Opinion
[No. 262, September Term, 1963.]
Decided April 9, 1964.
ASSAULT WITH INTENT TO MURDER — Non-Jury Case — Evidence Held Sufficient To Convict — Testimony Of Prosecuting Witnesses Was Not Incredible — They Laid Complaint And Exhibited Their Wounds — Defendant's Testimony Impeached On Rebuttal. p. 366
Decided April 9, 1964.
Appeal from the Circuit Court for Garrett County (HAMILL, J.).
Delbert Wilt was convicted of assault with intent to murder, by the trial court, sitting without a jury, and from the judgment entered thereon, he appeals.
Affirmed.
The cause was argued before BRUNE, C.J., and HENDERSON, PRESCOTT, HORNEY and MARBURY, JJ.
Clarence A. Penman for the appellant.
Stuart H. Rome, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, and Fred A. Thayer, State's Attorney for Garrett County, on the brief, for the appellee.
The appellant was convicted in a non-jury case of assault with intent to murder and sentenced to four years in the penitentiary. The only question raised is the sufficiency of the evidence.
There was a sharp conflict in the testimony as to who began the shooting affray. Wilt's story was that after an argument at the home of his next door neighbor, Hay, he returned home and was lying on his bed when Hay and his stepson came and shot up his house. He then returned their fire with his shotgun. The houses were about 140 yards apart in a wooded area. Hay, his wife, and his stepson testified that after the argument they evicted Wilt, who threatened to kill them. Wilt returned and shot and wounded Hay and his stepson while they were standing on their porch. They armed themselves and returned the fire, forcing Wilt to return to his home.
The appellant argues that the testimony of the prosecuting witnesses is incredible. We do not agree. It is true that the police officer who investigated the case did not find any shotgun shells between the two houses, but he found pellets on the outside of the Hay residence, and other evidence that a shotgun had been fired from a point midway between the two houses. Wilt's testimony was also impeached on one point by the testimony of a rebuttal witness. Hay and his stepson laid the complaint and exhibited their wounds on the night of the affray. We think there was sufficient evidence to support the verdict. Cf. German v. State, 231 Md. 111.
Judgment affirmed.