Appeal from the Circuit Court for Prince George's County; Bowie, J.
Murphy, C. J., and Anderson, Morton, Orth, and Thompson, JJ. Thompson, J., delivered the opinion of the Court.
Walter Nathaniel Bowyer, the appellant, complains of a conviction in the Circuit Court for Prince George's County, Judge William B. Bowie presiding with a jury, under an indictment for manslaughter. The allegations of error involve rulings on evidence and the conduct of the prosecutor.
On April 13, 1966, at approximately 11:30 P.M., the deceased, Carl Utgoff, and his friend Matselboda, drove into the public parking lot of Ourisman Chevrolet Company, in Prince George's County, Maryland, for the purpose of obtaining a Chevrolet automobile which was owned by Matselboda, and which had been left at the Ourisman Company for repairs and service. Matselboda claimed that he had made arrangements with the company earlier in the day to pick up his automobile after the company had closed. Matselboda had made similar arrangements on at least two prior occasions.
Shortly after the men entered the lot, a guard on duty at the automobile company, John Proctor, approached Matselboda and inquired into his activity. The guard had spoken with Matselboda on the other occasions that Matselboda had obtained his automobile after hours, and acknowledged recognizing him. After being told that Matselboda was getting his car, Guard Proctor went inside of the building and spoke to his superior officer, Bowyer, the Appellant, who was also on duty as a guard, and both came outside again to discuss the situation further. Bowyer, according to the State's evidence, also knew Matselboda and acknowledged the same when he spoke to him. Bowyer denied recognizing Matselboda at the time. The deceased, however, was admittedly unknown by Bowyer.
A conflict in the testimony exists as to what then transpired. Bowyer claimed in essence that he and Guard Proctor advised Matselboda and the deceased that they could not take the vehicle
from the premises without a written release slip. Matselboda, to the contrary, denied that he was asked for a release slip or was told that he could not take the car. He claimed that both of the guards knew him, had seen his bill of sale for the car on at least one prior occasion, and that the guards were aware of his ownership of the vehicle.
The evidence further showed that after speaking with the guards, Matselboda got into a Pontiac automobile and started driving out of the lot. This was the vehicle which had transported Matselboda and the deceased to the scene. Simultaneously, Utgoff, the deceased, backed the Chevrolet automobile out of its parking place, when he was stopped by Bowyer. Matselboda testified that he was waiting in the Pontiac at a point at least thirty-five feet distant from where Bowyer had stopped Utgoff. He had clear vision but was unable to overhear the conversation which lasted for one or two minutes. He related that as Utgoff opened the car door, Bowyer drew his revolver, and a struggle ensued -- resulting in the death of Utgoff. The appellant claimed that the gun was discharged accidentally while he was in the act of defending himself.
The deceased had no weapon. He was shot in the left temple, the bullet traversing his brain from left to right in a nearly straight horizontal line. The deceased weighed 182 pounds, and was 6' 7" in height but was described by a doctor as muscular. Bowyer weighed 185 pounds and was 5' 10" in height. Deceased was 23 years of age. Bowyer was 28. A medical witness who performed an autopsy on the deceased related that no powder burns were found on the victim, and that if the fatal bullet had been fired from a distance of less than eight inches, there would probably have been powder burns, but in view of the amount of blood, the burns may not have been visible.
Bowyer admitted that his revolver was fired "double action" i.e. it was not cocked by hand, but by a pull of the trigger. He denied consciously pulling the trigger. He also admitted drawing his weapon when the door of the Chevrolet clicked and Utgoff began to get out of the car. He was struck only one blow by the deceased prior to the time the shot was fired. During the ...