Clarke v. State

Decision Date05 March 1965
Docket NumberNo. 184,184
PartiesRobert Fulton CLARKE v. STATE of Maryland.
CourtMaryland Court of Appeals

Alan H. Murrell, Baltimore, and Jerome F. Connell, Glen Burnie, for appellant.

Robert F. Sweeney, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and Marvin H. Anderson, State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellee.

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

PRESCOTT, Chief Judge.

Appellant was found guilty of murder in the second degree by a jury in the Circuit Court for Howard County. From his judgment and sentence of eighteen years' confinement, he has appealed.

He contends that the trial court erred: (1) in denying his motions for judgments of acquittal of second degree murder and manslaughter; (2) in permitting the State's Attorney to make certain remarks in his opening statement; (3) in admitting into evidence photographs of his deceased wife's body; (4) in permitting the mother of the deceased wife to testify; and (5) in overruling his 'various motions for mistrial.'

I

Since the amendment to Article 15, Section 5 of the Constitution was adopted in 1950 (see also Code [1964 Supp.], Article 27, Section 593 and Maryland Rule 755), it has been the duty of this Court, when the question has been properly reserved, to review the sufficiency of the evidence to sustain the conviction in a criminal case. In performing this duty, we do not inquire into and measure the weight of the evidence to ascertain whether the State has proved its case beyond a reasonable doubt, but determine if there be any relevant evidence adduced at the trial which would properly sustain a conviction. Briley v. State, 212 Md. 445, 129 A.2d 689, and cases therein cited.

Applying the above test to the evidence produced below, we have reached the conclusion that it was sufficient to sustain the conviction, even though, in substantial part, it was circumstantial in nature rather than direct. Compare Corens v. State, 185 Md. 561, 45 A.2d 340, decided before the 1950 amendment. It would serve no useful purpose to set forth in minute detail the rather voluminous testimony. A summary thereof follows.

Appellant, about 38 years of age, was the proprietor of a tavern known as 'Tumble Inn,' which had a bar for serving alcoholic drinks, located on Route No. 3 in Anne Arundel County, a short distance north of Benfield Road. To the rear of the tavern were cabins and rental spaces for trailers. Although he was a married man, he had become interested in another woman by the name of Mrs. Josephine Myers. He was seen in the company of Mrs. Myers at taverns other than the one operated by him, and he admitted visiting, and taking naps late at night in, her trailer. A very short time before April 11, 1962, she established her residence in a trailer located a short distance from the rear door of Tumble Inn. After her arrival at Tumble Inn, appellant and she were seen in the tavern together, and he was seen, at times, entering her trailer. He told one of his employees that Mrs. Myers was 'his baby.'

On the evening of April 11, 1962, the deceased requested a friend to drive her from her home in Linthicum Heights to the Tumble Inn. She arrived there shortly after 8:00 p.m. Appellant was there and he had been drinking heavily. During the course of the evening, the deceased and appellant had several drinks together and with others. At about 11:00 p. m., he asked his wife if she would go out with him and have a cup of coffee. Upon her reply in the affirmative, he repeated his question by asking, 'Are you going with me, are you going to be my wife or a _____ [a vulgar and filthy equithet]?' They went out and stayed some fifteen minutes; she returned first, alone; and he came into the tavern a short time thereafter.

At approximately 11:30 p. m., appellant left the bar and went out the back door, where the trailer occupied by Mrs. Myers was only a few feet away. About five minutes later, Mrs. Clarke followed her husband leaving the bar by the same door he had. Mrs. Clarke stood at the bottom of the back steps, in the presence of two witnesses, looking in the direction of Mrs. Myers' trailer. One of the witnesses, who was not permitted to relate exactly what he heard said, testified he heard 'statements and noises' and 'people say things.' He returned into the bar, and was followed, almost immediately, by Mrs. Clarke, who went into the telephone booth. The witness went out on the back porch and 'hollered,' whereupon appellant came back into the bar.

Very shortly after the above occurrence, Mrs. Myers appeared, clad only in a nightgown, housecoat and bedroom slippers, at the trailer of another occupant of Tumble Inn space, and remained there until 6:10 a. m. the following morning.

The witness, who had seen Mrs. Clarke go into the telephone booth and had gone out back and 'hollered,' left the tavern between 1:00 and 1:30 a. m., and when he went out Mr. and Mrs. Clarke were the only persons remaining in the tavern. In the 'early morning' hours of April 12th, Thomas B. Clarke, who was the brother of appellant and who lived at Jessup, was in bed when he received a telephone call. As a result of that call, which he was not permitted to relate in detail, he dressed and went to Tumble Inn, arriving there about 1:40 a. m. When he arrived, his brother was closing the front door of the tavern and turning the lights out, and his brother's wife was standing by their parked automobile a few feet away. Upon being chastised by his brother for his heavy drinking, the appellant became 'very riled,' and fisticuffs soon ensued, being initiated by the appellant. During the scuffle, the brother was 'pulled down,' his 'pants' torn, and his knee skinned. After the scuffle, the brother did not recall seeing Mrs. Clarke, for he got in his car and drove away.

At approximately 6:00 a. m. on the morning of April 12th, the body of Mrs. Clarke was found lying adjacent to Route No. 3 at a point some 1/8 of mile north of the Tumble Inn. At this point, Route No. 3 is a dual highway divided into 24 foot north and southbound concrete lanes for traffic separated by a dirt and grass strip. Her body was lying about 14 feet off the west side of the northbound lane at a distance some 100 feet south of the entrance to a gasoline station. Evidence of a set of tire tracks was produced by the State. These tracks ran off the west side of the north-bound lane past Mrs. Clarke's body and paralleled the highway for a distance of 172 feet, running about 18 inches off the road. Various items of Mrs. Clarke's personal belongings, such as shoe heels, a raincoat, and a watch, were found at points, some as far as 130 feet, along the possible route that her body took after she was struck.

After discovery of the body, police officers went to appellant's home where they found him asleep on a couch, and where they also found his automobile in the driveway with a large round hole in the windshield and other damage to its left front, including dents in the left front bumper. Upon being questioned by the police, he advised the officers that he had left his home at about noon on April 10th and had not returned until the early morning of April 12th. He left his home in his wife's Pontiac. He stayed 'all night' on April 10th at Tumble Inn and left the next day at about 12:20 and went to the races at Laurel with several companions. After the last race, he returned to the Tumble Inn, arriving at about 6:00 p. m. He 'tended bar' for about an hour and then 'just hung around' and left the bar at about midnight and went to Josephine Myers' trailer and took a nap. Josephine Myers and he were alone in her trailer when he took the nap, and he had slept in her trailer on other occasions before. When he went to sleep, Josephine Myers was 'putting up her hair.' He left the trailer at about 3:00 a. m. to go home. He stated that he had left the tavern alone at about 3:00 a. m. in his wife's automobile; that when he arrived at, or near, the point where his wife's body was found, he had struck something which he thought was a dog; that he stopped, got out of the car, but saw nothing so he drove on home. He also stated that his wife had been to the Tumble Inn on the night of April 11th, but she had left some time before he had and he did not see her after 12:00 midnight.

The attendant at the gasoline station, located about 100 feet north of where the body was found, was produced by the State. He testified that at about 2:00 a. m. on the morning of April 12th, a late model red automobile, fitting the general description of the Clarke Pontiac, came to a stop in front of the station, backed up about 50 feet on the northbound lane, and an unidentified man got out, walked some 50 feet to the south of the car, stopped, turned around, and started to walk back to the car. Before reaching it, the man turned and walked south again, whereupon the attendant and his customer started in the direction of the man to see what had happened. The man 'jumped in his car' and left 'very quickly, under tremendous acceleration.'

The injuries upon the body of Mrs. Clarke, which was horribly mutilated, the damages to the car driven by appellant on the morning of April 12th, and the expert evidence produced by the State (including particles of human flesh, hair and blood on, and in the car driven by appellant), without relating them here, were ample to justify a finding by the jury, if they so determined (and obviously they did), that the car driven by appellant caused Mrs. Clarke's death, and the accident had few of the incidents to be expected of a collision between an automobile and a dog.

The trial court explained to the jury that murder in the second degree was 'the unlawful killing of a human being with malice aforethought,' and malice aforethought, as an element in murder, means an intention by one person to do serious bodily injury to another...

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  • Johnson v. State
    • United States
    • Maryland Court of Appeals
    • September 1, 1984
    ...evidence of photographs depicting the condition of the victim and the location of injuries upon the deceased, Clarke v. State, 238 Md. 11, 21-22, 207 A.2d 456, 461-62 (1965); the position of the victim's body at the murder site, Brice v. State, 264 Md. 352, 368-69, 286 A.2d 132, 140 (1972);......
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