Cook v. State

Orth, J., delivered the opinion of the Court. The Grand Jury for Baltimore County presented that Stanley W. Cook (appellant) on 27 January 1969 feloniously, wilfully and of deliberately premeditated malice aforethought did kill and murder Joseph James Michael Cartier, Jr. The indictment returned charged the murder and eight related offenses. Upon appellant’s suggestion of removal the case was removed to the Circuit Court for Harford County for trial. Md. Rule 788.

Appellant waived trial by jury, was found guilty of murder in the second degree, and sentenced to 20 years. The questions presented go to the sufficiency of the evidence to sustain the conviction. ²¹⁶ The report of the autopsy performed on Cartier gave the manner of death as homicide and the diagnosis was “Gunshot wound of chest with perforation of right lung and right hemothorax.” The opinion of the Assistant Medical Examiner was that Cartier “died of a gunshot wound to the chest. The wound of entrance shows no evidence of close range firing.” The victim, 59 years of age, was the proprietor of a liquor store. Appellant was arrested and gave the police a signed statement.

Appellant does not contest the admissibility of that statement. He said that on 27 January 1969 he had been drinking “off and on” from about 9:00 A.M. Shortly after 8:00 P.M. he asked some friends to drive him to his sister’s house in Dundalk. On the way he requested they stop so he could get a six pack of beer at Dundalk Liquors. He knew the store as he grew up in Dundalk but did not know the proprietor.

The statement reads: “While the others waited I went in and asked for a six pack of National throw-a-ways. I was facing the counter and put two one dollar bills on same. He or the man behind the counter asked if I wanted cans or throw-a-ways and I said throw-a-ways. He went to the cooler and brought the beer back and sat it on the counter.

He started to reach for the money and then he said, ‘What is this a hold-up ?’ I looked at him and said, ‘No man all I want is a six pack.’ Then he started around the counter and said, ‘You punk I will kill you’ as he started toward me. I just stayed where I was standing and he was coming at me like a wild man, so I opened my jacket and pulled my gun, which is a .22 eight shot, I had under my belt. I said ‘Stop where you are at’ and he said ‘That gun ain’t loaded’ and he kept coming. He was about seven feet away when I fired twice.

He went down on the floor as I am positive I hit him. As I was leav ²¹⁷ ing I heard someone calling help — police. I was scared so I kept running across Dundalk Ave. toward the shoping center. George was waiting near the Post Office where he had let me out so I got back into the car and told him to move out.

I got into the front seat but I didn’t want them to get into trouble so I jumped back out and continued running south toward the church. I cut through a yard near the church and went down a couple alleys the second alley I hit there were three trash cans. I picked up the lid and it had saw-dust in it and this is where I put the gun and a box of bullets in it with the saw-dust.” He was shortly thereafter accosted by the police, frisked and released. He went to his sister’s house, borrowed $10 and his brother-in-law drove him to a tavern where he had a drink.

He went to his apartment, changed his jacket, and returned to the tavern. He was arrested there. A homicide is felonious and the accountable perpetrator is culpable if it is murder or manslaughter. In this jurisdiction murder may be in the first or second degree.

Murder which shall be in the first degree is specifically designated by statute. 1 And by statute, all murder not designated as in the first degree shall be deemed murder in the second degree. Md. Code, Art. 27, § 411. Manslaughter is homicide without malice aforethought; it is the absence of malice aforethought which reduces murder to manslaughter. Chisley v. State, 202 Md. 87, 105 .

It is firmly established that the law presumes all homicides to be committed with malice aforethought and to constitute murder in the absence of justification, excuse or some circumstances of mitigation. The burden is on the State to show the killing was wilful, deliberate and premeditated if the crime is to be elevated to first degree murder; the burden is on the accused to show circumstances of mitigation sufficient to reduce the offense to manslaughter. 2 ²¹⁸ We discussed malice in Lindsay v. State, 8 Md. App. 100 .