Barger v. State

Thompson, J., delivered the opinion of the Court. Leslie Barger, the appellant, appeals from a conviction of ⁵⁶⁷ murder in the second degree in the Circuit Court for Prince George’s County, Judge Ralph W. Powers presiding with a jury. Barger was originally indicted on April 19, 1963, for murder. He was convicted of murder in the second degree and sentenced to sixteen years.

The Court of Appeals of Maryland reversed the judgment and remanded the case for a new trial because of an error in the instructions concerning the law of self-defense, Barger v. State, 235 Md. 556 , 202 A. 2d 344 . Eater in the case of State v. Barger, 242 Md. 616 , 220 A. 2d 304 , the Court of Appeals of Maryland ruled that since he had been acquitted of murder in the first degree at the first trial, he could not thereafter be tried on that charge. The present appeal concerns the last trial when he was again convicted of murder in the second degree and was again sentenced to serve sixteen years. Since the errors alleged concern rulings on evidence and alleged misconduct of the State’s Attorney, it will not be necessary to give a complete statement of facts.

The evidence was, however, substantially the same as that produced at the first trial and a complete statement of facts are set out in Barger v. State, supra. I Cross Examination Sandra Koch, the wife of the deceased, was called as a witness for the State. Barger complains that he was not permitted on cross-examination to question her concerning various incidents that had occurred prior to the date of the homicide. (The State had limited its direct examination to what actually occurred on the night of the shooting.) As Barger concedes under Plank v. Summers, 205 Md. 598 , 109 A. 2d 914 the scope and extent of cross-examination rests largely in the discretion of the trial court.

Relying on Williams v. Graff, 194 Md. 516 , 71 A. 2d 450 and Shupe v. State, 238 Md. 307 , 208 A. 2d 590 , he alleges that the court abused its discretion. The record shows, however, that while Barger was offering the defense testimony, he recalled Mrs. Koch and explored all of these matters thoroughly. Assuming, without deciding, the trial court was in error, we are unable to see any prejudice to Barger whether the testimony came in on cross-examination of Mrs. Koch or on her subsequent direct examination. ⁵⁶⁸ II Threats In the examination of Trudy Laurenson, a witness for the defendant, the court restricted the testimony concerning recent threats the deceased had made against the accused to what the witness had told to the accused. The witness indicated that she had told the accused about all of the threats and was permitted to state in detail exactly what she had told him.

It appears that she had related the threats in full to the accused; therefore, the full facts were brought to the attention of the jury. In so limiting the testimony, it appears that the court was in error under Turpin v. State, 55 Md. 462 , Winner v. State, 144 Md. 682 , 125 A. 397 . The Maryland rule is in accordance with the general rule that recent threats by the deceased against the accused, or by the victim in a case involving assault and battery, are admissible in evidence. 1 Wharton’s Criminal Bvidence § 199 (12th Edition), 98 A.L-R-2d 6 (Homicide) 98 A.L.R.2d 195 (Assault and Battery). The rule is, however, limited in that such threats are admitted only in cases where, as here, there is some evidence of self-defense and some question as to who is the aggressor.

The theory supporting the admissibility is that the threats tend to show which of the parties was the aggressor. Where, as here, the full facts were brought to the attention of the jury, we fail to see how Barger was prejudiced by the error. In the original cross-examination of Mrs. Koch the defense proffered testimony of threats made by the deceased against the accused but the court ruled that that would be a proper subject for direct examination when the defense was introducing its evidence. When Mrs. Koch was recalled to the stand as a witness for the defense, she was permitted to answer all questions propounded to her concerning threats.

Again we fail to see any prejudice to the appellant’s rights. III Specific Acts of Violence Barger complains that in the