Kelley v. State

• Court: Maryland Supreme Court
• Writing for the Court: ADAMS, Judge.
• Citation: Kelley v. State, 181 Md. 642, 31 A.2d 614 (Md. 1943)
• Decision Date: 28 April 1943
• Docket Number: 2.
• Parties: KELLEY v. STATE.

31 A.2d 614

181 Md. 642

KELLEY v. STATE.

No. 2.

Court of Appeals of Maryland

April 28, 1943

Appeal from Circuit Court, Montgomery County; Stedman Prescott Judge.

Charles J. Kelley was indicted on a charge of manslaughter. From an adverse judgment, defendant appeals.

Judgment affirmed.

Donald Bowie, Jr., of Rockville, for appellant.

Robert E. Clapp, Jr., Asst. Atty. Gen. (William C. Walsh, Atty Gen., and Joseph Simpson, State's Atty. of Rockville, on the brief), for appellee.

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

ADAMS Judge.

Appellant was indicted in the Circuit Court for Montgomery County on a charge of manslaughter. The indictment followed the statutory form prescribed by Code of Maryland, Art. 27, § 665, and charged that the appellant, 'on the eighteenth day of July in the year of our Lord nineteen hundred and forty-two at the County aforesaid, (Montgomery Co.) feloniously did kill John Arthur Shaw * * *'.

On arraignment a plea of 'not guilty' was entered, and accused elected trial by jury. The single exception in the record on this appeal was taken to a ruling of the trial court permitting the state over the objection of the defendant to prove by the testimony of Dr. Cyrus E. Hawks that the death of John Arthur Shaw, the victim of the alleged homicide, occurred in the District of Columbia, outside the territorial limits of Montgomery County. The contention of the appellant is that it is not competent under an indictment charging that the accused did kill John Arthur Shaw at Montgomery County, for the State to prove that the death of Shaw occurred outside the limits of said County.

No demurrer was filed to the indictment nor was there a demand for the particulars of the alleged offense. After the witness Hawks had testified over defendant's objection, that the death of the victim of the alleged homicide occurred in the District of Columbia, two other witnesses testified to the same fact without objection or exception being noted by the defendant.

Two questions are presented for decision on this appeal: first whether the trial court erred in overruling the objection to the testimony of Dr. Hawks; and, second, if the court erred in allowing Dr. Hawks to testify to the death of the victim of the alleged homicide outside the State of Maryland, was the error rendered harmless by the fact that subsequently two other witnesses testified to the same fact without any objection on the part of the defendant.

By Code, Art. 27, § 628, Acts 1809, ch. 138, § 17, it is provided that 'If any person be feloniously stricken or poisoned in one county, and die of the same stroke or poison in another county within one year thereafter, the offender shall be tried in the court within whose jurisdiction such county lies where the stroke or poison was given; and in like manner an accessory to murder or felony committed shall be tried by the court within whose jurisdiction such person became accessory.' In the case of Stout v. State, 76 Md. 317, 25 A. 299, the indictment charged that on February 1, a mortal blow was inflicted on the deceased by the accused at Cecil County, Maryland, and that of this mortal wound deceased died in Philadelphia, Pennsylvania, on March 4, following.

Referring to Code Art. 27, § 278 (now § 628) it was held 'that this statute is simply declaratory of the common law, and the same reason and principle equally apply to the case where the mortal blow or poison is given in any county of this State, and the party so stricken or poisoned shall, in consequence of the blow or poison, die out of the State * * * as to the case provided for by the terms of the Statute.' '* * * The grade and characteristics of the crime are determined immediately that death ensues, and that result relates back to the original felonious wounding or poisoning. The giving the blow that caused the death constitutes the crime.' The law announced in the Stout case is in accord with the weight of authority. In 22 C.J.S., Criminal Law, § 185, subsec. q, it is stated, 'Where a mortal blow was inflicted or poison was given in one county and death ensued in another, it was doubted at common law whether the homicide could be tried in either. The courts, however, have held that there is jurisdiction in such a case, most of them holding that the prosecution should be in the county where the blow was given or where the poison was administered.'

And in a note in 39 L.R.A.,N.S., p. 822, a number of cases are cited in support of the statement that 'It is well settled that the courts of the state where the mortal wound is inflicted, although the death occurs in another state, may indict and punish the criminal.'

The ancient common law difficulty as to venue of trial, where the victim of a stroke inflicted in one county died in another county, apparently had its origin in the period when jurors determined the guilt or innocence of the...