Marks v. State

Marbury, J., delivered the opinion of the Court. The appellant, Raymond C. Marks, was charged in indictment No. 4073 with assault with intent to “kill and murder”, and assault and battery; and in indictment No. 4074 with assault with intent to maim, disfigure, and disable his six-year old son, Lance Preston Marks. He was tried simultaneously on both indictments in the Circuit Court for Prince George’s County, by Judge Roscoe H. Parker, without a jury, found guilty on all three counts charged in the two indictments; and sentenced to ten years in the Maryland Penitentiary under the first count in indictment No. 4073, and a like sentence under indictment No. 4074, the sentences to run concurrently. On this appeal he contends that the trial judge committed reversible error in finding him guilty of assault with intent to maim, disfigure, and disable, and at the same time finding him guilty of “assault with intent to kill,” since he was charged with both crimes as the result of the same set of facts.

He claims that these two convictions were inconsistent, in that one necessarily excludes the other. On September 30, 1961, the appellant was living with his wife and four children at Beltsville. On that morning he arose and prepared himself to go to a store with three of his children. His wife stated he told her to get out of bed or he would burn her alive, but he denied this.

He had had two drinks earlier that morning. Later, after returning from the store, he was in the yard working on his automobile while his son, Lance, was standing nearby. Appellant stated he absent-mindedly applied ¹¹¹ a lighted cigarette to a thread dangling from his son’s shirt, the thread smouldered and went out, Ranee stated he was going to tell his mother, went to the house, came back and told the appellant that his mother had made a derogatory remark about appellant. According to appellant’s testimony at this point he again absent-mindedly placed his lighted cigarette to the dangling thread on his son’s shirt, the thread smouldered and appeared to go out, but as the boy started toward the house, approximately twenty feet away from the appellant, the shirt burst into flames.

Lance ran into the house screaming, followed by the appellant who assisted his wife in extinguishing the flames and smearing butter on the burned area. This incident was witnessed by the appellant’s twelve-year old daughter, who testified in court that she was on the other side of the yard burning rubbish when she saw her father stooping down in front of her brother with a match in his hand. She said her father “lit the shirttail to my brother’s shirt * * * his shirt caught on fire and he started running into the house.” As the boy was running into the house the flames got larger because the wind was blowing briskly. The daughter said she went into the house in time to see her mother pouring water over her brother and taking off his clothes.

When the appellant refused to take the boy to a hospital his wife took the other children to a park and then removed the burned boy from the house. A milkman drove them to an ambulance, which took them to a hospital. Lance was in the hospital for two and a half months where he had skin grafts and other treatment. The appellant, at the trial, testified that he had no intention