Whitehead v. State

• Decision Date: 18 February 1970
• Docket Number: No. 265,265
• Citation: 262 A.2d 316,9 Md.App. 7
• Parties: William WHITEHEAD v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 7

9 Md.App. 7

262 A.2d 316

William WHITEHEAD v. STATE of Maryland.

No. 265.

Court of Special Appeals of Maryland.

Feb. 18, 1970.

James F. Garrity, Baltimore, for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., State's Atty. for Baltimore City, Gerald A. Kroop and Harriette Cohen, Asst. State's Attys. for Baltimore City on brief, for appellee.

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

ORTH, Judge.

William Whitehead does not deny that he killed Robert Carter Barrett. But he urges that he is not culpable because he killed in self defense. With this we do not agree. He argues in the alternative that, if he is culpable, the crime is not murder in the second degree as found at a court trial in the Criminal Court of Baltimore. With this we agree. The judgment is reversed and the case remanded for a new trial.

A homicide, the killing of a human being by another human being, is felonious and the accountable perpetrator ¹ is culpable, if it is murder or manslaughter. A homicide is not felonious, and the perpetrator, even though otherwise accountable, is not culpable, if the homicide is justificable or excusable. ² In this jurisdiction murder may be in the first degree or second degree as designated by statute. All murder perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premediated killing, Md. Code, Art. 27, § 407; or committed in the perpetration of, or attempt to perpetrate any rape, sodomy, mayhem, robbery, burglary, or in the escape from any jail or penal institution, § 410; or in the perpetration of or attempt to perpetrate any arson, § 408; or in the burning or attempting to burn specifically designated structures, § 409; shall be murder in the first degree. All other kinds of murder shall be deemed murder in the second degree, § 411. Manslaughter is homicide without malice aforethough; it is the absence of malice aforethought which reduces murder to manslaughter. Chisely v. State, 202 Md. 87, 105, 95 A.2d 577. ³

Homicide in self defense is either justifiable or excusable. Justifiable self defense is where a person is feloniously assaulted, being without fault himself, and necessarily kills his assailant to save himself from death or great bodily harm, or from other felony attempted by force or surprise. Excusable self defense is where a person becomes engaged in a sudden affray or combat, and in the course of the affray or combat, necessarily, or under reasonably apparent necessity, kills his adversary to save himself from death or great bodily harm after retreating as far as he can with safety. The force used must not be unreasonable or excessive. See Ware v. State, 3 Md.App. 62, 65, 237 A.2d 526; Tipton v. State, 1 Md.App. 556, 560, 232 A.2d 289. The distinction between justifiable and excusable self defense is real but has not practical effect in application. If the homicide is committed in either justifiable or excusable self defense within the frame of reference of their meanings, the killer is not culpable. But there may be a homicide which would otherwise be murder which is reduced to manslaughter by circumstances of alleviation or mitigation. Such a case is where the circumstances surrounding the homicide establish that it was provoked. For the 'Rule of Provocation' to be invoked there are four requirements:

(1) There must have been adequate provocation;

(2) The killing must have been in the heat of passion;

(3) It must have been a sudden heat of passion-that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool;

(4) There must have been a causal connection between the provocation, the passion, an the fatal act.

See Perkins, Criminal Law (1957), pp. 43-55. ⁴ There is adequate provocation where there is a mutual quarrel or combat. 'The combat is mutual if the intent to fight is mutual, and in such situations the question of which one actually strikes the first blow is not controlling. In fact, if both intend to fight and are ready to do so it may be a 'mutual combat' although one party did not actually strike any blow.' Id., at p. 49. ⁵ Blackstone expressed it, 'If upon sudden quarrel, two persons fight, and one slay the other, this is manslaughter; so also, if upon such occasion, they go out and fight in a field.' 4 Blackstone's Commentaries on the Law (Gavit), p. 831. 'But no provocation, however, grievous, will reduce a voluntary homicide to manslaughter, if the circumstances show that the slayer acted, not in the heat of blood, but from malice.' Clark & Marshall, supra, § 10.11, p. 621.

Before rendering its verdict in the instant case the court made findings of fact on the evidence before it. It found that on the evening of 23 September 1968 appellant, in concert with his girl friend, stole a billfold belonging to the deceased's wife; that sometime later that evening appellant and one Darryl Anderson went to Hank's Bar; that the deceased was in the Bar but that this was unknown to appellant prior to his entering the premises; that appellant was approached by the deceased who demanded the return of his wife's billfold; that the deceased threatened or pushed appellant, whereupon appellant said, 'If we are going to fight, let's go outside'; that 'subsequent thereto' appellant, Anderson and the deceased went outside together; that the deceased did not have a knife in his possession and was not armed; that while they were outside it could not determine whether or not the deceased struck any blows; that appellant did strike the deceased one or more blows which resulted in his death; that it could not find beyond a reasonable doubt that appellant robbed the deceased or that the motive in inviting him outside was to rob him. It said, at that point:

'From all of the facts and circumstances of the case, the Court finds that the deceased or that the motive in inviting elements to make this a first degree murder, and the Court finds from all the evidence that this was not a felony murder. Nor has it been proven that the act of the defendant was a wilful, deliberate and premeditated act. Nor can I draw any such inference as to all of these elements.'

It then referred to the presumption that all homicides are committed with malice aforethought, defined malice as the intentional doing of a wrongful act without legal excuse or justification, noted that the burden was on the accused to show circumstances of alleviation, excuse or justification which would reduce the offense to manslaughter and determined that appellant not only 'failed to meet this burden, but in addition, * * * irrespective of that burden, the evidence clearly establishes that the act of the defendant was intentional and without legal excuse of justification.'

From our review of the evidence, giving due regard to the opportunity of the lower court to judge the credibility of the witnesses, as their credibility as well as the weight of the evidence were matters for it, Sadler v. State, 1 Md.App. 383, 230 A.2d 372, we have determined that there was evidence, direct or by rational inference therefrom, to support its factual findings. Thus we cannot say that its factual findings were clearly erroneous. Md. Rule 1086.

We think it clear that the facts as found by the lower court did not show that appellant committed the homicide in self defense so as to make the killing either justified or...