Bruce v. State

• Decision Date: 28 October 1958
• Docket Number: No. 11,11
• Citation: 218 Md. 87,145 A.2d 428
• Parties: Robert Douglas BRUCE v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 87

218 Md. 87

145 A.2d 428

Robert Douglas BRUCE v. STATE of Maryland.

No. 11.

Court of Appeals of Maryland.

Oct. 28, 1958.

Richard M. Pollitt, Salisbury (Vaughn E. Richardson, Salisbury, on the brief), for appellant.

Stedman Prescott, Jr., Deputy Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and Hamilton P. Fox, Jr., State's Atty. for Wicomico County, Salisbury, on the brief), for appellee.

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

HORNEY, Judge.

This is an appeal by Robert Douglas Bruce (the defendant) from the judgment and sentence of the Circuit Court for Wicomico County entered on the verdict of the jury that the defendant was guilty of manslaughter.

On Sunday, December 1, 1957, the defendant, a seventeen year old youth, worked at the Spur Gasoline Station on East Main Street in Salisbury. During the early evening Noland Willey (the deceased), in company with other youths, went to the filling station to get some change for the proprietor of a drug store on Church Street, known as 'The Spot.' While there the defendant and the deceased had an argument concerning an uncomplimentary remark the defendant had allegedly made to a girl about the deceased. The deceased, having ascertained when the defendant would be through work, told him he would be back. Ostensibly it was understood they would go together to see the girl and settle whether the defendant had called the deceased an 's. o. b.' After the deceased left the filling station the first time, the defendant, who testified he was 'scared' of the deceased, attempted unsuccessfully to telephone his step-father, and, when he could not reach him, talked to a younger brother and asked his brother to meet him after work.

Several hours later, at approximately 10:30 p. m., three automobiles packed with teen-age boys and girls, including the defendant's brother and a sister, arrived across the street from the filling station. Upon arrival the sister approached another of the automobiles and talked to the occupants. As one of the boys present walked by she called him a name and he slapped her. The deceased got into the altercation, knocked the boy down and kicked him about the head. The defendant, who was still working, seeing the disturbance, went to his automobile parked at the filling station, book a 25-caliber pistol from the trunk, put it in his pocket and approached the scene of the fracas. Although he testified he was afraid of the deceased and showed it, according to some of the witnesses, the defendant told the deceased he had a gun and ordered him to stop kicking the other boy. The fight ended when the defendant reminded the deceased his quarrel was with him, not the other boy. The deceased, who was sixteen, was tall and weighed 210 pounds. The defendant was small and weighed 135 pounds.

At the suggestion of the deceased, he and the defendant, and the occupants of the three automobiles, then proceeded to the vicinity of the home of the girl who had allegedly told the deceased the defendant had called him a name. Each was armed, the defendant with the pistol, and the deceased with a dagger-type knife in his right coat pocket. Upon going to the door of the girl's home, the boys were told by her father to leave. They were returning to their respective automobiles parked in the vicinity some distance from the girl's home when the fatal fracas between them occurred.

All of the witnesses agree that the deceased and the defendant appeared to be walking in a friendly manner, but just as they arrived at a point under the street light at the corner of Locust Street and Locust Terrace, the deceased 'jumped' the defendant, grabbed him and tried to seize the pistol which was in the defendant's right coat pocket. There is some conflict as to what followed in the scuffle. Some of the witnesses testified they saw the pistol; one testified he saw the knife in the deceased's hand; others testified they saw both. But it is not disputed the defendant had the pistol and the deceased had the knife. The knife was found by the police on the pavement near the right hand of the deceased. When the deceased attacked the defendant, the defendant struck him at least twice with his left hand, causing the deceased to step back. When the deceased lunged at the defendant again, the defendant fired the pistol. The deceased fell, and apparently died instantly.

The defendant ran to the automobiles and told the occupants to leave. The defendant left the scene immediately, stopped to pick up part of his pay and his automobile at the filling station, went home for a short time, and then fled to hide out at a farm house near Bryan's Manor. He still had the pistol in his possession when he was picked up by the policy, but he had thrown the clip down the farmhouse well.

The defendant was indicted for the murder of Noland Willey on December 12, 1957.

On the first day of the trial, Jimmie Lee Davis was called as a witness by the State. His testimony was for the most part favorable to the defendant, and he specifically testified that the deceased had a knife. On the second day of the trial, over the objection of the defendant, the witness was recalled and his testimony of the previous day was impeached by the State by cross-examination of the witness and by the testimony of Trooper Robert D. Weir to the effect that on the night of the killing the witness had made inconsistent statements to the trooper. When first interrogated, at approximately 11:30 p. m. on December 1, 1957, the night of the killing, the witness denied having seen the defendant after three o'clock in the afternoon of that day. Subsequently, about an hour later, at 12:30 a. m. on December 2, 1957, the same night, he informed the trooper he was a witness to the killing and had seen the deceased 'pull a knife.' The defendant contends the court erred in allowing the State to impeach its own witness and by allowing the trooper to testify as to the prior inconsistent statements when he had already admitted making such statements. The State admits that the State's Attorney attempted to impeach its own witness by cross-examination at a time when the State was not surprised by the testimony of the witness, but claims such cross-examination and the subsequent testimony of the trooper did not n fact impeach the witness. The State contends such action, instead of being prejudicial to the defendant, was prejudicial to the State, and that no harm was done to the defendant.

At the close of the evidence, the defendant filed six written prayers and requested the court to instruct the jury on the law as set forth in such prayers with respect to the law of self-defense. The court advised counsel it refused the prayers as presented, but would endeavor to substitute an oral instruction in their place and stead at the conclusion of the arguments. However, the record shows the court did not afford the parties an apportunity to object to the instructions before the jury retired to consider its verdict. Instead the court informed the parties, if there were any exceptions, they could dictate them to the court reporter after the jury retired. The defendant objected to the failure of the court to include in its instructions the law set forth in his prayers, but he neglected to state distinctly the omissions to which he objected and the specific grounds for his objection. He further objected to the court's definition of malice on the ground it was not applicable where self-defense was an issue. Three days later the defendant requested leave of the court 'to note additional exceptions to the instructions after the jury had retired concerning the contradictory charge as to the burden of proof.' The State objected and the court refused to allow additional objections. The defendant contends the court erred in its instructions to the jury. The State, conversely, maintains the court did not commit any prejudicial error.

It was error for the trial court to permit the State to impeach its own witness, and such impeachment was prejudicial. The State admits in its brief the State's Attorney attempted to impeach its own witness, but maintains such action was not prejudicial because the testimony adduced was favorable to the defendant. The action of the court in allowing the impeachment at all under the circumstances in this case, and particularly by allowing the trooper to testify as to the prior inconsistent statements, was prejudicial. Although many law writers severely criticize the rule and advocate its abolition, ¹ the general rule is that a party may not impeach his own witness. See Baltimore & O. R. Co. v. State, to Use of Woodward, 1875, 41 Md. 268. See also Queen v. State, 1821, 5 Har. & J. 232; Franklin Bank of Baltimore v. Pennsylvania, D. & M. Steam Nav. Co., 1839, 11 Gill. & J. 28, and Proctor Electric Co. v. Zink, 1958, 217 Md. 22, 141 A.2d 721. There are, however, several well recognized exceptions to the rule. Many states have limited the rule by statute, and some courts have reached the same result without statute. In Maryland this Court has recognized an important exception to the rule with which we are presently concerned. Where the testimony of a witness constitutes a surprise to or an entrapment of the party who called him, the party so surprised may--with the permission of the trial court, which is normally granted--examine the witness for the purpose of eliciting the fact that the witness had made a prior statement inconsistent with his sworn testimony. If the witness admits it, that is generally an end of the matter. But, if he denies it, proof of such inconsistent statement may be shown by other witnesses. Proof is allowed, not for the purpose of discrediting the witness, but to contradict him and thereby afford the party calling him an opportunity to show why he called the witness. However, recourse to the right to impeach one's witness as to prior inconsistent statements is limited to ...