Kernan v. State, 65 Md. 253

Kernan v. State

65 Md. 253 | Md. | 1886

Irving, J.,

delivered the opinion of the Court.

• The sole exception in this case is to the admission of evidence showing what occurred at another saloon, a half square from the saloon where the homicide occurred, and only four or five minutes before the killing was done. The only question, therefore, is whether there was error in the admission of that evidence. If the evidence had been offered for the purpose of showing an assault upon another person át a different place and time, a different question would have been presented, and one on which there is conflict of authority, and upon which we do not feel called upon to pass in this case. So eminent a legal writer as Roscoe, 7th Ed.,page 90, says the notion “that the evidence in itself discloses another offence makes it inadmissible, is now exploded,” and he cites numerous authorities in support of his position; but, as we said, we do not decide that question. The evidence was clearly not offered or ad*259mitted for the purpose of showing another offence at or near the time and place of the killing. It cannot bo said that it proves any such offence. It was evidently offered to show the movements of the prisoner and his general conduct immediately preceding the offence of which he has been convicted; to show that he was armed and prepared for mischief, and was seemingly, at that moment, bent on mischief, and in a frame of mind likely to result in mischief. It can not have been offered to show his character for turbulence, and was not admissible for such purpose. A simple act of that kind would not prove that he had that character. But such an act, so soon followed by the killing of a man, did show a reckless and mischievous frame of mind at a period so near the killing as to be admissible; though the thing itself may not, possibly, be legitimately part of the res gestee. We think it was evidence to show he was armed and prepared to kill, though it did not of itself show intention to kill the deceased. If it had been offered to show that he then and there procured the pistol, it would have been clearly admissible, just as much so as if it had been shown he procured it some hours before. He was then armed with a deadly toeapon — had already prepared himself for the worst, and was recklessly exhibiting it. What was said and done by others, at the same time and in company with him, was only a part of what he was directly connected with, and was inseparably connected with the history of his conduct at the time, and necessary to an intelligent appreciation of his doings. We think the law is correctly extracted from the authorities and summarized in 8th Ed. of Wharton on Evidence, secs. 31,32. It is there laid down that evidence of the character here involved, is admissible for the purpose of showing and “explaining the movements and general conduct of the prisoner before and after ” an offence which immediately preceded the one for which he is being tried. The case of Regina vs. Gardner, 5 Cox Crim. Cases, 140, notably sustains Mr.' Wharton in the statement of the law he makes.

*260(Decided 12th March, 1886.)

The cases ciied and relied on by appellant’s counsel do not in our opinion need comment, as they do not reach or meet the question which, we here decide. We find no error, and the ruling will be affirmed.

Muling affirmed, and cause remanded.