Tipton v. State, 105

• Decision Date: 01 August 1967
• Docket Number: No. 105,105
• Citation: 1 Md.App. 556,232 A.2d 289
• Parties: Robert C. TIPTON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 556

1 Md.App. 556

232 A.2d 289

Robert C. TIPTON v. STATE of Maryland.

No. 105.

Court of Special Appeals of Maryland.

Aug. 1, 1967.

Certiorari Denied Oct. 9, 1967.

Ferdinand J. Mack, Mack, Hilland, Hogan, Rockville, for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Baltimore, Richard J. Kinlein, State's Atty. for Howard Co., Ellicott City, on the brief, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and GEORGE L. RUSSELL, Jr. (Special Judge.)

GEORGE L. RUSSELL, Jr., Special Judge.

Robert C. Tipton was indicted by the Grand Jury of Charles County for the murder of Carroll A. Johnson, Jr. and for carrying a concealed deadly weapon. The case was removed to Howard County for trial where a jury found the Appellant guilty of manslaughter and of carrying a concealed weapon on April 1, 1966. On April 22, 1966, the Appellant was sentenced to ten years in the Maryland Penitentiary for the manslaughter conviction and two years for the deadly weapon conviction, the sentences to be served concurrently.

On October 29, 1965, the Appellant and his 19-year old son, Robert W. (Butch) Tipton, drove to pick up two other Tipton boys from the school bus stop on Route 6. Butch had suffered a serious injury several years before which resulted in both of his arms being amputated, up to and including the shoulder blades; he was not wearing artificial limbs at the time of this occurrence. The Appellant stopped his car behind and to the right of the bus. When the door was opened Preston Tipton, who was 15 years old, weighed 105 pounds, and was 5 feet 3 inches tall, came tumbling off the bus and rolled down an incline. He was followed by the deceased, Carroll A. Johnson, Jr., who was 16 years old, weighed 180 pounds, and was 6 feet tall, and appeared to be a grown man between 25 and 30 years of age. The deceased began beating and kicking Preston at the bottom of the incline. Butch, who was armless, 19 years old, weighed 96 1/2 pounds, and was 5 feet 5 inches tall, got out of the car. The deceased walked up to him and said, 'What are you going to do about it?' Butch, who was wearing loosefitting loafers so he could slip them off and use his toes as fingers, kicked the deceased in the leg, and the deceased hit Butch numerous times about the head, neck, shoulders, and near the groin, and hit him in the chest with a rock. The Appellant, after seeing that Butch had been knocked down, reached under the seat for his gun, which he carried because his job as a bartender necessitated his carrying large sums of money. The deceased then knocked down Herbert Tipton, who was 18 years old, weighed 120 pounds, and was 5 feet 7 inches tall. Johnson started toward Preston, then stopped and picked up a rock. Butch was standing closest to the deceased, and as Johnson cocked his arm to throw the rock, the Appellant shot him in the head, and he later died of the wound. The Appellant testified that he had no time to employ any other means to stop the deceased from throwing the rock. The Appellant also stated that he shot Johnson in order to prevent one of his children 'from being killed or maimed for life.'

The Appellant's first allegation is that the evidence presented showed that even if Butch Tipton was the aggressor in his affray with the deceased, that Butch Tipton's kicks at the deceased's legs were not calculated to do bodily harm to the deceased. The Appellant reasons further that when Carroll Johnson attacked in a manner to do serious bodily harm or to kill Butch Tipton, the Appellant reasonably believed that the deceased's counterattack was designed to do serious bodily harm or kill Butch Tipton, then the Appellant, as Butch's father, had the right to use sufficient force to overcome Johnson's attack, and to use deadly force if reasonably necessary.

In order to justify an assault on the basis of self-defense, the accused must have had reasonable grounds to believe, and have in fact believed, himself to be in apparent imminent or immediate danger of death or serious bodily harm from his assailant or potential assailant. The trier of facts must determine whether the accused was justified in meeting force with force. If justification is found to have existed, the force used against the assailant must not have been unreasonable or excessive; i.e., the defender must not have used more force than the exigency reasonably demanded. Guerriero v. State, 213 Md. 545 at 549, 132 A.2d 466 (1957). A third person, closely related to or associated with one attacked in such a manner that he could properly have defended himself by the use of force, has a right to go to the defense of the person attacked and to use the same degree and character of force that the one attacked could have used. Guerriero v. State, supra.

The Appellant does not contest the basic law of self-defense in Maryland, but asserts that if the jury should find that Butch Tipton was the aggressor, and that Carroll Johnson...