Jenkins v. State

80 Md. 72 | Md. | 1894

Briscoe, J.,

delivered the opinion of the Court.

This is an indictment in the Circuit Court for Montgomery County, for assault with intent to kill. The traverser was convicted and sentenced to an imprisonment of five years in the penitentiary. At the trial he reserved two bills of exceptions to the rulings of the Court upon the admissibility of testimony and these form the basis of this appeal. • In the first bill of exception, it is stated that the traverser after having proved that Smith, the party upon whom the assault was made, was a dangerous man and had been tried and convicted on several occasions of various offenses, asked him on cross-examination, “ if he had not within the last year leveled his gun on Mr. Wm. Barlow Vincent with the intention of shooting him,” offering at the time to follow it up by showing that the traverser at the time of the shooting had knowledge of Smith’s act. The alleged purpose being to show to the jury that the traverser knew that he was dealing with a dangerous man, who had the day previous drawn his revolver upon him and threatened to kill him.

This proposed testimony was entirely irrelevant and was properly excluded by the Court. The witness was not bound to answer the question put to him, because the answer manifestly tended to criminate himself. But independent ot this, the fact that Smith, the prosecuting witness, had pointed a gun at a third party on a former occasion, would not justify the traverser for assaulting Smith. Nor would it tend to reduce the offence to a common assault or entitle the party to an acquittal. Specific acts of violence were not admissible. The general reputation of the party assaulted as a dangerous man had been introduced and was before the jury. Gaither v. Blowers, 11 Md. 553.

The second exception of the appellant was to the refusal of the Court to allow the prisoner to give in evidence what he understood Smith, the prosecuting witness, to mean by the words, “ I have your age in my pocket,” in connection with his act of immediately placing his hand in his hip pocket the day before the shooting, while at the traverser’s brother’s house. The object of the question was stated -at the time to place in evidence before the jury, that the traverser knew by said declaration and act, that Smith intended to kill him, and that it was owing to this understanding and belief that induced to say, when he saw Smith coming, that he would have to shoot him rather than let him shoot the traverser. The rule as to the admissibility of such evidence is stated by this Court in the case of Turpin v. The State, 55 Md. 475 to be, “ that unless proof be first given that there was an overt act of attack, and that the defendant at the time of the collision was in apparent imminent danger, such evidence is inadmissible.” In the case now under consideration there was no proof given of any overt act of attack, nor any evidence that the appellant was at the time of the shooting in any apparent imminent danger. On the contrary, it is obvious from the testimony that the shooting was premeditated and without provocation. There was no proof of any hostile demonstration on the part of the prosecuting witness on the occasion of the shooting, but the sole reliance of the defence for a justification being alleged threats on the day preceding the assault. It was entirely competent for the traverser to testify as to his intent, and that was in evidence. The intent was a necessary allegation in the indictment and a fact material to the issue. Roddy v. Finnegan, 43 Md. 501; Spencer v. State, 69 Md. 46; Fenwick v. State, 63 Md. 239. The traverser had the benefit of this, and it was for the juiy to pass upon its credibility.

(Decided November 22d, 1894.)

It was also in evidence that the prosecuting witness had said to the traverser that “ I have your age in my pocket,” and that the traverser had told “ Long Tom” Jenkins that he would have to shoot Smith. Jenkins remonstated with him, but the traverser replied, “ I might as well shoot him as to have him shoot me.” In the face of this testimony, it is clear that the evidence offered in the second bill of exception was inadmissible. There is no evidence in the record tending to show that the traverser acted in self-defense when he made the assault. He had the benefit of all the evidence he was legally entitled to, and there being no error in the rulings of the Court, they will be affirmed.

Judgment affirmed and cause remanded.