Jacobs v. State

²⁴⁰ Per Curiam. Minnie Jacobs, the appellant, was convicted of murder in the second degree in the Criminal Court of Baltimore, Judge Meyer M. Cardin presiding with a jury. She was sentenced to ten years under the jurisdiction of the Maryland Department of Correction. She contends that the trial transcript is inadequate; that the trial court erred in qualifying a six year old child as a competent witness; that the instructions were “incomprehensible” ; and that the evidence was insufficient to support the verdict.

There was evidence from which the jury could have found: On April 24, 1967 Minnie Jacobs was instructed by her husband, the deceased, to purchase a pair of shoes and trousers for their son. At noon that day she took a pistol, which they owned, to a nearby tavern to pawn it so that she could raise the necessary money. However, the bartender there loaned her ten dollars without accepting the gun as collateral. She did not buy the shoes and pants but remained at the tavern drinking until about three in the afternoon.

At that time she went to call on her sister-in-law, Daisy Dail, who accompanied Jacobs to the laundromat to wash some clothes; but first they went to the Jacobs’ apartment, at about 4:00 P.M., where they picked up the wash, and Daisy Dail left her children with the appellant’s children. Before they left, Jacobs, who had been carrying the pistol around with her all day, left it under a cushion of a chair in the living room. While doing the wash the appellant and Daisy Dail each drank a can of beer and soon returned to the Jacobs’ apartment with the remainder of a six pack of beer. Upon their arrival the deceased berated his wife for having left the house and children unattended all day and for not preparing their meals.

There was an argument although Daisy Dail did not consider it “violent”. Daisy Dail left in a few minutes. According to the Jacobs’ then five year old daughter, Willie Jacobs, her parents did not argue. The child testified that her mother picked up the gun and left the living room closing the door but immediately returned and shot the pistol at her father four times.

There were five shots actually fired. When the police arrived the gun was found under a chair and Mrs. Jacobs ²⁴¹ was holding her husband. The autopsy report showed that the deceased died from a bullet wound in the head and that he suffered another bullet wound in the abdomen. The appellant testified that her husband had slapped her prior to the shooting and that she had a mental blackout between then and the shooting and another blackout after the shooting, but she was certain that he was advancing towards her at the time she shot him.

Jacobs first contends that her trial transcript was inadequate because it did not contain opening and closing arguments, as well as what transpired at several bench conferences. Under Rule 32 of the Rules of Court of the Supreme Bench of Baltimore counsel must ask that the arguments be included within the transcript. This was not done; therefore, there is nothing for us to consider. See Wilkins v. State, 5 Md. App. 8, 17 , 245 A. 2d 80 .

In addition counsel made no attempt to complete the record as permitted by Maryland Rule 1027 and neither does counsel point to any alleged errors in the missing portions of the record. Secondly, the appellant contends that the court erred in ruling that the six year old daughter of the appellant was a competent witness. She contends that since the child was under seven years old she did not have the proper capacity or responsibility, citing Clark and Marshall