Davis v. State

• Decision Date: 07 December 1964
• Docket Number: No. 78,78
• Citation: 205 A.2d 254,237 Md. 97
• Parties: Clell Arnold DAVIS v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 97

237 Md. 97

205 A.2d 254

Clell Arnold DAVIS v. STATE of Maryland.

No. 78.

Court of Appeals of Maryland.

Dec. 7, 1964.

Raymond S. Smethurst, Jr., and John B. Robins, Salisbury, for appellant.

Richard M. Pollitt, Sp. Atty., Salisbury (Thomas B. Finan, Atty. Gen., Baltimore, and Alfred T. Truitt, Jr., State's Atty. for Wicomico County, Salisbury, on the brief), for appellee.

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

OPPENHEIMER, Judge.

This is an appeal from a judgment of the Circuit Court for Wicomico County under which the appellant was sentenced to a term of eighteen years after a jury verdict of second degree murder. The appellant contends that the trial court committed reversible error in its instructions to the jury that all homicides are presumed to be murder and that the burden is on the accused to show circumstances of alleviation, excuse or justification; that the appellant's motion for acquittal filed at the close of the State's case and again at the conclusion of all the testimony should have been granted; and that the trial court committed reversible error in allowing the prosecution to examine the appellant concerning his escape from jail where he was awaiting trial.

The appellant, Davis, at the time of the alleged crime, was thirty years of age and was employed as a subcontractor by a house building concern known as Jim Walter Homes Corporation, whose office was a few miles north of Salisbury. The victim, Russell Edward Farmer, generally referred to in the testimony as 'Pete', was the manager of the Salisbury office. Davis was working for Farmer on an unfinished construction job. On the day of the alleged crime, Davis was trying to get a pay check from Farmer. Davis' efforts to obtain this check continued from the morning of June 10th through the evening. During the day, Farmer and Davis inspected other construction sites on the Eastern Shore; in the course of their journey, they went to various taverns where they drank together. Early in the evening they returned to the corporation's office where a further discussion took place about the money owed Davis. Later, they left the office in Farmer's automobile. Farmer told Davis he could wait until morning for his check; Davis then told Farmer that if he did not receive the check that night he would tell the corporation's officers of some construction being done by Farmer personally with the use of company materials and that he would also tell Farmer's wife about a 'pass' Farmer had made at Shirley Hunt, a seventeen year old girl with whom Davis had been living for about a year. Farmer then drove his car back to the office which he and Davis entered.

Davis, who took the stand in his own defense, testified that as they entered the office there was an argument during which he, Davis, called Farmer an obscene name and that Farmer thereupon swung at him with something. A fight ensued during which the two men struck each other, slammed into the wall, skidded across the office desk and ultimately to the floor, the struggling continuing until Davis ended on top of Farmer. As this point, according to Davis, the fighting ceased. Davis, hearing a knock on the front door, went to see who it was and told the visitor to 'come back tomorrow'. According to Davis' testimony, after further talk about the check and a search for a check book, Farmer lunged at Davis from behind and Davis shoved him against the filing cabinets and hit him. Davis testified that he assisted Farmer to the secretary's chair, where Davis left him conscious and crying. Davis admitted removing the diaphragms from the four telephones in the office, the effect of which was to make it impossible to transmit any recognizable sounds over the telephone, and then left in Farmer's car. Davis said he wanted a chance to get away before Farmer could telephone the police, as he feared Farmer would obtain a warrant for assault. Davis picked up Shirley Hunt at Federalsburg and went to her mother's home in Dover, Delaware, from whence he and the girl proceeded to Pittsburgh where they lived together until Davis was apprehended by the Federal Bureau of Investigation three weeks later. He said it was not until this time that he learned of Farmer's death.

On the morning after the fight, a State's witness, who had seen the two men together in the office early the preceding evening, reported to the State Police that he had found Farmer in his office apparently dead. Officers immediately went to the scene and found Farmer's body seated at his desk, his head on the desk and the front of his shirt torn off. They found that the diaphragms had been removed from the four telephones in the office; three of these diaphragms were later found in Farmer's automobile which Davis had taken and driven to Pittsburgh.

A pathologist at Peninsula General Hospital called by the State testified that he examined Farmer's body on the same day in which it was found. He found bruises on the neck, chest and lower extremities, eight broken ribs, laceration of pleura which caused hemorrhage in the abdomen, hemorrhage in the muscles of the chest, two pints of blood in the abdomen, and a fractured thyroid cartilage. Death was caused by strangulation and abdominal hemorrhage. He attributed death due to 'strangulation--interruption of air exchange between capillaries and in the lungs * * * and hemorrhage into abdomen', which could have been caused by a blow or kick. He found bruises on the neck but no evidence of fingernail marks. An Associate Medical Examiner for the State, who examined Farmer's body on the day it was found, testified that, in his opinion, he had been dead not less than six and not more than twelve hours. Farmer was a man of six feet two inches who weighed approximately two hundred and five pounds. Davis weighed about one hundred and seventy-five pounds and was five feet eleven or twelve inches tall. For a year, he had been a part-time professional boxer but he had not boxed professionally since January, 1952, prior to his entry into the Air Force.

Shirley Hunt, called by the State, testified that, when she and Davis were driving from Federalsburg to Pittsburgh, he had told her that he and Farmer had had a fight and he had taken Farmer's car. When Davis called for her, he complained that his hand was sore; he told her that 'he had knocked Pete down and Pete had stayed down, so he picked him up * * *.' She stated that Davis said that he had kicked Pete and that when Pete was down, he picked him up and put him at his desk.

I

The appellant contends that the trial court's instructions to the jury as to what constitutes homicide failed to comply with the decisions of this Court and violated his constitutional rights in placing on him the burden of proving his innocence.

The portion of the charge which is attacked reads as follows:

'In Maryland felonious homicide is divided into two main classifications--one is murder, and the other is manslaughter. Murder has been defined as the unlawful killing of a human being with malice aforethought, and manslaughter to be the unlawful killing of another without malice aforethought. The law of this State presumes all homicides to be committed with malice aforethought and to constitute murder. The burden is on the accused to show circumstances of alleviation, excuse, or justification which will reduce the offense to manslaughter, or not guilty.'

The court defined malice as follows:

'Malice has been defined in this connection as the intentional doing of a wrongful act to another without legal excuse or justification. It includes any wrongful act done wilfully or purposely.'

The charge proceeded to state that the verdict should be not guilty, if the jury found the accused had established that the assault and beating was 'accidental, unintentional, without any fault on his part, or in self defense,' but that if the jury found that the accused assaulted and beat the deceased with intent to inflict serious bodily harm upon him, 'and without any just cause or excuse for so doing, or circumstance of mitigation,' the accused would be guilty of murder in the second degree. The charge proceeded:

'In this connection you are further advised that under the law, in the absence of justification, excuse, or some circumstance of mitigation, malice may be inferred when there is intent to inflict great bodily harm or when one wilfully does an act, the natural tendency of which is to cause death or great bodily harm, in the absence of evidence to show a contrary intention.'

No objection was taken, or, in our opinion, could properly have been taken, to the portions of the charge dealing with the presumption of the accused's innocence and the State's burden to prove his guilt beyond a reasonable doubt. The portion of the charge dealing with the law as to self defense and the burden upon the accused to show 'circumstances in mitigation' to reduce the grade of homicide to manslaughter, in our opinion, was clear and in accord with our decisions. The burden is upon the State to prove an unlawful killing, but the burden of proof of self-defense is upon the defendant. Perry v. State, 234 Md. 48, 197 A.2d 833 (1964); Davis v. State, 204 Md. 44, 102 A.2d 816 (1954).

Since Chisley v. State, 202 Md. 87, 95...