Bird v. State, 282

• Decision Date: 14 May 1963
• Docket Number: No. 282,282
• Citation: 231 Md. 432,190 A.2d 804
• Parties: Adela Garcia BIRD v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 432

231 Md. 432

190 A.2d 804

Adela Garcia BIRD v. STATE of Maryland.

No. 282.

Court of Appeals of Maryland.

May 14, 1963.

Juanita Jackson Mitchell and W. A. C. Hughes, Jr., Baltimore, for appellant.

James P. Garland, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., William J. O'Donnell and James W. McAllister, State's Atty. and Asst. State's Atty., respectively, for Baltimore City, on the brief), Baltimore, for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, HORNEY and SYBERT, JJ.

HORNEY, Judge.

The appellant, Adela Garcia Bird, a native of Puerto Rico residing in Maryland, was convicted in the Cirminal Court of Baltimore of assault with intent to murder and was sentenced to a term of not more than ten years in the Institution for Women. But the court, on the suggestion of the appellant, suspended the sentence on the condition that 'she leave and go back to Puerto Rico * * * and remain there for at least [a] ten year period.' The appeal is from both the judgment and sentence.

In December of 1961, Allen H. Best, the victim and prosecuting witness, who was living apart from his wife, went to see her at the appellant's apartment (where she was staying) for the purpose of delivering her mail and discussing with her the property settlement she sought in the divorce proceeding she had instituted against her husband. In the apartment at the time besides the appellant, there were Sandra Best, the estranged wife, and Maureen Kaiser, an acquaintance of the appellant.

On reaching the apartment, the prosecuting witness rapped on the door and when the appellant appeared he asked to see his wife but made no effort to enter the apartment. The appellant closed the door and the estranged wife came into the vestibule of the apartment. He asked her to get her coat and go outside the apartment building with him, and she went back inside the apartment. From this point the testimony is in conflict.

Appellant testified that the prosecuting witness came into the apartment and that, after she had warned him a number of times to stop his advance toward her, she shot him. This was confirmed by the estranged wife. The prosecuting witness admitted that the appellant told him to stop at least three times, but he denied having any more than his nose and one foot over the threshold. He also admitted that on prior occasions he had threatened the appellant with physical harm and that he had brought her into police court on a show cause order (apparently for trespassing) where appellant had been warned to stay out of the Best home. The only other witness to the shooting (the acquaintance of the appellant), who had not paid much attention to the affair until she heard the safety on the revolver click, testified that the prosecuting witness was never inside the apartment and that at most he had his foot, shoulder and one hand therein. According to the appellant she had not meant to harm the victim and was only 'trying to frighten him to leave.'

The bullet made only a superficial wound in the fleshy part of the right side of the victim's chest. The appellant called an ambulance and the police immediately. The bullet was removed at a hospital and the victim was discharged four days later and returned to work.

The appellant, having plead not guilty, was tried by the court, sitting without a jury, on an indictment charging assault with intent to murder and simple assault and battery. A general verdict of guilty was entered at the conclusion of the trial. Prior to imposing the ten year sentence and conditionally suspending it, the court indicated that it was going to impose a sentence of three years.

On appeal it is contended (i) that the verdict was clearly erroneous and contrary to the evidence and (ii) that the banishment imposed by the suspended sentence was beyond the power of the court and void.

(i)

The first contention presents no problem.

The crime of assault with intent to murder is a statutory offense. See Code (1957), Art. 27, § 12. And although the statutory provision does not define the elements of the crime, it is necessary that there be proof of an assault and that it was with an intent to murder. Webb v. State, 201 Md. 158, 93 A.2d 80 (1952). Intent involves the element of malice and must be such as would lead to a charge of murder if death should ensue. Marks v. State, 230 Md. 108, 185 A.2d 909 (1962). In the instant case, the appellant admitted the assault and the intent to kill was inferable from the use of a deadly weapon directed toward a vital part of the body. See Wimbush v. State, 224 Md. 488, 168 A.2d 500 (1961), and the cases cited at p. 489. The specific intent to take life need not be shown if the assault was committed under such circumstances that, if death had ensued, the crime would have been murder in either the first or second degree. Wimbush v. State, supra; Hall v. State, 213 Md. 369, 131 A.2d 710 (1957); Webb v. State, supra.

Where, as here, the trial court tries the case without a jury, this Court will review the case upon both the law and evidence, but the judgment 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 886a. 'The question is not whether we might have reached a different conclusion from that of the trial court, but whether the trial court had before it sufficient evidence upon which it could fairly be convinced beyond a reasonable doubt of the defendant's guilt of the offense charged.' Cooper v. State, 220 Md. 183, 192, 152 A.2d 120, 124 (1959). Since one of the functions of the lower court is to determine the credibility of the witnesses, it may, in judging credibility disbelieve exculpatory statements made by the defendant. Lewis v. State, 225 Md. 474, 171 A.2d 244 (1961).

It is clear that the court believed the testimony of the disinterested witness and the prosecuting witness and disbelieved the testimony of the appellant and the estranged wife, and we cannot say that it was in error in so doing. The remaining contentions concerning the defenses of the appellant to the charge of assault with intent to murder are part of the principal contention involving the question of intent and require little additional consideration. With respect to the defense of her person, the court did not accept the testimony of the appellant and found in effect that the appellant, and not the prosecuting witness, was the aggressor. As to the defense of her habitabion, the...