Mercer v. State

Per Curiam. This is a companion case to Eldridge v. State, 225 Md. 10 , 169 A. 2d 421 . It will be unnecessary to restate the facts. We summarized them in Mldridge, and this case was submitted to the court, ¹⁶ sitting without a jury, upon a stipulation, explicitly agreed to by the appellant and his counsel, that if certain of the witnesses who testified in Bldridge were present, they would testify in a particular manner.

Then the substance of the testimony of the witnesses was stated in the stipulation, as the witnesses had given it at the trial of Bldridge. This stipulation included the testimony of nearly all of the witnesses who testified in that trial, and was supplemented by a statement made by the appellant to the police, which was substantially in accord with his testimony given at Eldridge’s trial. Upon this testimony, the court found the appellant guilty of manslaughter, and the sole question that we are called upon to answer is whether said testimony was sufficient to support the court’s finding. The main thrust of the appellant’s argument is a claim that when one of several who are committing an assault upon a third person (and the appellant freely admitted that he and the other two intended to “beat” the deceased, or get their money) suddenly resorts to the use of a deadly weapon, without the knowledge, aid or consent of the others, the one who uses the deadly weapon is the only one who can be held responsible for the homicide, and the others are not responsible for any greater offense than that of assault.

He cites the cases of State v. May, 43 S. W. 637 (Mo.), and Bibby v. State, 65 S. W. 193 (Tex. Crim. App.), in support of the proposition. He then contends that the evidence adduced by the State failed to show that he had any