King v. State

• Decision Date: 08 February 1972
• Docket Number: No. 219,219
• Citation: 14 Md.App. 385,287 A.2d 52
• Parties: Irving KING v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 385

14 Md.App. 385

287 A.2d 52

Irving KING v. STATE of Maryland.

No. 219.

Court of Special Appeals of Maryland.

Feb. 8, 1972.

Edward J. Angeletti, Baltimore, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty. and Arthur S. Cheslock, Asst. State's Atty., for Baltimore City on brief, for appellee.

Argued before ANDERSON, ORTH and CARTER, JJ.

CARTER, Judge.

The appellant Irving King was convicted by a jury in the Criminal Court of Baltimore of murder in the second degree and sentenced to ten years in prison. He appeals from this judgment contending 1) the evidence was legally insufficient to justify his conviction 2) the denial of his motion for a mistrial was prejudicial error and 3) the refusal of the court to give additional jury instructions was reversible error.

The hospital report shwoed the deceased died on August 25, 1969 at 5:30 a. m. or about an hour prior to her admission. The autopsy report showed that the injuries which had caused death had been suffered between 1 and 4 a. m. on August 25. Examination of the body showed numerous bruises, abrasions, and hematomas disseminated over the deceased's neck, chest, and face. There was also a series of linear and partially curved hemorrhages in the skin around the neck and chest area which indicated that they were probably caused by a cloth being twisted tightly about the deceased's neck. The cause of death was diagnosed as a lack of oxygen due to obstruction of the voice box as a result of hemorrhaging and swelling in that area.

The appellant was living in a common-law relationship with the deceased Beatrice Wolfe at the time of her death. About noon on August 24, the appellant and the deceased encountered a friend Dorothy Mitchell at a tavern. In the course of conversation Beatrice told Dorothy within the hearing of the appellant that she did not love him and had never loved anyone except Bob Smith and another man whom she named. Upon hearing this remark the appellant struck Beatrice with the back of his hand and knocked her off the bar stool. About this time Bob Smith entered the tavern and a fight ensued between him and the appellant resulting in Smith's being struck and cut. After the fight the appellant left the bar and thereafter Beatrice and Smith left together.

The next appearance of Beatrice and Smith is at 10 p. m. on August 24 when they arrived at the apartment of Norman Bonifant, who was a friend of Smith. While Beatrice and Smith were socializing with Bonifant and his girl friend Louise Ayres inside the apartment, the appellant rapped on the back window in a belligerent manner inquiring whether Smith and Beatrice were there. At that time, about 1:30 a. m., Mrs. Smith, wife of Bob Smith, and two other friends of hers including Mrs. Mitchell also appeared at the Bonifant apartment. Smith then hurriedly left the premises before the entrance of the appellant and the three women. According to the testimony of Bonifant, Mrs. Smith, and Mrs. Mitchell, when the appellant entered the apartment he grabbed Beatrice by her 'pony tail', threw her from the bed to the floor, and smacked her in the face during his accusation that she had been intimate with Smith. These same three witnesses further stated that as the three women were leaving the apartment about 2:30 a. m., Beatrice begged them not to leave her saying, 'If you leave me, he'll beat me to death.'

The apartment consisted only of a bedroom and a kitchen. Bonifant and Louise Ayres both testified that after the three women had left the argument between the appellant and Beatrice had continued, one accusing the other of 'running around' and that eventually the appellant had given each of them some sleeping pills. They further testified that they both took the pills and fell asleep on an improvised bed on the kitchen floor about 3:30 a. m. at which time the appellant and Beatrice had continued to argue in the adjoining bedroom. They further stated that about 6:00 a. m. the appellant had awakened them and advised them something was wrong with Beatrice. Bonifant then assisted the appellant in placing Beatrice in the appellant's car. The deceased was pronounced dead upon her arrival at the hospital at 6:28 a. m.

The appellant testified that he had been living with Beatrice for about 3 or 4 months prior to her death and that he loved her. He was concerned about her relationships with other men. He further stated that he was not angry with her on August 25 and had not physically harmed her in any manner on that date. He stated that after the three women had left Bonifant's apartment, he had procured a glass of water for Beatrice and she had then gone to sleep in the bedroom. He further stated that after giving Beatrice the glass of water he had gone to the kitchen with Bonifant and Louise Ayres about 3:30 a. m. and had remained there sitting at the kitchen table until about 6:00 a. m. About 6:00 a. m. he discovered Beatrice in an unconscious condition and then called Bonifant.

I

The test to be applied in determining the legal sufficiency of the evidence in a criminal case is well settled. In defining that test we said in Williams v. State, 5 Md.App. 450 at page 459, 247 A.2d 731 at page 737:

'* * * the admissible evidence adduced must show directly or support a rational inference of the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the defendant's guilt of the offense charged. * * *'

In speaking of the application of this test to circumstantial as well as direct evidence, this Court said in Metz v. State, 9 Md.App. 15 at page 23, 262 A.2d 331 at page 335:

'In short, we feel that the test for sufficiency is the same whether the evidence be direct, circumstantial, or provided by rational inferences therefrom.'

See also Nichols v. State, 5 Md.App. 340, 350, 247 A.2d 722. In speaking of the various degrees of unlawful homicide, we said in Dyson v. State, 6 Md.App. 453 at page 456, 251 A.2d 606 at page 608:

'* * * In absence of justification, excuse or some circumstance of mitigation all homicides are presumed to be committed with malice and to be murder in the second degree. Davis v. State, 237 Md. 97, 205 A.2d 254, cert. denied, 382 U.S. 945 86 S.Ct. 402, 15 L.Ed.2d 354; Jacobs v. State, 6 Md.App. 238, 251 A.2d 33; Brown v. State, 4 Md.App. 261, 267, 242 A.2d 570; and Williams v. State, 2 Md.App. 170, 176, 234 A.2d 260. There is no evidence here of anything in the nature of justification, excuse or mitigation; therefore, the verdict of guilty as to murder in the second degree is amply supported by the evidence. See Fabian v. State, 235 Md. 306, 201 A.2d 511.'

In speaking of the burden of proof in establishing that the accused comes within any of the exceptions of justification, excuse or circumstances of mitigation so as to reduce a homicide to manslaughter, we said in Jacobs v. State, 6 Md.App. 238 at page 242, 251 A.2d 33 at page 35:

'* * * It is a well settled proposition that the law presumes that in the absence of justification, excuse or some other circumstance of mitigation, all homicides are committed with malice and thereby constitute murder in the second degree, Williams v. State, 2 Md.App. 170, 176, 234 A.2d 260; and that the burden is upon the accused to prove that she comes within the exceptions, Bruce v. State (218 Md. 87, 145 A.2d 428), supra, Brown v. State, 4 Md.App. 261, 267, 242 A.2d 570. There is no obligation on the jury to believe the testimony of the accused or of her witnesses, Nichols v. State, 5 Md.App. 340, 351, 247 A.2d 722, Melia v. State, 5 Md.App. 354, 366, 247 A.2d 544. * * *'

We conclude that the evidence was legally sufficient to justify the jury in finding beyond a reasonable doubt that during the early morning hours of August 25 the appellant strangled the deceased about the throat with some type of cloth while the other occupants of Bonifant's apartment were asleep and that such strangulation was the direct and proximate cause of her death. Since there is no evidence to show justification or excuse or circumstances in mitigation, the law presumes the homicide to be murder in the second degree. Jacobs, supra, and Dyson, supra. Furthermore, irrespective of this presumption the evidence in the instant case is legally sufficient in itself to justify the jury in finding an intent on the part of the appellant to kill or inflict grievous bodily harm upon the deceased which is legally sufficient to support a verdict of second degree murder. We so held in Lindsay v. State, 8 Md.App. 100, 105, 258 A.2d 760, by applying the rule that in the absence of evidence to the contrary, a person is presumed to intend the natural and probable consequences of his acts. We therefore hold that the evidence was legally sufficient to justify the jury in finding the appellant guilty of murder in the second degree.

II

At the conclusion of the cross examination of the appellant by the Assistant State's Attorney, Judge Sodaro asked him the following questions and received the following answers.

'THE COURT:...