Gray v. State

Per Curiam. On January 30, 1967, the appellant, Eugene Anthony Gray,, was convicted of murder in the second degree, in the Criminal Court of Baltimore, Judge Albert L. Sklar presiding, without a jury, and sentenced to fifteen years imprisonment. Appellant raises two contentions on appeal: 1. That the trial court erred in refusing to grant the appellant’s Motions for Verdict of Acquittal at the end of the State’s case and at the conclusion of the entire case. 2.

That the trial court was clearly erroneous in disregarding the lack of legal sufficiency in the evidence of the case. The evidence adduced at the trial established that one Joseph Page was shot five times, one frontal wound in his leg and four-rear entries into his neck, chest and back, -while involved in an altercation with the appellant. The aforementioned altercation-occurred on May 30, 1966, at approximately 1:30 a.m., at North Franklintown Road, Baltimore, Maryland. Mrs. Frances ¹⁷⁸ Page, the deceased’s wife, testified that the deceased had arrived home at approximately 1:00 a.m. and expressed his displeasure with appellant’s failure to wear a shirt while visiting her daughter and subsequently went upstairs, ostensibly to bed, returning about ten minutes later to pick up the appellant’s shirt, throwing same at him, stating, “don’t ever let me catch you in my home again this way.” She further testified that, shortly thereafter, the record player in the basement began playing improperly and her daughter, Patricia Bailey, was on her way to correct it when stopped by the deceased.

Appellant then came from the living room and stood behind Patricia Bailey, facing the deceased, and “requested that he could get his hat and coat so that he might leave,” to which the deceased replied, “that depends on how bad you want it,” and with that the shooting began. Her testimony further set forth that she had not seen the actual shooting, but had observed, earlier in the evening, that the appellant possessed a gun; however, she did not see her husband with a gun, although she knew he possessed one on the premises and that the gun found at the top of the cellar steps was that gun. Patricia Bailey, an eye-witness to the actual shooting, gave testimony substantiating her mother’s testimony regarding those matters preliminary to the actual shooting. In addition thereto, she further testified that when the deceased, her stepfather, blocked her passage, she believed he was going to strike her, so she jumped back.

At that point, the appellant made the aforenoted request and the exchange occurred which culminated in the shooting death of the deceased. Her testimony added that the deceased had arched his hand “as though he was going for his back pocket” when appellant fired a shot and the deceased then “turned to run” and “ran down the basement,” at which time the appellant “ran to the top of the steps and continued shooting” down the stairs. Thereafter, appellant fled from the house with his gun. The appellant testified he had been visiting Patricia Bailey and became overheated while dancing and, with her permission, removed his shirt.

His testimony regarding those matters leading up to the shooting was substantially the same as the witnesses Page and Bailey. With respect to the actual shooting, he ¹⁷⁹ testified that the deceased had “put his hand in his pocket” and that he “seen” the handle of the deceased’s gun as he withdrew it. He further stressed, with respect to the gun, that the deceased then “pulled it all the way out and pointed it at me” and “that is when I kept on shooting” and emptied his gun at the deceased while “he was still running down the steps.” Appellant further testified that he fired only four shots, all of which were fired “aiming low at the steps.” At the conclusion of the State’s case, the appellant made a Motion for Judgment of Acquittal, which was denied by the trial court. Subsequent thereto, the appellant took the stand in his own behalf and thus withdrew his motion.

Maryland Rule 755 b; Brooks v. State, 3 Md. App. 485 ; Lucas v. State, 2 Md. App. 590, 592, 235 A. 2d 780, 781 (1968);