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Taylor v. State

Decided: November 7, 1961.

TAYLOR
v.
STATE



Appeal from the Circuit Court for Cecil County, Rollins, J.

Brune, C. J., and Hammond, Prescott, Marbury and Sybert, JJ. Brune, C. J., delivered the opinion of the Court.

Brune

This appeal from a conviction of murder in the first degree, upon which a sentence of life imprisonment was imposed, presents questions as to: (a) the refusal of a continuance; (b) cross-examination of the defendant with regard to his previous conviction on a charge of assault with a deadly weapon; and (c) the sufficiency of the evidence.

The essential facts are stated below. One Andy Taylor, brother of the appellant, Cletus E. Taylor, rented an apartment in Elkton from one James De Cava, the victim of the shooting here involved. The afternoon before the shooting the appellant visited his brother's apartment, the brother left and a man named Danner arrived. Danner and the appellant did some drinking that evening and the next morning. The appellant says he had had about four beers on the day of the shooting. On the day of the shooting Danner was very drunk. The appellant was described as looking as if he had been drinking, but talking sensibly. About 1 P.M. two other men, Cooper and Blankenship, came to Andy Taylor's apartment where they found Danner and the appellant. About an hour later De Cava, the landlord, came to collect the rent. He was told that Andy was then in jail for driving an automobile without a license. A discussion or argument about a lock ensued between De Cava and the appellant, at the end of which the appellant told De Cava he had been there long enough, took him by the arm and put him out of the apartment. De Cava broke free in the hall. The appellant then turned back into the apartment, picked up a .22 rifle and followed De Cava into the hallway. A shot was fired which struck De Cava in the head. He went across the street to a tavern seeking assistance, was taken to the hospital and died early the next day as a result of the wound.

When the appellant picked up the gun, Cooper and Blankenship, both of whom were scared, left hastily, with Cooper in

the lead, for another apartment on the same floor, to which they were admitted just after the shot was fired. The appellant claims that the discharge of the rifle was accidental and that it was due to jostling or grabbing of the gun by one of his companions. On the stand he was not sure which one. The testimony of Cooper and Blankenship is to the effect that they left ahead of the appellant when the latter got the gun, and indicates that neither of them jostled him. Danner could not be located and did not testify.

Immediately after the shooting the appellant put the rifle back in the apartment and then walked several blocks to his sister's house. He was found there by the Sheriff approximately an hour and a half after the shooting hiding in bed with the covers pulled up over him. The appellant was fully dressed, except for his shoes and, the Sheriff testified, he was then sober. The Sheriff arrested him on a charge of assault. The appellant was interrogated the next morning by the Sheriff and two of his deputies. The appellant was informed of the death of De Cava which had occurred some hours earlier. He then gave a voluntary statement which was taken down in question and answer form. He declined to sign the statement saying that he could not read. In the statement the appellant admitted having gotten the gun and having raised it under his arm and having pulled the trigger. He stated that he was just going to scare or bluff De Cava, but admitted that you don't pull the trigger when you're just going to bluff someone. He also said that Cooper grabbed the gun and shoved it to the side of the house.

On the stand the appellant said that he could not remember whether he had his hand on the trigger or not when the gun went off and he speculated that it might have been Danner, and not Cooper, who grabbed the gun, though in his statement to the Sheriff he had eliminated Danner because Danner was drunk. He claimed that the discharge of the gun was due to a bump.

On cross-examination he was asked if he had ever been convicted of a crime. The question was objected to, but defense counsel then told the appellant to answer "yes" or "no." He answered "yes." Over objection he was then required to

state the nature of the offense, and he answered "assault with a deadly weapon."

The appellant moved on the day of the trial for a continuance because of the absence of the witness Danner. Danner appears to have been an alcoholic with no fixed place of abode where he could be found. Between the shooting and the trial he had been in a Veterans' Hospital for alcoholism, but had left, was a month overdue in returning to the hospital at the time of trial, and his whereabouts were unknown. The State refused to admit by stipulation an affidavit executed at some time by Danner. Since the affidavit is not in the record and no proffer of it was made, its contents are not before us. The matter ...


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