State v. Kernan

• Decision Date: 12 March 1886
• Parties: STATE v. KERNAN.
• Court: Maryland Court of Appeals

4 A. 124

65 Md. 253

STATE v. KERNAN.

Court of Appeals of Maryland

March 12, 1886

Appeal from circuit court, Anne Arundel county.

Thos. C. Ruddell and Jas. Revell, for appellant.

Atty. Gen. Roberts, for appellee.

IRVING J.

The sole exception in this case is to the admission of evidence showing what occurred at another saloon, a half square from the saloon where the homicide occurred, and only four or five minutes before the killing was done. The only question therefore, is whether there was error in the admission of that evidence. If the evidence had been offered for the purpose of showing an assault upon another person at a different place and time, a different question would have been presented, and one on which there is conflict of authority, and upon which we do not feel called upon to pass in this case. So eminent a legal writer as Roscoe (7 Ev. 90) says the notion "that the evidence in itself discloses another offense makes it inadmissible is now exploded," and he cites numerous authorities in support of his position but, as we said, we do not decide that question. The evidence was clearly not offered or admitted for the purpose of showing another offense at or near the time and place of killing. It cannot be said that it proves any such offense. It was evidently offered to show the movements of the prisoner, and his general conduct immediately preceding the offense of which he has been convicted; to show that he was armed and prepared for mischief, and was seriously at that moment bent on mischief, and in a frame of mind likely to result in mischief. It cannot have been offered to show his character for turbulence, and was not admissible for such purpose. A simple act of that kind would not prove that he had that character. But such an act, so soon followed by the killing of a man, did show a reckless and mischievous frame of mind at a period so near the killing as to be admissible though the thing itself may not possibly be legitimately part of the res gestæ. We think it was evidence to show he was armed and prepared to kill, though it did not of itself show intention to kill the deceased. If it had been offered to show he there and then procured the pistol, it would have been clearly admissible, just as much so as if it had been shown he procured it some hours before. He was then armed with a deadly weapon, had already prepared himself for the worst, and was recklessly exhibiting it. ...