Webb v. State

• Decision Date: 05 December 1952
• Docket Number: No. 43,43
• Citation: 201 Md. 158,93 A.2d 80
• Parties: WEBB v. STATE.
• Court: Maryland Court of Appeals

Page 158

201 Md. 158

93 A.2d 80

WEBB v. STATE.

No. 43.

Court of Appeals of Maryland.

Dec. 5, 1952.

Z. H. Stafford, Easton, and LeRoy L. Wallace, Baltimore (John W. Williams, Cambridge, on the brief), for appellant.

Kenneth C. Proctor, Asst. Atty. Gen., and by Harry E. Clark, Jr., State's Atty. Talbot County, Easton (J. Edgar Harvey, Depty. Atty. Gen., on the brief), for appellee.

Before MARKELL, C. J., and DELAPLAINE, COLLINS and HENDERSON, JJ.

HENDERSON, Judge.

On an indictment containing two counts, assault with intent to kill and murder, and common assault, the appellant was found guilty on the first count by the court, sitting without a jury, and sentenced to five years in the Maryland House of Correction. The appellant contends that the court erred in refusing his motion for directed verdict at the close of the whole case, and that the sentence was 'cruel and unusual' under the circumstances.

The testimony shows that the appellant, a resident of Easton, Maryland, had been 'going with' one Reba Brooks for about four years, and on the night of Saturday, March 28, 1952, had invited her to come to his dance hall. However, she went to the movies in Cambridge with one Edward St. Clair, and at about 1:30 in the morning of March 29, was sitting in front of her home in St. Clair's car. The appellant came up, ordered her out of the car and drew a pistol, to frighten them, he says. He just happened to have the pistol because he had taken a sum of money from the dance, hall to his home before coming past Reba's house, where she lived with her aunt and grandmother. The pistol certainly frightened St. Clair, for he got out of the far side of the car and took shelter. Reba got out and started towards the house. The appellant held on to her arm and attempted to drag her up the street.

Reba's aunt, Mamie Brooks, was in the house with her friend Daniel Copper. Hearing a commotion outside, they came out, and Mamie caught hold of Reba's arm and tried to pull her away from the appellant. The appellant told her to let go or he would shoot. Reba said, 'He's got a gun.' Mamie testified that she did not believe he had a gun, or if he had, that he would shoot. He said a second time, 'Let go of her. If you don't I am going to shoot.' There was a flash and Mamie was shot through the neck, the bullet just missing the jugular vein. However, she was taken immediately to the hospital by Daniel Copper and her life was saved.

Although three witnesses testified that the appellant had twice threatened to shoot before the shot was fired, the appellant denied that he made any such statements. His testimony was that he clicked the pistol twice to remove the cartridges, that he thought it was unloaded and did not intend to shoot. Reba and Mamie both testified they heard clicks before the shot, and one cartridge was found at the scene by a police officer. It is difficult to understand how the weapon could be unloaded in this fashion, if it was an automatic as the appellant asserted. The weapon was never found. The witnesses all agreed that after the shooting the appellant asked, 'Did I shoot you?' He came in the house and expressed his concern. The grandmother testified she saw him unload the pistol and put the bullets in his pocket before he left. The police were called but he was not apprehended. He gave himself up the next morning.

The appellant contends that upon all the evidence in the case there was no proof of a felonious intent to kill and murder, and no proof of malice aforethought. Murder is still a common law crime in Maryland, although it is divided into two degrees carrying different penalties by Sections 494-501, Article 27 of the Code of 1951. Hanon v. State, 63 Md. 123, 126; Abbott v. State, 188 Md. 310, 52 A.2d 489; Wood v. State, 191 Md. 658, 62 A.2d 576. Likewise, Section 14, Article 27 of the Code of 1951, which provides that 'every person convicted of the crime of an assault with intent to murder shall be guilty of a felony and shall be sentenced to confinement in the Maryland Penitentiary for not less than two years nor more than fifteen years', does not attempt to define the elements of the crime.

To support a charge of assault with intent to murder it is generally recognized that there must be proof of both an assault and an intention to murder. The intent cannot be inferred from the mere fact of the assault, although the character of the assault and the use of a deadly weapon are factors to be considered. Acers v. United States, 164 U.S. 388, 17 S.Ct. 91, 41 L.Ed. 481, and note. Neither can the intent be established as a matter of law from the mere use of a deadly weapon. Lanier v. State, 106 Ga. 368, 32 S.E. 335; Hochheimer, Criminal Law (3d Ed.) Section 29. Wharton, Criminal Law (12th Ed.) Section 841 says: 'On an indictment for an assault with intent to murder, the intent is the essence of the offense. Unless the offense would have been murder, either in the first or second degree, had death ensued from the stroke, the defendant must be acquitted of this particular charge. * * * It is not necessary, however, to sustain such an indictment that a specific intent to take life should be shown. If the intent were to commit grievous...