text:
    JOSEPHINE DORSEY and ISAIAH SYLVESTER WILSON v. STATE OF MARYLAND
    [No. 301,
    September Term, 1975.]

      Decided November 28, 1975.

      The cause was argued before Moylan, Gilbert and Melvin, JJ.

      Harold I. Glaser, with whom was Richard M. Karceski on the brief, for appellant Dorsey.

      R. Lends Baiuder, Assigned Public Defender, for appellant Wilson.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Stoisher, State’s Attorney for Baltimore City, and Stephen R. Tally, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

This case deals with yet another aspect of Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), as applied to the law of homicide in Maryland by Evans v. State, 28 Md. App. 640, 349 A. 2d 300. It is, indeed, a variation on Brown v. State, 29 Md. App. 1, 349 A. 2d 359, which was a variation on Evans.

The appellants, Josephine Dorsey and Isaiah Sylvester Wilson, were convicted in the Criminal Court of Baltimore-by a jury, presided over by Judge Basil A. Thomas, of both (1) conspiracy to commit murder and (2) murder in the first degree. Their most significant contention upon this appeal is that the jury instruction dealing with the presumption of malice and placing upon them the burden of proving such mitigation as would negate malice was unconstitutional under Mullaney v. Wilbur and In re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970). We, therefore, turn immediate attention to the pertinent part of that instruction:

“In the absence of justification, excuse or some circumstance of mitigation, the law presumes all homicides to be committed with malice and to constitute murder in the second degree. The burden is on the State to prove the elements of deliberation and premeditation which would raise the homicide to murder in the first degree. The burden is on the defendants to show the existence of mitigation, excuse, or justification which will reduce the offense to manslaughter or not guilty.”

There is no longer room for doubt that that instruction was clearly improper under Mullaney v. Wilbur. In Part IIG of Evans v. State, we analyzed at great length the impropriety of such an instruction. We have declared such instructions to be improper in Brown v. State, supra; Burko v. State, 28 Md. App. 732, 343 A. 2d 251; and Newborn v. State, 29 Md. App. 85, 349 A. 2d 407.

The constitutional impropriety in a vacuum, however, is not dispositive. The impropriety rather must be judged in terms of its materiality and impact in a particular case. In Brown v. State, supra, we held such an improper instruction to be harmless. In Brown, as here, the arguable issue on which the appellant based his Mullaney v. Wilbur claim was that of mitigation. In Brown, as here, the conviction was for murder in the first degree.

In one respect, however, the present case differs from Brown. In Brown, Judge Gilbert, speaking for this Court, was able to rest the holding of harmlessness upon a dual predicate. He pointed out initially that even if mitigation had been a fair issue in the case, the verdict of murder in the first degree served to cure any improper instruction by demonstrating that the State had carried its burden of proving every element of the offense beyond a reasonable doubt. The holding in Brown was supported, however, by yet a second theory. Even absent the curative effect of the first-degree murder verdict, the appellant there was not entitled to an instruction on mitigation because of his failure to generate a legitimate jury argument with respect thereto. As Judge Gilbert there summarized the situation:

“Appellant, at trial, denied all knowledge of the crime, denied ever seeing the decedent in the bus station rest room, denied she cut her hand during an altercation with the decedent, but explained that her hand was cut before she went to the bus station. Appellant admitted, however, being at the bus depot and using the ladies’ rest room. Appellant has by her own testimony expressly negated the common law offense of manslaughter through her disclaimer of all knowledge of the act. Patently, if she knows nothing of the crime, she could not have committed it in ‘hot blood’ or with recklessness, devoid of intention to take a human life. Even though Green spoke of the ‘commotion’ between appellant and the decedent, we think, in the light of appellant’s testimony, that fact does not fairly inject mitigation as an issue in the case.”

Because of our conclusion that the issue of mitigation was fairly generated in this case (with respect to the appellant Dorsey at least and, arguably, with respect to the appellant Wilson), our ultimate holding of harmless error must, perforce, rest upon the single foundation of the curative effect of the first-degree murder verdict alone. In one respect, the generation of the jury issue here is interesting because it arose out of the State’s evidence itself (as in Mullaney v. Wilbur) and not out of any evidence produced by the defense. Neither appellant took the stand. Except for a stipulation as to a motel registration by way of arguable alibi for the appellant Wilson, no defense at all was offered. For reasons to be hereinafter analyzed, however, we conclude that the State’s case itself served to generate a jury issue as to mitigation. It was of this very possibility that we spoke in Evans in Part IF:

“[B]efore it can be said that there is in a case a legitimate jury issue on the question of justification, excuse or mitigation, there must be evidence sufficient to generate the issue. That evidence may be, but need not be produced by the defendant. It may be found in the State’s own evidence. But whatever its source, unless there is evidence sufficient to generate a fair jury question (or to generate the issue in like manner in a court trial), there is no requirement that instructions in these regards even be given.”

In looking initially at the threshold question of whether the evidence generated a jury issue entitling the appellants to an instruction on mitigation, we will examine the evidence, and all inferences fairly drawable therefrom, in a light most favorable to the appellants. We are by no means intimating that mitigation was persuasively established. Indeed, as will hereinafter be discussed when we look to the sufficiency of the evidence to establish conspiracy to murder (and, inferentially, to legitimate the finding of murder in the first degree), the evidence was clearly legally sufficient to establish that there was no mitigation. Preeminently, the evidence may be legally sufficient to establish either mitigation or lack of mitigation, the resolution being left to the jury.

As we look at the evidence, therefore, in the light most favorable to the appellants, that evidence will be applied to the criteria for mitigation which were clearly set out by Chief Judge Orth in Whitehead v. State, 9 Md. App. 7, 10-11, 262 A. 2d 316:

“But there may be a homicide which would otherwise be murder which is reduced to manslaughter by circumstances of alleviation or mitigation. Such a case is where the circumstances surrounding the homicide establish that it was provoked. For the ‘Rule of Provocation’ to be invoked there are four requirements:
(1) There must have been adequate provocation; ■
(2) The killing must have been in the heat of passion;
(3) It must have been a sudden heat of passion — that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool;
(4) There must have been a causal connection between the provocation, the passion, and the fatal act.”

The deceased, Russell Blake; his girlfriend, Mary Ann Johnson; one Delores Pound; and the two appellants all shared a residence on December 30, 1973, at 2636 Loyola South way. At approximately 1 a.m. on that date, the appellant Dorsey had been drinking heavily. The appellant Wilson had been drinking to some lesser extent. The two appellants apparently lived together as man and wife. At 1 a.m., the appellant Wilson went to the nearby Preakness Bar. The appellant Dorsey arrived home and immediately got into an argument and at least a minor scuffle with Delores Pound, who was then in her ninth month of pregnancy. Russell Blake intervened. Extracting from the somewhat confused factual accounts that version most favorable to the appellants, the ensuing struggle between Blake and the appellant Dorsey became heated. Blake was a big man physically. With assorted pushing and shoving, the fight moved down a hallway to a stairway. There were at least some indications that the appellant Dorsey was thrown down the steps by Blake. The police were summoned and the disturbance was quelled. The appellant Wilson arrived home at about that time and helped to calm down the appellant Dorsey. The appellant Wilson removed the appellant Dorsey from the area.

At approximately 6 a.m., the appellants returned. Three boys were with them, two with sticks and one with a chain. All five entered Blake’s bedroom, where he was sleeping with Mary Ann Johnson, and began to beat him. The appellant Wilson accused Blake of having thrown the appellant Dorsey down the stairs. Blake responded, “Man, I didn’t throw her down. She fell down.” The appellant Dorsey interjected, “Don’t believe him. He did throw me down the step.” The fighting continued in the bedroom and in an adjacent hallway. Blake knocked down one of the boys and then ran down the stairs. The appellant Wilson moved to the kitchen and obtained a butcher knife. He ultimately stabbed Blake in the neck, causing him to bleed to death.

We turn initially to the question of the adequacy of the provocation. Although there are, tc be sure, versions of the facts far more favorable to the victim Blake, we are required at this juncture to take that version most favorable to the appellants. If Blake either engaged in a mutual affray with the appellant Dorsey or unnecessarily battered the appellant Dorsey by throwing her down the stairs, the law would indicate that this would be at least a jury question with respect to legally adequate provocation. Moreland, The Law of Homicide, (1952), points out, at p. 76:

“While a trivial blow is not sufficient, a substantial battery upon the defendant or a close relative will j ustify the reduction of an intentional homicide to voluntary manslaughter. A clout with a heavy hickory stick and a blow upon the back of the head with a pistol represent illustrations of the type of injury required.
... It is true that the law does not permit or excuse the taking of life in assault and battery cases for anything less than a cause which would justify a plea of self-defense, — a fear of grievous bodily harm or of death. But while the law does not excuse such a homicide, it does recognize the commonly accepted opinion that a substantial assault or battery may well provoke such heat of passion as to justify the reduction of the crime to manslaughter. This is precisely the reasoning that is used in the other categories of legal provocation and is as sound a social policy in this instance as in the others.”

To a similar effect is Perkins, Criminal Law (2d Ed., 1969), atp. 60:

“Knocking a person down with a heavy stick, or hitting him over the head with a revolver, are rather obvious instances of such force; but a weapon is not indispensable for this purpose. Thus even a blow with the fist may be sufficient to reduce an intentional killing to manslaughter, particularly if it is a blow in the face or a ‘staggering’ blow.”

See also Clark and Marshall, Law of Crimes (6th Ed., 1958), atp..623:

“Every man, when assailed with violence or great rudeness, is inspired with a sudden impulse of anger, which puts him upon resistance before time for cool reflection; and if, during that period, he attacks his assailant with a deadly weapon, even with intent to kill, and death ensues, it is regarded as done through heat of blood, and, unless malice is shown by the circumstances, the killing is only manslaughter. To reduce the killing to manslaughter, the assault must have been with violence or great rudeness, and must have been reasonably calculated to excite passion and heat of blood.”

The situation with respect to the appellant Wilson in terms of the legal adequacy of the provocation is more tenuous. If he was provoked, he was provoked vicariously out of regard for the appellant Dorsey. Whether such vicarious provocation can ever be deemed legally adequate, we will not now decide. For present purposes, we will simply operate upon the assumption that the appellant Wilson was provoked by legally adequate provocation. In this regard, we do note LaFave and Scott, Criminal Law (1972), at p. 577, which indicates that this may at least be a jury issue:

“Injuries to third persons. Just as a reasonable man may be provoked by some sorts of conduct which inflict injury upon himself, so too he may be provoked by the same sort of conduct which causes injury to his close relatives. It has been held that the rule does not extend beyond close relatives to more distant relatives and friends, but in view of the modern tendency to leave questions of the reasonableness of a provocation to the jury, there ought not to be any absolute rule that injuries, however grievous, to friends, however close, can never constitute a reasonable provocation.”

With respect to the additional requirement, as set out in Whitehead, that the killing must have been in the actual “heat of passion,” we think the evidence permitted a fair inference that both appellants were at 6 a.m. still acting in such heat of passion (whether reasonably or unreasonably is a question yet to be considered). We think further, with respect to the causal connection requirement set out in Whitehead, that the evidence fairly permitted a finding that the passion was the result of the provocation and that the fatal act was the result of the passion.

The more difficult problem, even in the limited terms of finding a fair jury question, is in dealing with the additional requirement that, from the point of view of a reasonable man, the passions would not have cooled. We are, however, not dealing with days but with a period of approximately five hours and with a domestic squabble exacerbated by the inferentially heavy effects of alcohol. Although the defense theory must strain even to cross the threshold of generating a jury issue, we are not prepared to say that the passions must have cooled, as a matter of law. The authorities all indicate that whether the passions of a reasonable man would cool under certain circumstances should ordinarily be a question for the jury. In this regard, LaFave and Scott, op.eit., say, atp. 580:

“What constitutes a reasonable cooling time in a particular case depends upon the nature of the provocation and the circumstances surrounding its occurrence — a matter to be determined by the jury as a question of fact, unless the time is so short or so long that the court may hold that, as a matter of law, it was reasonable or unreasonable.”

Perkins, op.eit., offers the opinion, atp. 68:

“But when it was recognized that it was to be tested by a standard it became obvious that the law merely supplied the standard —• a reasonable man under like circumstances — and whether that test was met in the particular case was a question of fact for the jury, except that it need not be submitted to the jury if the period is so short, or so long, that the minds of reasonable men could not differ in the'conclusion to be reached.”

Clark and Marshall, op.eit., well articulates the applicable law, at pp. 633-634:

“Questions of Law or Fact. — Some of the older cases held that whether there was reasonable time for cooling is a question of law to be decided by the court upon consideration of the length of time and all the other circumstances found by the jury on a special verdict, or else to be given to the jury in the court’s charge. This, however, is erroneous. The sounder practice is to leave the question to be determined by the jury as a question of fact, under proper instructions, and by a general verdict. Whether, under all the circumstances, there was time for the passions of an ordinary man to cool must depend upon the nature of man and the law of the human mind, as well as upon the nature and circumstances of the provocation, and in ordinary cases is essentially a question of fact for the jury.”

Even granting, however, that the evidence generated a fair jury question on the issue of mitigation, the jury’s verdict of guilty of murder in the first degree cured any error in the instructions. Just as the evidence was arguably sufficient for the jury to find mitigation, it was bountifully sufficient for the jury to find beyond a reasonable doubt, as they did, that the killing was deliberated and premeditated. As we said in Evans, in Part IC:

“By the same token, any error in instructing as to the allocation of the burden of persuasion on the subject of mitigation (such mitigation, for purposes of holding the homicidal mens rea down to the manslaughter level, being fairly an issue in the case) will have been cured by a verdict of murder in the first degree. The evil aimed at by Mullaney v. Wilbur, where the issue is manslaughter versus murder, is that a presumption of malice unfairly relieves the State of the burden of proving non-mitigation (mitigation being fairly an issue in the case). Where the ultimate verdict is that of murder in the second degree, the presumption may, therefore, have been pivotal. Where, on the other hand, the verdict is murder in the first degree, the State will have proved every element, including the negating of hot blood, beyond a reasonable doubt and due process will not have been offended.”

In this regard, we will here interject a brief consideration of the appellants’ second contention — questioning the legal sufficiency of the evidence to establish the crime of conspiracy to murder — because of the bearing it has on the amplitude of proof to show a planned and deliberated murder. The officer who quelled the disturbance at 1 a.m. heard the appellant Dorsey say to the appellant Wilson as they were leaving the scene, “You ought to mess him up.” The appellant Dorsey’s brother-in-law, Julian Paul McMeans, testified that both appellants were at his house at 5 a.m., one hour before the murder. The appellant Dorsey said, referring to Blake, that she “was going to have that m.f. killed this day.” Both appellants left the company of McMeans shortly thereafter. The appellant Wilson indicated the well-directed nature of his attack at 6 a.m. when, as one of the boys hit Mary Ann Johnson, he ordered him off with the words, “Don’t touch her, she ain’t in this.” He later said, “Russell is the one we want.” That revenge was the clear motive of the killing was well established when at one point the appellant Wilson and Blake seemed to be reaching some detente. The appellant Dorsey suddenly came up and said, “You going to let him get away with what he did to me?” Remotivated, the appellant Wilson replied, “Hell no, I ain’t going to let him get away with it.” While obtaining the butcher knife from the kitchen, the appellant Wilson said, “This mother fucker going to die tonight.” The evidence was legally sufficient to establish that the two appellants conspired together and reached an agreement to take the life of the victim. On the conspiracy charge, the State bore the burden of proving every element, including that of the murderous design, beyond a reasonable doubt. As to first-degree murder, moreover, the State bore the burden of proving wilfulness, premeditation and deliberation beyond a reasonable doubt. The finding of those elements by a jury, ipso facto, negated the element of “hot blood” or “heat of passion.” The situation, therefore, is as was described by Judge Gilbert, in Brown v. State, supra:

“Similarly, an erroneous instruction concerning an accused’s burden of lowering the offense from second degree murder to manslaughter is likewise cured- because the State has negated to the satisfaction of the trier of fact, any mitigation. The net result, in such cases, of incorrect instruction where mitigation or ‘hot blood’ is not an issue fairly in the case, is that the instruction, at worst, is harmless beyond a reasonable doubt under Harrington v. California, 395 U. S. 250, 254, 89 S. Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967), and, at best, a gratuity given for the benefit of the accused and to which he was not entitled.”

In denying a writ of habeas corpus in the ease of Wilkins v. Maryland, 402 F. Supp. 76 (1975), Judge C. Stanley Blair in the United States District Court for Maryland reached a similar conclusion. It was of this very situation that we spoke in Evans v. State, in Part IC:

“The State, in proving wilfulness, deliberation and premeditation beyond a reasonable doubt, will not have relied upon a mere presumption of malice but will of necessity have proved the element of malice (meaning, within the context of this analysis, an intentional killing absent the mitigating circumstance of a hot-blooded response to a legally adequate provocation). ‘Malice and heat of passion cannot coexist.’ 40 Am.Jur.2d, Homicide, § 56, p. 350, citing Vaughan v. State, 201 Ala. 472, 78 So. 378, and White v. State, 44 Tex. Crim. 346, 72 S. W. 173. A fortiori, proof beyond a reasonable doubt of premeditated and deliberated malice will negate heat of passion. The requirement of In re Winship and Mullaney v. Wilbur that the State prove beyond a reasonable doubt every necessary element of the offense will have been fully satisfied.”

The remaining two contentions, raised by the appellant Wilson alone, need not detain us long. Wilson complains that he was foreclosed from eliciting from a State’s witness, on cross-examination, “evidence regarding alleged past accounts of violence by the deceased and of the decedent’s violent and dangerous character, which were known to the defendant.” Such evidence, which might in other circumstances have a bearing on some question of self-defense, dealt here with an issue which was not remotely material. In view of the concerted action of both appellants, along with the three boys who accompanied them, in taking the attack to the deceased as he lay asleep in his bed five hours after the alleged initial provocation, there is no remote issue of self-defense in this case. Although the evidence might indeed have been relevant on the question of self-defense, the question of self-defense was itself immaterial in the context of this case. The evidence, therefore, was properly excluded.

The appellant Wilson’s final contention is that the court erred in denying a motion for a mistrial when a State’s witness, on redirect examination, testified “that she did not sleep with Ike because of something he did to his prior wife.” The defendant’s objection was sustained and the matter was not pursued. In the exercise of its discretion, the court determined that this cryptic and unexplained reference did not in and of itself justify aborting a long and complicated jury trial. We see no abuse of discretion in that decision.

Judgments affirmed.


source: Caselaw Access Project

author: Moylan, J.,

license: Public Domain

text:
    ANN LOUISE WENTWORTH v. STATE OF MARYLAND
    [No. 319,
    September Term, 1975.]

      Decided November 28, 1975.

      The cause was argued before Moylan, Menchine and Moore, JJ.

      Dennis M. Henderson and Arthur A. DeLuno, Jr., Assistant Public Defenders, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      George A. Eichhom, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arrie W. Davis, Assistant Attorney General, William B. Yates, II, State’s Attorney for Dorchester County, and Robert D. Horsey, State’s Attorney for Somerset County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Ann Louise Wentworth, was convicted in the Circuit Court for Dorchester County by a jury, presided over by Judges C. Burnam Mace and Charles E. Edmondson, of murder in the second degree, of kidnapping and of two counts of armed robbery. The case had been removed for trial from Somerset County to Dorchester County. The appellant raises three contentions:

1) That an improper jury instruction was given contravening her right to due process as set out in Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975);

2) That the evidence was legally insufficient to permit the kidnapping charge and the murder charge to go to the jury; and

3) That a copy of a letter was erroneously introduced in contravention of the “best evidence rule”.

Simply to set the stage factually and also to illustrate the shift in focus that occurs when an appellate court reviews the same evidence for different purposes, we note that the evidence was amply sufficient to permit the case to go to the jury on both the charge of murder and the charge of kidnapping. The initial crime and the nationwide manhunt that followed in its wake were highly publicized. On the evening of April 3 and the morning of April 4, 1974, James Mosley, the chairman of the art department at the Princess Anne Branch of the University of Maryland, was kidnapped and brutally slain. The principal State’s witness was Dr. Delores Taylor, the assistant dean at Salisbury State College, with whom Mosley lived in a house trailer on Peggy Neck Road in Somerset County. The appellant was a student of Mosley’s at the Princess Anne campus.

The testimony of Dr; Taylor alone sufficiently established the facts that the appellant and her husband, David Wentworth, came to the trailer at approximately 9:30 p.m. on April 3. Although there was one discussion involving the repayment of a loan of $200, the visit initially was socially convivial. The visitors were offered drinks. The appellant had two drinks and her husband four. Approximately 45 minutes into the visit, the conversation took a nasty turn when David Wentworth suddenly accused Mosley of having had an adulterous affair, with Wentworth’s wife, the appellant. This Mosley denied. At that point, Wentworth suddenly pulled a gun. Mosley was ordered to lie down on the floor with his hands behind his head. Wentworth then asked the appellant if there had been an adulterous relationship and the appellant replied, “Yes.” Wentworth learned from Mosley that there was a .22 caliber pistol in the bedroom. He sent the appellant to get it and later sent her back to get bullets for the gun. Wentworth loaded the gun and put it in his pocket. Under the insistent demands of Wentworth to own up to the adultery, Mosley finally said, “Well, if it means saving my life, I’ll say yes.”

Wentworth again told the appellant to search the bedroom area of the trailer for guns, narcotics and money. She did so. Wentworth took from Mosley the keys to Mosley’s car. He gave the keys to the appellant, who went outside and started the car. Wentworth took Mosley’s wallet. The appellant took some money from Dr. Taylor’s pocketbook. Wentworth informed both Dr. Taylor and Mosley that he was going to take them for a ride, handcuff them to a tree and then return to search the trailer. The appellant also wiped fingerprints from surfaces which she had touched in the kitchen-dining area. Dr. Taylor seized a sudden opportunity and ran out of the trailer. She fled across a field to a neighbor’s house. She summoned the police and then, with a neighbor armed with a shotgun, returned to the trailer and found no one there.

Mosley’s body was found the following morning on the shoulder of a road with bullet wounds in the back of his head and across his back. A neighbor testified that she heard approximately eight shots fired at about 11:35 p.m. on the night of April 3. Two .357 and two .22 slugs were recovered from the victim’s body.

An all-points F.B.I. bulletin was put out for both the appellant and Wentworth. A week later, their car was recovered in Georgia, where another car had been rented. The appellant and Wentworth were arrested on May 5, 1974, in Idaho. Five of Mosley’s credit cards were in Wentworth’s pocket. Also recovered was a .357 magnum which matched ballistically two of the bullets taken from Mosley’s body. The evidence was legally sufficient to sustain all charges against the appellant.

The Jury Instruction under Mullaney v. Wilbur

We now turn our attention to the advisory instructions given to the jury. They were both confusing and unconstitutional. In pertinent part, the instructions ran:

“Felonious homicide in Maryland is divided into murder and manslaughter. Murder is defined as the unlawful killing of a human being with malice aforethought. Manslaughter, generally, is defined as the involuntary killing not done with a specific intent to take a life or where the killing was done with reckless and negligent indifference to the lives and safety of others and the wanton disregard of another man’s life.”

If a definition of manslaughter was to be given at all, the more appropriate definition would have been of voluntary manslaughter. The notion of involuntary manslaughter had no arguable relationship to the facts of this case and can only have served to confuse the jury. The instruction then went on:

“In the absence of justification, excuse, or some circumstance of mitigation, the law presumes that all homicides are committed with malice aforethought and constitute murder.”

Unless the suggestion here is that the “intent to kill” is being presumed, this sentence describes no presumption at all. The absence of justification, excuse or mitigation is set out as a “given” fact from which the presumption will be launched. Since the only thing to be presumed, however, is already given as established, there is nothing left to presume. See our analysis of this meaningless statement in Evans v. State, 28 Md. App. 640, 349 A. 2d 300, Part IIGe. With the absence of justification, excuse or mitigation as a given fact, that part of the instruction which immediately follows is incomprehensible:

“The burden is on the person accused to show circumstances of excuse or justification to reduce the offense to manslaughter.”

The thing, of course, which reduces murder to manslaughter is not “excuse or justification,” which would totally exculpate a defendant, but rather some circumstance of mitigation. The placing of a burden on the accused, moreover, flies directly in the face of Mullaney v. Wilbur, as analyzed in Evans v. State, Part IIG. That part of the instruction which followed repeated the error of presuming all homicide to be murder in the second degree:

“Where murder is divided into grades, as it is in Maryland, such a homicide is presumed to be murder in the second degree, and the burden to show that the killing was willful, deliberate and premeditated and thereby raise it to murder in the first degree is on the state.
The essential difference between murder and manslaughter, therefore, is the presence or absence of malice.”

In concluding this part of the instruction, the court again erroneously placed the burden upon the defendant of reducing murder to manslaughter by showing an absence of malice (what needs be negated, of course, is not malice in all of its aspects but only a single aspect — the absence of mitigation):

“In perhaps simpler words, the burden is on the State to raise a homicide to first degree murder by showing willful premeditation and malice aforethought. The burden is on the Defendant, on the other hand to reduce murder to manslaughter by showing an absence of malice.”

Even an academically incorrect instruction under Mullaney v. Wilbur, however, will not require a reversal unless it operates to relieve the State of its rightful burden of proving beyond a reasonable doubt the absence of justification or excuse or the absence of mitigation, where one or more of those issues has been generated by the evidence as a genuine jury question. In looking now to see whether any issue of justification, excuse or mitigation had been generated in favor of the appellant by the evidence in the case, we will now view the evidence, and all inferences fairly deducible therefrom, in a light most favorable to the appellant, in contrast to the very opposite focus we employed in viewing the legal sufficiency of the evidence.

There was no issue generated as to either justification or excuse. The defensive theory offered by the appellant was that of coercion or duress.

The appellant herself testified that her husband was “very paranoiac and was in another fit of rage.” She stated that she was deathly afraid of him once he pulled the gun and made the accusation as to adultery. She stated that as she was driving the car while her husband was holding the gun on Mosley, “I felt that I would be killed at any minute and that Mr. Mosley would be killed at any minute.” She attributed her husband’s irrational behavior that night to the combination of alcoholic beverages with the medication he was taking for a nervous condition. She testified that she had lived through a similar incident with her husband in 1971 when he attacked her father after similarly drinking and taking medication. She testified that on the evening of April 3, “When he pulled out the gun, his eyes.changed, his eyes were glassy, it looked like he was in a trance. He acted like a maniac, he was irrational, unpredictable, without reason ... I was terrified because I had only seen this one time before in my life and I knew that one time, which I explained earlier, was the intention of killing my father.” She explained that she could not escape from her husband during the month-long flight after the killing because her husband never let her out of his sight.

A psychiatrist who had treated the appellant testified that in his opinion, her actions on the night of April 3 were not voluntary:

“If I may elaborate, this carries right back to Ann’s second memory as a child, and that was of her father choking her mother, and you might say did she participate in that, she participated by being there, but she was unable to speak for a month after that . . . Because of her continued response to violent scenes that she grew up in, it was her response to lay low and do as you are told and not aggravate the beast so to speak. And by continued response or by having learned how to respond in angry violent situations, this then takes it out of her full voluntary control. She has learned to respond to violent situations by laying low and doing what you are told and not to aggravate the angry beast.”

There was, to be sure, evidence pointing in the other direction, but for present purposes, we will take that version of the facts most favorable to the appellant. Assuming that all of the relevant criteria are met, duress, coercion or compulsion is ordinarily a valid defense to a charge of crime. The general rationale is well set out in LaFave and Scott, Criminal Law (1972), at 374-375:

“One who, under the pressure of an unlawful threat from another human being to harm him (or to harm a third person), commits what would otherwise be a crime may, under some circumstances, be justified in doing what he did and thus not be guilty of the crime in question. The requirement for this defense of duress is that a threat of a human being which operates upon the defendant’s mind, rather than of the pressure of a human being which operates upon his body (as where A pushes B against C, causing C to fall over the cliff where the three are standing, admiring the view). The rationale of the defense is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question. Rather it is that, even though he has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided a harm of greater magnitude. If A, armed with a gun, threatens B, a taxi driver, with death unless B drives him to the scene of a robbery planned by A, B is not ¡guilty of the robbery which A commits at the scene, because it is better for society as a whole ¡that B do the lesser harm (aid A in the robbery) ¡than thatB’s life be lost.”

See also Clark and Marshall, Law of Crimes (6th ed., 1958), at 325-329, and Perkins, Criminal Law (2d ed., 1969), at 951-955. As Chief Judge Orth pointed out for this Court in Frasher v. State, 8 Md. App. 439, 449, 260 A. 2d 656:

“In order to constitute a defense, the duress by another person on the defendant must be present, imminent, and impending, and of such a nature as to induce well grounded apprehension of death or serious bodily injury if the act is not done. It must be of such a character as to leave no opportunity to the accused for escape. Mere fear or threat by another is not sufficient nor is a threat of violence at some prior time. The defense cannot be raised if the apprehended harm is only that of property damage or future but not present personal injury.”

There is one critical limitation upon the defense of duress, which leaves the appellant here utterly bereft in terms of possible total exculpation as to the murder. Whatever the psychological reality may be, the law, as a matter of social policy, has declared that the defense of duress may not extend to the taking of an innocent person’s life.

As Sir William Blackstone put it in 4 Commentaries *30, an accused “ought rather to die himself than escape by the murder of an innocent.” Perkins, op.cit, provides a modern rationale for the refusal of the common law to recognize such a defense, at 952:

“The refusal of the common law to exeuse one who has intentionally taken an innocent life to save his own is due, not to any notion that the rule of law will serve as an effective deterrent in such an emergency, but to an unwillingness to place the stamp of approval upon such conduct.”

Whatever the rationale, the law is now clear. LaFave and Scott, op.cit., points out, at 376:

“It has been held that duress cannot justify murder — or, as it is better expressed (since duress may justify the underlying felony and so justify what would otherwise be a felony murder), duress cannot justify the intentional killing of (or attempt to kill) an innocent third person.”

Perkins, op.cit., is equally emphatic, at 951:

“The common law does not recognize any compulsion, even the threat of instant death, as sufficient to excuse the intentional killing of an innocent and unoffending person, and hence it is also not a defense to a prosecution for an assault with intent to murder.”

It was to this point that we spoke in Frasher v. State, at 8 Md. App. 447-448:

“The voluntary requirement of the criminal act relates directly to compulsion; it is a defense as to all crimes except taking the life of an innocent person that the defendant acted under a compelling force of coercion or duress. 1 Wharton’s Criminal Law (Anderson) § 123, p. 261.” (Emphasis added)

That the appellant does not have a genuine jury issue with respect to justification or excuse, however, does not necessarily deprive her of a genuine jury issue with respect to mitigation. As we recognized in Shuck v. State, 29 Md. App. 33, 349 A. 2d 378, in dealing with mitigation by way of “imperfect” self-defense:

“Although by far the most common form of mitigation is that of a hot-blooded response to legally adequate provocation, this is not the only form of mitigation that will negate malice and will reduce what might otherwise be murder to manslaughter.”

It was of this very possibility that we spoke in Evans v. State, Part IC, at n. 4:

“This analysis presupposes that the type of mitigation fairly in issue is of the common and orthodox ‘hot blood in response to legally adequate provocation’ variety. The foreclosing effect of a first-degree murder conviction would not, however, apply in those very rare cases where manslaughter is predicated upon the far more esoteric extenuating circumstances, ‘not yet far advanced,’ of ‘an “imperfect” right of self-defense or defense of others, or of crime-prevention, or of the defenses of coercion or necessity, in which the killing, though not justifiable, is not bad enough to be murder.’ LaFave and Scott, Criminal Laiv (1972), § 77, ‘Other-Extenuating-Circumstances Voluntary Manslaughter,’ pp. 583-586. This qualification, it should be noted, is little more than an academic possibility.” (For yet a second time, the qualification is more than academic.)

We find highly persuasive the rationale of LaFave and Scott, op.cit.., at 585:

“One who is coerced by another person, or forced by the pressure of natural physical circumstances (e.g., thirst, starvation) into committing what is otherwise a crime, may have in some circumstances a complete defense to the crime, but not if the crime in question consists of intentionally killing another human being. Thus one who, not in self-defense or defense of another, kills an innocent third person to save himself or to save another is guilty of a crime. But it is arguable that his crime should be manslaughter rather than murder, on the theory that the pressure upon him, although not enough to justify his act, should serve at least to mitigate it to something less than murder. Two of the latest state criminal codes so provide.”

Similarly persuasive is Perkins, op.cit., at 951:

“It has been suggested, quite properly, that such compulsion may negative the element of deliberation and premeditation needed for conviction of one type of first-degree murder, but the possibility that it might disprove malice aforethought and place the homicide in the category of manslaughter has not received adequate attention. Despite indications to the contrary the law should take notice of the fact that the circumstances are extremely mitigating in such a case. The state of mind of one who takes an innocent life as the only means of saving his own, while not guiltless, is certainly not malicious, and this at times has had legislative recognition.”

Recognizing that an “imperfect” defense of duress may not exculpate a defendant in an unlawful homicide case but may supply that mitigation necessary to lower the degree of guilt from murder to manslaughter, we conclude that the appellant here had a genuine jury issue as to mitigation. As a result, the jury instruction which improperly placed upon her the burden of proving mitigation and which improperly relieved the State of its burden of proving the element of non-mitigation beyond a reasonable doubt requires a reversal under Mullaney v. Wilbur as analyzed in Evans v. State.

The “Best Evidence” Rule

The appellant challenges the introduction of a typewritten copy, contained in an FBI report, of a handwritten original letter from her to State’s witness Donald Miller. Miller was a retired government employee, whose hobby was gun collecting. He had met the appellant several years before the occurrence of the crime in this case. In that brief meeting, they had discussed the subject of guns and the appellant obtained Miller’s address. The letter, which is the subject of the present contention, was ostensibly written by the appellant to Miller on March 10, 1974, approximately three weeks before the crime in this case. The appellant lodged a timely objection to the introduction of the typewritten copy in contravention of the “best evidence” rule.

We have discussed the “best evidence” rule on a number of occasions. Forrester v. State, 224 Md. 337, 167 A. 2d 878; Gray v. State, 181 Md. 439, 30 A. 2d 744; Andresen v. State, 24 Md. App. 128, 331 A. 2d 78; Nutt v. State, 16 Md. App. 695, 299 A. 2d 468. In Anderson v. State, 9 Md. App. 532, 539, 267 A. 2d 296, we discussed the burden upon the State to explain its failure to produce the original document:

“2 Wharton, Criminal Evidence, § 593 indicates that it must be shown that the documents are lost or destroyed without the fault of the party tendering proof of the same. In Duggins v. State, 7 Md. App. 486, 256 A. 2d 354, this Court held that an original warrant must be produced to establish the validity of arrest where its existence or contents is challenged, but we pointed out the exception where the warrant was unavailable for some reason other than the fault of the prosecution.”

The State in this case has been very candid, acknowledging in its brief:

“‘Appellee: would concede that the State apparently has not met the burden under Anderson v. State, supra, in showing that the original could not be produced..”'

The State claims, however, that the error is harmless because the appellant acknowledged having written the letter, claiming that she wrote it at the direction of and under orders from her husband. The acknowledgment of that fact, however, does not dispose of the problem posed by the “best evidence” rule. The rationale behind the rule was well stated by McCormick, Law of Evidence (1st Ed. 1954), at 410:

“The policy-justification for the rule preferring the original writing lies in the facts (1) that precision in presenting to the court the exact words of the writing is of more than average importance, particularly as respects operative or dispositive instruments, such as deeds, wills and contracts, since a slight variation in words may mean a great difference in rights, (2) that there is a substantial hazard of inaccuracy in the human process of making a copy by handwriting or typewriting, and (3) as respects oral testimony purporting to give from memory the terms of a writing, there is a special risk of error, greater than in the case of attempts at describing other situations generally. In the light of these dangers of mis-transmission, accompanying the use of written copies or of recollection, largely avoided through proving the terms by presenting the writing itself, the preference for the original writing is justified.”

In the present case, it was not simply the fact of authorship that mattered but the very contents and wording of the letter because of the light which that might throw upon the state of mind of the appellant. The significance of the letter would have been to erode the appellant’s claim of duress, by showing that she herself had an interest in guns and in shooting. Such an insight into her state of mind would also have gone to contravert the testimony of the psychiatrist who appeared on her behalf and indicated that she had a lifelong antipathy to violence and to violent situations. Because of the impact which the contents and phrasing of the letter may have had upon this critical defense issue, we cannot say that the failure to produce the “best evidence” of the contents of the document in this regard was harmless.

Judgments reversed; case remanded for a new trial.

      . Wentworth’s case, severed for trial from the appellant’s, was removed to Calvert County. On February 20, 1975, he entered pleas of guilty to all four counts. He received 30 years for murder, 30 years for kidnapping and 20 years for each armed robbery, three of the sentences running consecutively for a total time to be served of 70 years.


text:
    STEVEN ALLEN BLAKE a/k/a Charles Allen v. STATE OF MARYLAND
    [No. 270,
    September Term, 1975.]

      Decided November 28, 1975.

      The cause was argued before Moylan, Gilbert and Melvin, JJ.

      It Roland Brockmeyer, Assigned Public Defender, for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Frauds B. Burch, Attorney General, and William B. Yates, II, State’s Attorney for Dorchester County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Steven Allen Blake, also known as Charles Allen, was convicted in the Circuit Court for Dorchester County, by a jury, presided over by Judge C. Burnam Mace, of three separate counts of assault with intent to murder and of unlawfully carrying a handgun. The main thrust of this appeal is that the trial judge allegedly committed error D in failing to instruct the jury that the appellant had the right to resist unlawful arrest; 2) in failing to instruct the jury that if an unlawful arrest so inflamed the appellant as to cause him to kill the arresting officer, the resulting crime would only be manslaughter; and 3) in giving an erroneous instruction on the presumption of malice in violation of Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975).

It is really only the Mullaney v. Wilbur problem which concerns us. The short answer to the alleged failure of the judge to instruct on the right to resist unlawful arrest and on the mitigating effect of a hot-blooded, albeit excessive, response to the provocation of an unlawful arrest is that the appellant failed to request any such instructions. The point is not, therefore, preserved for appellate review. Md. Rule 1085; Md. Rule 756 g. Since the putative error was simply one of omission rather than commission, it is not even arguably the type of “plain error” that we may recognize in the exercise of our discretion under Md. Rule 756 g. Brown v. State, 14 Md. App. 415, 287 A. 2d 62.

It is, of course, clear that Mullaney v. Wilbur will apply to a conviction of assault with intent to murder just as surely as it will apply to a conviction for some form of unlawful homicide itself. Thomas v. State, 29 Md. App. 45, 349 A. 2d 384. Since it is necessary in determining the special mens rea in an assault with intent to murder case to hypothesize a resultant death and to determine the degree of blameworthiness of the hypothetical killer, proper instructions as to the various mental states that may apply in a homicide case are required.

The jury instruction, in pertinent part, ran as follows:

“An assault is any attempt unlawfully to apply the least actual force to the person of another. In these cases, assault with intent to murder goes a little further than common assault. This is what I understand the law of Maryland to be relative to the charge with intent to murder. Intent is the essence of the felony of assault with intent to murder. If the intent was carried out, the resulting crime would have had to be either first or second degree rather than manslaughter. A specific intent to murder is not a necessary element for a conviction of assault with intent to murder. It is sufficient if there was an intention to commit grievous bodily harm. The essential distinction between murder and manslaughter is the presence or absence of malice.”

Thus far, the instruction was a perfectly proper one. It then turned to the troublesome subject of “malice”:

“Malice is the intentional doing of a wrongful act to another without legal excuse or justification.”

As we discussed in Part IIG2c of Evans v. State, this sentence is not technically complete, because it neglects to include that aspect of malice which is “the absence of mitigation.” That aspect is adequately handled, however, later in the instruction. The instruction then goes on:

“The inference of malice may be drawn from the fact of the use of a deadly weapon directed to a vital part of the body.”

The inference of malice — more literally, the inference of the intent to kill or the intent to do grievous bodily harm — from the use of deadly force is a perfectly proper inference, as we analyzed in Evans v. State in Part IIF. The pertinent part of the instruction, for present purposes, then concludes:

“The law presumes that in the absence of mitigation, all homicides are committed with malice and constitute murder. This presumption also applies to cases of assault with intent to commit murder.”

Although this instruction is less than artistically perfect, see Part IIG2d of Evans v. State, no harm is done in the present case. The only arguable defense theory is that of mitigation. The instruction here does not presume “the absence of mitigation” since, by its very terms, the presumption of malice does not operate except where the absence of mitigation is already there as a given fact.

.Although the instruction dealing with malice was not a model of clarity, it did not offend Mullaney v. Wilbur. The State was not relieved of its rightful burden of proving any element of the crime remotely relevant under the circumstances of this case. No instruction was given which affirmatively placed any type of a burden of persuasion upon the appellant.

Even if the instruction did not pass constitutional muster under Mullaney v. Wilbur, however, the error would be harmless in the context of this case. The evidence simply did not generate any genuine jury question as to mitigation. The appellant’s entire argument is predicated upon the proposition that even excessive force in response to an illegal arrest may be a hot-blooded response to legally adequate provocation. That excessive resistance to unlawful arrest is but one variety of response to provocation was made very clear in Davis v. State, supra, at 204 Md. 54:

“The second major line of cases recognizes the wisdom and necessity of the social policy but refuses to permit a reduction of the grade of the homicide to come about automatically. These cases apply a subjective standard and hold that the accused must in fact have been filled with passion aroused by the illegal arrest sufficient to meet the usual provocation tests, if murder is to be reduced to manslaughter. The courts following this line usually classify illegal arrest with sudden combat, assault and battery upon one’s person, and the sight of one’s wife in the act of adultery, as the standard situations in which a homicide arising out of the agitation stirred up in ordinary men by them will be manslaughter, rather than murder . . .
“In our view, the rule just discussed best serves the sound and necessary balance between the right to freedom of the citizen and the duty of those who must enforce the law, and is the rule to be followed.”

In this case, there was no evidence of an illegal arrest. When Cambridge police officers initially stopped the appellant at shortly after midnight on December 26, 1972, under what was at the very least a constitutional “stop” within the contemplation of Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889, see Gibbs v. State, 18 Md. App. 230, 306 A. 2d 587, he refused to acknowledge his alias, if not his proper name, and became loud, profane and disruptive in the presence of an angry crowd that was gathering. He was placed under arrest for disorderly conduct, but successfully fled the arrest scene. When he was stopped by three Cambridge officers several hours later, he opened fire upon them with a pistol.

The issue of provocation fails for yet a second reason. The State’s evidence did not indicate that the appellant was acting in hot-blooded response to provocation. The appellant himself took the stand and denied his criminal agency generally. Under the circumstances, no issue of either provocation or of hot-blooded response thereto — to wit, no issue of mitigation — was in the case. Under the circumstances, even an erroneous instruction under Mullaney v. Wilbur would have been harmless. See Part IF and Part IIH of Evans v. State.

Appellant does not brief his contentions that the testimony of the arresting officers should have been struck out and that the evidence was legally insufficient to support the convictions for assault with intent to murder. We, therefore, do not consider them. Md. Rule 1031c 5. Jacober v. High Hill Realty, Inc., 22 Md. App. 115, 321 A. 2d 838.

Judgments affirmed.

      . It is sometimes stated that the assault must be “committed under circumstances such that, if death ensued, the crime would have been murder in either the first or second degree.” Davis v. State, 204 Md. 44, 50, 102 A. 2d 816. That statement, true enough for most cases, is, however, too broad. There are at least four types of intent which are adequate to make a resultant death murder. One is the actual intent to kill, sometimes referred to as “express malice.” The other three are sometimes collectively called the various forms of “implied malice.” We catalogued these in Evans v. State, 28 Md. App. 640, 349 A. 2d 300, Part IIE3c:
      “Originally, the intent required for murder was the ‘intent to kill’ — the state of mind which we today call ‘express malice.’ The 17th century (and very late 16th century) recognized the need to punish as murder homicides resulting from other life-endangering intents, even though such intents did not involve literally the intent to kill. These additional mental states were added to the mens vea of murder during this period and they are what we today call:
      1) intent-to-do-serious-bodil.v-injury murder;
      2) felony-murder; and
      3) depraved-heart murder. (Perkins gives this mental state the less emotionally charged and probably better label of ‘Wanton and Wilful Disregard of Unreasonable Human Risk’).”
      Since assault with intent to murder requires a specific intent of achieving a particular result, it is clear that it is more restricted in its mental elements than would be the resultant murder itself. It would apply where there was an actual intent to kill or where there was an actual intent to do grievous bodily harm. Davis v. State, supra. In both cases, there is an intended evil result above and beyond the general intent to do the dangerous act itself. It would appear equally clear that an assault with intent to murder conviction could not be predicated upon the other two varieties of “implied malice” — felony-murder or the “wanton and wilful disregard of unreasonable human risk.” There is, in either of these situations, no specific intent above and beyond the general intent. If this were not so, every rape, assault with intent to rape, robbery, assault with intent to rob, kidnapping, assault in the course of an escape, etc. would constitute automatically an assault with intent to murder. In this regard, we find highly persuasive Perkins, Criminal Law (2nd Ed. 1969), at 763:
      “Murder may be committed without an actual intent to take life. ‘But to constitute the offense of an assault with intent to murder there must be a specific intent to kill.’ Hence it is error to instruct the jury that the same facts and circumstances which would make the offense murder, if death had ensued, will furnish sufficient evidence of intention to convict of assault with intent to murder.”