Wilson v. State

• Decision Date: 09 September 1975
• Docket Number: No. 5,5
• Citation: 28 Md.App. 168,343 A.2d 537
• Parties: Willie James WILSON, the younger v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 168

28 Md.App. 168

343 A.2d 537

Willie James WILSON, the younger v. STATE of Maryland.

No. 5.

Court of Special Appeals of Maryland.

Sept. 9, 1975.

Michael S. Libowitz, Assigned Public Defender, Baltimore, on brief, for appellant.

Francis B. Burch, Atty. Gen., Bruce C. Spizler, Asst. Atty. Gen., William A. Swisher, State's Atty., and Clifton Gordy, Asst. State's Atty., for Baltimore City, on brief, for appellee.

Presented to MORTON, MENCHINE and MASON, JJ.

MENCHINE, Judge.

Willie James Wilson, Jr., (appellant) charged with the murder of one Brenda Gorham, and with the use of a handgun in a crime of violence, was convicted by a jury in the Criminal Court of Baltimore of manslaughter and the handgun offense. He was sentenced to concurrent terms of five years imprisonment.

On appeal Wilson contends that the charge of the trial court: (1) imposed upon him an erroneous burden of proof and (2) failed to instruct that conviction of the handgun offense could not occur if the jury found appellant guilty of involuntary manslaughter.

The Court's Charge as to Burden of Proof

It is quite clear from evidence introduced both by the State and the defense that the evidence compelled the jury to consider the question whether death occurred while the appellant was performing a lawful act, and whether that lawful act was accompanied by criminal culpable negligence.

Evidence offered by the State included testimony by the police officer who conducted the initial investigation that appellant 'stated that the young lady was on drugs and he tried to get the gun out of her hand, and it went off.' The father of appellant, also called by the State, testified that he had been awakened by his son, informed that Brenda had been shot and received the explanation 'we were tussling over the gun, and the gun went off.' An ambulance attendant, also offered by the State, testified, inter alia, that appellant, while accompanying the victim in an ambulance from the scene of the alleged offense to the hospital, had stated: "that doggone girl she should not have been messing around like that * * *.' He seemed very frustrated at the situation.'

The mother of appellant, the only eyewitness, testifying for the defense, said that she saw Brenda pick up a pistol and saw her son try to get it out of her hand. She said that the hands of the appellant and the victim were upward at the time the shot was fired. The victim was 5 feet 1 inch tall. A photo of the victim and appellant taken sometime prior to the incident showed that appellant was very much taller. The medical examiner testified that, 'the bullet entered * * * slightly in front of the ear and high on top of the scalp * * * and passed downward to approximately a forty-five degree angle to the floor. * * * this is a close-range shot. Certainly, in this case, estimated to be eighteen inches or less in terms of the distance from the top of the head to the end of the gun at the time it was discharged.' The testimony of the appellant also clearly raised the issue of excusable homicide by misadventure or accident.

The court's advisory charge to the jury had included an instruction grounded upon self-defense and correctly had pointed out that this affirmative defense imposed upon the accused the burden of proof. Davis v. State, 237 Md. 97, 205 A.2d 254, cert. den. 382 U.S. 945, 86 S.Ct. 402, 15 L.Ed.2d 354.

The trial judge then went on to give the following advisory instruction:

'Now, the other defense or combination of the defenses of the defendant is, that the shooting was accidental, that he did not intend to fire the weapon, if he did fire the weapon, or that the firing of the gun was not caused by gross negligence or wantonness on his part, which means, an utter disregard for human life and that, therefore, he is not guilty of the commission of any crime.

'If the weapon was accidentally discharged and that was not caused by gross negligence or wantonness on the part of the defendant, then the defendant would not be guilty of any crime if you so find that to be.

'On the other hand, if it was unintentionally discharged, but you, the jury, found that it was handled with such gross negligence on the defendant's part under the existing circumstances or wantonly by the defendant which means, without regard to human life, then you could find the defendant guilty of manslaughter.'

Had the charge of the court been concluded at that point, we apparently would have no dispute because the appellant has not questioned the propriety of that portion of the court's charge. He does, however, vigorously attack the court's additional instruction, namely:

'Again, the burden of proving accidental firing without gross negligence or wantonness is upon the defendant but that burden is met by only preponderance of the evidence and not by evidence beyond a reasonable doubt.'

The State argues that there was no objection below so that the issue is not before us. Rule 756f. The appellant argues alternatively (a) that objection was made below or (b) that we should consider the issue as plain error under Rule 756g. The record shows that defense counsel noted the following objection to the charge:

'What I am most concerned with here is that the Court talks about proof many times, but the Court never mentioned that a defendant can be acquitted on the lack of State's evidence. * * * And that the defendant has a right to rely upon the failure of the prosecution to establish such proof and individual elements.'

We think that this objection, although imprecise, was adequate to raise the issue below. In any event, we are persuaded that the instruction, if erroneous, was plain error material to the rights of the accused and properly should be considered by us under Rule 756g. Brown v. State, 14 Md.App. 415, 287 A.2d 62.

It is uniformly recognized that common law manslaughter is divided into two classifications, namely, voluntary manslaughter and involuntary manslaughter. In turn, involuntary manslaughter falls within distinct classifications. Clark and Marshall, Crimes, (7th Ed., 1967) suggests the following divisions:

' § 1012 Involuntary-Unintentional Homicides During:

1. Commission of a criminal act not amounting to a felony, nor naturally tending to cause death or grievous bodily harm.

2. Omission to perform a legal duty, under circumstances evidencing criminal-culpable negligence.

3. Performing lawful act with criminal-culpable negligence.'

That division is recognized in Maryland. State v. Gibson, 4 Md. 236, 242, 242 A.2d 575, 578-79, affirmed and opinion adopted, 254 Md. 399, 254 A.2d 691.

Equally well settled is the rule of law that the offense may be excusable (a) because of misadventure or per infortunium or (b) in self-defense or se defendendo. Clark and Marshall, supra, at 470-71. The distinction between excusable homicide by misadventure or per infortunium (accident) on the one hand and excusable homicide in self-defense or se defendendo on the other, early was recognized in the common law. 4 Blackstone Commentaries, 182.

In illustration of accident or misadventure, Clark and Marshall, supra, say at 476:

'For instance, accused is entitled to be acquitted where he was lawfully acting in self-defense and his assailant's death resulted from misadventure or accident, such as the accidental discharge of a weapon in the struggle over its possession. If a man kills another in doing a lawful act in a lawful manner, that is, without negligence, the homicide is excusable, 'for the act is lawful, and the effect is merely accidental.''

Dictum in the early case of Rex v. Woodburne & Coke, (1722, England) 16 How.St.Tr. 53, 80, illustrates vividly the marked legal distinction between a homicide occurring in the course of lawful as distinguished from unlawful actions:

'* * * if a man shoots at a wild fowl, wherein no man hath any property, and by such shooting happens unawares to kill a man; this homicide is not felony, but only a misadventure or chancemedley, because it was an accident that happened in the doing of a lawful act: but if this man had shot at a tame fowl, wherein another had property, but not with intention to steal it, and by such shooting had accidentally killed a man, he would then have been guilty of manslaughter, because done in prosecution of an unlawful action, viz. committing a trespass on another's property; * * *'

In 41 C.J.S. Homicide, § 387, it is said:

'Where the evidence warrants it, the court should fully, correctly, and explicitly charge as to the law in relation to the defense of accidental killing as applied to the facts of the case, * * *.'

The issue as to the burden of proof in involuntary manslaughter cases wherein the evidence warrants consideration of excusable homicide by misadventure appears not to have been directly considered in this State. The general rule is thus stated in 40 Am.Jur.2d Homicide:

' § 253. Accident or misadventure.

A defense of accidental killing to a prosecution for homicide denies that the killing was intentional, but does not throw upon or shift to the accused the burden of proving that the homicide occurred by accident or misadventure. It is the general rule that where the defense of accidental killing is set up, the burden rests upon the prosecution to show that the killing was wilful and intentional, or that it was due to a reckless disregard of the safety of others, * * *.'

Wharton on Homicide, (3d Ed., 1907) stresses the distinction between self-defense and accidental killing, saying at 354:

'Self-defense is an affirmative, positive, intentional act, and does not include an accidental killing; there can be no such thing as accidental self-defense.'

adding at 568:

'A person charged with homicide pleading misadventure or accidental killing is not required to establish his plea by a preponderance of the evidence; the state must overcome such plea beyond reasonable doubt.'

A leading case on the issue is State v. McDaniel, 68 S.C. 304, 47...