Ware v. State

Per Curiam. Theodore Ware, the appellant, complains of a conviction of ⁶⁴ murder in the second degree in a trial without a jury in the Criminal Court of Baltimore. There was evidence from which the court could have found: On February 21, 1966, at or about 12:30 A.M., Ware, with his girlfriend, Margaret Jeter, and the deceased, Isaac Perry, with his girlfriend, Alethia Bond, were present at the “Millionaire’s Club,” a nightclub located at 1029 Pennsylvania Avenue in the City of Baltimore. Ware and the deceased were seated at separate but adjoining tables in a cramped area.

An argument ensued between the two concerning a coat which had been erroneously picked up by another person. An altercation soon followed in which the deceased put his hand on a beer bottle and Ware produced a knife and said: “Don’t mess with anybody unless you know what they have.” At this point the hostilities temporarily ceased. Ware returned the knife to his pocket and Alethia Bond wrestled the beer bottle from the deceased and placed it on the table. After a short pause, hostilities again resumed and the principals, together with Alethia Bond, appeared in the center of the floor.

Ware offered to fight with the deceased but suggested that they go outside. The deceased declined the offer, reached over Alethia Bond and struck Ware with his fist with such force that Ware and the deceased fell on the floor with Alethia Bond between them “like a sandwich.” Several by-standers untangled the pile-up but Alethia Bond remained on the floor holding on to Ware’s legs. This caused an argument between Margaret Jeter and Miss Bond. At this point Ware “took his knife from his pocket” and advised a by-stander not to interfere with the fight between the two young ladies.

Ware, with his knife in hand, proceeded to throw bottles and glasses at the deceased who had retreated to a corner. Ware stabbed the deceased twice with his knife and fled the scene. He was apprehended under a warrant six days later hiding under a bed at the premises at 4007 Ann Ellen Road, Baltimore. The trial judge found that, although the deceased was the original aggressor, Ware used more force than was necessary to repel the attack, and that he had ample time to “cool off” before he resumed the affray after the deceased had backed away from the scene of the first struggle.

We cannot say the trial judge was clearly wrong under Maryland Rule 1086 which ⁶⁵ establishes that we shall affirm the decision of the trial judge in a trial without a jury unless we can find that his decision on the evidence was clearly erroneous. The law is clear that although a person may defend himself, even to the extent of taking life to repel the attack of an aggressor, it is equally well settled that he cannot use more force than is necessary, Tipton v. State, 1 Md. App. 556 , 232 A. 2d 289 , Guerriero v. State, 213 Md. 545 , 132 A. 2d 466 . The law is equally well established that although an affray may, under some circumstances, arouse the passions of an accused to the extent that a homicide would be reduced