Jacobs v. State

• Decision Date: 10 September 1976
• Docket Number: No. 610,610
• Citation: 32 Md.App. 509,363 A.2d 257
• Parties: Joseph James JACOBS, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 509

32 Md.App. 509

363 A.2d 257

Joseph James JACOBS, Jr. v. STATE of Maryland.

No. 610.

Court of Special Appeals of Maryland.

Sept. 10, 1976.

James T. Smith, Jr., Assigned Public Defender, Baltimore, for appellant.

Albert Gallatin Warfield, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Sandra A. O'Connor, State's Atty. for Baltimore County and William S. Townsend, Asst. State's Atty. for Baltimore County on the brief, for appellee.

Argued before MOYLAN, DAVIDSON and MASON, JJ.

MOYLAN, Judge.

This case is controlled by the ever-widening, though logically foreseeable, ripples put in motion by Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 41 L.Ed.2d 508 (1975), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The appellant, Joseph James Jacobs, Jr., was convicted by a Baltimore County jury of common law assault, the use of a handgun in the commission of a felony (to wit, assault with intent to murder) and malicious shooting with intent to maim. The issue is the constitutional propriety of a jury instruction on the question of self-defense and the necessary threshold question of whether self-defense was generated as a legitimate jury question.

In looking to that threshold question, we will consider the admissible evidence in the light most favorable to the appellant. Involved was a riotous fight between two groups of young men. According to the appellant and two of his witnesses, the incident occurred in the following fashion. The appellant and two friends were driving home in a green van along Eastern Boulevard. As they passed a red Mustang, they gratutiously yelled to the occupants of the Mustang something to the effect of 'Move that crate.' Shortly thereafter, they stopped for a red light. The red Mustang pulled up next to them and one of the occupants, apparently stung by the earlier remark, got out and came to the passenger side of the van. As one of the occupants of the van rolled down the window, a fist came in and struck him in the face. Simultaneously a metal object struck the van. The van then moved away and proceeded along Eastern Boulevard. The red Mustang followed behind them and soon a large blue car pulled up beside them. The two cars in combination forced the van off the road. Ronald Rewers, one of the occupants of the van, pulled out a .25 automatic pistol, handed it to the appellant, and told him to use it if it became necessary. The van was forced off the road on a school driveway and was blocked by the two cars. The occupants of both cars got out and approached the van. Someone reached in and opened the door to the van. One of the occupants of the van, Warren Smolko, was dragged out and was attacked. Several persons attacked the appellant. They beat him and kicked him as he was kneeling in the back of the van. He ultimately fired one shot in the air as a warning shot. He was then approached by one of the assailants who was carrying a baseball bat and appeared as if he was going to strike the appellant. The appellant shot him first. The baseball bat was found at the scene of the fight by the Baltimore County Police. After the fight, the appellant was badly bruised and bleeding all about the head and face.

One of the appellant's witnesses stated that the attackers numbered 'four or five guys,' out of the blue car alone, and that they approached the van carrying bats and clubs and a tire iron. The appellant testified affirmatively that he feared for his life and limb and fired only in self-defense. Although the jury was by no means obliged to accept this defense version of the fight as opposed to the State's version, it was privileged to accept it. It was, by definition, a jury question.

It is unquestioned that one is privileged to use force, even deadly force, in self-defense if legitimately and reasonably in fear of suffering death or serious bodily harm. See generally LaFave and Scott, Criminal Law, 391-397; Perkins, Criminal Law (2nd Ed. 1969), 993-1012. No extended treatment of the law in this regard is necessary as neither the State nor the defense are at issue over this settled principle of law. Indeed, the trial judge gave a thorough and accurate explanation of the law respecting self-defense and all of the various situations which the jury must consider thereunder. At issue here, rather, is not the substance of that law but the allocation of the burden of proof on the issue of self-defense.

The critical instruction was as follows:

'You are instructed that self-defense is an affirmative defense, and as such, the Defendant carries the burden of proving it. However, the burden of the Defendant is not the same as the burden of the State to prove the guilt of the Defendant beyond a reasonable doubt and to a moral certainty. The Defendant bears the burden of proving his affirmative defense of self-defense only by a preponderance of the evidence. The phrase, 'preponderance of the evidence' does not mean the quantum of witnesses or evidence on one side or the other; it means only that the Jury finds the evidence that the Defendant's actions were taken in defense of his person more weighty and satisfactory than the countervailing evidence. If the Jury is satisfied that the Defendant's evidence upon that point is more satisfactory than the countervailing evidence, then the Defendant has met his burden upon this particular point.'

The broad principle of In re Winship was that the due process clause requires the State to prove each and every element of a criminal offense beyond a reasonable doubt. Mullaney v. Wilbur was simply one of the many instances in which that broad principle of Winshi might apply. The privileged use of force by way of legitimate self-defense would negate-by way of justification or excuse-a simple assault just as surely as it would an assault that results in an ultimate death and comes to us as a charge of murder or manslaughter. It would apply just as surely to all aggravated assaults at...