for it," all of which Towson denied. The traverser subsequently offered to show by Carper that Towson did make the statements which he denied, but the Court refused to allow the contradiction, and this refusal constitutes the third exception. The first and third exceptions may be conveniently considered together, and the second exception will be first considered.

It appears from examining the testimony of Blanche Donaldson and Claude Ferguson, that though they saw the person full in the face as he came down the road, they did not identify him until he passed the lamp, which was 94 feet from them. Their sole means of identification was the light of the street lamp, at the moment when the side of his face, 94 feet distant, was turned to them. While their testimony is positive and unqualified, it can from its very nature indicate only their conviction or opinion resulting from the facts observed by them, and might, or might not, be satisfactory to others with the same opportunities for observation, and the same acquaintance with the traverser. It was proper testimony, and unchallenged would doubtless be accepted as convincing. But let us suppose that the witnesses whose testimony was excluded, had been sitting beside Miss Donaldson and Ferguson at the moment this person passed, and that their knowledge of Richardson and their capacity for observation, were equal in all respects to that of Miss Donaldson and Ferguson, and that they had been called by the defence to prove that notwithstanding these facts not one of the four was able to identify the person passing; can it be supposed that their testimony could have been properly excluded? And if not, is there any rational ground either in common experience, or in the rules of evidence, upon which it should be excluded as it was offered? The testimony of Miss Donaldson and Ferguson was but their narration of the effect produced on their minds by the facts observed; but upon sound legal principles, it becomesprimary evidence, because the conditions producing that effect could not be reproduced in concrete form to the jury. Wharton says this is especially true in questions of identification "where a witness is allowed to speak as to his opinion or belief" (Crim. Ev., sec. 459). And again, he says in sec. 807, "In questions of identity we have after all to go back to opinion." In Commonwealth v. Dorsey, 103 Mass. 420, CHIEF JUSTICE CHAPMAN said: "In testifying to the identity of a person, the statement often can be nothng more than belief or opinion. This is especially so when the person is seen in the night, or at a distance, or for a very short time." And in the case before us, all the elements of uncertainty and doubt mentioned by him are found. The cases show that whenever the witness has had the means of observation, and the facts and circumstances which lead his mind to a conclusion are incapable of being detailed and described so as to enable anyone but the observer himself to form an intelligent conclusion from them, the witness is allowed to give his own opinion or the conclusion of his own mind. This is the principle upon which the testimony of Miss Donaldson and Ferguson had value, and was admitted, and upon which the testimony of Unger and his companions, if they had been present also, whatever the result of their observation, whether to confirm or contradict, would have been equally admitted. But it may be said their observation was not of the same facts, but was a mere experiment; the observation of other, though analogous facts, and therefore neither these facts nor the opinion resulting therefrom are admissible. Upon principle, we can discover no sound cause for such distinction. If the brilliancy of the lamp at that point on May 2nd was such as to enable Miss Donaldson and Ferguson to identify Richardson under the circumstances stated, it should have enabled Unger and his companions on May 27th and 28th, their vision being equally good, to identify a person equally well known to them, under precisely similar conditions and circumstances. This is a proposition which ought not to require argument for its support. The record shows that the conditions were as nearly identical when the experiments of Unger were made, as it was in human care and caution to have them. The seat at the railroad and the street lamp were the same, and in the same locations; the lamp was burning with the same power and brilliancy; the season of the year, and the atmospheric conditions, were the same; the hour about 35 minutes later only, but at that date the sun set twenty-five minutes later than on May 2nd, and the decline of the natural light must have been about the same; no cause can be suggested for any difference in the diffusion of light from the lamp, and there was no change in any of the surroundings of the place.

In Yates v. People, 32 N.Y. 509, where the question was the capacity of the traverser to identify the deceased, whom he had killed, as a police-officer, by his uniform, cap and shield, by the light of a street lamp, at nine o'clock on the evening of October 1st, evidence was offered of an experiment made January 21st following at the same lamp and the same hour, and the evidence was excluded; not, however, because it was per se inadmissible, but because the seasons of the year were different, involving probable different atmospheric conditions, and because there was no offer that the conditions and power of the light were the same, or that the general surroundings were the same. But in Chicago, St. Louis and P.R.R. v. Champion, 32 N.E. Rep. 874, where an accident had occurred in the management of a hand-car, evidence of an experiment with a similar car, with the same brakeman in charge, on the same siding, and under the same circumstances, was held, on appeal, to have been improperly excluded by the trial Court. The case of Smith v.State, 2 Ohio St. 511, presents an interesting examination by JUDGE THURMAN of the legal principles by which such evidence should be tested. Holcombe had been fired upon at night through the window of a tavern while stooping to take some books from a table near the window. He testified that he saw through the glass a man very close — with arm extended, and a pistol in his hand, directed at him, and that he thought it was the defendant; that at the moment the pistol was discharged, and by the flash he distinctly saw and positively recognized the defendant. The State also examined other witnesses, not present at the shooting, as to experiments and observations made by them at that window, under the same circumstances in all respects as those of the actual shooting, and as to their opinion of the results, for the purpose of proving by inference from such observations, that Holcombe could have seen and recognized the defendant as he swore he did. The defendant then offered to prove by other witnesses that shortly after the shooting, at another spot than that where it had occurred, they had made experiments as nearly as possible similar in all respects to those of the State, and that though they could see the person on the outside of the window, they could not distinguish nor identify him, either before the firing, or by the flash at the discharge of the pistol. The trial Court excluded all the facts offered in evidence, but permitted the witness, as an expert in the laws of light and vision, to state his opinion as to the effect of the sudden light made by the discharge of the pistol. The exclusion of the facts and of the resulting opinion thereon was held error by the Supreme Court, JUDGE THURMAN saying: "It was certainly lawful to disprove Holcombe's statement by showing the impossibility, or the natural improbability of its being true, but it is said this could not be done by proof of experiments. If not, how could the proof be made? No one but Holcombe was looking through the window when the crime was committed. No one but he saw the pistol fired, or the person who did it. Direct contradiction by eye-witnesses was therefore impossible, and would perhaps be equally impossible in a large majority of the cases. Unless then proof of experiments is receivable, a man is very much at the mercy of another who swears against him, and perjury, or mistake, however great, instead of incurring punishment or being rectified, may answer to produce conviction. It was also argued that the State cannot come prepared to meet proof of facts that are not part of the resgestae. But the credibility of testimony is always in issue, and the State must come prepared to maintain the credibility of hers. Finally it is said, that notwithstanding the result of the experiments, it is possible Holcombe saw what he said he did. Granted. But what of that? It was not indispensable to the defence to prove the utter impossibility of his statement. Evidence that tended to show its improbability was competent, and such evidence, if it did not convince, might at least have raised a reasonable doubt in the minds of the jury." These observations are so sensible and just; they come from so high a source, and throw so clear a light upon the question before us, that we have felt justified in repeating them, and we are clearly of opinion that the evidence offered under the second exception was competent, whatever may be its weight, and should have gone to the jury for their consideration.

The first and third exceptions are substantially the same. The first presents the question whether one who has denied offering a bribe to a witness to prevent his giving testimony in that cause, may be contradicted by the person to whom the bribe was offered. The third is, whether the same witness who has also denied offering a bribe to another witness to induce him to testify in that cause, after the witness has informed him he knows nothing but hearsay, may be contradicted in like manner. It was contended that he cannot, because of the well-established rule of evidence, that where a witness on cross-examination has answered a question collateral to the issue, such answer cannot be contradicted. But this rule leaves undeclared what is within the cases, irrelevant or collateral for the purpose of excluding the contradicting evidence. In the leading case of Atty.-Genl. v. Hitchcock, 1 Exchequer, 91, CHIEF BARON POLLOCK says: "The test whether the matter is collateral is this; if the answer of a witness is a matter which you would be allowed on your part to prove in evidence; if it have such a connection with the issue that you would be allowed to give it in evidence, then it is a matter on which you may contradict him." In that case, it was held that a witness who had denied on cross-examination that he had said the officers of the crown had offered him a bribe to testify as he did, could not be contradicted by proof that he had so said, and we have no occasion to doubt the correctness of that decision. As was said in the course of that opinion: "It is totally irrelevant to the matter in issue that some person should have thought fit to offer a bribe to the witness to give an untrue account of a transaction, and it is of no importance whatever, if that bribewas not accepted. It is no disparagement to a man that a bribe is offered to him. It may be a disparagement to the person whomakes the offer. Lord Stafford's case, 7 How. St. Trials, 1400, was totally different. There the witness himself had been implicated in offering a bribe to some other person. That immediately affected him as proving that he had acted the part of a suborner for the purpose of perverting the truth. In that case the evidence was to show that the witness had offered a bribe in the particular case, and the object was to show that he was so affected towards the party accused as to be willing to adopt any corrupt course in order to carry out his purpose." And BARON ALDERSON said in the same case: "The evidence is receivable as tending to show that the man who himself came to give evidence against Lord Stafford, was embittered against him, and had endeavored to persuade other people to give false evidence on the same side. That had a tendency to show that his testimony could not be relied on by the jury." In Regina v. Burke, 8 Cox, Crim. Cases, 44, the above case was reviewed by nine judges and was held to have placed the rule of law upon reasonable ground, and all the judges agreed that the rule of exclusion does not embrace cases "where the matter inquired into is of a kind which brings a witness into special connection, in some way, with the subject of the issue, or with one of the parties to the issue, as where the matter inquired into is whether the witness has not received a bribe from one of the parties, or whether the witness was not living as the mistress of one of the parties." The inquiry in the case before us, is precisely that in Lord Stafford's case (7 Howell's State Trials, 1400), and falls directly within the reasoning of Regina v. Burke, supra, and of Moriarty v.London and Dover R.W., L.R. 5 Q.B. 319, where CHIEF JUSTICE COCKBURN said: "If you can show that a plaintiff has been suborning false testimony, it is strong evidence he knew perfectly well his cause was an unrighteous one — and it is evidence which ought to be submitted to the consideration of the tribunal which has to judge of the facts, inasmuch as it goes toshow he thinks he has a bad case."

Here the witness is not technically a party, but as prosecuting witness, his position, for the purposes of this inquiry, is not distinguishable from that of a party. In Wise v. Ackerman,76 Md. 394, it was proposed on cross-examination of a witness, testifying for plaintiff in a damage suit, to ask whether he had not said, in urging settlement of another damage suit, that he, as a medical witness in a former trial of the then pending case, had been instrumental in getting a big verdict for the plaintiff, and the question was not allowed. Upon appeal, this Court reversed the judgment, CHIEF JUSTICE ALVEY saying: "It was clearly within the scope of proper cross-examination, and upon the witness denying the use of the language imputed to him, it could be competent to prove what he did say, not with the view of having a direct effect upon the issue, but to show what was the state of mind of the witness, his relation to the plaintiff, and his motive and temper in the particular transaction, so as to enable the jury to determine the weight due to his testimony, and this is in no proper sense collateral to the inquiry."

We think the testimony excluded under the first and third exceptions should have been admitted.

Judgment reversed and cause remanded for a new trial.

(Decided November 24th, 1899).