Davis v. State

• Decision Date: 11 February 1954
• Docket Number: No. 58,58
• Citation: 204 Md. 44,102 A.2d 816
• Parties: DAVIS v. STATE.
• Court: Maryland Court of Appeals

Page 44

204 Md. 44

102 A.2d 816

DAVIS v. STATE.

No. 58.

Court of Appeals of Maryland.

Feb. 11, 1954.

Herbert R. O'Conor, Jr., Baltimore (O'Conor and McManus, Baltimore, on the brief), for appellant.

W. Giles Parker, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., Anselm Sodaro, State's Atty., M. Peter Moser and James F. Price, Asst. State's Attys., Baltimore, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The appellant, a fifteen year old boy, was convicted by a jury in the Criminal Court of Baltimore City of assault with intent to murder. His appeal relies on the claim that the trial court erred in refusing to charge the jury that to convict, it must find the existence of malice, or in other words, must find that if death had followed the assault, the crime committed would have been murder and not manslaughter.

The state produced testimony which showed that on a February afternoon, Tommy Davis, the appellant, with his brother and another boy, went to the movies and then to a vacant lot to shoot a pistol Tommy had had for three weeks but had never fired. Tommy, described as 'a seriously maladjusted and warped individual' with poor control of his 'anti-social hostile impulses', and as one who remainded you 'of a wandering dog that had been severely beaten', carried the pistol because, in his words, he felt he had 'a little power' behind him with a gun and did not have 'to take a lot of stuff off a lot of people'. His intelligence is normal and in the eye of the law, he is a responsible agent.

The boys went into an East Baltimore back yard to get coats two of them had left there earlier in the day. Sergeant Urban of the Baltimore police, off duty and not in uniform, noticed the boys. Thinking they were runaways, he questioned them. He described their answers as not 'entirely satisfactory' and says he decided to take them to the station house. When he was asked if there was any other reason he felt justified in detaining them, he said that it was their appearance, they were unkempt and dirty. The yard belonged to a Mrs. Fallon, whose teen-age daughter, Evelyn, had come into the yard with Sergeant Urban. Mrs. Fallon then appeared. She said the boys were dirty and 'messed up' looking, and had not had a haircut for months. The Sergeant asked her what she desired, saying, as she put it: '* * * it was entirely up to me what I wanted to do * * *.' She decided to have the police investigate and went to a neighbor's to call them. After she left, Sergeant Urban showed the boys his police badge and told them to sit down. They were standing about five feet from the house, he about ten feet inside the yard in front of the gate to the alley, which left some ten feet between them. Tommy said to the others: 'Lets get out of here', and pulled out the pistol. Sergeant Urban, seeing this, ran or lunged toward him and says the boy 'fired a shot point-blank' at him. The sergeant then deflected the gun so that a second shot hit the ground and ricocheted, hitting Evelyn Fallon in the knee. The first shot struck the Sergeant grazingly, ran along the chest wall and broke his arm. The boys had run towards the gate and there the Sergeant released his grip on Tommy, because of his wound. All escaped and were later arrested. Tommy said in his statement to the police that he told Urban to get out of the way and fired at the ground to scare him so that he would. When the man started towards him, 'I shot him in the belly' because he wouldn't get out of the way.

The testimony produced on behalf of the appellant included the following--Tommy had never been in the yard before and did not know whose it was. The boys went in only to get the coats. When they told Sergeant Urban this, he called them little liars and accused them of trying to break in the house. He did not believe Urban was a policeman but when Mrs. Fallon went to call the police, he got scared, because he was on probation and feared being found with the pistol and being accused of breaking into the house, so he decided: 'I wasn't going to stay there' and would not sit down when Urban told him to. Tommy told Urban to get out of the way. He did not move so Tommy shot at the ground to scare him, and told him to keep back. When Urban came towards him, Tommy says he hit him with the second shot. One of the other boys says it was the third shot, the first two being towards the ground. Urban admitted that he had told an Assistant State's Attorney and Tommy's counsel at the hospital that it might have been the second or third shot that hit him. Tommy says he never intended to kill or murder Urban--he only intended 'to get out of there', and shot with the idea of stopping Urban. He did not think of killing him. He also said in response to a suggestion that it was the job of the police to arrest people, that Sergeant Urban didn't arrest him because 'he wasn't able to.' When asked if he thought Tommy intended to kill him, Urban replied: 'He said he wanted to get out of there.'

The appellant had presented five prayers. The court's original charge to the jury was very brief and included none of the requested instructions. The jury was told it was the judge of law and fact, the instructions advisory only. The state must establish guilt beyond a reasonable doubt. Credibility of witnesses is for the jury. Duty must be done 'regardless of how distressing you may feel it is to the individual who stands * * * before you.' This was all. At the urging of the appellant, the court then added to its charge the substance of two of the prayers, namely, that to find a verdict of guilty of assault with intent to murder, there must be '* * * a felonious intent which occurred at the same time' and that the state must prove satisfactorily all the elements of the crime.

The three other instructions sought by the appellant and refused by the court, were, in substance:

1. The circumstances must be such that if death had resulted, the homicide would have been murder and, in addition to this, there must be the specific intent to murder.

2. If the assailant acted without malice aforethought, the verdict of the jury must be not guilty.

3. To find a verdict of guilty of assault with intent to murder, the circumstances must be such that if death had resulted, the homicide would have been murder, and that an assault is not an assault with intent to murder if the actual killing would be manslaughter only.

We think the court was right in refusing to grant the first of the three prayers, but that it erred to the prejudice of the appellant in not instructing the jury that the applicable law was substantially as set forth in the second and third. Rule 6(b) of the Criminal Rules of Practice and Procedure says that at the request of any party, the court: '* * * shall grant such advisory instructions to the jury as may correctly state the applicable law.' Paragraph (g) of Rule 6 makes it plain that failure to give requested instructions shall be considered by this Court on appeal. Hendrix v. State, 200 Md. 380, 90 A.2d 186; Madison v. State, 200 Md. 1, 87 A.2d 593; Wright v. State, 198 Md. 163, 81 A.2d 602.

The appellant said at the argument that the first prayer was intended to, and did mean, that the law is that there can only be assault with intent to murder if there existed a specific wilful, deliberate and premeditated intent to kill. The prayer meant to instruct the jury that it could convict only if it found that, had death resulted, the homicide would have been murder in the first degree. This is not the law. In Webb v. State, Md., 93 A.2d 80, 82, we affirmed the conviction of assault with intent to murder on the conclusion that there was evidence which justified a finding of the existence of malice, so that, if death had been murder. It was there said: 'For present purposes we need not consider whether, had death ensued, the appellant could have been convicted of murder in the first degree for a 'wilful, deliberate and premeditated killing', or merely of another 'kind of murder' comprehended in the second degree. It is sufficient to state that we think the evidence supports a finding of malice.' Beall v. State, Md., 101 A.2d 233. The clear weight of authority is that the assault must have been committed under circumstances such that, if death ensued, the crime would have been murder in either the first or second degree, it being immaterial which. In Redd v. State, 27 Ala. App. 19, 165 So. 409, 410, it was held that the charge which stated this as the law and required a finding of intent, was correct. The court said that other requested charges were properly refused: '* * * as they were based on the specific intent to kill Ed Jackson. Although the word 'specific' was not used in the requested charges, they required the jury to find that defendant specifically intended to kill Ed Jackson, before they could convict.' The court found that the requested charge was properly refused. In State v. Litman, 106 Conn. 345, 138 A. 132, 134, the contention was made that the charge of assault with intent to murder required proof of premeditation and intent to kill. The court said: 'Premeditation is one of the elements of first degree murder, but need not be established to prove second degree murder' and said that the intent need only be such that, if death had ensued, the crime would have been murder in the second degree. In State v. Buchanan, 73 Idaho 365, 252 P.2d 524, 526, the court below had instructed the jury that before it could find the defendant guilty, it would have to find him guilty of premeditation. The court held that although there were two degrees of murder, there was only one crime of assault with intent to commit murder, and said: '* * * nor is premeditation an essential ingredient thereof * * *', so that the charge below, requiring the jury to find more than the defendant was entitled to, was not prejudicial. See...