Hutchinson v. State

• Decision Date: 02 June 1967
• Docket Number: No. 217,217
• Citation: 230 A.2d 352,1 Md.App. 362
• Parties: William Henry HUTCHINSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 362

1 Md.App. 362

230 A.2d 352

William Henry HUTCHINSON v. STATE of Maryland.

No. 217.

Court of Special Appeals of Maryland.

June 2, 1967.

Certiorari Denied Oct. 9, 1967.

Benjamin L. Brown, Baltimore, for appellant.

Edward L. Blanton, Jr., Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, Raymond Faby, Asst. State's Atty. for Baltimore City, Baltimore, on brief for appellee.

Before ANDERSON, MORTON, ORTH, and THOMPSON, JJ., and WILLIAM J. O'DONNELL, Special Judge.

O'DONNELL, Judge.

Appellant was convicted in the Criminal Court of Baltimore, in a non-jury trial before Judge Joseph L. Carter, of assault with intent to murder and assault. His Motion for New Trial was denied and he appeals from his sentence to the Maryland Penitentiary, contending: (1) that the evidence was insufficient to sustain his conviction, (2) that it was error for the trial court to deny his Motion to Suppress Evidence, and (3) that his Motion to Dismiss the Indictment should have been granted.

(1)

At the close of the evidence offered by the State, Appellant's Motion for Judgment of Acquittal was denied. Appellant testified himself and by so doing he withdrew his Motion, Maryland Rule 755(b). At the conclusion of all the evidence, his renewed Motion for Judgment of Acquittal was denied.

Where an action has been tried by the lower court without a jury, this Court, upon appeal will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless it was clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses, Maryland Rule 1086. It is our function merely to determine whether there was evidence, or proper inferences from the evidence, upon which the trial court could find the defendant guilty. Holtman v. State, 219 Md. 512, 515, 150 A.2d 223 (1959).

It is the function of this Court in reviewing the sufficiency of the evidence on an appeal from a conviction in a non-jury criminal case to determine whether the court below had sufficient evidence from which it could be fairly convinced beyond a reasonable doubt of the defendant's guilt of the offense charged. Gibson v. State, 238 Md. 414, 209 A.2d 242 (1965); Johnson & Carroll v. State, 238 Md. 643, 644, 210 A.2d 399 (1965).

Mildred Colclaugh, who had known appellant for five years, who had befriended him while he was confined 'at Jessups and at Springfield', and who had given him the occupancy of a bedroom in the premises occupied by her and her father at 161 W. Henrietta Street, testified that at approximately 11:30 p.m. on March 4, 1965, after she came off duty as a supervising nurse at the Carver Nursing Home, crossed Pennsylvania Avenue and as she was about to enter her parked automobile, the appellant, hidden on the opposite side of the automobile, asked her 'to take him to south Baltimore.' When she stated that she was not going to south Baltimore, he replied, 'You are too damn smart' and fired a shot over the roof of the car and over her head. She began to run back toward the Nursing Home; he pursued her, caught her in the street, put a pistol to her ear, and said 'If you move, I'll blow your damn brains out.' He struck her on the right side of her head with the pistol and dragged her a distance of about 20 feet into an alleyway in the rear of the parked car; as she attempted to get up, he began shooting again and one bullet struck her in the leg. He put the pistol to her forehead, pulled the trigger, the gun 'clicked' and then he beat her in the face with the pistol, shattering her jawbone. He grabbed her pocketbook and escaped. Personnel from the Nursing Home, coming to her assistance, called the Police. She was hospitalized for eleven days, sustained nerve damage to her leg, has a permanent wire in her jaw and was unable to work for approximately eight months.

She denied that the appellant was her boy-friend or paramour, although she acknowledged she had befriended appellant and had given him bedroom space in her home. She was positive of her identification of him.

Her father, Walter Reddick, 70 years of age, testified that he went to University Hospital on March 5, 1965, to visit his daughter; that the appellant, known to him as 'Pie' came to the hospital and told him that 'He had a gun on him then and he had shot her (his daughter) once.'

Appellant, having freely elected to testify in his own behalf, denied that he had shot her, denied that he had a gun, but acknowledged that he had been in the vicinity of the shooting that afternoon when he visited the Frolic Bar and the 'Moonglow' on Pennsylvania Avenue, several blocks from the shooting scene.

He further testified that several days prior to March 4th, he had a 'squabble' with the prosecutrix because he was not going to be her 'part-time man'; that she had a boyfriend who was a Venezuelan seaman and that he had insisted that she make an election as to whether or not he was to be her 'boyfriend' or whether when the seaman returned to Baltimore, the romance between the parties would be renewed.

On cross-examination, he acknowledged convictions for forgery, unauthorized use of a motor vehicle, two convictions for larceny and three convictions for assault-two of which were upon women.

Judge Carter, the trial Judge, in his oral opinion on the facts, stated that 'As between the prosecuting witness and the defendant, I am perfectly frank to say that I accept and believe the testimony of the prosecuting witness.' He stated further, 'Somebody shot the complaining witness, shot at her and actually shot her and not only that, but beat her up rather badly * * * she was shot in the leg, somebody did this to her; she says it was the defendant and certainly she knows him and I haven't heard any valid reason why she would be not telling the truth about it, she certainly makes a good impression as far as I am concerned, (does) not take a vehement or violent attitude; she took the witness stand and told the plain and straightforward story that I believe.' The Judge stated further '* * * and then there is this corroboration produced by the State. Here again, do you believe it or not? I do believe it. Her father, who visited the next day, says (that) the defendant told him, while in the hospital to see her, that he had shot her once and he says the defendant then said that he had a gun.' The Judge concluded that upon all the testimony in the case, he could arrive at only one conclusion beyond a reasonable doubt and that was that the defendant was guilty of the crime of which he is charged.

The matter of credibility of witnesses is a primary one for the trier of facts to determine. Hill v. State, 231 Md. 458, 462, 190 A.2d 795 (1963), cert. denied 375 U.S. 861, 84 S.Ct. 127, 11 L.Ed.2d 88; and Johnson & Carroll v. State, supra.

The identification by a single eyewitness if believed, is sufficient to support a conviction. Hammond v. State, 241 Md. 733, 217 A.2d 569 (1966); Huelin v. State, 234 Md. 213, 198 A.2d 302 (1964); and Bailey v. State, 226 Md. 353, 173 A.2d 732 (1961).

In Bird v. State, 231 Md. 432, 190 A.2d 804 (1963), the Court of Appeals, concerning the elements of the crime of assault with intent to murder, said at p. 436, 190 A.2d at p. 806:

'The crime of assault with intent to murder is a statutory offense. See Code (1957), Art. 27, § 12. And although the statutory provision does not define the elements of the crime, it is necessary that there be proof of an assault and that it was with an intent to murder. Webb v. State, 201 Md. 158, 93 A.2d 80 (1952). Intent involves the element of malice and must be such as would lead to a charge of murder if death should ensue. Marks v. State, 230 Md. 108, 185 A.2d 909 (1962). * * * The specific intent to take life need not be shown if the assault was committed under such circumstances that, if death had ensued, the crime would have been murder in either the first or second degree. Wimbush v. State, supra; Hall v. State, 213 Md. 369, 131 A.2d 710 (1957); Webb v. State, supra.'

In German v. State, 231 Md. 111, at p. 112, 188 A.2d 699, at p. 700 (1963), the Court of Appeals said:

'We think it is obvious that there was ample evidence from which the trial court could find malice and a specific intent to murder in this assault by appellant. Beall v. State, 203 Md. 380, 101 A.2d 233. The trial court was not required to believe appellant's statement that he fired the shot when Brantley put his hand in his pocket as if to pull a gun (which, as well as the possession of a gun, was denied by Brantley). Certainly we cannot say the trial court was clearly erroneous in finding the vereict.'

From what the trial judge found to be the credible testimony, we think that there was ample evidence from which he could find that the assault was committed under such circumstances that the malice necessary for the intent to murder was present. Not only did Appellant fire a shot over the head of the prosecutrix, but he shot her in the leg, pulled the trigger on the pistol pointed at her forehead, 'pistol-whipped' her, and further told her that 'I'll blow your damn brains out.' See Morrison v. State, 234 Md. 87, 88, 198 A.2d 246 (1964); Ferrell v. State, 234 Md. 355, 356, 199 A.2d 362 (1964); Shenberger v. State, 234 Md. 363, 199 A.2d 233 (1964); and Wilt v. State, 234 Md. 365, 199 A.2d 232 (1964).

We find that there was ample evidence before the Court to sustain a finding of guilty and that the trial court was clearly correct in denying Appellant's Motion for Judgment of Acquittal.

(2)

Although no formal Motion to Suppress Evidence appears to have been filed in the case (Maryland Rule 725(b)), the Appellant at the beginning of his trial, moved to quash the Indictment because of an alleged illegal arrest. The trial court deferred ruling on his motion (Maryland Rule 725(d)), and received all the...