Smith v. State

Anderson, J., delivered the opinion of the Court. The appellant, Henry Roger Smith, was convicted of assault with intent to murder and assault in the Criminal Court of Baltimore before Judge William J. O’Donnell, sitting without a jury. He was sentenced to fifteen years under the jurisdiction of the Department of Correction on each count, the sentences to run concurrently. In this appeal the following questions are raised: 1.

Whether the offense of assault merges into the greater offense of assault with intent to murder the same person. 2. Whether the evidence presented was sufficient to sustain the convictions. 3. Whether the sentence was dictated by passion, prejudice and ill will or some other unworthy motive. At trial the victim, Edwina C. Nash, testified that she and the appellant drank heavily together on the evening of November 6, 1967.

A quarrel ensued in which, the victim admitted, she .may have struck the appellant first with a bottle. The appellant then seized her from behind and stabbed her with a knife ¹¹⁷ from the breast clown to below her naval. 1 The appellant then shot her in the arm with a pistol. The victim, having fallen to the floor, heard the appellant say to her daughter “Now your mother is dead.” She also testified that the appellant had often before said that he would kill her if she returned to her husband and that she had not taken these statements seriously. Ricardo Wayman, a witness to the occurrences, testified that the appellant and the victim had argued about Mrs. Nash returning to her husband and that the appellant said to Mrs. Nash, “Weenie, I told you that the day you went back to your husband I was going to kill you.” The appellant struck the victim first in the face with his hand, the victim returned the blow and both parties then slapped at each other.

The appellant fired a pistol and the witness then observed a “slice” on Mrs. Nash’s right arm. The witness said that then the victim threw a glass at appellant, and that the appellant, with the gun in one hand and a knife in the other hand, cut the victim in the stomach with the knife while he was leaning forward toward her. At the conclusion of Mr. Wayman’s testimony the State introduced the hospital records dealing with the victim’s treatment following the incident. The State thereupon rested its case in chief, the appellant, without offering any evidence, rested his case, and the appellant was found guilty of both counts.

I—MERGER OF OFFENSES As we indicated in Stewart v. State, 4 Md. App. 565, 569 , 244 A. 2d 452 (1968) : “The true test of merger under the modern doctrine is whether one crime necessarily involves the other, vis., when the facts necessary to prove the lesser offense are essential ingredients in establishing the ¹¹⁸ greater offense, the lesser offense is merged with the greater offense.” In Thomas v. State, 3 Md. App. 101 , 238 A. 2d 558 (1968), we had occasion to consider the question of the merging of the two charges involved here. In that case the appellant was convicted of assault with intent to murder and common-law assault as the result of a shooting. We there held that the assault constituted a lesser included offense in the crime of assault with intent to murder, inasmuch as the facts necessary to prove the assault were essential ingredients of the major crime. The State concedes, and we agree, that on the facts of the instant case the count charging assault merged into the assault with intent to murder upon conviction on the latter count.

We shall therefore vacate the conviction on the assault count. II—SUFFICIENCY OF EVIDENCE Appellant’s argument regarding the sufficiency of the evidence is that the two State’s witnesses gave conflicting testimony and that the evidence presented did not show that the appellant possessed the requisite malice for conviction of assault with intent to murder. Although the two State’s witnesses’ testimony did conflict in several particulars, the most material of which dealt with the relative positions of victim and appellant at the time of the cutting, such variance goes only to the weight of the evidence, Johnson v. State, 4 Md. App. 648, 664 , 244 A. 2d 632 (1968). This Court does not weigh the evidence presented to the trial court.

West v. State, 3 Md. App. 123, 127 , 238 A. 2d 292 (1968). With respect to the contention regarding malice, it is meet to note that a specific intent to kill is not a necessary element for a conviction of assault with