Elliott v. State, 84
| Decision Date | 19 December 1957 |
| Docket Number | No. 84,84 |
| Citation | 215 Md. 152,137 A.2d 130 |
| Parties | John Wesley ELLIOTT v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Dallas F. Nicholas, Baltimore, for appellant.
Theodore C. Waters, Jr., Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., J. Harold Grady, State's Atty. and James F. Price, Exec. Asst. State's Atty., Baltimore, on the brief), for appellee.
Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, and HORNEY, JJ.
John Wesley Elliott (the defendant) was indicted by the Grand Jury of Baltimore City on November 8, 1956, for the murder of Lindsay Calhoun (the deceased), on September 12, 1956. He entered a plea of not guilty. At a trial on March 13, 1957, by the Criminal Court of Baltimore (Tucker and Cullen, JJ.), sitting without a jury, he was found guilty of murder in the first degree. A motion for a new trial was denied by the Supreme Bench of Baltimore City, and on May 6, 1957, the defendant was sentenced to 'suffer death by the administration of a lethal gas'. From the judgment and sentence the defendant appealed.
Maude Belle Beckworth or Calhoun (the former common law wife of the defendant or Maude Belle) testified that she and the defendant had lived together for about six or seven years as man and wife. The relationship was not harmonious and, after several periodic separations, she left the defendant finally at Christmas in 1955. Accordingly to her the defendant stabbed her with a knife shortly after the final separation and she was afraid of him. After her separation from the defendant the former common law wife began going with the deceased. A marriage license had been applied for, but the deceased died before it could be used. The license was picked up by Maude Belle on September 14, 1956, but she insisted that it was found by the undertaker on the body of the deceased. According to her, while she and the deceased were at the health clinic on September 10, 1956, the defendant's aunt told her that the defendant knew she was married and was outside and wanted to see her. When they were leaving the clinic the defendant told her that the marriage would not do her any good. On September 12, 1956, the day of the shooting, Maude Belle was cooking breakfast at her mother's house at 504 Ogston Street when she was summoned to the door and was told by a boy that a lady across the street wanted to see her. She did not go out, but returned to her chore. However, before the deceased had closed the door she had noticed the defendant's aunt peeping out of the door of her house across the street at 760 Bradley Street, and saw someone by the window but could not say who it was. Shortly after this incident, the deceased, who wanted cigarettes, got a dollar from Maude Belle and went out. About five minutes later she heard a noise that she thought was a car backfiring.
The twelve year old boy, who knew the defendant, acted as a messenger, and was dispatched by him at 7:30 A.M on the day of the shooting to tell the former common law wife that a lady wanted to see her. He delivered the message and returned to his home. About two minutes later he heard a noise which also sounded to him like the backfire of a car. When asked to fix the time he delivered the message, he said he got up at 6:00 A.M. and had been playing in the street about an hour and a half when he was sent by the defendant to 504 Ogston Street, but in court he was unable to tell what time it was by the courtroom clock.
From the back door of her home at 1053 Myrtle Street, an eleven year old girl had observed a man, whom she did not know, with a long shot gun go through the yard gate, drop what turned out to be a red shot gun shell, and go out to George Street.
When the police arrived shortly after 7:33 A.M. they found the deceased lying on the south sidewalk of Bradley Street against a building about ten feet east of Ogston Street with a match box resting on the inner side of the deceased's right wrist and a cigarette in a pool of blood beside his right thumb. Apparently the deceased had been shot while he was in the act of lighting a cigarette. No weapon was found on the deceased. The shot gun was found in a vacant house on Shields Place.
The defendant was apprehended in North Carolina, was extradited and returned to Maryland. Upon his return he was interrogated by the police on November 11, 1956. The statement he made was introduced in evidence without objection.
According to his statement, the defendant got up about 6:30 A.M., went to a tavern for whiskey, and was returning to his aunt's house when he encountered the deceased at 504 Ogston Street. The deceased hit him with a chair rung as he passed by. A fight ensued. When it was over the deceased threatened to settle the affair by coming over and shooting it out. The defendant returned to 760 Bradley Street, stood in the door and watched Ogston Street. He saw the deceased put something in the right pocket of his pants and pat it. The defendant then got his shot gun, loaded it and put other shells in his pocket. Placing the gun by the front door, he stood in the doorway watching the deceased come toward him. When the deceased got to the back end of the grocery store, across the street from 760 Bradley Street, he put his hand in his right pants pocket. The defendant then picked up the gun, stood in front of the doorway, took aim and shot the deceased, because as he said, he thought it was time to keep the deceased's hand in his pocket. After the shot he saw the deceased fall to the sidewalk. The defendant then ran out in the back yard, unloaded the gun, threw the exploded shell away and hid the gun in a vacant house. He started to the police station to give himself up, but changed his mind, went to the Camden Market and got a ride with a trucker to North Carolina. He further stated that his former common law wife came to his residence the day before the shooting and wanted to know when he was going back to North Carolina. He denied telling her that her marriage with the deceased would do her no good or otherwise threatening her. He admitted that the deceased did not have a gun in his hand, but thought he had one. He had bought the shot gun in Baltimore in June or July, 1956, to shoot groundhogs in Pennsylvania. His only prior use thereof was to try it out once to see if it worked.
Besides the defendant's statement, the State had introduced the autopsy report, several photographs of the deceased, shot gun patterns and scenes of the shooting, before it closed its case.
The defendant moved for a directed verdict which the court denied, and he elected to produce testimony in his own behalf.
The defendant's testimony in court was substantially the same as his statement to the police. He testified that he had resided in Baltimore off and on for twenty-three years. He admitted several prior convictions. He had lived with his former common law wife for ten years until they separated in May, 1956. He went to New Jersey in July, 1956, got a job and sent her money several times. She visited him in Newark for two nights in August and he gave her money to return to Baltimore. He returned to Baltimore on September 10, 1956, and stayed at 760 Bradley Street with his aunt. His common law wife visited him there the following day. He did not learn of her intended marriage to the deceased until after the shooting. The defendant admitted seeing the messenger boy, but denied sending a message to his former common law wife. He denied knowing the deceased or seeing him before the day of the shooting. In court he testified that the threat of the deceased to kill him or get killed was made just prior to the shooting instead of after the fight earlier in the morning. His explanation for the killing was that he was acting in self defense. Judge Cullen asked the defendant why he had not gone into the house in order to get away from the deceased. His reply was that he did not think the deceased would come back after the fight. Judge Tucker attempted to have the defendant fix the distance between the defendant and deceased when the shot was fired. He replied that the distance was about as far as the distance from the witness chair to the bench in Criminal Court Part II, which was estimated at approximately 15 feet. Actually the distance between the door of 760 Bradley Street and the spot where the deceased fell on the opposite sidewalk was approximately 32 feet.
The aunt corroborated the defendant's statement that the former common law wife had visited ...
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...to the police.' Id. at 631, 222 A.2d at 57. Elliott was convicted in 1957. His conviction was affirmed by this Court in Elliott v. State, 215 Md. 152, 137 A.2d 130 (1957). The Court referred to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Escobedo v. Illinois,......
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