Fenwick v. State

63 Md. 239 | Md. | 1885

Yellott, J.,

delivered the opinion of the Court.

The appellant was convicted in the Circuit Court for Charles County of an assault with intent to murder, and the only question which seems to have come before this Court by regular procedure, is presented by the bill of exception, from which it appears that the State gave evidence tending to prove that the prisoner, the prosecuting witness and others, were in the yard of the prisoner’s house with an officer, who was about to take a hog from the prisoner under a writ of replevin sued out by the prosecuting witness ; that the prisoner left the yard for an axe, with which, as he returned, he struck the prosecuting witness; that before going for the axe, the prisoner said that the prosecuting witness should never take the hog away alive, or that he would kill the hog before it should be thus taken; The prisoner also gave evidence tending to prove that he struck the prosecuting witness with the axe to prevent said witness from shooting him, the prisoner. The prisoner was then asked: “ Eor what purpose did you go to get the axe ? ” the counsel for the defence stating that they wanted to show that the accused went to get the axe for the purpose of billing the hog. Upon objection by the State, the, Circuit Court refused to allow this inquiry to be answered, and the propriety of this ruling is the sole question presented by this record for determination.

The appellant was charged with having committed -an assault with intent to murder. The intent was therefore a material fact set forth in the indictment. It seems to be almost unnecessary to intimate, that if an assault is committed in hot blood, by sudden impulse, and without apparent premeditation, there can be no conviction on a count charging an assault with intent to murder. This is an elementary principle, recognized by all Courts, and enunciated by all writers on criminal jurisprudence. Now if the prisoner went for the axe with an intent to kill the hog, he did not, at that particular time, have an intent to murder the prosecuting witness. It was therefore material to ascertain with what intent the party on trial went to procure the deadly weapon with which the assault was subsequently committed. Although evidence could, therefore, properly be offered for the purpose of showing the intent, it is manifest, that anterior to the enactment of the statutes conferring on parties the privilege of testifying in their own behalf, the only proof of intent was such as could be inferentially derived from facts and circumstances. It is certain that no other person could swear positively in regard to the particular intent entertained by tbe accused on the occasion mentioned, and it is equally as certain that the accused could, if 'truthfully inclined, swear positively to that intent. As far as competency was concerned, the prisoner occupied the same position as any other witness; and as he knew the fact, and the fact was material and pertinent to the issue, his testimony ought not to be excluded.

The sole question for the Circuit Court to determine was the competency of the witness. The Court could not properly exclude the testimony; and- it is hardly necessary to observe that a Court does not, by allowing a prisoner to testify, in the slightest degree endorse his credibility. The policy of the law places him in the position of a witness. The policy of the law also seeks to place intelligent men of strict integrity in the position of jurors, and when impanelled, it is for them, and them alone, to determine whether they will believe a prisoner testifying in his own behalf.

As already intimated, there seems to be no sound reason for the exclusion of such testimony where the intent is material to the determination of the question involved, and the witness necessarily has knowledge of such intent; and no case can be cited where such testimony has been excluded when the witness, competent to testify in the cause, is from his peculiar position cognizant of the intent, and that intent is directly pertinent to the issue.

(Decided 11th March, 1885.)

In Fisk vs. Inhabitants of Chester, 8 Gray, 508, the Supreme Court of Massachusetts said:

££ Before parties were made competent witnesses, it was the practice to prove their intent hy a variety of circumstances, because no man can know the secret purposes of another's heart, except himself. But now that parties are made competent witnesses, it necessarily follows that they may testify to any facts material to the issue.”

This seems to he, and certainly ought to he, the settled doctrine in all Courts where the disability imposed hy the common law has been removed by statutory provisions enabling parties to testify dn their own behalf. Roddy vs. Finnegan, 43 Md., 501; Lombard vs. Oliver, et al., 7 Allen, 155.

The Circuit Court, therefore, erred hy excluding the testimony offered as set forth in the hill of exception contained in this record, and because of this error its ruling should be reversed.

Ruling reversed, and new trial awarded;