Avery v. State

• Decision Date: 25 June 1913
• Citation: 88 A. 148,121 Md. 229
• Parties: AVERY v. STATE.
• Court: Maryland Court of Appeals

88 A. 148

121 Md. 229

AVERY v. STATE.

Court of Appeals of Maryland

June 25, 1913

Appeal from Criminal Court of Baltimore City; Thos. Ireland Elliott Judge.

S. De Leon Avery was convicted of having committed an abortion, and he appeals. Reversed and remanded for new trial.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON, and STOCKBRIDGE, JJ.

T. C Ruddell and William C. Smith, both of Baltimore, for appellant.

Edgar Allan Poe, Atty. Gen., for the State.

THOMAS J.

The appellant in this case was convicted in the Criminal Court of Baltimore City of having committed an abortion upon Rose Gaffey, and was sentenced to confinement in the Maryland penitentiary for the period of ten years. From that judgment he has appealed on the ground of alleged errors in the rulings of the trial court on the evidence and in its instruction to the jury.

The first, sixth, seventh, eighth, ninth, tenth, eleventh twelfth, thirteenth, fourteenth, and fifteenth exceptions are to questions asked and evidence offered for the purpose of showing that the accused had connection with another girl. In the case of Lamb v. State, 66 Md. 285, 7 A. 399, the court quotes with approval the statement of Bayly, J., in Rex v. Ellis, 6 B. & C. 145, that, "generally speaking, it is not competent to a prosecutor to prove a man guilty of one felony by proving him guilty of another unconnected felony; but where several felonies are connected together, and form part of one entire transaction, then the one is evidence to show the character of the other," and in the very recent case of Meno v. State, 117 Md. 435, 83 A. 759, Judge Stockbridge, speaking for this court, said: "The state attempted to prove by the witness Ludi that the accused had told him that he had performed operations on or treated other girls, as showing a familiarity on the part of the traverser with what could be done to rid a woman of a child. This evidence was admitted over the objection of counsel, and this ruling of the court was made the subject of the eighth exception. This evidence was inadmissible, and should have been excluded. There is a class of cases in which evidence may be given of other similar acts done by an accused, but this class of cases is restricted to where the several acts are connected together and form part of one entire scheme or transaction, so that one of the acts forms a basis for a reasonable and proper inference as to the purpose and intent with which the particular act was performed for which the accused was then on trial." In the case at bar the appellant was charged with having committed an abortion upon the prosecuting witness, and the state had proved, or offered evidence tending to prove, that he had connection with her prior to the commission of the alleged offense, but it was error to permit the state to show, either by the prosecuting witness or the girl herself, that he had connection with another girl.

The answers to the questions in the sixth and seventh exceptions, however, are not in the record; the answer to the question in the eleventh exception relates to the conduct of the accused with reference to the prosecuting witness, and the twelfth exception is to the refusal of the court to strike out the answer to the question in the eleventh exception. There was therefore no reversible error in the rulings complained of in the four exceptions last referred to. There can be no reversal for error without injury, and this court cannot determine whether the appellant was injured by answers to improper questions unless the answers are set out in the record. The answer to the question in the eleventh exception being admissible, the rulings in the eleventh and twelfth exceptions do not constitute ground for reversal.

Counsel for the state concede in their brief that there was error in admitting the evidence referred to in the other exceptions we have mentioned, but urge that the judgment should not be reversed on that ground because the prosecuting witness stated on cross-examination that the accused had connection with the girl referred to in said exceptions. In her examination in chief the prosecuting witness, when asked by the state's attorney to state why she went to the office of the accused on a particular occasion, said she went there to have her teeth fixed, and that after he had fixed her teeth "he took Frances in another room and had connection with her." This answer was objected to by counsel for the accused, and the court ordered all after "he took Frances into another room" to be stricken out. The state's attorney then said to the witness: "Don't tell us anything but what you know of your own knowledge--what you saw. You did not see that?" and she replied: "No, sir." On cross-examination, this witness having stated that she was at the office of the traverser about a week before Thanksgiving, she was asked by counsel for the accused, "Now, that is the time you say the doctor first had anything to do with you?" and she replied, "Well, that was the first time; yes, sir, that was the first time. The first time I went up there he had something to do with Frances." Counsel for the accused interrupted her by saying, "Never mind about Frances. The court told you not to talk about that." This is the testimony relied upon by the state to show that the admission of the evidence conceded to be inadmissible was not reversible error. We cannot adopt that view. The prosecuting witness said that she did not see the accused have connection with Frances, and the court, therefore, directed her statement to be stricken out, and when she repeated the statement on cross-examination, counsel for the accused cautioned her not to speak of Frances, because the court had told her not to do so. Under such circumstances it is not probable that the jury was influenced by the statement of the witness on cross-examination, and it cannot be held to relieve the positive and affirmative testimony of Frances herself that the accused had connection with her of its objectionable character, or to deprive the accused of the benefit of the exceptions referred to.

In the course of the cross-examination the prosecuting witness further testified that after she told her aunt that the accused had connection with her, and her aunt whipped her, he came down to her aunt's house to see the witness and her aunt. She was then asked by counsel for the accused the following questions, referred to in the second, third fourth, and fifth exceptions, to which the court sustained the objections of the counsel for the state: "Can you tell us what the doctor said to you on that occasion?" "Didn't the doctor tell you--say something like this to you, 'Look here, Rose, I understand that you have made a statement in which you have charged me with doing something to you, and have charged me with ruining you. I want you to tell who ruined you."' "And then when the doctor asked you that, didn't you name another person?" Having stated that she appeared "at the station house against the doctor," she was asked: "Now, you were there on Saturday, the 29th of July; what did you say about the doctor having anything to do with you to the magistrate, while you were living there employed by the family?" These questions were asked for the purpose of showing that the witness had made statements contrary to her testimony in the case,...