It seems to me that the statement of facts contained in the opinion prepared by Judge Offutt, giving as it does only one view of the facts, fails to present the full problem before the trial judges in this case, and may possibly leave the conflicting views of the judges of this Court difficult to understand. No full statement of the testimony will be undertaken in this opinion, but I should like to add a few general explanatory observations. The murder inquired into was one of a form which has become quite familiar now. According to all the eyewitnesses, young men came up suddenly by automobile in front of the victim's small jewelry store, broke his store window and took out some of his stock of jewelry, and then, when he made a show of interfering, murdered him, and quickly drove away. The suddenness of it all appears to have produced the effect which was to have been expected; the people nearby grasped only fragmentary facts. There were some, however, who gave the police positive identifications, picking out pictures of the appellants, or some of them, and afterwards identifying them in person. There were conflicts among the witnesses on details; that is common, and to be expected. Grounds for attacking the testimony of one witness and another were presented, and were availed of; that, too, is common, and to be expected. Confirmatory facts, or elements of strength, were also argued, but they will not be rehearsed here, because it is no part of our function to argue the facts, or to review the findings of the court on them. The case was one containing conflicts in the testimony of witnesses, in short. But there is no outstanding fact or condition which makes the resulting problem different in its essentials from that presented in many other cases. Able counsel were assigned *Page 67 to the prisoners, and they have given them their best efforts. The judges below, men as well trained in weighing evidence and avoiding erroneous convictions as the people of the State can hope to furnish for the work, heard what the witnesses had to say, and heard the arguments of counsel; and after it all they were convinced that the appellants were the young men who committed the robbery and murder. It appears, too, that on motions for a new trial, the judges of the Supreme Bench of Baltimore City as a whole heard the evidence reviewed and considered its weight, and came to the conclusion that there was nothing to justify a retrial. Whether these conclusions on the facts were correct, we are not to inquire. Suffice it to say on this, that these prisoners have had as thorough an investigation of the facts and as thorough a hearing of the considerations in their favor as can ever be given them with humanity constructed as it is. If the question of their guilt or innocence is to be tried a second time, it should be only because some departure from rules materially prejudiced them in their trial on the relevant facts, — not merely that there may have been some variation from the letter of a rule, for if any slip from rule in the course of a long trial were held to vitiate the whole trial, then we should be demanding by our rules more than humanity could regularly give. There must be something materially prejudicing the prisoners in trial on the relevant facts. I shall take up a little space on the two groups of rulings principally objected to; first, on the objections made during the opening statement by the State's attorney.
Starting from the fact that the State's attorney in his opening statement before the court described previous offenses of the prisoners which were irrelevant and not admissible in evidence, and for the most part were not admitted, the chief question raised by the objections at that stage would seem to have been whether the opening statement should have been interrupted from time to time for consideration of the admissibility of the evidence alluded to. The *Page 68 overruling of the objections was expressly based upon the ground that this should not be done. And unless the trial court is confronted with a clear abuse of the opportunities afforded by the review of evidence in the opening statement, good practice requires that it should not be done. The alternative of pausing to test the admissibility of each element of fact would be an intolerable obstruction to the presentation of a case, and would frequently be useless because of the impossibility of foreseeing the whole groundwork of the case as it would be when witnesses would be questioned on these facts. There was no jury in the case, untrained in the hearing of facts on the issues, and the judges who tried the facts were thoroughly trained in these matters, and it seems hardly too much to assume that they actually relied upon only such of the facts laid before them as tended legitimately to prove the issues. Furthermore the evidence shows that these defendants had made their previous careers more or less familiar to the judges who presided in the criminal courts of Baltimore from time to time. Upon these considerations, my conclusion has been that there was nothing in these rulings of the judges during the opening statement that demands that another trial should be had. And without extending the argument on this part of the case, substantially the same considerations seem to me to lead to the conclusion that the admission in evidence of facts concerning the similar robbery and theft of pistols from the Littman place does not justify ordering the case to be tried a second time, even though the pistol with which the murder was committed proved to have been of a different calibre, a fact which might be considered, indeed, as rendering the testimony on this point favorable for the accused.
It seems to me the outstanding facts to be weighed in considering the admissibility of Mullen's confession are that in itself it is, in respect to any features with which the court is concerned, indistinguishable from the statement of any other capable, spontaneous witness; that almost up to the time of trial he intended to plead guilty; that when counsel *Page 69 was assigned for him, and talked to him in the judges' chambers, he said that the facts given in his confession were true; and that the only objection he made to the confession on the trial was that he made it under fear of a beating raised in his mind by a remark which he said was made by the chief of detectives in the office of the police commissioner several days previously, that the police authorities would make him tell the truth. According to the testimony in this record, the witness was questioned on each of four or five days. The questioning was persistent, but not constant; it covered parts of each day only. That the questioning, which finally persuades a prisoner to confess, is persistently carried on, is no ground for rejecting the confession, unless, indeed, there is pressure of some sort which appears likely to have produced a confession as the price of relief; and there is no suggestion of such pressure in this record. See authorities collected in 50 L.R.A., N.S., 1077, and note, page 1085.
The prisoner was told falsely that another prisoner had confessed his part in the murder. This was a trick, but a legitimate one. It would tend to produce, not a false confession, but a true one. "The object of evidence," said Chief Justice Mitchell, in Commonwealth v. Cressinger, 193 Pa. St. 326, 327, "is to get at the truth, and a trick which has no tendency to produce a confession except one in accordance with the truth is always admissible. Society and the criminal are at war, and a capture by surprise, or ambush, or masked battery is as permissible in the one case as in the other." 50 L.R.A., N.S., 1088; Ann Cas., 1916 D, 962; 12 A.L.R., 798.
Again there is expert testimony classifying Mullen's mentality as that of a boy of ten or eleven, in some respects, and an expression of opinion by several alienists that he is more than ordinarily susceptible to suggestion. But in this connection we have also the fact that at the time the confession was offered Mullen's counsel was not prepared to present evidence against admitting it, and it was received to be ruled *Page 70 on subsequently; and then Mullen himself was produced as a witness on his own behalf and fully exhibited himself before the judges prior to the ruling.
There is no testimony that any attempt was made to extort a confession embodying mere suggestions by others. And if there had been, the judges below had at least some justification for concluding that the suggestion failed to materialize in this confession.
Mullen's statements of a threat to make him tell the truth are contradicted by General Gaither, the police commissioner, and others who were present at the interview designated, and of course we cannot say they should not have been believed by the triers of the facts. The remark of the State's attorney that the prisoner, Mullen, had nothing to fear if he had nothing to do with the crime, seems clearly enough to have referred to the Littman robbery only. The prisoner as a witness was being questioned about that occurrence only, and I see no likelihood of the prisoner's having taken the assurance to have any reference to the murder which he was being tried for, and concerned in his confession.