Brown v. State

Morton, J., delivered the opinion of the Court. Appellant was convicted by a jury sitting in the Circuit Court for Prince George’s County (Loveless, J., presiding) of assault with intent to murder, armed robbery, carrying a handgun and use of a handgun in the commission of a crime of violence. He was sentenced to a total of twelve years. In this appeal it is contended, inter alia, that he should not have been convicted of the crimes charged because “the gun used was not loaded.” The victim, a twenty-three year old school teacher, testified that she and her mother had just driven to the front of their home at about 8 p.m. on October 24, 1974, after an evening of Christmas shopping, when she saw someone, whom she positively identified at the trial below as ⁴⁶⁹ appellant, riding down the street on a bicycle.

After he had passed them, she and her mother began taking packages out of the car. According to the victim, appellant turned around and came back. “My purse was out of my hand. Before I realized it, it was missing. It was up in the air.

My mother started screaming. And this person who was still on the bike pointed a gun at my stomach and the gun was clicked several times. Then, the person on the bike started down the street and turned around and again aimed the gun at me; then he clicked his gun several times and then I went in the house.” She elaborated by stating that “after my purse was grabbed out of my hand * * * the gun [was] touching my coat.” Appellant took the stand and denied he had robbed the victim. He stated that he did not know where he was that evening: “I’m usually at home looking at television.” It is in this factual posture that appellant contends that his motion for judgment of acquittal of the charge of assault with intent to murder should have been granted on the ground that the necessary element of specific intent to murder is lacking if the gun involved is unloaded.

The assertion that the gun involved was unloaded is, of course, simply a bald allegation, for the only evidence in the record before us to support the allegation is the failure of the gun to fire. The appellant denied being at the scene of the crime; the gun was never produced by the State; and the victim heard the gun clicking a number of times. Thus, it may have been loaded and simply misfired, or it may not have been loaded. Appellant, in this appeal, contends, as he did below, “that the trial court was in error in not instructing the jury that they should first find as a matter of fact whether or not the gun was loaded and if they found that it was not loaded that they could not convict Appellant of the crime of assault with intent to murder because there was no present ability to kill and that, therefore, the essential element of intent was lacking.” The validity of appellant’s contention must be weighed ⁴⁷⁰ against the ingredients and contours of the crime charged.

Md. Code, Art. 27, § 12 provides: “ * * * every person convicted of the crime of assault with intent to murder shall be guilty of a felony and shall be sentenced * * * for not less than two years nor more than fifteen years * * *.” 1 It has been said: “To support a charge of assault with intent to murder it is generally recognized that there must be proof of both an assault and an intention to murder. The intent cannot be inferred from the mere fact of the assault, although the character of the assault and the use of a deadly weapon are factors to be considered. Acers v. United States, 164 U. S. 388 , 17 S. Ct. 91 , 41 L. Ed. 481 , and note. Neither can the intent be established as a matter of law from the mere use of a deadly weapon.

Lanier v. The State, 106 Ga. 368 ; Hochheimer, Criminal Law (3rd Ed.) Section 29. Wharton, Criminal Law (12th Ed.) Section 841 says: ‘On an indictment for an assault with intent to murder, the intent is the essence of the offense. Unless the offense would have been murder, either in the first or second degree, had death ensued from the stroke, the defendant must be acquitted of this particular charge. * * * It is not necessary, however, to sustain such an indictment that a specific intent to take life should be shown. If the intent were to commit grievous bodily harm, and death occurred in consequence of the attack, then the case would have been murder in the second degree; and, in case of death not ensuing, then the case would be an assault with intent to commit murder in the second degree. * * In Wharton, Criminal Evidence (11th Ed.) Section 79, it is said: ‘If intent is an element, the State must introduce evidence to show it. ⁴⁷¹ However, since intention is a fact which cannot be positively known to other persons, no one can testify directly concerning it and the matter must be an inference which the jury must find from established facts.’ ” Webb v. State, 201 Md. 158, 161-62 .

In an A.L.R. annotation entitled “Fact that gun was unloaded as affecting criminal responsibility,” it is asserted: “A number of courts have recognized that in the absence of proof that the gun used, as a firearm solely, in an alleged criminal assault was loaded or where the fact was shown that the gun was unloaded, the assault is not made out.” Annot., 79 A.L.R.2d 1412 , 1415 (1961). On the other hand, it is pointed out, a number of courts “have rejected the contention that an ‘assault’ could not be committed with an unloaded gun.” 79 A.L.R.2d at 1417. In some jurisdictions, statutes “define the offense of assault as involving a present ability to do harm.” 79 A.L.R.2d at 1418. In such jurisdictions “the courts have taken the view that