Kellum v. State, 225

• Decision Date: 30 June 1960
• Docket Number: No. 225,225
• Citation: 223 Md. 80,162 A.2d 473
• Parties: James E. KELLUM v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 80

223 Md. 80

162 A.2d 473

James E. KELLUM v. STATE of Maryland.

No. 225.

Court of Appeals of Maryland.

June 30, 1960.

Charles P. Howard, Jr., Baltimore (Llewellyn W. Woolford, Baltimore, on the brief), for appellant.

James O'C. Gentry, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and Henry P. Turner, State's Atty., for Talbot County, Easton, on the brief), for appellee.

Before BRUNE, C. J., and HAMMOND, PRESCOTT, and HORNEY, JJ.

BRUNE, Chief Judge.

James E. Kellum appeals from a conviction for assault and battery upon the verdict of a jury and judgment thereon sentencing him to imprisonment. The 'Statement of the Case' contained in his brief states that he and one Marjorie Murray were indicted by the grand jury of Talbot County on a charge of 'assaulting and striking one Jack Rider, a sergeant on the Police force of the City of Easton, Maryland, on or about July 25th, 1959,' that as a result of a jury trial they were found guilty 'with a recommendation for leniency,' and that on December 11, 1959, Kellum was sentenced to five years' imprisonment in the House of Correction, 'from which verdict and sentence' he appeals. The State's brief adopts the appellant's 'Statement of the Case,' ¹ and we shall consider it on the basis upon which it is thus presented.

The incident which gave rise to the case occurred in Easton at about 11:45 P. M., on July 25, 1959. The testimony shows that the prosecuting witness, Sergeant Jack Rider of the Easton police force, while patrolling in a police car with Officer Harvey Smith, came upon a car double-parked on West Street in Easton. Just what occurred when Rider attempted to have the driver of the car move to an empty parking place is disputed. Rider's testimony is that Kellum, who said he was attempting to put his family in the car, used profane language in telling the driver of the car not to move it, that when Rider attempted to put Kellum under arrest for disorderly conduct and disturbing the peace Kellum used further profanity, resisted arrest, wrestled with Rider, shoved and struck Rider with his hands and pushed him up against the side of the car. The testimony of Officers Smith and Andrew and of Sheriff Granger (the latter two having been summoned as a result of the disturbance which developed) substantially supports Rider's description of the incident. Officer Andrews testified that the defendant used his arms and feet, as well as his hands, in striking Rider. A crowd of some two hundred persons is said to have been present and appears to have been somewhat worked up in at least vocal opposition to the police order to move the double-parked automobile; and the officers, according to their testimony, met with violence from Kellum's co-defendant and at least one other person. Kellum, on the other hand, testified that he at no time struck Sergeant Rider, but rather that Sergeant Rider struck him with his night stick. Kellum also testified that all that he said to Rider was that he wanted to put his family in the car and go home that he never used profanity in addressing Rider, but that Rider made an offensive remark when he approached the automobile. Kellum also stated that he did not hear Rider say he was under arrest, and claimed that he was resisting efforts to get him into the patrol car and that he was trying to get free. Kellum's version of the incident was supported by three other witnesses. One of these was Marjorie Murray, who was tried with Kellum, and the jury found them both guilty.

The appellant urges three grounds for reversal of the judgment against him: (1) failure to grant his motion for a directed verdict at the close of the State's case; (2) failure to grant his motion for a directed verdict at the end of the entire case; and (3) the reading by the State's Attorney in his closing argument of a description of a police officer, which may be described as a eulogy of a hypothetical and perhaps somewhat synthesized and idealized police officer.

The appellant's first point is that the trial court should have granted a directed verdict at the end of the State's presentation of evidence. By offering evidence on his own behalf, Kellum, under Rule 738 a of the Maryland Rules, withdrew the motion and therefore we cannot pass on the court's refusal to grant it. See Reynolds v. State, 219 Md. 319, 326, 149 A.2d 774; Briley v. State, 212 Md. 445, 129 A.2d 689; Bowen v. State, 206 Md. 368, 111 A.2d 844; Strine v. State, 204 Md. 339, 104 A.2d 601; Auchincloss v. State, 200 Md. 310, 89 A.2d 605.

The appellant's motion for a directed verdict offered at the close of the testimony (in accordance with Rule 738 a, supra) is the basis for his second contention, with which we are unable to agree.

We think that the evidence on behalf of the State was sufficient, if believed, to establish the offense charged against the appellant. 'A simple assault under common law is typified by an attempt or offer, with unlawful force or violence, to do a corporal hurt to another.' Clark & Marshall, Law of Crimes (6th Ed., Wingersky's Revision), § 10.15, p. 642. The statement in Yantz v. Warden, 210 Md. 343, 351, 123 A.2d 601, 606, that '[t]he crime of assault is an attempt by force to injure the person of another' is not inconsistent with the general statement made in Clark & Marshall just quoted. It was a sufficient definition for the purposes of that case, though not perhaps a full and comprehensive definition of the term, which has substantially (if not exactly) the same meaning in our law of torts as in our criminal law. We are not aware of any possible difference which might affect the result here. See 4 Am.Jur., Assault and Battery, §§ 2, 5, 6, pp. 124-125, 127-130. Cf. Handy v. Johnson, 5 Md. 450; Hayes v. State, 211 Md. 111, 115, 126 A.2d 576; Restatement, 1 Torts, §§ 21, 33. See also IV Blackstone, Commentaries (Oxford, 1769), pp. 216-217, as to the likeness of assault and battery as private and public wrongs. Any extended discussion of what constitutes an assault without any physical contact would be academic in this case, since there was immediate physical violence. 'Battery' has been stated to be the unlawful beating of another, Lamb v. State, 67 Md. 524, 534, 10 A. 208, 298. See also 2 M.L.E. Assault and Battery § 31, and 4 Am.Jur., supra, same topic, §§ 2, 6. The Restatement, 1 Torts, § 13, in defining battery, uses the words 'harmful or offensive contact' rather than 'beating.' It is well settled that any unlawful force used against the person of another, no matter how slight, will constitute a battery. III Blackstone, Commentaries (Oxford, 1768), p. 120; 4 Am.Jur., Assault and Battery, § 18, pp. 137-138; Clark & Marshall, op. ct., § 10.15, p. 642.

Applying these rules to the testimony of the officers above stated with regard to Kellum's striking and pushing Rider, we think that, if believed by the jury, it was sufficient to establish the offense charged. On his own testimony it seems clear that Kellum was resisting arrest, and there is no claim that the arrest which he was resisting was unlawful. On the contrary, the testimony points towards a violation of Code (1957), Art. 27, § 122 (disorderly conduct on a public street) committed by Kellum, in the presence of the arresting officers and of a considerable crowd, which was somewhat worked up, as already stated. If, as seems to have been the case (and indeed, as does not seem to be controverted), the arrest was lawful, the use of force to escape arrest was not warranted. Williams v. State, 204 Md. 55, 65, 102 A.2d 714. This is not such a case as Sugarman v. State, 173 Md. 52, 195 A.2d 324, where the use of reasonable force to escape unlawful arrest was held lawful.

The last contention of Kellum is that it was prejudicial error for the trial court to permit the State's Attorney to read an advertisement from a source not identified at the trial (said to be a magazine called 'Police Supplies'), which described police officers in the following terms:

'Most of them, perhaps, he's just a fellow in a uniform who waves you through a busy intersection * * * but then suddenly one day he is also the man whose safe, skilled hands on an inhalator brings your baby back from the shadow of death. He's the fellow who gave you a parking ticket that day you didn't see the sign * * * but he's also the one who pulled your parents out of the burning, smashed up car. He's the follow who spoke a bit gruffly the time you went through the stoplight * * * but he's also the genial, friendly guardian the kids look forward to seeing at the school crossing every day. He's the embarrassed, nervous young bachelor who helped bring your first born into the world during that night-marish ride to the hospital. He's the good Samaritan who knows first-hand of the hardships in your town, the broken families, and who digs down into his own thin wallet for the price of a hot meal for the youngsters left...