Jones v. State.

• Decision Date: 10 February 1944
• Docket Number: No. 5.,5.
• Citation: 35 A.2d 916
• Parties: JONES v. STATE.
• Court: Maryland Court of Appeals

35 A.2d 916

JONES

v.STATE.

No. 5.

Court of Appeals of Maryland.

Feb. 10, 1944.

Appeal from Circuit Court, Howard County; James Clark and James E. Boylan, Jr., Judges.

Walter Frederick Jones was convicted of murder in the first degree, and he appeals.

Judgment reversed, and new trial awarded.

Jerome A. Loughran and Charles E. Hogg, both of Ellicott City, for appellant.

C. Ferdinand Sybert, State's Atty., of Ellicott City, and J. Edgar Harvey, Asst. Atty. Gen. (William C. Walsh, Atty. Gen., on the brief), for appellee.

Before SLOAN, C. J., and DELAPLAINE, COLLINS, MARBURY, MELVIN, and BAILEY, JJ.

COLLINS, Judge.

Walter Frederick Jones, convicted on August 2, 1943, in the Circuit Court for Howard County before a jury of murder in the first degree for killing his wife, Lena Jones, also known as Lena Taylor, on July 3, 1943, and as a result thereof sentenced to death, appeals to this court from the verdict, judgment and sentence. The case comes here on five exceptions to the ruling of the trial court on the evidence and on one exception to an instruction given by the trial court to the jury.

The first exception was taken after the assistant medical examiner testified as to the wound causing death and was then asked by the State's Attorney: ‘Other than that wound, what was the condition of the body?’ To which question the defendant objected and which the court allowed to be answered provided the State could connect the defendant with old scars on the body of the deceased, to which ruling the defendant excepted. The defendant later admitted that he inflicted the two old scars over the upper leg and thigh of the deceased. The State further showed that the accused had been convicted in Philadelphia in 1941 of assault with intent to kill his wife by cutting her, and a patrolman in the Bureau of Police in the city of Philadelphia testified at the trial in Howard County that he arrested the defendant at that time for the crime of which he was convicted, and at that time he saw bandages around the deceased woman's neck and right arm. This was sufficient to connect the defendant with the old scar on the body of the deceased starting on the right side much below the right collar bone and running diagonally across the chest. As the State did connect the defendant with these old scars, we see no error in this ruling.

The second exception was taken when the State was allowed in its direct testimony, before the defendant had taken the stand, to offer in evidence a warrant sworn out by the deceased charging the accused on the 14th day of June, 1943, with an assault upon her with intent to kill. The complaining witness later withdrew this warrant on the condition that the accused leave the state, which he did not do. The accused was never tried on this warrant. The third exception was taken to the admission in direct testimony of State's exhibits numbers seven and eight. Exhibit number seven showed that the accused had been convicted in Philadelphia on the 30th day of September, 1939, for aggravated assault and battery on the deceased and as a result sentenced to six months in the county prison. Exhibit number eight showed that the accused had been convicted in Philadelphia on January 28, 1941, for assault with intent to kill the deceased and as a result sentenced to not less than eighteen months nor more than three years in the county prison. As the same question is presented by exceptions two and three, we will consider them together. It is a well-known proposition of law that evidence of unconnected and unrelated crimes which does not show knowledge, motive, intent, a common scheme or identification is inadmissible against a defendant in a criminal case as tending to show that he committed the crime whereof he stands indicted in such case. McClelland v. State, 138 Md. 533, 536, 114 A. 584; Dobbs v. State, 148 Md. 34, 46, 129 A. 275. It is equally well established in our law that when proof shows such connection between the different transactions as raises a fair inference of a common motive in each, evidence of other crimes is admissible. If evidence is admissible on other general grounds, there is no objection that it discloses other offenses. The test to be applied in determining the admissibility is the connection of the fact proved with the offense charged as evidence which has a natural tendency to establish the fact at issue. Callahan v. State, 174 Md. 47, 54, 197 A. 589; Hitzelberger v. State, 174 Md. 152, 161, 197 A. 605; Mitchell v. State, 178 Md. 579, 582, 16 A.2d 161. Evidence which is relevant is not made inadmissible by reason of the fact that it tends to prove the defendant guilty of a crime other than the one for which he is indicted. Such evidence is not admitted because it is proof of the other crime, but because of its relevancy of the charge upon trial. Kernan v. State, 65 Md. 253, 258, 4 A. 124; Cothron v. State, 138 Md. 101, 109, 113 A. 620; Callahan v. State, supra. Quoting from Wharton's Criminal Evidence, Volume I, Eleventh Edition, Section 287: ‘On a charge of uxoricide, it is relevant to show that the accused made declarations reflecting on his wife, the deceased, to show a long course of ill treatment; and to show that they quarreled, or that he continuously maltreated her.’ Where motive and intent are elements of the crime charged, generally speaking, evidence of other crimes is admissible for the purpose of showing when it fairly tends to do so-motive and intent. Generally speaking, while guilt cannot be established by proving that the defendant has committed other crimes, it is firmly established that evidence of acts may be admitted to show intent or common scheme embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. Meno v. State, 117 Md. 435, 83 A. 759; Young v. State, 152 Md. 89, 136 A. 46; Wilson v. State, 181 Md. 1, 3, 26 A.2d 770. In the case now before this court, the evidence presented, the subject of these two exceptions, shows a long course of ill treatment of the deceased by the accused; that they frequently quarreled and, although they renewed relationships at various times, there was almost a continuous state off hostility between them. These other crimes of the accused, having been committed on the same person, are so closely connected to the offense charged as to be evidence as to the intent and motive of the accused in this case. We therefore believe that the trial court was correct in admitting this evidence, the weight of it to be determined by the jury.

The fourth exception was taken when the State was allowed to ask the accused on cross-examination, in reference to his actions after the crime was committed: ‘You knew you had been wrong enough to go back to Philadelphia.’ This exception was not elaborated on by the appellant in his brief and, in our opinion, was admissible on cross-examination as to his actions immediately after the crime in leaving Howard County and going to Philadelphia. Cothron v. State, supra, 138 Md. at page 106, 113 A. at page 622.

The fifth exception gives this court more concern. While the defendant was on the stand, he was questioned on re-direct examination as follows, which constitutes the fifth exception:

(Mr. Hogg) ‘Q. To your knowledge; has your wife, did your wife ever attack Trooper Hignutt?’

(Mr. Sybert) ‘I object.’

(The Court) ‘Sustain the objection.’

‘Q. Or Officer Moxley or Constable Hunt while she was drinking?’

(Mr. Sybert) ‘I object.’

(The Court) ‘Sustain the objection.’

(Mr. Loughran) ‘We want to lay the foundation to show that knowledge was brought home to him.’

(The Court) ‘You can't do it by an isolated incident and we stand on that ruling.’

This exception refers to the unsuccessful efforts of the defendant to prove that he knew that about three weeks before Lena Jones was killed, while drinking she attacked Trooper Hignutt, Officer Moxley and Constable Hunt in Howard County. The evidence sought to be introduced was not to show the character of the accused, but to show the turbulent disposition of the deceased person. There is evidence in the case now before this court of an overt, hostile act against the defendant by the person killed. Less than five minutes before she was killed, Lena smacked the accused in the face. She had been drinking. After an argument about her family, Lena chased the accused up the road, and one of the witnesses, Rachel Fuller, called to her: ‘Come back, Lena, don't do that.’ Three of the State witnesses testified that she stopped, and when she stopped, the accused ran up and inflicted the mortal blow. None of the State witnesses saw anything in the hand of the deceased while she was chasing him up the road. After her death a paper of matches was found in her right hand, she being right-handed. None of the State witnesses saw the deceased raise her hand. Two witnesses testified that he had previously threatened to kill her. There was testimony to show that at the time the accused was convicted of assault and battery on her in Philadelphia in 1939, she was also...