Esterline v. State

• Decision Date: 02 April 1907
• Citation: 66 A. 269,105 Md. 629
• Parties: ESTERLINE v. STATE.
• Court: Maryland Court of Appeals

66 A. 269

105 Md. 629

ESTERLINE v. STATE.

Court of Appeals of Maryland

April 2, 1907

Appeal from Circuit Court, Carroll County; Wm. H. Thomas, Judge.

John W Esterline was convicted of assault, and he appeals. Affirmed.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS JJ.

E. O Weant and Charles E. Fink, for appellant.

Attorney General Bryan and J. Guy W. Steele, for the State.

BURKE J.

The appellant was indicted, tried, and convicted in the circuit court for Carroll county, and was sentenced to be confined in the Maryland penitentiary for the period of 15 months. The indictment contained three counts. The first count charged him with an assault with intent to murder Adam E. Diehl; the second with an assault with intent to disable Adam E. Diehl; and the third with common assault committed upon the said Diehl. A motion for a new trial was made, and, among other grounds assigned, it was stated that there was no legally sufficient evidence to warrant the jury in finding a verdict of guilty upon the second count of the indictment. This motion was heard by the Honorable William H. Thomas, the associate judge before whom the case was tried, and was overruled. This appeal was then taken, and it brings up seven exceptions to the rulings of the court below taken by the appellant during the progress of the trial. Four of these exceptions relate to the admission of evidence, and three to certain remarks made by Mr. Guy W. Steele, the state's attorney for Carroll county, in the course of his argument to the jury. These remarks, it is contended, constitute such misconduct on the part of the state's officer as to justify this court in reversing the judgment and granting a new trial.

We will now state the evidence which constitutes the first, second, third, and fourth exceptions, which were taken to the admission of certain portions of the testimony of D. Jonas Lippy, Mrs. Adam E. Diehl, and John W. Esterline, the accused. This testimony, which was admitted against the objection of the traverser, is this: Lippy testified that in February or March preceding the assault, which occurred on the 3d of August, 1906, he heard the prisoner say he was going to shoot the son of a bitch, and that he asked Esterline to whom he referred, and that the accused replied, "That big son of a bitch up town"; that he said to the accused, "Tell me who it is," and the prisoner said, "My brother-in-law up town." The evidence shows that the prosecuting witness was the only brother-in-law of the defendant living in that locality. Mrs. Adam E. Diehl testified that on the 13th day of April, 1906, the prisoner said to her that he was going to kill the whole family. "He looked over to me, and said, 'I am going to kill the whole family, and then I know I will have a rest."' In his cross-examination of the accused the state's attorney asked him how long he had been accustomed to carry a pistol. Objection was made to this question, but the court permitted it to be answered, and this ruling is the basis of the third bill of exception. The answer of the witness was that he had owned one off and on for a good many years, but, so far as he could remember, he had never carried one. This constitutes the fourth exception. In order to convict upon the first count of the indictment, it was necessary to show a state of facts upon which the accused could have been convicted of murder had the prosecuting witness died as a result of the assault. Malice was therefore an essential element in the crime charged in the first count, because malice is the chief and distinguishing characteristic of murder; and hence it was indispensably necessary for the state to allege and prove malice before a conviction could be had upon the first count in the indictment. Malice is either express or implied. Both express and implied malice may be proved by a deliberately formed design to kill, by the preparation of the weapon or other means for doing great bodily harm, by circumstances of brutality attending the act, or by previous hostility, or threats and declarations of intention to kill, or to do serious injury. The rule upon this subject is thus stated in 1 Bishop, Crim. Proc. (3d Ed.) 673: "It is competent to show against the defendant that he bore toward the party injured enmity of a sort tending to the criminal result. For the same, and even for a stronger reason, threats made by the accused, prior to the commission of the alleged offense, may be shown against him. Nearness, or remoteness of time, intervening conduct, and the like, will considerably affect their weight." It is stated in Wharton's Crim. Evidence, § 756, that "declarations of intention and threats are admissible in evidence, not because they give rise to a presumption of law as to guilt, which they do not, but because from them, in connection with other circumstances, and on proof of the corpus delicti, guilt may be logically inferred. Threats against a class may be put in evidence as explaining the character of the attack on an individual belonging to this class, though, to make threats admissible, there must be some kind of individuation showing that the person injured was in some sense within the scope of the threats." The facts of the case bring the admissibility of the testimony embraced in the first, second, third, and fourth exceptions within the operation of these rules, although it must be noted that the defendant could not possibly have been injured by the answer of the question embraced in the fourth exception, because, assuming the form of the question to be objectionable, the answer of the witness denied that he was accustomed to carry the pistol. The accused and the prosecuting witness were brothers-in-law, and lived in adjoining properties. For a number of years they had been on bad terms, and on three prior occasions they had had personal encounters. This feeling of personal hostility seems to have become more intensified about the last part of February preceding the assault charged in the indictment, when they ceased speaking to each other, and shortly thereafter the threats of personal violence introduced in evidence were made by the accused. The theory upon which the case was tried by the state was that the accused, intending to carry out these threats, prepared his pistol, provoked a quarrel with Diehl, who invited him out to fight, and that Esterline, under the pretense of self-defense, maliciously and without justification, shot his brother-in-law. The theory of the defense was that Diehl provoked the quarrel and was the aggressor in the assault which ensued, and that, the pistol being in the possession of the prisoner for a lawful and innocent purpose, as explained by him in his evidence, he was obliged in self-defense to protect himself from serious bodily harm from the assault made upon him by Diehl, who was a much larger man and of much greater strength than himself. Both the state and the defense offered testimony tending to support these conflicting theories. The jury was the proper tribunal to pass upon the weight of testimony and the credibility of the witnesses, and their finding upon the facts is not reviewable by this court. We have examined the record carefully, and we fail to find any error in the rulings which constitute the first four bills of exceptions.

2. The fifth, sixth, and seventh exceptions relate to what is...