Appeal from the Criminal Court of Baltimore; Niles, C. J.
The cause was argued on January 10, 1962, before Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. The cause was reargued on April 9, 1962, before Brune, C. J., and Henderson, Hammond, Prescott, Horney, Marbury and Sybert, JJ. Hammond, J., delivered the opinion of the Court. Horney, J., filed the dissenting opinion, in which Prescott and Marbury, JJ., concur.
When the jury trial of the defendant, Ewell, for murder committed in the perpetration of a robbery resulted in a verdict of guilty of murder in the first degree without capital punishment and a sentence of imprisonment for life, he appealed. The defendant contends that the evidence was insufficient to permit a conviction of first degree murder, but the principal issue raised by the appeal is whether a purported admission by silence should have been admitted as evidence against the defendant.
On the evening of August 30, 1960, the teen-aged defendant left his home, picked up a toy pistol at the home of a friend and later met Charles (Shotgun) Davis, the codefendant, who was also a minor. Together they proceeded to call on another friend, and all three of them went to a carnival on Leeds Street in Baltimore and remained there until nearly midnight. The two defendants left the carnival to go home with a group of other boys. On the way, another acquaintance driving an automobile stopped and talked to the defendant Ewell. All of the other boys, except the codefendant Davis, went on homeward.
A few minutes later, as Ewell and Davis were walking over the bridge at Frederick Avenue and Hilton Street, they saw a man walking alone toward the bridge. Ewell claimed that it was Davis who proposed robbing the man. He further claimed that he, Ewell, refused to participate in the robbery; and that Davis, after demanding the toy pistol and getting it, turned and walked back in the direction the victim was proceeding, while he, Ewell, walked on up Frederick Avenue and turned into Hilton Street. Shortly thereafter, Davis came running around the corner, and told Ewell to run along with him, which he did. Later Davis gave Ewell ten dollars out of the wallet of the victim and returned the toy pistol to him.
The defendants were tried separately. Davis was tried, convicted and sentenced to life imprisonment first. During the course of the trial of Ewell, Sterling Butcher, one of the teenaged boys who had been at the carnival with the defendants but had parted company with them in the vicinity of the bridge, testified that he saw Davis and Ewell soon after standing at a distance of about ten or fifteen yards from the witness "in the alley behind Hilton Street, right off of Massachusetts Avenue." Butcher called to Ewell and Davis and "asked them what they were doing." One of them -- or another friend, Donald Hall, who was walking down the alley toward them, replied that "we just yoked a man." The witness could not say who had responded to his inquiry. Later in the trial, Ewell, having taken the stand in his own behalf, testified on cross-examination by the State that he had not seen Butcher in the alley, that no question had been asked and that neither he nor the codefendant had replied to a question.
At the point in the direct examination of the witness Butcher when the prosecuting attorney had asked what was said in reply to the inquiry, counsel for the defendant interposed an objection on the ground that the response would be hearsay, but the trial court received the testimony of the witness subject to exception. Counsel renewed the objection when the direct examination was concluded, but at that time the court stated it would rule on the matter later and advised counsel that he could cross-examine without waiving his objection.
The objection (which the court treated as a motion to strike) was not made again until the close of all the evidence offered by the State. On that occasion the court overruled the motion without comment. In its charge to the jury, the court instructed generally as to the law of the case, but it did not, nor was it requested to, instruct the jury with respect to what purported to be a tacit admission by the defendant that he had participated in the yoking of the victim.
It is generally held that if a statement is made by another person in the presence of a party to the action, be it civil or criminal, containing assertions of facts which if untrue the party would under all the circumstances naturally be expected to deny, his failure to speak is circumstantial evidence that he believes the statements to be true, and his conduct is thus receivable against him as an admission of such belief. Kelly v. State, 151 Md. 87; Wolfe v. Brown, 173 Md. 103; Barber v. State, 191 Md. 555; Zink v. Zink, 215 Md. 197. See also 2 Jones on Evidence (5th ed.), Sec. 388; McCormick, Evidence, Sec. 247; 2 Underhill's Criminal Evidence (5th ed.), Secs. 378-380; 2 Wharton's Criminal Evidence (12th ed.), Sec. 405; 4 Wigmore, Evidence (3d ed.), Sec. 1071.
In Barber, Judge Henderson, speaking for the Court, said: "It would seem that the question of admissibility should not depend upon the source of the statement, i. e., whether from the person making it or from one who was present when it was made. In either event, the significant fact is the conduct of the accused in the face of accusation. Failure to deny the charge, under some circumstances, may permit an inference of an admission of guilt." Id. at 564-565.
Zink v. Zink, supra, points out that standing mute may evidence acquiescence in a statement uttered by another only "if the situation and circumstances are such that a dissent in ordinary experience would have been expressed if the statement * * * had not been correct." Id. at 202. If a failure to deny is more naturally explainable on some inference other than that of belief in the truth of the statement, the testimony as to the ...