Whitehead v. State, No. 265

CourtCourt of Special Appeals of Maryland
Writing for the CourtBefore MURPHY; ORTH
Citation262 A.2d 316,9 Md.App. 7
Docket NumberNo. 265
Decision Date18 February 1970
PartiesWilliam WHITEHEAD v. STATE 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.

Page 9

[262 A.2d 318] 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.

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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

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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

[262 A.2d 319] 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:

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(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...

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40 practice notes
  • Banks v. State, No. 1368
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1991
    ...v. State, 58 Md.App. 249, 256, 473 A.2d 40 (1984) (citing W. LaFave & A. Scott, Criminal Law § 77 at 583 (1972)); Whitehead v. State, 9 Md.App. 7, 10, 262 A.2d 316 (1970); Ware v. State, 3 Md.App. 62, 65, 237 A.2d 526 (1968); Tipton v. State, 1 Md.App. 556, 560, 232 A.2d 289, cert. deni......
  • Gainer v. State, No. 20
    • United States
    • Court of Special Appeals of Maryland
    • October 11, 1978
    ...decide the effect or application of the castle doctrine to a factual situation presenting such an issue. See generally Whitehead v. State, 9 Md.App. 7, 262 A.2d 316 (1970); Tipton v. State, 1 Md.App. 556, 232 A.2d 289 (1967); Clark & Marshall, Supra note 3, at § 7.03; Perkins, Supra not......
  • Glenn v. State, No. 1607
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1985
    ...form of mitigation that was clearly at issue in this case was hot-blooded response to legally adequate provocation. In Whitehead v. State, 9 Md.App. 7, 10-11, 262 A.2d 316 (1970), Judge Orth set out fully the elements of "[T]here may be a homicide which would otherwise be murder which ......
  • Wilson v. State, No. 0497
    • United States
    • Court of Special Appeals of Maryland
    • October 28, 2010
    ...seminal examination of this theory of mitigation was subsequently made by this Court, speaking through Judge Orth, in Whitehead v. State, 9 Md. App. 7, 10, 262 A.2d 316(1970): For the "Rule of Provocation" to be invoked there are four requirements: (1) There must have been adequat......
  • Request a trial to view additional results
40 cases
  • Glenn v. State, No. 1607
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1985
    ...form of mitigation that was clearly at issue in this case was hot-blooded response to legally adequate provocation. In Whitehead v. State, 9 Md.App. 7, 10-11, 262 A.2d 316 (1970), Judge Orth set out fully the elements of "[T]here may be a homicide which would otherwise be murder which is re......
  • Smith v. State, No. 1408
    • United States
    • Court of Special Appeals of Maryland
    • January 26, 1979
    ...felonious homicide was not mitigated. Bartram v. State, 33 Md.App. 115, 176-177 n. 7, 364 A.2d 1119, 1154 n. 7 (1976); Whitehead v. State, 9 Md.App. 7, 10-11, 262 A.2d 316 (1970). In this regard, the State again had the benefit of a Thayer-Wigmore presumption. "Absent some legally sufficien......
  • Wilson v. State, No. 0497
    • United States
    • Court of Special Appeals of Maryland
    • October 28, 2010
    ...seminal examination of this theory of mitigation was subsequently made by this Court, speaking through Judge Orth, in Whitehead v. State, 9 Md. App. 7, 10, 262 A.2d 316(1970): For the "Rule of Provocation" to be invoked there are four requirements: (1) There must have been adequate provocat......
  • Wilson v. State , No. 0497, Sept. Term, 2009.
    • United States
    • Court of Special Appeals of Maryland
    • October 28, 2010
    ...seminal examination of this theory of mitigation was subsequently made by this Court, speaking through Judge Orth, in Whitehead v. State, 9 Md.App. 7, 10, 262 A.2d 316 (1970):For the "Rule of Provocation" to be invoked there are four requirements:(1) There must have been adequate provocatio......
  • Request a trial to view additional results

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