Burley v. State

Per Curiam. On December 6, 1960, Leroy Mark Burley, the appellant, was tried before Judge James K. Cullen, sitting without a jury, in the Criminal Court of Baltimore, on an indictment in two counts, the first charging assault with intent to murder, and the second, assault. He was found not guilty on the first count but guilty of assault. He was sentenced to five years’ imprisonment, to be served consecutively upon the termination of an eight-year sentence, under which the appellant had served three years prior to his escape from the House of Correction and prior to his conviction in the present case.

Before this Court the appellant contends that his conviction was based on insufficient evidence and that, in any case, his sentence, due to its severity, was improper. The appellant’s counsel candidly states that he is raising these contentions at the insistence of the appellant and not on his own motion. Cf. Brown v. State, 223 Md. 401, 403 , 164 A. 2d 722 .

The evidence, if believed, was clearly sufficient to sustain the conviction. Hilda Burley, the appellant’s wife, identified the appellant as the man who on the morning of December 23, 1960, broke the front door open at her residence at 834 South Sharp Street, followed her to the rear yard of the house and there stabbed her twice in the arm. Two neighbors of Mrs. Bur ⁹⁶ ley likewise positively identified the appellant as the assailant; one of these witnesses said that he saw the appellant with the knife in his hand, the other that he saw the actual stabbing motion. The clothing described by the witnesses as that worn by the assailant was identical with the clothing on the appellant’s person when he was arrested soon after the attack.

The appellant denied that he made the attack and said that the assailant was some unknown third person. He does not claim that his wife was prejudiced against him, though he says they had agreed the night before in a long distance telephone conversation to separate. He says that he was about to surrender himself to the House