Appeal from the Circuit Court for Prince George's County (LOVELESS, J.).
The cause was argued before Brune, C.J., and Hammond, Prescott and Horney, JJ., and Rutledge, J., Associate Judge of the Fourth Judicial Circuit, specially assigned.
RUTLEDGE, J., by special assignment, delivered the opinion of the Court.
The appellant, Leslie Barger, was indicted for the murder of Henry Koch. A jury found him guilty of murder in the second degree, and the court sentenced him to sixteen years. He appeals from the judgment entered on the verdict.
Henry Koch's wife, Sandra, started consorting with the appellant in May of 1961. Shortly after they began keeping company they concluded that they were in love. Thereafter they saw each other three or four times a week and generally had sexual relations.
Koch did not learn of his wife's affair with the appellant until March 10, 1963. On March 11th Koch went to Barger's apartment. Mrs. Koch phoned Barger to warn him that her husband was on the way over to see him, and while still on the telephone she overheard her husband shout an uncomplimentary epithet to Barger and tell him that if he ever came near his house again he would blow his head off.
On March 19th, Mrs. Koch drove to Barger's apartment to see him. Without her knowledge Koch followed her. After a few minutes, there was a tremendous banging and kicking on the door. Barger refused to open the door. Koch left and went out front and let the air out of all four of the tires on her car and did something to the engine so that it would not start.
On March 28th, Barger and Koch met again at the Enterprise Inn. Mrs. Koch was also there with a friend, Gertrude Laurenson. On this occasion Koch hit Barger on the arm, used the derogatory epithet again and ran out. Mrs. Koch and Mrs. Laurenson then left the restaurant and Barger followed them home in his car. Upon arriving they saw their suitcases and clothes on the porch and found that they were locked out. They were concerned about their children and were about to go with Barger to the police when Koch appeared shouting and brandishing a knife. Mrs. Koch persuaded her husband to give her the knife, and he persuaded or forced her to get out of Barger's car and go into the house. She claims she was thrown to the pavement by her husband. On her way into the house she threw the knife into a window well. Mrs. Koch then ascertained that her two children were all right and came outside and observed her husband with a knife -- either the one she had thrown into the window well or another one -- leaning in Barger's car, threatening to kill him, and heard him say to Barger that he was not afraid of his damn gun. For more than two years Barger had been carrying a pistol for the reason, he said, that he was in the habit of carrying large sums of money. Unknown
to him, Mrs. Koch had told her husband about the pistol, hoping this knowledge would make him desist from his violent actions.
On March 29th, both of the Kochs, having tentatively agreed to separate, went to consult with the wife's attorney about drawing up an agreement. Angered by the terms of the separation agreement suggested by the attorney, Koch refused to sign. According to Mrs. Koch he "acted like a wild man." Later he returned home with his wife and she threatened to swear out a warrant if he did not leave. He went to consult his lawyer and his minister, and then returned to the house and took his clothes and left.
Finally, after two weeks of separation from her husband, on April 15, 1963, Mrs. Koch and the appellant met at a prearranged place and then drove in her car back to 5502 Cardona Street, the Koch home. A few minutes later they undressed and went to bed, where Mrs. Koch ...