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Howard v. State

Decided: April 14, 1964.


Appeal from the Circuit Court for Howard County; Macgill, J.

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


Convicted by a jury of murder in the first degree and sentenced to death, George Wesley Howard appeals. The time of the alleged murder was about 7:30 a. m. on June 29, 1962. The place was within the confines of the Maryland House of Correction. The principals were inmates Matthew Spence, the

victim, Herbert Avon Johnson, his close friend and the State's chief witness, and the appellant Howard. Spence and Johnson had just left the dining hall after having had breakfast together and were proceeding toward their respective cells located on tier E-1. The two men separated briefly when Johnson went to another tier to get a cup of coffee. He then continued toward tier E-1 and was just outside the barred gate entry to the tier when he became engaged in a conversation with another inmate. While thus engaged, Johnson saw Spence standing within tier E-1 and apparently talking with the inmate whom Johnson identified as Howard. According to Johnson's testimony, Spence and Howard were facing each other in such fashion that he could see Spence's face and Howard's back. While Johnson observed Spence's lips moving, he could hear nothing that was spoken because of the prevalent noise.

Presently Spence beckoned to Johnson who thereupon moved toward the entry to tier E-1. As he was walking he observed Howard lunge suddenly at Spence, apparently striking him with an object. Spence staggered backward a step or two and through the open door of cell E-1-3, which happened to be Johnson's. His arm apparently jarred the cell door, for it began to slide, closed, and locked. Johnson, who estimated that he had been about thirty-five feet from the pair when Spence had beckoned, arrived at the closed door of his cell and looking into it, saw Spence slumped on the cot. Just then he felt a blow to the lower left portion of his back delivered by Howard. Johnson retaliated with a blow that drove the appellant some distance away. There followed a brief but active skirmish between the two men. Johnson testified that Howard had in his fist an object that seemed to resemble the blade of a knife. After being cut by the object several times during the scuffle Johnson managed to run out of the E-1 tier with Howard in pursuit. At about that time Guard Brown rushed into the tier to break up the fight, but Howard eluded him. He was finally seized by Guard Cox as he was climbing the stairs to E-2 in pursuit of Johnson and turned over to Guard Brown, who led him to the first floor. Howard broke away, ran into tier E-1 and made a dive into a pile of trash with Brown leaping on top of him. Guards Cox and Brown each testified that they saw Howard throw up his

arm as though hurling an object up toward the second tier. The murder weapon was not recovered.

After taking the appellant into custody, Cox then checked the cell in which Spence lay, found him sprawled across the cot with blood evident near the breast pocket of his shirt, and had him removed to the infirmary. Dr. Yosuico, the prison physician, was summoned and arriving within minutes he pronounced Spence dead. An autopsy revealed that death resulted from a single stab wound which entered the chest at the midline, penetrated four inches and pierced the breast bone, aorta, and the top of the left lung. Johnson was treated at the infirmary for the stab wounds Howard had inflicted, some of which required sutures.

The appellant makes three contentions. One is that the trial court erroneously refused to specifically include in its advisory instructions to the jury the following prayer offered by the appellant:

"2. The benefit of any doubt as to the cause or reason of the killing should be resolved in the defendant's favor."

Judge Macgill's instructions were thorough and concise. The essence of the instruction requested was in fact incorporated in the court's advisory charge though in somewhat different phraseology. After a careful and manifestly fair instruction on the presumption of innocence of the appellant and the State's burden of proof of guilt, the court thereafter defined for the jury manslaughter and the degrees of murder, and the legal differences between them including the burden of proof as to each. It is impossible to see how the appellant could have been prejudiced by the lower court's refusal to instruct in the literal language of the prayer as requested.

Another contention raised by Howard is that the trial court erred in refusing to permit him to offer testimony through witnesses to impeach the credibility of Johnson, the State's chief witness. On cross-examination he had been asked without objection whether he had trafficked in contraband ...

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