Murphy v. State

• Decision Date: 08 April 1913
• Parties: MURPHY v. STATE.
• Court: Maryland Court of Appeals

87 A. 811

120 Md. 229

MURPHY v. STATE.

Court of Appeals of Maryland

April 8, 1913

Appeal from Circuit Court, Harford County; Wm. H. Harlan, Judge.

Thomas Murphy was convicted of assault and battery, and he appeals. Reversed and remanded.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER, and CONSTABLE, JJ.

Thomas H. Robinson and S. A. Williams, both of Bel Air, for appellant.

Edgar Allan Poe, of Baltimore, for the State.

THOMAS J.

The indictment upon which the appellant was tried and convicted in the circuit court for Harford county contained two counts the first charging him with an assault with intent to kill and the second with an assault and battery upon a certain Anthony Nusbaum. The jury found him guilty on the second count, and he was sentenced to pay a fine of $100 and costs and to confinement in the Maryland House of Correction for four months. From that judgment he has appealed.

During the trial the defendant reserved 19 exceptions to the rulings of the court on the evidence, but all of them present practically the same legal question.

The state offered the testimony of Anthony Nusbaum, the prosecuting witness, and Alethia James, tending to prove the alleged assault, and the testimony of William James to facts that occurred after the assault, and then produced the witness William Hooper who, after stating what occurred during the assault, testified that after the assault the defendant came back from his house to the barn where the witness and the defendant's brother, Cornelius Murphy were; that he heard the defendant say that he was "going to run them all off the place;" that Cornelius and the witness went up the steps leading to the upper part of the barn and that the defendant followed them, and that Cornelius struck the defendant and he fell down the steps. He was then asked by the state's attorney, "With what did Cornelius hit him?" and he replied, "I don't know--I didn't see Cornelius what he hit him with; I was in the barn, inside." To the question, "Were you not on the steps?" he answered, "No, sir;" and the state's attorney then asked the following question: "Didn't you tell me in my office there (indicating) you were on the steps and saw Cornelius hit him ?" to which he replied, "No, sir; I didn't say I saw Cornelius hit him." When asked to state what happened after Cornelius knocked the defendant down the steps, he said he got up and went out, and in reply to the question, "What happened before he got up?" he replied, "Why, nothing." To the question, "Didn't you say Cornelius hit him again in the barn?" he answered, "No, sir; I don't think Cornelius hit him but once; that was on top of the steps; I didn't see him hit him then." The state's attorney then asked him, "Didn't you tell me this morning in my office--" And he replied, "No, sir." The question was then completed: "That he beat him with a piece of ax handle?" and he answered, "No, sir; I never mentioned ax handle to you; never thought of it." The state then called Cornelius Murphy, the brother of the defendant, who testified that when he first saw the defendant and Nusbaum fighting they were down on the ground and Nusbaum was on top; that he did not attempt to take Nusbaum off but told them to stop fighting; that they did not pay any attention to him, and that finally the defendant "turned Nusbaum over and struck him in the head with a piece of tin"; that witness then undertook "to pull them apart," and that Nusbaum struck the defendant, while the witness had hold of the defendant, and "knocked him down and knocked him unconscious"; that when the defendant recovered consciousness he was in a rage with witness because he had interfered and turned on him, and that witness struck him and injured his hand. The state's attorney then said to witness, "Now, Mr. Murphy, tell the gentlemen of the jury if it isn't a fact that, when you went around there, Nusbaum was down and your brother Tom was beating him with a can top?" and he answered, "No, sir; that is not right." When asked if he did not tell Dr. Famous and Clarence Wilson that night that that was true, he replied, "No, sir," and he was then asked the following questions: "Did you tell either Clarence or Dr. Famous that night that you had--if you hadn't struck Tom and knocked him unconscious, at the time you broke your hand, you believed he would have killed Nusbaum?" "Didn't you tell him [Clarence Wilson] if you hadn't taken your brother Tom off you believed he would have killed Nusbaum? Did you, on the way over there [defendant's house], tell him [Dr. Famous] that you were sorry to have used Tom up, but if you hadn't done it you believed he would have killed Nusbaum? No words to that effect? Did you, on the evening of this occurrence at Nusbaum's home, have a conversation with Mr. Nusbaum in the presence of Mrs. Nusbaum, his wife, and did Nusbaum say to you he saw a dogwood club laying on the ground just after he passed the dairy, that he supposed Tom had picked it up and struck him with it, and did you say, 'No, I saw the club,' and that it was a sassafras?"

To each of these questions the defendant objected, but the court overruled the objections, and the witness answered that he did not make the statements referred to. The state then called Mrs. Nusbaum, Clarence Wilson, and Dr. Famous, who were permitted, against the objection of the defendant, to testify that Cornelius Murphy made the statement referred to in said questions and other statements contradictory of his testimony in chief. These rulings of the court below are the errors complained of in the first, second, third, fourth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth bills of exceptions.

The rule in this state in regard to this character of evidence was definitely settled in the case of Smith v Briscoe, 65 Md. 561, 5 A. 334, and repeated and reaffirmed, without any qualification, in the very recent case of State v. B. & O. R. R. Co., 117 Md. 282, 83 A. 166, 167; where it is said: "If the witness has made to the party who calls him, or to the attorney of such party, a statement totally variant from his sworn testimony, and on the faith of such statement he has been called, he may be asked if he made such a statement, and if he denies it we see no objection to the proof of such statement, not for the purpose of impeaching the general character of the witness, but for the protection of the party calling him. If a plaintiff calls a witness, relying upon statements made to him or his attorney, and when on the stand he proves the defendant's case, we think that the principles of justice...