Lindsay v. State

• Decision Date: 17 November 1969
• Docket Number: No. 70,70
• Citation: 8 Md.App. 100,258 A.2d 760
• Parties: Richard Wayne LINDSAY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 100

8 Md.App. 100

258 A.2d 760

Richard Wayne LINDSAY v. STATE of Maryland.

No. 70.

Court of Special Appeals of Maryland.

Nov. 17, 1969.

Norman Hochberg, Baltimore, for appellant.

James F. Truitt, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Howard L. Cardin, State's Atty. and Asst. State's Atty., respectively on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

ORTH, Judge.

Richard Wayne Lindsay, the appellant, has been thrice convicted of the murder of James Brown on 26 May 1963. The first conviction was invalidated by his election to void the indictment under the Schowgurow decision. ¹ He was re-indicted on 12 May 1966 and his conviction of murder in the second degree under that indictment was set aside by this Court for the reason that the testimony of two witnesses at the first trial was read into the record at the second trial on an insufficient predicate to support the introduction of the testimony. Lindsay v. State, 2 Md.App. 330, 234 A.2d 479. On remand, he was tried for the third time, convicted of murder in the second degree by a jury in the Criminal Court of Baltimore, and sentenced to 18 years from 26 May 1963. ² He now attacks the third conviction, contending:

I. The evidence was not sufficient to sustain the conviction.

II. A legal presumption deprived him a basic constitutional right.

III. The trial court erred in instructing the jury.

IV. His 'personal, civil, legal, constitutional and inalienable rights' were violated.

I

The appellant challenges the sufficiency of the evidence by presenting two questions. He asks whether the trial court erred in denying a motion for judgment of acquittal ³ and whether the verdict was against the evidence. The denial of the motion made at the close of all the evidence permits us to determine whether the evidence was sufficient to justify its submission to the jury. The test as to its sufficiency is whether the evidence either showed directly or supported a rational inference of the facts to be proved, from which the jury could fairly be convinced beyond a reasonable doubt of the appellant's guilt of murder in the second degree. Williams v. State, 5 Md.App. 450, 459, 247 A.2d 731. When properly submitted to the jury, the weight of the evidence is a matter for the jury. Minor v. State, 6 Md.App. 82, 89, 250 A.2d 113.

Homicide was proved. The Chief Medical Examiner of the State of Maryland testified that an autopsy was performed on the body of James Brown. He described the nature of the injuries to the deceased in detail. The report of the autopsy was admitted in evidence. It included the opinion that Brown 'died of a stab wound of the chest and heart. The manner of death is homicide.'

The testimony of Willie Boswell, Jr., was in substance that he saw the appellant, whom he identified, stab Brown in the neck during a 'skirmish.' He had left a tavern a block away, had walked to his home at 700 Saratoga Street, and upon entering, heard an 'ahhh' sound outside. He looked out, saw the appellant and Brown, walked to an adjacent alley and watched the 'skirmish.' He saw the appellant stick a knife in Brown's collarbone area, stab a second time, kick the now fallen Brown, walk away about five feet, return and pull Brown off the trolley tracks and walk away. He said he did not see Brown with a weapon. This testimony, if believed, was sufficient to show the criminal agency of the appellant. It also showed the use of a deadly weapon. The testimony of the Medical Examiner and the report of the autopsy showed that the weapon had been directed to a vital part of the victim's body. He had been stabbed three times, and one stab wound was in the front of the chest located four inches below the jugular notch and two and a half inches to the left of the midline, so that it overlay the area of the heart. It went into the heart. This was sufficient to show malice, constituting the homicide as murder in the second degree. Chisley v. State, 202 Md. 87, 95 A.2d 577; Bagley v. State, 6 Md.App. 375, 251 A.2d 246. The credibility of Boswell and other witnesses was for the jury to determine, as was the weight to be given to their testimony. Williams v. State, supra. We do not find that the testimony of Boswell was so contradictory as to come within the ruling in Kucharczyk v. State, 235 Md. 334, 201 A.2d 683, and such contradiction as may have been present in his testimony went only to its weight. Wilkins v. State, 5 Md.App. 8, 245 A.2d 80. The case also went to the jury on manslaughter. The determination beyond a reasonable doubt of the existence of malice or the absence of excuse, justification or a mitigating circumstance was for the jury.

As the evidence as above summarized met the test of sufficiency, the case was properly submitted to the jury. Thus there was no error in the denial of the motion for judgment of acquittal.

II

We stated in considering the sufficiency of the evidence that the showing of the use of a deadly weapon directed at a vital part of the victim's body established malice. This is so because in the circumstances established by the evidence malice was inferred.

Malice is 'the intentional doing of a wrongful act to another without legal excuse or justification. It includes any wrongful act done wilfully or purposely.' Chisley v. State, 202 Md. 87, 105, 95 A.2d 577, 585. Malice is the indispensible ingredient of murder; by its presence, homicide is murder; in its absence, homicide is manslaughter. ⁴ Malice is divided into express and implied malice. Express malice exists whenever an accountable person kills another intentionally unless the killing is justifiable or excusable or unless there is a mitigating circumstance. Clark and Marshall, Law of Crimes, 6th Ed., § 10.06, p. 578. But a specific intent to kill is not a requisite of murder. One may commit murder without an actual intent to kill, for the law will imply malice in some unintentional killings and this is called 'implied malice' or 'constructive malice' or 'malice in law.' ⁵ Two of such classes of unintentional killing, committed without justification or excuse or a mitigating circumstance, in which malice is implied, are where (1) there was an intent to inflict great bodily harm; and (2) conceding that there was no actual intent to injure, an act was done or duty omitted wilfully, the natural tendency of which was to cause death or great bodily harm. ⁶ Id, at 579-580. So implied malice in those classes is a matter of drawing inferences from the evidence; upon proof of certain facts, malice is inferred. If a man voluntarily and wilfully does an act, the natural and probable consequences of which is to cause another's death, an intent to kill may be inferred from the doing of the act. ⁷ So, it has been consistently held, that in the absence of excuse, justification, or a mitigating circumstance, ⁸ malice is inferred from the use of a deadly weapon directed at a vital part of the body. Chisley v. State, supra; Bagley v. State, supra.

The appellant claims that there is a presumption that 'all homicides are murder in the second degree in which malice aforethought exists as a matter of law.' He urges that this presumption is in direct conflict with the presumption of innocence and that if one must yield to the other, the presumption of innocence must be left unimpaired. This presumption is broader in scope than the inference of malice arising from an act, the natural tendency of which was to cause death or great bodily harm, for conceivably the presumption would arise only from the fact of a homicide. He assumes the existence of this presumption from language in Chisley v. State, supra, 202 Md. at 105, 95 A.2d at 585:

'The law presumes all homicides to be committed with malice aforethought and to constitute murder. The burden is on the accused to show circumstances of alleviation, excuse, or justification, which will reduce the offense to manslaughter. * * * Where the law divides murder into grades, such a homicide is presumed to be murder in the second degree and the burden is on the State to show that the killing was wilful, deliberate and premeditated, if the crime is to be elevated to first degree murder. * * *.' (Citations omitted.) ⁹

But we need not decide whether Chisley actually determined that there is a presumption such as the appellant suggests, separate and distinct from and broader in scope than the rule with respect to 'implied malice;' ¹⁰ or, if there is such a presumption, whether it is now constitutional. See Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, decided 19 May 1969. Resort to such a presumption is not necessary to a determination of the instant case; it may be resolved, as we have done, by an application of the rule with respect to implied malice. We shall, therefore, confine our discussion to the question of the constitutionality of the rule whereby malice may be inferred from acts of the accused apart from the mere fact of a homicide committed by him. ¹¹

The inference of malice under the implied malice rule is comparable to the rule under which there is an inference that a person in exclusive possession of recently stolen goods is the thief in the absence of satisfactory explanation of non-culpatory possession. As to each rule the inference arises from the proof of facts-with respect to the 'possession' rule, the facts that goods were recently stolen and that the accused is in exclusive possession of them and with respect to the 'malice' rule, the facts that the accused committed a homicide and that it was committed with an actual intent to injure or by an act the natural tendency of which was to cause death or great bodily harm. In each the inference is rebuttable-with respect to the 'possession' rule, by a reasonable non-cupable explanation by the accused of the possession of the goods and with respect to the 'malice' rule by a showing by...