Appeal from the Circuit Court for Wicomico County; Taylor, J.
Brune, C. J., and Henderson, Horney, Marbury and Sybert, JJ. Horney, J., delivered the opinion of the Court.
In appealing his conviction of murder in the second degree, the defendant-appellant (Garnell Gunther) primarily challenges the correctness of the instructions of the trial court with respect to the law of self-defense.
Shortly before midnight on July 8, 1961, the defendant shot and killed his brother-in-law with a rifle. That he did so was not denied: instead the defendant claimed that he killed in self-defense.
Sometime during the night before, the husband (as he had done on several other occasions) had beat his wife to such extent as required her to remain in bed for most of the next day. She had, however, gotten a message to her brother to come get her. After he had finished working for the day, the brother went to the house occupied by his sister three times. On the first occasion (between 7:30 and 8:00) the husband was home and the defendant stayed only long enough to ascertain that his sister wanted him to help her move her belongings
to the home of their mother. On the second occasion (about 9:30) the husband was not there, but the automobile the defendant had borrowed had a flat tire and his sister went with him to get it fixed. On the third occasion (between 11:30 and midnight), the husband had come back and was apparently watching for his wife to return. As the wife got out of the automobile and closed the door, the husband reopened the door, "jumped in on" the defendant and raised his hand. Simultaneously, the defendant reached for a rifle he had on the back seat, pointed it at the intruder and fired it twice -- once as his brother-in-law was entering the automobile and again as he was leaving it. The victim of the shooting died before he reached the hospital. The defendant fled, but returned early the next day and surrendered to the police.
The State produced other testimony to show that neither the deceased nor the defendant had spoken to the other on the evening of the homicide; that the victim had never threatened the defendant on any prior occasion; and that the defendant had placed the rifle on the back seat before going to the house the second time.
But there was also testimony on behalf of the defendant to the effect that he knew of the several beatings that his sister had received at the hands of her husband; that on one occasion the beating was so severe that she had sworn out a warrant for his arrest; and that on another occasion a friend took a shotgun away from the husband when he threatened to kill his wife. The defendant had also been told by his sister that her husband always carried a gun when he went out in his automobile. And, on behalf of himself, the defendant testified that he had seen his brother-in-law carrying a gun several months before the killing; that he had been informed by a friend of the brother-in-law that he "always carried a gun" and that if "anything would happen around him he would grab his shotgun"; and that at the time of the killing he could not tell whether the deceased "had a gun or not" and had "assumed he had a shotgun or some kind of a weapon."
In an information he had requested in lieu of an indictment the defendant was charged with murder. The plea of the defendant
that he was not guilty was based on the theory that he had killed the ...