author: Mason, J.,

text:
    SYLVESTER JEROME MORRIS v. STATE OF MARYLAND
    [No. 908,
    September Term, 1975.]

      Decided October 6, 1976.

      The cause was argued before Thompson, Lowe and Mason, JJ.

      Michael S. Elder, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      John A. Austin, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Robert Salter Rothenhoefer, State’s Attorney for Frederick County, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The appellant, Sylvester Jerome Morris, was convicted by a jury in the Circuit Court for Frederick County of murder in the first degree, assault with intent to murder, and assault and battery. He was sentenced to a term of life imprisonment for the murder conviction and two concurrent seven-year terms for the assault with intent to murder and the assault and battery convictions.

The principal issue in this case is whether the trial court in its instruction to the jury erroneously allocated to the appellant the burden of persuasion on the issue of excuse.

As a threshold matter, we note that the defense of excusable homicide based on a claim of accidental killing was generated by the evidence as a legitimate jury issue in this case.

During the evening of January 19, 1975, the appellant, his wife, and two of their children stopped at a tavern for a few drinks. Later, James Spriggs, a family acquaintance, joined them. After a period of time, they all went to another bar and consumed additional drinks. The appellant, apparently jealous of the attention his wife and Spriggs were paying to each other, told his wife he was ready to go home. Upon her refusal, the appellant left without her. Later that same evening, the appellant’s wife and children returned home in Spriggs’s car. Moments after the children got out, a shotgun was fired, damaging Spriggs’s car and injuring the appellant’s wife and Spriggs.

The appellant denied intending to shoot his wife or Spriggs. He testified that the gun accidently discharged as he stepped from the curb onto the street. After this incident, the appellant was arrested and subsequently released on bail.

Approximately three weeks later, the appellant’s wife was fatally wounded. According to the appellant, while they were seated in his car, his wife struck him in the face during an argument. She then reached under the front seat and produced a gun which accidentally discharged when the appellant grabbed her hand.

The offending instruction in the present case was:

If you find beyond a reasonable doubt that there was an unlawful killing and that the defendant did it, in order to reduce the crime to manslaughter it is the defendant who has the burden of proving justification, excuse or some circumstance of mitigation, and he must do so by a preponderance of the evidence.
We talked about the State having the burden of proof beyond a reasonable doubt. Now in order to reduce the crime to manslaughter, the burden of proving justification, excuse or some circumstance in mitigation is upon the defendant, but he must do that only by a preponderance of the evidence.

On authority of Mullaney, we held in Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), aff'd, 278 Md. 197, 362 A. 2d 629 (1976), that it is unconstitutional to impose upon a defendant a burden of proving by any standard his innocence as to any element of a crime, or to relieve the State of its burden of proving beyond a reasonable doubt any element of the crime charged.

The flaw in the instruction, as given, was the erroneous allocation to the appellant of the burden of persuasion on the question of excuse. Not only did this relieve the State of proving beyond a reasonable doubt that the offense was not accidental, as mandated by Mullaney, it required the appellant to assume the burden of proving the offense was accidental as proscribed by Mullaney.

Here, the issue is whether the jury verdict of murder in the first degree cured the error by indicating that the State had carried its rightful burden of proving every element of the offense beyond a reasonable doubt. In explicating Mullaney, we held in Evans that a jury finding of guilty of murder in the first degree would operate to cure an erroneous allocation of the burden of persuasion on the subject of mitigation:

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 would have proved every element, including the negating of hot blood, beyond a reasonable doubt and due process will not have been offended.
28 Md. App. at 658.

See also Brown v. State, 29 Md. App. 1, 349 A. 2d 359 (1975) and Dorsey v. State, 29 Md. App. 97, 349 A. 2d 414 (1975), aff'd, 278 Md. 221, 362 A. 2d 642 (1976).

The immediate issue is whether such reasoning would apply, by way of analogy, to a first-degree murder finding where the defensive issue was not mitigation but rather excuse and where the particular sub-variety of excuse was accident.

This issue has been squarely answered in the affirmative by Chief Judge Murphy, specially assigned, writing for this Court in Newkirk v. State, 32 Md. App. 621, 363 A. 2d 637 (1976). In dealing with precisely the same issue, we stated:

The State points out that the defense of accident is based on a theory of no intent, no willfulness, no premeditation, and no deliberation. It argues that by its verdict of first degree murder the jury found that the State sustained its burden of proof beyond a reasonable doubt that the appellant acted in a willful, deliberate and premeditated manner, thereby rejecting any claim of defense that the shootings were accidental. The State maintains that in these circumstances it did not rely on any unconstitutional presumption or inference of malice, and that notwithstanding the erroneous allocation of the burden of persuasion the first degree murder verdict “cured” the errors in the jury instructions.
In Dorsey and Wilson v. State, supra, a homicide case in which the trial court erroneously instructed the jury that the burden of proving mitigation was upon the defendant, we held, and the Court of Appeals agreed, that the jury’s verdict of murder in the first degree cured the error in the instructions. We there noted that under the trial court’s instructions the State was required to carry the burden of proving willfulness, deliberation, and premeditation and thus did not rely upon an unconstitutional presumption of malice. . We said that the finding by a jury of the elements of first degree murder negated the existence of mitigating circumstances, since malice and mitigation due to provocation could not coexist.
Considering the facts of the present case in view of the instructions given to the jury, we think the same rationale is applicable to the defense of excusable homicide based on a claim of accidental or unintentional killing. Since the jury found the appellant guilty of first degree murder, it is clear that it did not rely upon the erroneous instruction presuming all felonious homicides to constitute second degree murder; instead it concluded that the State had sustained the burden properly placed upon it by the instructions of proving, beyond a reasonable doubt, that the killing was willful, deliberate, and premeditáted and hence not unintentional or accidental, as claimed by the defense. Cf. Stambaugh v. State, 30 Md. App. 707, 353 A. 2d 638 (1976), a case in which we reversed a conviction of second degree murder where the defense was accident and the jury was erroneously instructed that homicide was presumed to be murder in the second degree and that the burden was upon the defendant to establish excusable homicide. See also Wilson v. State, 28 Md. App. 168, 343 A. 2d 537 (1975).

Newkirk is fully dispositive of the present case. For precedential guidance, however, it behooves us to reconcile the holding of Newkirk with what at surface glance might appear to be a contradictory dictum in our Evans opinion at 664:

If a fair reading of the instructions indicates that the “presumption of malice” in that broader and unqualified form, operated to relieve the State of its burden of ultimate persuasion on the issue of non-justification and/or non-excuse (where either is a fair issue in the case), Mullaney v. Wilbur will require a reversal regardless of the degree of felonious homicide on which the conviction was had. Unlike the situation dealt with where the only issue in the case affected by the presumption was mitigation and the only advantage the defendant was denied was the possible lowering of murder in the second degree to manslaughter, the harm on the issues of presumed non-justification and presumed non-excuse operates across the entire spectrum of culpability. If the defendant had had the benefit of a fair allocation of the burden of persuasion on these issues, he might well have been found not guilty totally and not simply guilty to a lesser degree. Self-defense, for example, would relieve one of guilt for a premeditated and deliberated killing as well as for a killing in hot blood.

In dealing with the three broad defensive issues of 1) justification, 2) excuse and 3) mitigation, Evans did indicate that although a first-degree verdict would cure error with respect to an erroneous allocation of the burden of proof on the subject of mitigation, it would not cure such error with respect to the issues of justification or excuse. In dealing with the defensive issue of excusable homicide, however, Evans failed to anticipate one of the nuances or subtleties which has now eventuated. In speaking of excusable homicide, Evans contemplated that variety of excusable homicide which had theretofore involved the affirmative defenses such as self-defense in certain circumstances. It contemplated the “confession and avoidance” type of defense — “Yes, I did it intentionally but I did it for the following excusable reason.” With respect to that variety of excusable homicide, our dictum in Evans is still good law. What we failed to do in Evans was to distinguish between that category of excusable homicide described above and the variety of excusable homicide represented by negligent accident. In dealing with this latter variety of excuse, Newkirk is an essential refinement and clarification of the otherwise overly broad dictum of Evans. The excuse of accident is not, of course, an affirmative type of defense but is rather a negation of the central element of an intentional killing.

In dealing with such an element, it is clear that the State carried its rightful burden of proof. With respect to murder in the first degree, the trial judge in this case correctly allocated the burden to the State and pointed out that the burden was that of proving the elements “beyond a reasonable doubt”:

Now, in order to elevate the crime to murder in the first degree, the State has the burden of proving beyond a reasonable doubt that the defendant killed the deceased; that he did so willfully, deliberately and with premeditation and of course with malice aforethought.

The jury instruction in this case went on and correctly defined those elements indicating an intent to kill:

“Wilful” is a specific purpose, design or intent to kill. “Deliberate” means the full conscious knowledge of the purpose to kill; and premeditation means that the design or intention to kill must have come before the killing by an appreciable length of time — time sufficient for some reflection and consideration upon the matter, choice to kill or not to kill and for formation of a definite purpose to kill — that is, time enough to be deliberate.

For the jury to have found beyond a reasonable doubt that the appellant here intended to kill and that he did so willfully, deliberately and with premeditation, it, ipso facto, negated the notion of accident beyond a reasonable doubt. Therefore, we affirm.

We are compelled, however, to reverse the assault with intent to murder conviction, which arose out of a separate and distinct incident, because of the erroneous instruction of the trial court. This instruction reads in relevant part as follows:

In order to convict the accused of assault with intent to murder you would have to find beyond a reasonable doubt that the defendant did assault the victim and that it was done willfully and with malice. Malice can be actual or implied, as I have explained before. Actual malice is the intentional killing of a human being, without legal justification or excuse; implied malice is the unintentional killing of a human being, but there is an intent to inflict great bodily harm or do an act or duty omitted willfully, the natural consequences of which is to cause death or great bodily harm, or where a deadly weapon is directed at a vital part of the victim. In such a situation the law implies malice. (Emphasis added).

This instruction offends Mullaney and is unconstitutional. It implies malice generally and relieves the State of proving the essential ingredients of malice, i.e., the lack of mitigation, justification or excuse. It also places this burden on the appellant. In State v. Evans, supra, the Court of Appeals said:

While it may be proper to infer an intention to kill or to do grievous bodily harm from the directing of a deadly weapon at a vital part of the human anatomy, it is improper to infer “malice” therefrom, since the use of deadly force does not itself negate the absence of mitigating circumstances; were it otherwise, the State would be unconstitutionally relieved of its burden of proving the absence of mitigation and would have shifted the burden of persuasion to the defendant to lower his guilt to manslaughter, precisely that which Mullaney proscribes.

With regard to the assault and battery conviction, it was amply supported by the evidence and not challenged on appeal.

In addition, the appellant raises the following issues: (1) that the instructions were so incorrect, confusing, and misleading as to deny the appellant a fair trial; (2) that the evidence was insufficient to support a conviction of willful, deliberate, and premeditated murder; (3) that the trial court, at the suppression hearing, erred in its ruling that the appellant had the burden of proving he was so intoxicated as to render his confession involuntary, and that it erred in admitting the confession into evidence; and (4) that the trial court abused its discretion when it admitted photographs of the deceased into evidence.

We have carefully reviewed these issues and find they are without merit for the following reasons: First, the appellant made no objection to the trial court’s instructions; therefore, this issue was not preserved for appellate review. Maryland Rule 756 g. In any event, the instructions, when considered as a whole, were not so incorrect, confusing, and misleading as to deny the appellant ■ a fair trial. Second, there was ample evidence and rational inferences drawable therefrom from which •the jury could have found the appellant guilty of willful, deliberate, and premeditated murder. Third, it is not necessary to answer this issue because it only related to the crime of assault with intent to murder which we have reversed for other reasons. Fourth, the question of whether the photographs were inflammatory or improperly prejudicial or whether they illustrated or explained relevant matters is within the sound discretion of the court. Carroll v. State, 11 Md. App. 412, 274 A. 2d 677 (1971).

Judgments under Count Six and Seven of Criminal Information No. 3597 affirmed.

Judgment under Count One of Criminal Information No. 3597 reversed.

      . This case was tried on May 21-22, 1975. Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), was decided on June 9,1975. The objection now raised to the jury instruction was not raised at the trial but was raised and denied at the hearing on the motion for a new trial on August 1,1975. Thus, it is appropriate to review the challenged instruction. See Squire v. State, 32 Md. App. 307, 360 A. 2d 443 (1976).


source: Caselaw Access Project

license: Public Domain

text:
    WILLIAM EDWARD TEVES v. STATE OF MARYLAND
    [No. 1087,
    September Term, 1975.]

      Decided October 6, 1976.

    The cause was argued before Moore, Melvin and Mason, JJ.

      Harriette Cohen, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Smsher, State’s Attorney for Baltimore City, and Leslie L. Stein, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The appellant, William Edward Teves, was convicted by a jury in the Criminal Court of Baltimore of murder in the first degree, the use of a handgun in the commission of a crime of violence, and unlawfully wearing a handgun upon his person. He was sentenced to a term of life imprisonment for the murder conviction and consecutive terms totalling eighteen years for the handgun convictions.

According to the evidence adduced at trial, on November 20," 1974, around 2:00 a.m., the appellant in the company of three other persons randomly fired a pistol into the air. Officer Greiner of the Baltimore City Police Department, apparently in response to a complaint, approached this group and said, “Everybody stop and keep you hands still.” Whereupon the appellant fired three shots at the officer from a range of six to eight feet. Although seriously wounded, the officer was able to radio for help and to give a description of his assailant. Within minutes after the shooting, the appellant, who fit the description, was seen by the police. After a brief chase, the appellant was arrested. Ten days later Officer Greiner died.

At trial the appellant did not take the stand. Evidence, however, was introduced which indicated the appellant had been drinking prior to the incident, and that the alcoholic content of his blood was .18%.

The appellant argues that the court’s instruction on intoxication unconstitutionally placed the burden of persuasion on him to prove he was so intoxicated he could not form the specific intent necessary to commit the offense.

The challenged portion of the jury instruction reads:

To raise murder to first degree, as I have said the State must show that the killing was wilful, deliberate and premeditated. So, the question of whether the accused was in such a condition of mind, by reason of drunkenness, to be capable of deliberation and premeditation, as I have defined it previously, is a matter for you to determine. While voluntary intoxication can be a defense to a specific intent crime, such as murder in the first degree, the degree of intoxication which must be demonstrated to exonerate a defendant from these charges is great. (Emphasis supplied).

Significantly, this particular language which is now assailed was lifted verbatim from State v. Gover, 267 Md. 602, 298 A. 2d 378 (1973), and is a correct statement of the law as to the level of intoxication necessary before the defense of intoxication can prevail in a specific intent crime.

Generally, voluntary drunkenness is no defense to a criminal charge. Breeding v. State, 220 Md. 193, 199, 151 A. 2d 743 (1959). The only exception to this occurs when a defendant, charged with a crime requiring a specific intent, is so drunk that he is unable to formulate that mens rea. His intoxication then will excuse his actions and serve as a defense. Avey v. State, 249 Md. 385, 240 A. 2d 107 (1968). State v. Gover, 267 Md. at 606.

On authority of In re Winship, 397 U. S. 358, 364, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U. S. 684, this Court in Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), aff'd, 278 Md. 197, 362 A. 2d 629 (1976), held inter alia, that it is unconstitutional to impose upon a defendant a burden of proving by any standard his innocence as to any element of a crime or to relieve the State of its burden of proving beyond a reasonable doubt any element of the crime charged. In State v. Evans, supra, the Court of Appeals observed that the principles of Mullaney were applicable to any defense theory of justification, excuse, mitigation, including, among other things, intoxication.

In State v. Grady, 276 Md. 178, 345 A. 2d 436 (1975), the following instruction was challenged as placing the burden upon the defendant to establish his alibi defense:

With reference to alibi, a defendant may be entitled to acquittal if you believe the alibi testimony as his not being present at a time and place of the alleged offense, by taking into consideration this testimony with all the other evidence raising a reasonable doubt of guilt, but in order to prove an alibi conclusively, the testimony must cover the whole time in which the crime by any possibility might have been committed, and it should be subjected to rigid scrutiny. 276 Md. at 181.

The Court of Appeals in its analysis of that instruction said:

... we conclude that it was improper to explain alibi testimony as did the trial judge since, at the very least one rational interpretation of the words used would place an impermissible burden of proof upon the respondent.. . . 276 Md. at 185.

The appellant contends that the rationale undergirding Grady, supra, compels reversal here. We disagree. Instructions must not be judged in artifical isolation, but must be viewed in the context of the overall charge in determining whether the principles of Mullaney were violated. State v. Garland, 278 Md. 212, 362 A. 2d 638, (1976). Even if we were to decide, which we need not do, that this truncated portion of the instruction erroneously placed the burden of proving intoxication on the appellant, the appellant cannot prevail.

In Evans we held that a jury finding of guilty of murder in the first degree would operate to cure an erroneous allocation of the burden of persuasion on the subject of mitigation.

. . . 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. . . . Where, . . . 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. 28 Md. App. 658.

In our Evans opinion we also said that an erroneous allocation of the burden of persuasion as to justification or excuse (either being an issue in the case) would require a reversal under Mullaney, regardless of the degree of felonious homicide found by the jury.

Unlike the situation dealt with where the only issue in the case affected by the presumption was mitigation and the possible lowering of murder in the second degree to manslaughter, the harm on the issues of presumed non-justification and presumed non-excuse operates across the entire spectrum of culpability. If the defendant had had the benefit of a fair allocation of the burden of persuasion on these issues, he might well have been found not guilty totally and not simply guilty to a lesser degree. Self-defense, for example, would relieve one of guilt for a premeditated and deliberated killing as well as for a killing in hot blood. 28 Md. App. 664.

This language was too expansive and overbroad. We failed to perceive, much less speak to, the issue of excuse based on accidental or unintentional killing or to the issue of excuse based on intoxication.

In Newkirk v. State, 32 Md. App. 621, 363 A. 2d 637 (1976), we extended the parameter of Evans and held that a jury finding of murder in the first degree would cure an erroneous allocation of the burden of persuasion on the defense of accidental or unintentional killing.

Since the jury found the appellant guilty of first degree murder, it is clear that it did not rely upon the erroneous instruction presuming all felonious homicides to constitute second degree murder; instead it concluded that the State had sustained the burden properly placed upon it by the instructions of proving, beyond a reasonable doubt, that the killing was willful, deliberate, and premeditated and hence not unintentional or accidental, as claimed by the defense.

Accord. Morris v. State, 33 Md. App. 185, 364 A. 2d 588 (1976).

We think the same rationale of Evans, Newkirk and Morris would apply here. In the present case, the jury was instructed that for it to find a verdict of first degree murder the State must prove beyond a reasonable doubt that the killing was willful, deliberate, and premeditated.

To justify a conviction of first degree murder, the jury must find that there was an actual intent to kill, a fully formed purpose to kill, with enough time for deliberation and premeditation to convince you, the trier of the facts that the purpose to kill is not the immediate offspring of rashness and impetuous temper, but that the mind had become fully conscious of its own design.
For a homicide to be wilful, there must be a specific purpose and design to kill. To be deliberate, there must be a full and conscious knowledge of the purpose to' kill. To be premeditated, the design to kill must have preceded the killing by an appreciable length of time, that is, time enough to deliberate.

It is manifest that the State, in proving beyond a reasonable doubt the killing was willful, deliberate, and prefneditated, proved every fact material to the guilt of the appellant and negated the defense of voluntary intoxication. It is obvious that a state of mind “fully conscious of its own design” cannot coexist with one which is incapable of forming, because of intoxication, the specific intent to kill. Therefore, it is clear that even if the intoxication instruction were erroneous, it was harmless beyond a reasonable doubt since the jury, in finding the appellant guilty of first degree murder, did not rely on this instruction.

Judgments affirmed.

      . The objection now raised by the appellant to the jury instruction was not raised below. Ordinarily this would preclude appellate review. Maryland Rule 1085. In this case, however! the appellant’s trial occurred on May 19-23, 1975, whereas Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975), was decided on June 9, 1975. Under these circumstances, it is appropriate to recognize as plain error under Rule 756 g, an error in jury instructions committed in a case tried prior to Mullaney. Squire v. State, 32 Md. App. 307, 360 A. 2d 443 (1976).


author: Melvin, J.,

text:
    CLARENCE MOUZONE v. STATE OF MARYLAND
    [No. 1124,
    September Term, 1975.]

      Decided October 6, 1976.

    The cause was submitted on briefs to Lowe, Melvin and Mason, JJ.

      Submitted by Luther C. West, Assigned Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Henry E. Dugan, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Howard Grossfeld, Assistant State’s Attorney for Baltimore City, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

The appellant, Clarence Mouzone, age 19, following a two day jury trial (Dorf, J., presiding) in the Criminal Court of Baltimore in August, 1975, was convicted of second degree murder and the use of a handgun in the commission of a crime of violence. On September 9,1975, he was sentenced to 30 years imprisonment on the murder conviction and 15 consecutive years on the handgun offense. A single question is presented on appeal:

“Did the prosecutor intentionally introduce and emphasize irrelevant and incompetent evidence by his comments and questions to witnesses so as to arouse the passion and prejudicially mislead the reasoning process of the jury; thereby denying Appellant due process of law?”

I

On October 12, 1974, at 6:45 P. M. a policeman found the victim, Richard West, lying on the sidewalk in front of Angelo’s Tavern at the intersection of 23rd Street and Greenmount Avenue in Baltimore City with a bullet wound in his stomach. He was taken by ambulance to a hospital where he died of the wound later that same day. Neither the appellant nor one James Harrison, age 20, (the State's only material witness) was observed at the„scene of the homicide by the policeman.

James Harrison testified that he was a good friend of the deceased, West, and that on the evening in question they ran into the appellant on the street; that appellant and West argued over money appellant owed to West; that appellant told West to forget about the money; that appellant then continued on his way and West and Harrison moved on to Angelo’s Tavern; that they purchased beer in the tavern and moved outside to drink it because it cost less to drink it outside; that appellant reappeared on the scene openly carrying a .22 caliber pistol and asked West if he still wanted his money, and West replied that he did; that appellant then struck West in the face; that West put up his hand to defend himself and appellant backed off and shot him once with the .22 caliber pistol and ran away.

Harrison further testified that he helped West down onto the steps of the tavern and “ran into the bar and told them to call an ambulance”. He then ran home “and told my mother or somebody”, because he was “scared”. He and his brother then returned to the tavern to “see which hospital he was going to”. After learning the location of the hospital, he told West’s family and then went to the hospital himself. He said he did not go to the police because he was “scared that he-[appellant] might shoot me, too”. A few days after the shooting the police came to his house and he “went down and gave them an affidavit”.

On cross-examination, when asked how he knew the gun he saw in appellant’s hand was a .22 caliber, he answered variously, “Because it was a small gun” (although he admitted he couldn’t “distinguish between a .22 and a .25 and a .32 in an instant”); “Because they told me he was killed with a .22 when I went to the hospital. The bullet he had in him was a .22”; and because “I saw a small handgun when I went to the hospital. Dickie’s [West’s] brother told me it was a .22”. No weapon or bullet was produced at the trial and there was no other testimony identifying the weapon or the bullet. The autopsy report introduced in evidence indicates that the victim died at 10:45 P. M. October 12th and that it was not until the autopsy was performed the next day (after the body had been removed from the hospital to the Baltimore City morgue) that the fatal bullet was recovered “in the subcutaneous tissues to the right of the vertebra L2”. The report described the bullet only as “a minimally deformed small caliber bullet which is labeled ‘RW’ on its base and which is retained”. It was further established on cross-examination that in a written statement to the police on October 18, 1974, Harrison had denied seeing the appellant “with a gun before the shooting”. When questioned concerning his prior criminal record Harrison admitted to one conviction for assault.

Aside from the appellant, the only defense witness was Sharon Spriggs, age 20, who testified that shortly before the homicide she heard West and Harrison “both talking about murdering” the appellant “with a gun”; that she accompanied them to Angelo’s Tavern and they were “already high” on Qualades and “wanted to get even higher”. She saw West and appellant having a “conversation” outside the tavern. She came out of the tavern and “accidentally slipped”. She asked the appellant to help her up and when he did she told him to “come on and forget about this sh- -”. She then “turned around to go home”' at which time the appellant was “walking” down the street. At this point she heard a shot. When she turned around she saw West slumping to the sidewalk. Harrison was standing nearby with his hands in his pockets. She didn’t know where the appellant was after she heard the shot; she “wasn’t paying any attention”. She and Harrison helped West to the tavern steps and she “ran in the bar and asked for an ambulance or contact somebody because a man just got shot and hé needed help”. She said that Harrison left the scene “directly after the cops had showed up .. . because he said he was going to shoot Clarence [the appellant]”.

Testifying in his own defense, appellant admitted on direct examination that he had been convicted of manslaughter in 1971 when he was 16 years old. He had been -paroled in February, 1974, and in October 1974, was working at a grocery store on Greenmount Avenue and attending his first year at Bay College. In July 1974, he witnessed a murder by one Weldon Keen while “sitting on the corner waiting for a bus”. He “didn’t want to get involved”> but someone told the police he “might have seen something” so when the police contacted him he “had no alternative than to take and tell him what I knew to keep myself out of it”. He asked the prosecutor not to put his name on the indictment as a witness, “Because it was like the signing of my own death warrant”. “Mr. Keene at that time was in charge of all the dope that was in that area. So, he had a lot of things at his disposal in the criminal world”. The murder indictment against Keene was returned on September 23, 1974, with appellant’s name at the top of the witness list. When he learned this, appellant called the prosecutor (Joseph Wase, Esq., who had left the State’s Attorney’s office at the time of appellant’s trial) and told him he feared for his life and asked for protection [This was corroborated by the stipulated testimony of Mr. Wase]. Appellant testified that a number of people approached him and told him “to watch out because Weldon Keene wanted me dead”. He was told by Mr. Wase and the police detective on the case that “. . . if I was to get caught, I was to give them a call”.

Appellant’s account of the events leading up to the shooting of West agrees generally with that of Harrison’s, except as to the shooting itself. Appellant testified that after he helped Sharon Spriggs up from her fall he started on his way past West and Harrison and “at this time Richard West grabbed me on my right arm. But, I kept moving faster and I put my arm around his neck in a choke hold” from behind his back. This action, which he said took only “a second”, placed him directly behind West’s back, with West facing Harrison who was standing facing them a few feet away. Appellant described the actual shooting as follows:

“Q What happened then?
A After I had him in the choke hold and locked my arms, there was a shot that went off.
Q Who fired the shot?
A Well, there was only two people there. One was Sandra Spriggs and Mr. Harrison from the direction he was hit.
Q Did you see a gun in Mr. Harrison’s hand?
A His hands were in his pocket. I couldn’t see his hands.
Q What did you do then?
A I ran.
Q Now, you were not — you did not turn yourself in to the police at that time to testify as to what happened, did you?
A No.
Q Why did you not turn yourself in at that time?
A Because I had seen. It stemmed from the Weldon Keene case. I didn’t want to get involved in that case. Like I went down there and told what I seen and when I asked somebody for help to save me, there was no help forthcoming. My own hands were tied by the parole board. The only thing I could do was go to somebody else for help. But, nobody gave me help.”

The defense theory is simple: James Harrison intended to shoot the appellant, but instead accidentally shot his friend and blamed it on appellant. Aside from Harrison and the appellant, the only other witness at the scene was Sharon Spriggs who testified, on cross-examination by the State, that she didn’t know “who shot who”. She said she was friendly with all three of the young men involved, i.e., West, Harrison and the appellant, Clarence Mouzone. A prior trial on the same indictment had resulted in a hung jury.

II

With this background, we turn to the incidents of alleged prosecutorial misconduct allegedly resulting in an unfair trial and therefore a denial of due process.

(1)

During the prosecutor’s opening statement to the jury the following occurred:

“Now, we are here today because there was a murder committed. Please understand that, ladies and gentlemen. We are dealing with someone who is no longer here. He was a human being. He has a mother and father —
MR. WEST (DEFENSE COUNSEL): I would object. This is improper.
THE COURT: Sustained.”

(2)

Shortly thereafter, this occurred:

“If you ask why, what was the motive, ladies and gentlemen, you will hear from the evidence, you will find out that Mr. Clarence Mouzone likes to kill. Take a look at him, ladies and gentlemen. That is a killer, (indicating)
MR. WEST: I object to that, Your Honor, as improper and inflammatory.
THE COURT: All right. I will strike it. It is inflammatory.
MR. GROSSFELD (the Prosecutor): Thank you, Your Honor.”

(3)

During the State’s direct examination of the witness Harrison, after Harrison stated that he did not go to the police following the shooting of West because he feared the appellant might shoot him, the prosecutor asked:

“Q Because you heard he was a contract killer?
A Well —
MR. WEST: Objection and move that it be stricken.
THE COURT: Sustain the objection and strike it.”

(4)

During the cross-examination of the appellant, the prosecutor suddenly asked:

“Q Mr. Mouzone, isn’t it true that you get paid to murder people?
MR. WEST: Objection. This is highly inflam-' matory and I move for a mistrial.
THE COURT: I will sustain the objection and the motion is denied.
MR. GROSSFELD: Thank you, Your Honor.
THE COURT: I will instruct the jury to disregard the question.”

(5)

During the State’s final argument to the jury, the prosecutor said to the jury:

“Doesn’t it strike you funny that wherever Clarence Mouzone is, there is murder and a dead body?
MR. WEST: Objection.
THE COURT: We are referring to this case only. I will sustain the objection as to any other.”

(6)

The State’s final argument to the jury was concluded as follows:

“Ladies and gentlemen, when it’s all done, you will find that Clarence Mouzone's story is hard to swallow; that he is a violent person. He’s lived a criminal life.
MR. WEST: Objection, Your Honor. He’s lived a violent life. I move that that be striken (sic).
THE COURT: I will allow the jury to consider any evidence. I instruct them and I will instruct them again that any prior record has no significance as far as prior life is concerned. But, there is evidence of his prior life.
MR GROSSFELD: Ladies and gentlemen, I am talking about what he said on the stand. Mr. Clarence Mouzone is the type of person, ladies and gentlemen, look at him hard. You are looking at a killer.
Thank you.”

There was no objection by defense counsel to Mr. Grossfeld’s concluding paragraph. Appellant cites other incidents of alleged prosecutorial misconduct as to which no objections were made during the trial. Although such incidents were later urged as a grounds for reversal at the hearing on appellant’s motion for a new trial, no appeal was taken from the court’s ruling denying the motion. As to those incidents to which no objections were made during the trial there is no ruling of the trial court before us for review and we do not consider them. Apple v. State, 190 Md. 661 (1948); Md. Rule 1085.

Ill

That the prosecutor’s actions complained of were exceedingly improper and calculated to unfairly prejudice the jury against the appellant is scarcely a matter for argument. The Maryland rule, however, is that “unless it appears that the jury were actually misled or were likely to have been misled or influenced to the prejudice of the accused ... [by the prosecutor’s actions], reversal of the conviction on this ground would not be justified”. Reidy v. State, 8 Md. App. 169, 172 (1969).

Concerning what may be “prejudicial”, the Court of Appeals in Wilhelm v. State, 272 Md. 404 (1974), at 416, quoted with approval from Gaither v. United States, 413 F. 2d 1061 (D.C. Cir. 1969) wherein the Federal Court said, at 1079:

“The applicable test for prejudice is whether we can say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error. The decisive factors are the closeness of the case; the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error”. (Citations omitted.)

Applying the decisive factors to the present case, the “closeness of the case” is obvious, for its outcome depends directly on the credibility of the appellant and the State’s witness, Harrison. There is no question but that one of them shot the victim. We do not think appellant’s version so implausible as to be dismissed out of hand as a mere denial of guilt. Considering what appears to be the nearly equal backgrounds of the two and the apparently compromise nature of the verdict, [As the State argued to the jury, if it believed Harrison’s version, “its either first degree or its not guilty.”], that the jury had difficulty in resolving the conflict is obvious. An earlier jury was unable to do so, presumably on the same evidence.

Regarding the “centrality of the issue affected” factor, the improprieties of the prosecutor affected the most central issue in the case, appellant's guilt. The prosecutor repeatedly tried to create the impression that appellant committed the murder because he “likes to kill”, was a “contract killer”, was “paid to murder people”, was a “violent person”, “had lived a criminal life” and because “wherever Clarence Mouzone is, there is murder and a dead body”. The record does not justify such extreme remarks. Nevertheless, the prosecutor was clearly calling upon the jury to consider them as substantive evidence of guilt.

We come now to the “steps taken to mitigate the effects of the error” as to each of the incidents described in Part II of this opinion:

1. We think the prosecutor’s remark was not so prejudicial as to call for more than a sustaining of the objection made by defense counsel. No other action was requested and in this instance we think none was required. Newton v. State, 147 Md. 71, 92 (1924).

2. The remarks here (“You will find out that Clarence Mouzone likes to kill. Take a look at him, ladies and gentlemen. That is a killer (indicating)”) were highly improper and were correctly stricken by the trial judge as being “inflammatory”. Here we think the judge should have gone further and forthwith instructed the jury to disregard the unwarranted remarks. Contee v. State, 223 Md. 575, 584 (1960).

3. The question asked the State’s witness (“Because you heard he was a contract killer?”), in addition to being an improper leading question, was extremely prejudicial. Although the trial judge did strike the question, here again we think more was required to remove the deleterious effect that the ill-considered question may have had on the jury. As the Court of Appeals said in Contee v. State, supra, at 594:

“ .. . [T]he State’s Attorney has an obligation to refrain from making any remark within the hearing of the jury which is likely or apt to instigate prejudice against the accused. We further point out that, while granting or refusal of a mistrial is a matter lying within the sound discretion of the trial court, the court, nevertheless, in addition to sustaining an objection to an improper remark or misconduct, is also entrusted with further responsibility to caution or reprimand the State’s Attorney as the exigencies of the situation may require and to forthwith instruct the jury to disregard the unwarranted remarks and conduct of the prosecuting attorney.” (Emphasis added.)

4. Apparently oblivious of the court’s ruling on his prior attempt to inject the thought that the appellant was a hired killer, the prosecutor persisted in repeating the insinuation by asking the appellant, “Mr. Mouzone, isn’t it true that you get paid to murder people?” Here, short of granting the requested mistrial, we think the “exigencies of the situation” cried out for the strongest of remedial action by the trial court. Although the jury were told to “disregard the question”, we think that, in addition, the prosecutor should have been sternly reprimanded and cautioned against such conduct. Further, the jury should have been told of the complete absence of any evidence in the case whatsoever that appellant was a “hired killer”.

5 and 6. Here again, the prosecutor was calling upon the jury to convict, not because of the substantive evidence of guilt, but because of the insinuation that he had murdered before and because he was “a violent person” and had lived a “criminal life”. The trial court’s response to the objections made (“We are referring to this case only. I will sustain the objection as to any other.” and “I will allow the jury to consider any evidence. I instruct them .. . that any prior record has no significance as far as prior life is concerned. But, there is evidence of his prior life”.) we find confusing and inadequate to dispel the notion that there was evidence of “any other” murder committed by the appellant, that there was evidence he was a “violent person” and had “lived a criminal life” or that the jury should consider such “evidence” as substantive evidence of his guilt of the crime for which he was then being tried. See Gilchrist v. State, 2 Md. App. 635 (1967).

In this case, we need not decide whether any one of the separate incidents of prosecutorial misconduct and the trial court's responses thereto warrant reversal as being a denial of due process. We think what was said by the Supreme Court in Berger v. United States, 295 U. S. 78 (1935) is applicable here. The Court said at pp. 88-89:

“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
“It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest . upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none. . .

After noting the closeness of the case against Berger the Court concluded:

“In these circumstances prejudice to the cause of the accused is so highly probable that we are not justified in assuming its non-existence. If the case against Berger had been strong, or, as some courts have said, the evidence of his guilt “overwhelming”, a different conclusion might be reached, [citations omitted]. Moreover, we have not here a case where the misconduct of the prosecuting attorney was slight or confined to a single instance, but one where such conduct was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconseqmntial. A new trial must be awarded”. (Emphasis added.)

Judgments reversed.

Case remanded for new trial.

Costs to be paid by Mayor and City Council of Baltimore.


author: Powers, J.,

text:
    MARY PERSSON et al. v. THOMAS J. DUKES, Personal Representative of the Estate of Dora E. Dukes
    [No. 1318,
    September Term, 1975.]

      Decided October 6, 1976.

    The cause was argued before Gilbert, C. J., and Morton, Powers and Davidson, JJ.

      Phillip L. Felts, with whom were Ronald G. Kane and Schuman & Kane, Chartered, on the brief, for appellants.

      Maurice C. Lewis for appellee.
   Powers, J.,

delivered the opinion of the Court.

Maryland has, as do most if not all of the states, a statute which provides that a legacy contained in a decedent’s will does not lapse because the legatee predeceased the testator. Statutes of this kind virtually turn around the common law rule, and although differing in some respects from state to state, they have a similar purpose. They express, for the vast majority of testators, a true intent which might otherwise go unexpressed, and at the same time, leave every testator entirely free to express a different intent. When the testator’s intent is supplied by the statute, it is supplied only to fill a void. A testator’s expressed intent prevails over the statute.

The question we are called upon to decide in this case is whether Maryland’s anti-lapse statute applied to the will of Dora E. Dukes.

We shall recount the facts which give rise to the question. In 1948 Hunter P. Dukes and his wife, Dora E. Dukes, lived in the District of Columbia. On 6 March of that year each executed a will. Each testator gave all of his property to the other, in identical words, except for the names. Neither made any further disposition of his property. The same persons witnessed both wills.

At a later time, not disclosed by the record, but not significant, Mr. and Mrs. Dukes became residents of Dorchester County, Maryland. They had no children. On 19 August 1975 each was fatally injured in an automobile accident which occurred in nearby Delaware. Hunter died at 12:45 P.M. and Dora died at 2:35 P.M. on that day.

Each will admitted to probate in the Orphans’ Court for Dorchester County, and letters of administration in each estate were issued to Thomas J. Dukes, an heir of Hunter. It goes without saying that upon Hunter’s death his will became operative, and under his bequest to Dora, she became entitled to his net estate. What happened to Dora’s estate, augmented by Hunter’s, when she died less than two hours later, depends upon whether the anti-lapse statute applied. If it did, her bequest to Hunter would operate to give her entire estate to those persons who would take as the heirs of Hunter, if he had survived Dora and died intestate. If the statute did not apply, then Dora died intestate, and her entire estate would go to those persons who would take from her under the intestacy laws.

As personal representative of the estate of Dora E. Dukes, Thomas J. Dukes filed a bill of complaint in the Circuit Court for Dorchester County against the heirs of Dora. The complaint recited the deaths of Mr. and Mrs. Dukes and the provisions of their wills. It stated that the heirs of Dora were claiming under her will, and prayed that the court render a declaratory judgment as to the legatees, heirs at law and persons entitled to the distribution and proceeds of Dora’s estate.

After a hearing in December 1975 the court, Charles E. Edmonson, Judge, entered an order declaring that the persons entitled to distribution of the proceeds under the estate of Dora E. Dukes were the heirs of Hunter P. Dukes. This appeal by Dora’s heirs followed.

The statute which, if applicable, would prevent the lapse of the legacy in the will of Dora to her husband is set out in Code, 1957 (1964 Repl. Vol.) Art. 93, § 354, which said:

“No devise, legacy or bequest shall lapse or fail of taking effect by reason of the death of any devisee or legatee (actually and specially named as devisee or legatee, or who is or shall be mentioned, described, or in any manner referred to, or designated or identfied as devisee or legatee in any will, testament or codicil) in the lifetime of the testator, but every such devise, legacy or bequest shall have the same effect and operation in law to transfer the right, estate and interest in the property mentioned in such devise or bequest as if such devisee or legatee had survived the testator.”

Although substantial changes were made in the section by Ch. 3, § 1 of the Laws of 1969, they apply, by the terms of that Act, to wills executed on and after 1 January 1970. It was so held by the Court of Appeals in Stewart v. Whitehurst, 268 Md. 589, 303 A. 2d 393 (1973). The result of applying the statute in that case was stated by the Court of Appeals. It said, at 592:

“In consequence, the provision made by Robert [Stewart, the husband, who survived his wife] for Suzette [Stewart, the wife, who predeceased the testator] passed directly to Suzette’s next of kin living at the time of Robert’s death, in such proportions as they would have received had she survived Robert and died intestate, Simon v. Safe Deposit & Trust Co., 190 Md. 468, 59 A. 2d 199 (1948); Sykes, Probate Law and Practice § § 131-134 (1956).”

Appellants contend that there are two reasons why the anti-lapse statute should not apply in this case.

This first contention, not previously considered by an appellate court in Maryland, is that because the wills of Hunter and Dora were mutual and reciprocal wills, executed pursuant to an agreement or compact between the testators, by which each left his property to the other and made no provision for a third person, the two wills constituted in legal effect a single will, operative as the will of the first to die, and inoperative and without legal existence as a will of the survivor.

The second contention is that the circumstances surrounding the execution of the wills compel the finding of an implied condition that the legatee survive, and are more than sufficient to establish the intent of the testatrix that the lapse statute should not apply.

We think that the contentions as made suggest parallel and substantially overlapping pathways to follow in the search for the answer to the single question, What was the testator’s intent?

Appellants support their first contention with the reasoning and holdings found in the reported decisions in two cases in Iowa, one in West Virginia, and one in Tennessee, and with citation of 57 Am. Jur., Wills, § 737 (1948). Because the Am. Jur. text is based upon and summarizes the holdings of the cases in the jurisdictions we have mentioned, and itself virtually duplicates a portion of Annot., 169 A.L.R. 9, 86-89 (1947), which it cites,' we quote from it at length:

“Statutes have been enacted in many jurisdictions designed to prevent, under certain circumstances, the application of the rule that a bequest lapses upon the death of the donee occurring prior to the death of the testator by providing that in such contingency, the heirs or issue of the deceased donee shall take in the absence of testator’s intention to the contrary. An important question presented in several cases concerns the application of such a statute in a case involving wills which are reciprocal in their bequests. The question ordinarily arises where the wills are those of husband and wife and one of the spouses has died leaving his entire estate to the other. The question is whether upon the death of the latter, the heirs of the former will take the entire estate under the statute as the heirs of a donee whose death has preceded that of the testator. According to some authorities, mutual wills, that is to say wills executed pursuant to an agreement or compact between the testators by which each testator bequeathed his property to the other, making no provision for a third person either absolute or conditioned upon the death of both testators in a common disaster, constitute in effect a single will, being the will of the first to die, and has no existence as the will of the surviving testator. In other words, the rights of the one testator in the estate of the other are made to depend solely upon his or her surviving the other. The property of the first testator to die passes to the surviving testator and upon the death of the latter without having executed a second will in the meantime, the property passes to his or her heirs as intestate property. The view is that an antilapse statute raising the presumption that a testator intends his bequest to go to the heirs of the devisee in case the devisee predeceases him, in the absence of a contrary intent shown in the will, does not apply so as to permit the heirs of the testator who died first to take under the will of the testator whose death occurred later, since there is in reality no will to which the statute can apply. To say that it was intended by a contract for wills that the agreement was to bind the survivor by his own will so as to permit his estate to pass to the heirs at law and distributees of the first to die, to the exclusion of his own next of kin, is to reach a result which is unnatural and unreasonable. Also, it is said that an absolute bequest with unrestrained power of alienation is repugnant to the notion that the survivor is under a contractual obligation to keep his property intact and his will unrevoked so that it will pass by virtue of the contract to the heirs at law and distributees of the deceased testator. Likewise, a joint will which is strictly reciprocal, in that each testator makes the other the sole beneficiary, has been held to be the will of the one dying first, and not admissible to probate as the will of the survivor on his death.
“That a propounded instrument, being one of two wills in which each testator bequeathed his property to the other, the wills containing no provision for a third person, had no further existence as the will of the surviving testator after the death of the other, may be asserted as a ground of contest. A statutory provision which directs the methods of revocation of a will and is exclusive of other means of revocation does not change the rule so as to permit the will of the surviving testator to stand for the benefit of the heirs of the first testator, since the surviving testator had no will to revoke following the death of the other testator.
“The question whether wills were executed for the sole purpose of having the surviving testator be the sole beneficiary of the testator dying first is essentially one of construction. Such question is to be determined in the light of the provisions of the wills, the circumstances under which the wills were drafted, signed, and attested, and the knowledge of the contents thereof possessed by both testators. The rule that extrinsic circumstances are not to be. considered in construing a will which is unambiguous does not preclude the inquiry whether one of two separate wills remains in force after the death of the testator under the other will. Extrinsic evidence is admissible to show that the wills of husband and wife, although in separate and distinct instruments, were by agreement between the testators to be reciprocal in their provisions. In such instance, the extrinsic proof tends not to destroy or nullify the will of a deceased person or to change or vary its terms, but rather to designate and identify the entire instrument.” (Footnotes omitted).

The same subject is treated in 79 Am. Jur. 2d, Wills, § 816 (1975), which cites cases from the ^ame jurisdictions. For a discussion of the cases generally involving anti-lapse statutes, see Anno., 92 A.L.R. 847 (1934), and the supplementing discussion in Anno., 63 A.L.R. 2d 1173 (1959). In the former the text says, at 847:

“While it is generally admitted that the rule laid down in these statutes is preferable to the old common-law rule, it is universally recognized that it is not an absolute rule, but only a rule of construction. As in all cases involving the meaning and effect of wills, the intention of the testator is the all-important consideration; and statutes for the prevention of lapses, like all other laws governing the construction of wills, must give way when opposed to this intention.”

The holdings in the cases decided by the courts of Iowa, West Virginia, and Tennessee seem to stand alone in the country as the authority for what is said in 57 Am. Jur., Wills, § 737 (1948), and in 79 Am. Jur. 2d, Wills, § 816 (1975). We shall examine those cases.

In Anderson v. Anderson, 164 N. W. 1042 (Iowa 1917), a husband and wife had executed wills, which the court described as mutual and reciprocal. Each left everything to the other, and made no other disposition. The court held that the wills were the result of a reciprocal agreement or understanding, and were to be treated together as a single will, its purpose served upon the death of the first, so that the surviving wife died intestate. It held that Iowa’s anti-lapse statute did not apply because, legally, the wife left no will. The court said, at 1045:

“In other words, the husband’s rights in the estate of his wife were by the will made to depend solely upon his surviving her. He did not survive her, and the will she had made in his favor, conditioned upon his outliving her, can never be made effective for any purpose at the demand of his heirs.”

In Maurer v. Johansson, 274 N. W. 99 (Iowa 1937), the same court had before it a similar case. A husband and wife each executed in 1910 a will leaving everything to the other, and making no other disposition. The wife died in 1933, and the husband took, under her bequest to him. The husband died in 1935, and the wife’s heirs claimed, by operation of his will and the anti-lapse statute. Citing Anderson v. Anderson, supra, the court held, at 101:

“Mutual wills are those which are executed pursuant to an agreement or compact between two or more persons to dispose of their property in a particular manner, each in consideration of the other. Such wills, if they contain no provisions for third persons, constitute a single will and is the will of the first to die, and has no further existence as the will of the survivor.”

The court discussed the argument made to it by the appellants in that case that the evidence was not sufficient to show that the wills were mutual or to establish a contract or agreement between the testators. On this question the court listed several cases cited by the appellants in that case and said that those cases involved only differences in the quantum of proof required by the courts to establish a prior compact for mutual wills. It went on to say that under Iowa law the wills themselves, and the circumstances of their being drawn at substantially the same time, with the knowledge of both testators, are sufficient to establish that there was a contract. The court rejected the argument that a will may be revoked only in the manner provided by statute, and the argument that the anti-lapse statute applied, by saying that there was only one will, and that it had no existence as the will of the husband after the wife’s death.

The Supreme Court of Iowa followed Anderson v. Anderson, supra, and Maurer v. Johansson, supra, in Maloney v. Rose, 277 N. W. 572 (Iowa 1938). It seems clear that under Iowa law mutual wills by definition include as an element that they were executed pursuant to an agreement, or compact between the testators.

The Supreme Court of Appeals of West Virginia, relying primarily upon Anderson v. Anderson, supra, reached the same result in Wilson v. Starbuck, 182 S. E. 539 (W. Va. 1935). In that case a husband and wife had executed identical wills at the same time and place before the same witnesses. The wills had been prepared by the same lawyer. Each left everything to the other, and made no other disposition. The court held that the wills and the circumstances proved that the wills were entered into pursuant to a contractual relationship between the testators. After quoting from Anderson v. Anderson, supra, the court said, at 542:

“To begin with, it is perfectly apparent that the main purpose of both testators is to vest his estate in the survivor. To say it was intended that then the contract was to bind the survivor by his own will to permit his estate to pass to the heirs at law and distributees of the first to die, to the exclusion of his own next of kin, we think reaches an unnatural result.”

The court concluded

“that the two wills being in all respects tantamount to a joint will, the purpose of which is to vest the estate of the first to die in the survivor, without limitation over, that the death of Amanda Y. Cales rendered the will of the survivor, Peter Cales, inoperative.”

In In Re Reed’s Estate, 26 S.E.2d 222 (W. Va. 1943), the court followed Wilson v. Starbuck, supra, saying that the sole purpose of such wills was that the property go to the survivor. When that purpose was accomplished, the court said, the will of the survivor, being contractual, mutual, and reciprocal, was no longer operative.

In the case of In Re Estate of Bright, 482 S.W.2d 555 (Tenn. 1972), a husband and wife had executed identical wills in 1955 at the same time and place, before the same witnesses. Each left his estate to the other, and made no other disposition. The husband survived the wife by about two weeks. The court referred to the wills as mutual and reciprocal, and held that there was a presumption in such cases that the testators executed their wills in accordance with their mutual contract to dispose of their property in this manner. For that reason the will of the first to die became the only will of the parties.

The court relied upon several Tennessee decisions as to the degree of proof necessary to establish the fact of a compact or agreement, but for the legal consequence of a contract so presumed or inferred, this 1972 Tennessee decision relied exclusively upon the 1937 Iowa decision in Maurer v. Johansson, supra, the 1935 West Virginia decision in Wilson v. Starbuck, supra, and the text of 57 Am. Jur., Wills, § 737 (1948).

Upon the authority of In Re Estate of Bright, supra, the Court of Appeals of Tennessee held in Johnson v. Creasman, 495 S.W.2d 203 (Ct. of App. Tenn. 1972), that the wills of a husband and wife were mutual by agreement, and that the testators intended that only the will of the first to die take effect, and that the survivor died intestate.

We are satisfied from the briefs and from our own research that there have been no reported cases in any other jurisdictions which employ the same rationale to hold, in similar factual situations, that upon the death of the first of the two testators, the will of the survivor becomes inoperative, or ceases to have any valid legal existence as a will. We hasten to add that we are equally satisfied that there is no reported case in which that rationale has been considered and rejected. Certainly the point has not been considered or decided in Maryland.

The decisions of the courts of our sister states are entitled to the highest respect. They are persuasive, but not binding, authority for the legal principles upon which their holdings rest. Differences sometimes arise because of local statutes or precedents. Sometimes the process of reasoning employed does not, upon analysis, carry the conviction of soundness.

We have carefully and deliberately considered the facts and the reasoning in all of the cases and texts which we have reviewed above. We are not persuaded that in the case before us we should hold that the will of Dora E. Dukes became inoperative, and had no valid legal existence as a will, upon the prior death of Hunter P. Dukes.

If the existence of a contract or compact between the testators is the key to finding that two wills are but a single will, we believe that the cases have found too readily and too easily that the testators entered into a contract. In each case it was apparent that the testators shared a common intent. In none of the cases was there any evidence of an actual contract. If either of the testators entertained the slightest thought that to carry out their intent, it would become necessary to establish judicially that they had entered into a contract, it could hardly be doubted that they would have written a contract.

Another difficulty in following the reasoning of the cases is that although the courts found in each case that the testators acted pursuant to a contract, agreement or compact, the court in none of the cases found or expressed what the contract was, unless it was merely to sign the will. It was not a contract not to revoke, because in some of the cases the court commented that either testator could revoke while both were alive, and that the survivor could make a new will after the death of the first.

Of course, a contract to make a will is of fleeting value if the testator can make a different will the next day. It is an actual or alleged contract not to revoke which has significance, and which generates much of the litigation involving wills. Moats v. Estate of Pumphrey, 33 Md. App. 9, 363 A. 2d 589 (1976) involved an alleged contract not to revoke. In Moats, Judge Marvin H. Smith, of the Court of Appeals, Specially Assigned, quoted several text writers on the subject of contracts to make wills. We quote briefly from two of them. In B. Sparks, Contracts to Make Wills (1956) the author says at 27-28:

“When two people execute a common document as the will of each of them or when they execute separate documents at approximately the same time and in identical or almost identical language there is a tendency to pass too easily to the conclusion that such action must have been the result of a contract.
“The clear weight of authority, and certainly the sounder view, is that the mere presence of either joint or mutual wills does not raise any presumption that they were executed in pursuance of a contract. Nor is this rule altered by evidence that the parties had ‘agreed’ to the making of such wills. Of course they had so agreed. The mere presence of such wills reveals that the parties must have talked the matter over and must have arrived at an understanding or agreement concerning their testamentary dispositions. Such discussions and such understandings between persons of close affinities, especially between husbands and wives, are not unusual and the fact that they have taken place is no indication that there has been any thought of a binding contract.”

In Bowe-Parker: Page on Wills, § 11.1 (1960) it is said, at 554:

“The fact that joint wills and mutual wills are usually executed as the result of a common intention does not in any way mean that they are always executed pursuant to a contract between the parties respecting the making of such wills. Though it is true that in many cases the joint will or the mutual wills are made as the result of a contract to make reciprocal wills, there are undoubtedly an equal number of cases in which the common intention does not proceed anywhere near to the point where arms length promises are exchanged, consideration exists, and a contract emerges. It is. more logical to expect that in many settings, particularly • that of husband and wife, the reciprocity or similarity in the dispositive provisions of the two wills results from similar tastes and affections that have resulted from years of living together, and the making of identical or similar wills was a spontaneous thing unaccompanied by even so much as a thought on the part of either husband or wife that they should enter into a contract with each other. The sole fact, standing alone, that two wills were executed at or near the same time and bear similar provisions should in no way give rise to a presumption or an inference that they were made pursuant to a contract.”

We are inclined to feel that in the cases relied upon by the appellants here the courts of Iowa, West Virginia, and Tennessee indulged in a legal fiction to find the existence of a contract, of undefined terms, in order to establish a base for finding an intent, undoubtedly reasonable and logical, but nevertheless an intent which the testator did not express. We cannot indulge in that legal fiction.

A more logical rationale, and the basis of the second aspect of the argument of the appellants here, is found in 57 Am. Jur., Wills, § 737 (1948). In concluding § 737 that work states:

“In theory it is not essential to the defeat of the operation of an antilapse statute that the wills which are strictly reciprocal in their bequests should have been executed pursuant to a contract between the testators. The presence or absence of a contract specifically enforceable is unimportant in this situation except to the extent that it indicates an intention of the testator that his will is to be operative only on condition that he predecease the other testator. An implied condition of survivor-ship may be established where the evidence does not warrant a finding of a contract between the testators. The view has been taken, however, that the rule that reciprocal wills constitute a single will which is in all essential respects the will of the first to die applies only where the wills were made pursuant to a contract between the testators for the making of wills with dispositions strictly reciprocal.”

To apply the reasoning we have just quoted would require that we find that it was the intention of Dora Dukes that her will was to be operative only on condition that she predecease her husband. Dora expressed no such intent. We can find nothing in her will, nor in the circumstances surrounding the execution of it, that even suggests that she ever formed such an intent. If we were to find that Dora did form that intent, then, because the wills and the circumstances were the same, we would find that Hunter formed a similar intent.

Upon that premise we would also be saying that each testator, by the very act of making his will, intended, if he survived the other, to die intestate. Even more would flow from such a finding of intent. Knowing that the survivor’s heirs would “beat the anti-lapse statute”, and knowing the certainty of death, and the uncertainty of the time thereof, each one of the two testators would be betting in favor of his own heirs that he would die first.

The order of death of Dora and Hunter Dukes could easily have been the reverse of what it was. To say that in 1948 each of them formed an intent which would be either fulfilled or frustrated by totally unpredictable future events borders on the ridiculous. Their judgment surely was not the best. They used, presumably without legal advice, what* appear to be home-typed forms, probably passed along by a friend. We must assume that they understood what the wills said. We cannot assume that they understood anything more.

We consider it to be inescapable that neither Hunter nor Dora gave any thought whatever to what would happen to their property on the death of the survivor. As far as we can tell, the thought never entered their minds. The intent for which we look simply did not exist.

On the question of intent, the case of Vance v. Johnson, 171 Md. 435, 188 A. 805 (1937), is persuasive if not controlling. A husband and wife, each married for the second time, made wills by which each left everything to the other and made no further disposition. The husband had three children by his first marriage. The wife had no children. In the clause by which he devised and bequeathed all of his estate to his second wife, the husband expressed his full faith and confidence in the wisdom and judgment of his wife. He said that he knew that in case the need should arise, she would fairly and justly see to the welfare of his three children. The wife died in 1921. The husband died in 1984, leaving the 1918 will.

The lower court applied the anti-lapse statute, and ruled that the wife’s first cousins, her heirs, took under the husband’s will. The Court of Appeals affirmed. It said, at 440:

“Appellants’ criticism of that decree is based upon the contention that the intent of the testator, as shown by his will and surrounding circumstances, was that the devise and bequest to Jennie Robb Savin were to become effective only in the event that she survived her husband, and, since she did not survive him, section 335 of article 93 of the Code is inapplicable and Savin therefore died intestate. But that argument is based upon the language used by the testator in his will, in which he expressed confidence that, should the need arise, his wife would ‘fairly and justly see to the welfare’ of his three children, and the reasoning that the testator could not possibly have desired or intended such wishes to be carried out by some of her relatives who were unknown to him and in whom he could not have had faith and confidence.
“Since it rarely happens that the phraseology of any two wills is similar, decisions holding that bequests and devises were or were not intended to take effect, if the person to whom they were made predeceased the testator, are of little aid to guide us in ascertaining testator’s intent in the present case, and in the final analysis this must be determined from the context of the will and surrounding circumstances, but, as this court said in Vogel v. Turnt, 110 Md. 192, 197, 72 A. 661, 662: ‘It must be conceded that, when a testator manifests an intention that the beneficiary named by him shall take, and not those who would otherwise take by virtue of such a statute as ours, the statute will not control.’ ”

The Court said further, at 441:

“The argument that he would not desire the relatives of the wife to take his entire estate to the exclusion of his children cannot control, unless supported by the language of the will, which he is presumed to have made in view of the statute. It is also presumed that he intended the statute (section 335, article 93 of the Code) to apply, and the burden of showing an intent to the contrary is upon those who assert it.”

In that case the Court of Appeals found no support in the language of the will for the argument that the testator did not intend that the relatives of his wife take his entire estate. We find even less support in the case before us for the argument that Dora Dukes intended that the anti-lapse statute should not apply. We hold that the statute does apply, and presumes an intent which fills a void left by the testator. The statute expands the bequest in Dora’s will so that in effect it reads, “I give to my husband, Hunter P. Dukes, [or, if he does not survive me, to those persons who would be his heirs at the time of my death,] all property of whatsoever kind and nature, whether 'real or personal, of which I may die possessed.” Dora did not die intestate. The heirs of Hunter take under her will.

Order affirmed.

Appellants to pay costs.

      . They could have no claim under her will. Their claim would have to be under the intestacy laws.

      . In that Act the revised section was designated as § 4-403 of Art. 93. It is now § 4-403 of the Estate and Trusts Article.

      . Another decision cited is Re Blankemeyer’s Will, 123 N. E. 856 (N.Y. 1919). The report consists of a Per Curiam order by the Court of Appeals, affirming an order of the Appellate Division, affirming a surrogate’s ruling that by the prior death of a legatee, a legacy to him lapsed, when the legatee and the testatrix had made wills by which each left everything to the other. The report did not say whether the wills contained words making survivorship a condition, or whether New York had an anti-lapse statute, and if it did, why it did not apply.