Jenkins v. State

• Court: Maryland Court of Appeals
• Writing for the Court: WILNER
• Citation: Jenkins v. State, 477 A.2d 791, 59 Md.App. 612 (Md. App. 1983)
• Decision Date: 01 September 1983
• Docket Number: No. 1424,1424
• Parties: Tony Lava JENKINS v. STATE of Maryland. ,

Page 612

59 Md.App. 612

477 A.2d 791

Tony Lava JENKINS v. STATE of Maryland.

No. 1424, Sept. Term, 1983.

Court of Special Appeals of Maryland.

July 13, 1984.

Julia A. Doyle, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., and Warren F. Sengstack, State's Atty. for Calvert County, on the brief, for appellee.

Submitted before LOWE, ^* WILNER and BISHOP, JJ.

WILNER, Judge.

This appeal requires us to consider the relationship between the crimes of assault with intent to murder (Md.Code Ann. art. 27, § 12) and assault with intent to maim, disfigure or disable (art. 27, § 386). We shall conclude, as a general rule, that, when arising from a single act, these crimes are inconsistent. A person cannot, in other words, based on a single act that might serve to establish either crime, be convicted of and sentenced for both.

On the afternoon of May 13, 1983, Alfred Claggett and a friend Mike Sharps drove to a store in Sunderland, Maryland. Claggett got out of the car to attend to some business; when he returned a short time later, he found appellant leaning on the car peaceably talking to Sharps, who was then in the driver's seat. Claggett tapped appellant on the shoulder and told him to "lean off" the car. He then proceeded toward the store.

Appellant followed Claggett, mumbling something unintelligible to Claggett. At some point, Claggett turned, told appellant that he didn't wish to hear from him, and pushed him away. Appellant responded with a push of his own, which led to a second push from Claggett. Appellant then pulled a gun and shot Claggett in the thigh, near the hip joint. There was evidence that he had aimed the gun at Claggett's waist. The shot knocked Claggett to the ground and ultimately required him to be hospitalized.

As a result of that incident, appellant was charged with, tried for, and convicted of assault with intent to murder, assault and battery, assault with intent to maim, and carrying a handgun. Upon these convictions, he was sentenced by the Circuit Court for Calvert County to twenty-five years in prison for assault with intent to murder and, concurrently, five years for assault, ten years for assault with intent to maim, and five years for carrying a handgun.

In this appeal, appellant makes two complaints:

"I. The jury returned defective verdicts of guilty of assault with intent to murder and assault with intent to maim.

II. The trial court imposed an illegal sentence."

Inconsistent Verdicts

Appellant claims that his convictions for assault with intent to murder and assault with intent to maim are inconsistent, as each requires a different and mutually exclusive specific intent.

The nature and elements of assault with intent to murder were succinctly described in Bird v. State, 231 Md. 432, 436, 190 A.2d 804 (1963), as follows:

"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.... Intent involves the element of malice and must be such as would lead to a charge of murder if death should ensue.... 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."

As made clear in Bird, in Webb v. State, 201 Md. 158, 93 A.2d 80 (1952), and later in James v. State, 31 Md.App. 666, 358 A.2d 595, cert. denied 278 Md. 725 (1976), and Reed v. State, 52 Md.App. 345, 449 A.2d 448, cert. denied 294 Md. 653 (1982), the intent to murder necessary to a conviction may rest upon the showing of an intent to commit grievous bodily harm, and that, in turn, is inferable from the use of a deadly weapon directed toward a vital part of the body.

Assault with intent to maim is also an offense that is proscribed, but not defined, by statute. Md.Code Ann. art. 27, § 386, makes it a felony to "unlawfully shoot at any person, or ... in any manner unlawfully and maliciously attempt to discharge any kind of loaded arms at any person, or ... unlawfully and maliciously stab, cut or wound any person, or ... assault or beat any person, with intent to maim, disfigure or disable such person." The maximum punishment for this crime is ten years imprisonment.

There is very little caselaw construing § 386. The terms "maim, disfigure or disable" may, and probably do, have some reference to the common law crime of mayhem and the statutory enlargement of it in art. 27, § 385, but we do not think they are limited by those substantive offenses. As pointed out in Gilbert and Moylan, Maryland Criminal Law: Practice and Procedure, § 3.9, common law mayhem consisted of depriving the victim of the "fighting members" of his body--his arms, legs, eyes, fingers, hands, or teeth--thus rendering him less able to defend himself. That crime still exists in Maryland in its common law form, although a statutory penalty for it is provided in § 384. Section 385, patterned after the Act of Coventry (22 and 23 Car. 2, c. 1), in effect, expands the common law offense by prohibiting other disfigurements and disablements as well--

"cutting out or disabling the tongue, putting out an eye, slitting the nose, cutting or biting off the nose, ear or lip, or cutting or biting off or disabling any limb or member of any person, of malice aforethought, with intention in so doing to mark or disfigure such person." Art. 27, § 385.

As § 386 makes no reference to either § 384 or § 385, as it was first enacted forty-four years after those other sections, and as the words "disfigure" and "disable," in their ordinary signification, would clearly include injuries other than those encompassed within §§ 384 and 385, we do not believe that the terms "maim, disfigure or disable" as used in § 386 are limited only to those injuries and disablements proscribed by §§ 384 and 385. Thus, to sustain a conviction under § 386, it is not necessary to prove an intent to commit an act which, if completed, would be punishable under § 384 or § 385. Any intent to disfigure or disable will suffice.

Like the intent to murder under § 12, an intent to maim, disfigure, or disable under § 386 may be established by showing an intent to do grievous bodily harm, and, as with a prosecution under § 12, that in turn may be inferred from "the pointing of a gun toward another human and discharging it in random fashion." Hoes v. State, 35 Md.App. 61, 74, 368 A.2d 1080, cert. denied 280 Md. 731 (1977); Mahoney v. State, 13 Md.App. 105, 100, 281 A.2d 421 (1971), cert. denied 264 Md. 750, cert. denied 409 U.S. 978, 93 S.Ct. 306, 34 L.Ed.2d 241 (1972).

What we have, then, is the fact that the shooting of another person with either the direct or inferable intent to do grievous bodily harm can support a conviction under either statute. But the fact that an intent either to murder or to maim, disfigure, or disable may be found from such a circumstance does not mean that the requisite statutory intents are the same, or that one is subsumed into the other. They are, indeed, quite different, notwithstanding that they may rest upon the same evidence. An intent to maim, disfigure, or disable necessarily falls short of, and thus excludes, an intent to kill. The actor's object in such a case is not to end the victim's life, but to have him linger on, either temporarily or permanently, in a disabled or disfigured condition. Conversely, although death is obviously the ultimate form of disablement, it is far more than that; one does not generally regard a killing as merely an extreme form of disablement. It is not the marking or hobbling of the victim that is really intended, but the termination of his very existence. That is the critical, overriding intent, even if death is to be preceded, or caused, by injuries that but for the death would constitute a disfigurement or disablement. Thus, both rationally and realistically, an intent to kill excludes the lesser intent merely to maim, disfigure, or disable.

This question has not previously been decided in Maryland or, for that matter, anywhere else but Georgia. In Marks v. State, 230 Md. 108, 185 A.2d 909 (1962), cert. denied 373 U.S. 918, 83 S.Ct. 1308, 10 L.Ed.2d 417 (1963), the defendant was charged with "assault with intent to 'kill and murder' " under one indictment and assault with intent to maim, disfigure, or disable under another. The indictments arose from his having set his young son's shirt on fire and then having refused to take the injured child to the hospital. The court, in announcing its verdicts, found him guilty of "assault with intent to kill" and assault with intent to maim, disfigure, or disable, and sentenced him to ten years, concurrently, on each. On appeal, Marks argued that "these two convictions were inconsistent, in that one necessarily excludes the other."

The Court never reached that issue, however, for it concluded that there was no such crime in Maryland as "assault with intent to kill," and thus reversed the judgment entered on the first indictment. That, of course, made the inconsistency question moot. The Court stated, 230 Md. at p. 111, 185 A.2d 909:

"For the purposes of this appeal we shall assume, without deciding, that the verdicts were inconsistent. Apart from any matter of inconsistency, we find that [the] verdict finding the defendant guilty of 'assault with intent to kill' was an improper verdict on the charge of assault with intent to kill and murder...."

The only case directly addressing and deciding this issue that we could locate was Swain v. State, 91 Ga.App. 561, 86 S.E.2d 642 (1955). In Swain, the defendant was convicted of mayhem, which under Georgia law required an intent to maim, and of assault with...