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Perry v. State

Decided: March 5, 1964.

PERRY
v.
STATE



Appeal from the Circuit Court for Anne Arundel County; Evans, J.

Henderson, Hammond, Prescott, Horney and Marbury, JJ. Horney, J., delivered the opinion of the Court.

Horney

From his conviction by a jury of murder in the second degree, the defendant (Jule Britt Perry) has appealed. The questions on appeal concern: (i) the sufficiency of the evidence to take the case to the jury and to support the finding of a verdict

of guilty; (ii) the correctness of the jury instructions; and (iii) the admissibility and exhibition of posthumous photographs of the deceased.

On the afternoon of September 9, 1962, immediately following an amateur baseball game, two of the spectators, Avery Carter and Edison Alonza James, were shot by a third, the defendant, who, according to his own testimony, was wielding a .22 caliber revolver "about as long as a cigarette pack." Carter died as a result of the shooting.

About three years before the day of the killing, the defendant had suffered and been treated for intravascular coagulating of his blood and, as a result of taking an anticoagulant prescribed for his condition, had become a hemophiliac. He had been told by his physician to avoid situations in which he might be bruised or cut. The defendant stressed this illness, implying that because of his condition, he would not ordinarily risk becoming involved in a brawl.

The defendant's version of the events leading up to and occurring at the time of the shooting (which were largely corroborated by his wife, who, with a four-year old son, had accompanied him to the game) is almost altogether different from the account given in court by James, the victim who survived, and others who saw what happened and testified at the trial for the State. In a statement to the police, the defendant said that as he was leaving the ball park "this fellow James * * * started saying what happened before." (The defendant and James had had an altercation about a month before at which time the defendant claims James threatened him with a shotgun but James denied that he had done so.) He also told the police that James' cousin (Avery Carter, the deceased victim) "walked up * * * pulled out a razor [and] thats when I shot him, and James, both of them." In a second statement made later, the defendant added that James "was holding [a] beer bottle by the head and I thought he was going to hit me with it." The defendant claimed that he had armed himself on the day of the shooting because he was afraid of James. He stated that he shot Carter when he was two arm's lengths from him and fired at James when he was three arm's lengths away. The

defendant's wife testified that her husband "backed all the way up to a tree" before he fired the revolver.

On the other hand, the account of the incident given by James in court (which was substantiated by other witnesses to the occurrence) was to the effect that as he was on the way out of the ball park after the game, the defendant called him, and that after he and Carter had walked over to the defendant, he said: "James, you remember the argument we had down in front of your house? * * * Well, it's gonna be settled here." James further testified that "that's when he shot me two times and he turned around and hugged Avery [Carter] and shot him."

A police officer who arrived at the ball park shortly after the shooting said that he found Carter on the ground with his left hand in his pocket. The ambulance driver, who removed Carter from the park, testified that Carter's ...


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