There was no dispute that the prosecuting witness had been raped. The single important question for the jury was whether the accused was the criminal. The prosecuting witness identified the accused in court as her assailant, and testified that she had recognized him on the day of the crime in the station house. She was subjected to a cross-examination with the object of weakening the weight of her identification at the police station and in court. The questions *Page 85 asked on cross-examination were whether she had not identified photographs of a dead man and of a prisoner as being those of the ravisher; whether the detectives had not described the accused to her, and had told her that he was about to be brought before her for identification. Her answers were in the negative; and the prosecution offered, without objection, the testimony of witnesses to the effect that the young girl was shown a number of photographs and had stated that several resembled the side face of her assailant but that none was a picture of the man; that the accused was not described to her, but that, while she was examining the photographs, the girl looked up and through the glass of a door opening into an adjoining room, which the prisoner had entered, and, seeing him, she exclaimed "Why, there is the man now"; and that, later, when she confronted Blake, she accused him of being the man, holding out her rosary and asking him if he did not remember having taken it from her and, upon her entreaty, had restored it to her. Blake denied that he was the man and first said he did not know what a rosary was, but later admitted that he did; and the evidence on the part of the State was that when she said he was the man Blake hung his head.
After this testimony had been given without objection, the prisoner took an exception to the admission of testimony of two other third parties who were present at his identification. A majority of the court regards this testimony as hearsay, but the writer of this dissent concurs in the conclusion expressed by Chief Judge Bond, who wrote the opinion, but who did not agree with the view of the majority on this point.
The testimony related to the identification of the accused by the prosecuting witness. The identification was the expression of the opinion of the witness, and it had much more evidential force shortly after the commission of the crime. An identification at the trial, when the witness is testifying, has not the same weight, since, by that time, the witness would have come, by force of intervening circumstances, to believe in the prisoner's identity. The best evidence of *Page 86 identification is usually the first identification. The mere fact that the accusation was made face to face with the accused on the day of the crime does not make the testimony relevant, but an identification then made is relevant as establishing that act at a time when the identification had the most probative value. The fact that the girl had identified the accused as being the man was not disputed, but the defense was that her identification was a mistake. The circumstances of the original identification, and the acts and demeanor of the girl and the accused, would be of significance in ascertaining the weight to be given the identification. It was an important matter to know that in the afternoon of the day of the crime the prosecuting witness had immediately identified the accused to be the guilty party as soon as she laid her eyes upon him. The identification was a fact which could be testified to not only by the one who made it but also by those who saw the identification. The testimony of eye and ear witnesses is not corroboration but is as truly primary evidence of what occurred as is the girl's own evidence of what she did and said.
Although the decisions are not harmonious on this point, the view presented by this dissent is advocated by Wigmore, who has collected the cases and stated his conclusion in a convincing manner. 2 Wigmore on Evidence (2nd Ed.), sec. 1130; Com. v.Rollins, 242 Mass. 427.
The admissibility of the testimony of those who witnessed the identification is not affected by the number of persons who saw the act. The repetition of testimony as to the act of identification adds nothing to the weight of the identification. Of course, the prosecuting witness and the other witnesses should be confined to the act of identification; and the rule does not allow the introduction of statements by the prosecuting witness of the details of the crime, unless these, when considered in connection with a statement or conduct of an accused, should tend to establish circumstances showing a consciousness of guilt.Freud v. State, 129 Md. 636; Underhill on Crim. Evidence, (3rd Ed.) sec. 200 et seq.; 2 Wharton's Crim. Evidence (10th Ed.), sec. 938, p. 1802. *Page 87
The prisoner seems to have been fairly and impartially tried, and his defense fully presented; and the mistrial arises from rulings which, in the writer's judgment, could not have been prejudicial, because the testimony, which has been held inadmissible, was cumulative, as similar, but stronger, testimony had been given without any objection on the part of the traverser. Damm v. State, 128 Md. 665. While there should be no relaxation in the enforcement of every rule making for the protection of the accused, yet, unless substantial injury resulted, even an erroneous ruling on the evidence should not render a new trial necessary.