Long v. State

Per Curiam. Appellant, Thomas Eli Long, was convicted in the Circuit Court for Calvert County by a jury, Judge Perry G. Bowen presiding, of murder in the second degree, and carrying a deadly weapon openly with intent to injure, and was sentenced to serve terms of eighteen years and two years, respectively, in the Maryland Penitentiary, sentences to run concurrently. This is an appeal from his conviction of murder in the second degree. Appellant raises two contentions on appeal: (1) that the court erred in admitting into evidence the victim’s incriminating statement as part of the res gestae; and (2) that the court erred in instructing the jury that the defendant had the burden of proving by a preponderance of evidence that he acted in defense of himself and his mother.

We shall only state those facts which are necessary for our consideration of the issues presented. ⁶⁴⁰ On May 16, 1966, at approximately 10:30 p.m., James Clifton Long was shot at close range by a twelve gauge shotgun during an argument with his wife on the porch of his home in Calvert County. He subsequently died as a result of the shooting. The appellant, Thomas Eli Long, admitted the shooting, but testified that he shot his father in defense of himself and his mother. Corporal Yinger and Trooper Baker of the Maryland State Police arrived at the Long home at approximately 12:30 a.m. and proceeded to administer first aid.

Trooper Cawthorne, who arrived a few minutes later, testified that upon arrival first aid was being administered to Mr. Long who was lying on a bed in the bedroom. He asked Mr. Long what happened. In answer to the question, Mr. Long stated that “he had been in an argument with his son and his son shot him.” Due to loss of blood and shock and because of the extent of his injuries, he was not questioned further. An ambulance was summoned and he was removed to the hospital.

There he was examined by Dr. George Weems who testified, without objection, that the victim Long stated to him that he was shot by his son a short distance from the edge of the porch. After he was shot he fell and then his son and his wife assaulted him. He passed out and sometime after that they left. He was out for a long time and when he did come to, he finally was able to crawl into the house.

After describing the serious nature of his injuries, Dr. Weems testified that he had been transported to the University Hospital in Baltimore where he Appellant urges as his first contention that the trial court erred in admitting in evidence over objection the statement made by the deceased to Trooper Cawthorne “that he had been in an argument with his son and his son shot him” as part of the res gestae. “The test as to whether a declaration or act offered in evidence is part of the res gestae is whether it was contemporaneous with the commission of the crime and so connected with it as to illustrate its character. Whether such a declaration or act is an immediate accompaniment is tested, not by the closeness of ⁶⁴¹ time, but by casual [causal] connection. A definite limit of time cannot be arbitrarily fixed for the reason that so long as the main transaction continues, declarations and acts emanating from it become a part