Cummings v. State

Per Curiam. The appellant, Earle Ralph Cummings, was found guilty of assault and battery in a non-jury trial in the Circuit Court for Harford County and sentenced to a term of five years. According to the testimony of Loy S. Clements, aged twenty-four, who was the victim of the assault and battery, he and a group of approximately seven other young men and women arrived by automobile just after dark at the Baltimore County side of the Franklinville Bridge which separates that County from Harford County. After two individuals in Clements’ group had gone down under the bridge, the appellant, who was among a group of young individuals congregated at the Harford County side of the bridge, started firing a gun in their vicinity.

Clements and two of his companions then walked across the bridge, confronted the appellant and Clements told him to “quit shooting down there * * * he was going to hurt somebody.” In reply, according to Clements, the appellant said: “* * * I’ll shoot at what I want to shoot at, I’ll shoot at who I want to shoot at.” Whereupon, according to Clements, “ [w] ell I pushed him and then I kicked him and then he shot me.” The record indicates that thereafter both groups departed the scene; Clements was treated at the hospital for a super ⁶⁹⁰ ficial, abdominal wound and released; and the appellant was subsequently arrested at his home. The shooting was confirmed by several members of the appellant’s group who testified on his behalf, asserting that Clements had a beer bottle in his hand when he confronted the appellant which shattered when appellant fired his gun; that another member of Clements’ group was brandishing a large wrench at the time of the shooting; and that there had been another belligerent encounter between the two groups prior to the shooting. It is contended that the trial judge erred in finding that appellant used excessive force in repelling the attack by Clements. We disagree.

To justify an assault on the ground of self-defense it must be shown that the accused reasonably believed that he was in immediate danger of death or serious bodily harm as a result of his assailant’s conduct. It is primarily for the trier of facts to determine whether the accused was justified in meeting force with force and if justification be found, the force used must not be greater than the exigencies of the situation demand. Falcon v. State, 4 Md. App. 467 ; Ware v. State, 3