Abney v. State

• Decision Date: 16 November 1966
• Docket Number: No. 458,458
• Citation: 244 Md. 444,223 A.2d 792
• Parties: Edwin Joe ABNEY v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 444

244 Md. 444

223 A.2d 792

Edwin Joe ABNEY v. STATE of Maryland.

No. 458.

Court of Appeals of Maryland.

Nov. 16, 1966.

William W. Grant, Oakland, and Norman N. Yankellow, Baltimore, (Joseph Rosenthal, Baltimore, on the brief) for appellant.

Carville M. Downes, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, Fred A. Thayer and W. Dwight Stover, State's Atty. and Asst. State's Atty., for Garrett County, Oakland, on the brief), for appellee.

Before HAMMOND, C.J., and HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.

MARBURY, Judge.

Defendant-appellant, Edwin Joe Abney, was charged on an information alleging the murder of Elmore Templeton. He was tried in the Circuit Court for Garrett County by Judges Stuart F. Hamill, Harold C. Naughton, and James E. Getty, sitting without a jury. At the close of the State's case, a motion for a directed verdict of acquittal as to each degree of felonious homicide was made and denied. At the close of the defendant's case the motion was renewed and was granted by the court as to murder in the first degree, but denied as to murder in the second degree and manslaughter. The court found the defendant guilty of murder in the second degree and sentenced him to serve a term of 15 years in the Maryland Penitentiary. From errors allegedly committed by the court, the defendant has appealed.

On the night of August 13, 1965, one Elmore Templeton was shot and killed in Friendsville, Garrett County, Maryland. Templeton was struck by a bullet which was discharged from a gun in the hands of the defendant, Edwin Joe Abney, who was a 'pipeliner.' Pipeliners were employees of a naturalgas pipeline construction firm which was doing work in the area, and were generally from other areas. Abney's role in the events immediately preceding the fatal shooting had been that of an alleged peacemaker, and, in fact, he had taken the death weapon from one of the two participants in a fist fight taking place in the street, which was the focus of attention of all of the people at the scene. Abney's statement to the police and his testimony at the trial were that it was his intention to fire the weapon into the air in order to distract the fighters and to break up the fight; that he was unfamiliar with the defective gun; and that it went off accidently. Templeton was not a participant in the fight nor had he been in the bar in which the altercation had its origin. He was walking toward the fighters when the gun went off.

Although various witnesses testified that they had heard as many as four shots being fired, the weapon, upon examination, revealed that two shots had actually been fired, only one of which struck Templeton in the left shoulder blade, piercing his lung and causing his death. The witnesses produced by the State gave various versions of the happenings immediately prior to the shooting and of the actions of the decedent subsequent to the shooting. There was some testimony to the effect that the defendant had previously threatened that he would shoot any one who tried to break up the fight.

Abney testified that he had consumed a large quantity of alcohol on the day of the shooting; that he had taken various medications; and that he had consumed little food on that day. It was further shown that he had been for some time prior to the incident an epileptic.

Since this case was tried by the lower court sitting without a jury, this Court may 'review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.' Maryland Rule 886 a. This Court does not determine whether the defendant was guilty beyond a reasonable doubt, but its function is to determine from the evidence and the proper inference therefrom, whether there was sufficient evidence to warrant the finding that the defendant was guilty beyond a reasonable doubt. DeVaughn v. State, 232 Md. 447, 194 A.2d 109, 100 A.L.R.2d 761; cert. den. 376 U.S. 927, 84 S.Ct. 693, 11 L.Ed.2d 623; Basoff v. State, 208 Md. 643, 119 A.2d 917.

Appellant's first contention is that there was not sufficient evidence of malice to have permitted the court to find him guilty of murder in the second degree. In arguing the point appellant concedes 'that if he intended the harm of any person and as a result of that intention a bystander was killed, he could be found guilty of murder in the second degree,' but because the court said it found 'some evidence from which an inference could be drawn of momentary premeditation, which could elevate the offense to murder in the first degree, we do not feel that such evidence is beyond a reasonable doubt,' he claims that 'if there be no premeditation, there can be no evil intent.'

Clearly, the law is not as appellant argues it to be. A felonious homicide is presumed to have been committed with malice aforethought and so to constitute murder in the second degree. The State bears the burden of showing that the killing was wilful, deliberate and premeditated so as to constitute murder in the first degree; the accused bears the burden of showing circumstances of alleviation, excuse, or justification which would reduce the offense to manslaughter. Elliott v. State, 215 Md. 152, 159-160, 137 A.2d 130; Grammer v. State, 203 Md. 200, 100 A.2d 257; Chisley...