Morris v. State

• Decision Date: 07 June 1968
• Docket Number: No. 312,312
• Citation: 4 Md.App. 328,242 A.2d 582
• Parties: Joseph Leon MORRIS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 328

4 Md.App. 328

242 A.2d 582

Joseph Leon MORRIS v. STATE of Maryland.

No. 312.

Court of Special Appeals of Maryland.

June 7, 1968.

Joel L. Lavin, Baltimore, for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Joseph C. Howard, State's Atty. and Asst. State's Atty. for Baltimore City, on the brief, for appellee.

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

PER CURIAM.

On June 22, 1967, the appellant Joseph Leon Morris, was tried in the Criminal Court of Baltimore, Judge Charles D. Harris presiding without a jury, and convicted of assault upon William Marshall and of manslaughter for the killing of James William Johnson. On July 17, 1967, after denying a Motion for a New Trial, the appellant was sentenced to eight years imprisonment for the manslaughter conviction and four years imprisonment for the assault conviction, sentences to run concurrently.

Appellant's sole contention raised on this appeal is that the evidence was not sufficient to sustain the convictions.

From the evidence adduced below, the trial court could properly find that on September 10, 1966, at approximately 2:15 o'clock a. m., the appellant was involved with William Marshall in an altercation in the middle of the street, near Riggs and Calhoun Streets, in Baltimore, which after some arguing and scuffling, culminated in the appellant striking Mr. Marshall on the side of his head with a gun which discharged killing a bystander, James William Johnson.

Two Baltimore City policemen, cruising in the area, heard the report of the gun and immediately responded to the scene. They observed the appellant, while walking from where the deceased lay, take a handkerchief from his pocket placing a black object therein, and deposit same in the gutter. The officers immediately retrieved the object and found it to be a .38 colt revolver.

Appellant testified that he struck Marshall in self-defense, was not aware that the gun was loaded, and that the gun was in a paper bag when he struck Marshall, he having never withdrawn the gun.

Marshall and witness Leroy Wilson testified that they did not observe a paper bag but saw the naked gun in the appellant's hand.

The applicable test in reaching a determination of the sufficiency of the evidence in a non-jury case is whether the evidence, if believed, either shows directly or supports a rational inference of the facts to be proved, from which the court could fairly be convinced, beyond a reasonable doubt, of the defendant's guilt of the offense charged. Speaks v. State, 3 Md.App. 371, 379, 239 A.2d 600, 605 (1968); Anderson and Washington, Jr. v. State, 3 Md.App. 362, 369, 239 A.2d 579, 583 (1968); Montague v. State, 3 Md.App. 66, 72, 237 A.2d 816, 820 (1968). In non-jury trials the weight of the evidence and the credibility of the witnesses rests within the determination of the trial judge. McRae v. State, 3 Md.App. 388, 393, 239 A.2d 607, 610 (1968). Anderson and Washington, Jr. v. State, supra, 3 Md.App. 369, 239 A.2d 579; Lucas v. State, 2 Md.App. 590, 593, 235 A.2d 780, 782 (1968). Furthermore, in non-jury trials, the trial court in performing its duty of judging the credibility of witnesses may disbelieve the exculpatory statements made by the defendant. Anderson and Washington, Jr. v. State, supra, 3 Md.App. 369, 239 A.2d 579.

The thrust of the appellant's argument is that since he was acting in self-defense with respect to Marshall, he could not, therefore, be held culpable for the killing of Johnson, since if Marshall had been killed instead, the resultant homicide would have been justified by application of the doctrine of self-defense. However, it is clear that the burden of proving self-defense rested upon the appellant. Davis v. State, 237 Md. 97, 103, 205 A.2d 254 (1964). An assault predicated upon the doctrine of self-defense is justified only where the accused had reasonable grounds to believe, and did believe, that he was in apparent imminent peril of death or serious bodily harm from his actual or potential assailant. It is the task of the trier of facts to determine whether the accused was justified in meeting force with force. Upon finding such justification, the force used against the assailant must not have been unreasonable or excessive, that is, the defender must not have used more force than the exigency reasonably demanded. Tipton v. State, 1 Md.App. 556, 560, 232 A.2d 289 (1967). While under a particular set of facts and circumstances a person may defend himself even to the extent of taking an aggressor's life, it is patently clear that he cannot use more force than is necessary without leaving the sanctuary of self-defense. See Ware v. State, 3 Md.App. 62, 65, 237 A.2d 526 (1968).

Appellant's introduction of a loaded gun into this affray and the use of same to bludgeon into submission his victim, William Marshall, clearly constitutes an exercise of greater force than was justified under the circumstances. The lower court found no merit to his urging that his conduct constituted a proper exercise of self-defense, nor do we. Therefore, upon the instant record, it cannot be said that the lower court was clearly erroneous in finding the appellant guilty of assault upon Marshall. Maryland Rule 1086.

We now direct our attention to appellant's manslaughter conviction. In McFadden v. State, 1 Md.App. 511, 517, 231 A.2d 910 (1967), we quoted with approval from Neusbaum v. State, 156 Md. 149, 155, ...