Cross v. State

Pattison, J., delivered the opinion of the Court. , William Cross, the appellant, was convicted of murder, in the second degree in the Circuit Court for Washington County. In the course of the trial a number of exceptions, were taken by the appellant to the rulings of the Court upon the admission of testimony. , The first exception is to the ruling of the Court in admitting a conversation had by the appellant with the deceased, John Elmer Scadden, and his sister, Stella, on the dav, and only a short time before, the alleged offense was committed, at the home of their father, Charles Scadden, with whom they resided. Stella Scadden, the sister, testified that about twelve o’clock on the day that her brother was killed the defendant came to the home of her father. The evidence discloses that both the defendant and the deceased in the morning of that day and immediately before going to the home of Charles Scad-den, had been drinking heavily, and while there the defendant exhibited a pistol, which the witness said he drew upon her brother.

The witness, Stella Scadden, was asked, “Tell the jury what you saw Cross do with that gun on that occasion.” This question was objected to by the defendant. The Court overruled the objection and the witness was permitted to answer it. In answer thereto she said, “He came there in our house in the morning and told Elmer he would give him ⁶⁶² three or five minutes to get ready, and Elmer was standing before the glass fixing his collar and tie, and he said, ‘Oh, you will give me more than that’; he said, ‘Eo, it is 20 minutes past 1 o’clock’; I said, ‘Eo, 12 o’clock’; he said, ‘Where is your clock’ ? he said, ‘Let me shoot at it’; I said, ‘Put that in your pocket before you shoot anybody’; he said, ‘Bv Hell, I am going to shoot the town up today’; he drew it out and drew it right behind Elmer’s head and wanted me to leave him shoot at the clock and I said ‘Eo, put that away before you shoot anybody’. Then by this time Elmer was ready and Elmer went out first and he followed.” The lulling of the Court in permitting this question to be asked and answered forms the first bill of exceptions.

It is not denied by the defense that the pistol was in the hands of the defendant at the time of its discharge, and that the death of ‘the deceased was the result of such discharge, but it contends that the pistol was accidentally discharged. This statement and the accompanying acts of the defendant, who was at that time armed with a dangerous weapon and recklessly exhibiting it, at least show that the defendant was in a wreckless and evil disposed frame of mind, one likely to result in wrongdoing, existing at a period only a short time prior to the alleged offense complained of. We, therefore, think the testimony admissible. The weight and force of it was for the jury to determine.

Kernan v. State, 65 Md. 253 ; Ency. of Evidence, Vol. 6, page 653. The next witness placed upon the stand was Oscar Reynolds. He testified that in the latter part of Eovember or the first of December, the month in which Elmer Scadden was killed, he had husked com with the deceased. He was then asked, “Did you or not while you were husking corn there have a conversation with William Cross, in which he stated to you about the Scadden family, or any member of the Scadden family?” Hpon objection being made to this question, a statement was made by the State’s Attorney that he wished to prove by this witness that at such time, while witness was husking corn with Cross, that Cross told him ⁶⁶³ “Bet Scadden was trying to get him into trouble (Bet Scad-den being the mother of the deceased), and that she had said things about him with the view of getting him into trouble, and that somebody was getting too familiar about his place, and that he proposed to get as drunk as hell some day and shoot up the place or the town.” The Court overruled the objection of the defense and permitted the witness to testify to the conversation, omitting the part which referred to Mrs. Scadden.

This ruling of the Court forms the second bill of exceptions. The witness, omitting from the conversation such parts as specifically referred to Mrs. Scadden, as directed by the Court, answered the question, saying that Cross said: “Some people were getting too familiar around there or fast, something like that he said, and he was going to get on a hell of a drunk and shoot up the town.” And he further testified that Cross, in saying that some people were getting too familiar around there, meant getting too familiar or too fast around his place. The defense then moved to strike out that part of the testimony of the witness wherein he construed the meaning of the defendant in saying “around there” to be “around his place,” and upon the refusal of the Court to strike out this part of his testimony an exception to the ruling of the Court was taken, which forms the third bill of exceptions. The witness then testified that the deceased in the last two years was frequently at the home of the defendant; he saw him there quite often, in the day time and in the evening.

He was then asked “Do you know whether or not he was ever at Mr. Cross’ house on occasions when Cross was absent from the house?” This question was objected to by the defense, but the objection was overruled by the Court, to which an exception was taken, forming the fourth bill of exceptions. In answer to the question last objected to, the witness testified that he saw him one morning when Cross was not at home coming out of the gate; that Cross never said anything to him about Scadden coming to his home; that they ⁶⁶⁴ (the defendant and deceased) were very much together, “that they were always together when Elmer was aronnd home and Mr. Cross was around home,” and that they were great friends, or at least acted as such so long as Scadden lived. We will consider the second, third and fourth exceptions 'together. The evidence discloses that this homicide occurred in what is called Bagtown, in 'or about which place both the defendant and deceased lived.

The deceased, on Saturday night preceding the Sunday, the day upon which he lost his life, went to Smithsburg and there bought a quart of whiskey. This- he brought home with him and on Sunday morning was •at'the house of the defendant so early as seven o’clock. The defendant and his wife were at home. After talking with ■them for a while he asked the defendant to take a drink "of whiskey, which he did.

He then suggested that they should go to Detrow’s, who lived near by, and while there they drank the balance of the whiskey. Erom Detrow’s they started- to the home of Charles Scadden. On their way they heard the hounds running a fox upon the mountain and as they reached the home of the defendant, which they passed in going to the home of Charles Scadden, it was suggested by the deceased, as testified by the defendant, that he get his pistol, thinking they might get a chance to shoot the fox; and thus they stopped at the defendant’s house and were there about a half hour, and while there and as they were about to leave, as testified by defendant’s wife, the deceased said to the defendant, “Will, don’t forget your revolver,” and Will said, “What?” and he said, “Your old six shooter.” and Will went upstairs and got his gun.” They then went on to Charles Scadden’s and while there the conversation with Stella Scadden took place. After leaving there they went to the home of one Re.cker, who also lived near by. 'While there they shot at the mark both with the pistol and with a rifle of Recker’s.

They remained there about three-quarters of an hour and with one Marsh returned in his stick wagon to • the home of Charles Scadden. Upon reaching ⁶⁶⁵ there they got out of the vehicle; the defendant and the deceased started in the direction of the house, while Marsh remained to hitch his horse. While doing so he heard the defendant say to one Jesse Fulton, who was near by on the wood pile, “Rummy, or Biurany, you better move or I will move you,” and saw the defendant place his hand upon his hip pocket. Marsh was at the time placing a blanket on his horse and did not see him get his pistol.

Following quickly thereafter he heard the report of a pistol and heard someone say “You shot,” and turning around he saw the boy Scadden lying upon the ground. Cross had gone up to the wood pile where Fulton was. The father testified that at the time of the shooting he was in his house. His attention was called by his little boy to the fact that Mr. Marsh was in the yard or near by.

He went to the window and saw his son Elmer coming by, with Cross about six or seven feet behind him but gaining on him, and when he got inside the gate, “he (Cross) drew his gun and willfully and deliberately shot him down.” He then went out and found his son lying on the ground dead. At or about this time he saw Cross and told him he had shot and killed his boy, Cross said no he had not, that the deceased had fallen on a rock. The evidence discloses that Charles Scadden in going out of the house, in response to a question of his wife, said he did not know who was shot. Others also testified that he told them he did not know who was shot until after he had gone from the house and saw his boy lying upon the ground dead.

Cross, during that day, was seen by a number of persons who testified as to his condition. All of them testified that he was intoxicated, but they differ as to degree, some saying he was very drunk and a number of them saying that he staggered when walking. In speaking of his condition, Cross testified that “he remembered going to Mr. Recker’s, but that is all he knew about that afternoon,” that he did not know Elmer Scadden was shot and killed until that afternoon when told by Jesse Fulton on the public highway, what ⁶⁶⁶ time it was he could not say, but Eulton told him “John was shot or that he had shot John;” that this was the first he knew of it. Recker, at whose house the defendant and deceased were before going with' Marsh to Charles Scadden’s, in speaking of the conduct of the defendant and the deceased while at his house, said “They were talking and laughing through each other, seemed to be good friends and talked like people when talking over a subject.

They were talking rationally about cleaning up the graveyard, I think that is what we were talking about. It seemed like Cross would stop and hardly knew what he was talking; it seemed like he could talk on a subject but he would loose it; he hardly knew sometimes what he was talking about. Charles Brunner and Jacob Dick both testified that about two o’clock on the day of the shooting they saw the defendant and the deceased in front of Mr. Recker’s place. The deceased was not in the immediate presence of the defendant, but near by.

They .talked with Scadden and he told them “he had got the quart of whiskey and had given it to Cross and that he had him feeling pretty good.” ‘ Both of these witnesses described Cross as being intoxicated. The evidence introduced subject to the second, third and fourth exceptions was evidently offered for the purpose of showing motive in the defendant for the killing of the deceased. The evidence both for the State and for the defense discloses that the relations existing between the defendant and the deceased, so far as disclosed by their conduct, was that of the closest friends up to the very time that the pistol was discharged. A number of persons who saw them on that day, testified that they were talking and laughing together and appeared to be the best of friends.

As we have