Baehr v. State

• Decision Date: 18 February 1920
• Docket Number: 15.
• Citation: 110 A. 103,136 Md. 128
• Parties: BAEHR v. STATE.
• Court: Maryland Court of Appeals

110 A. 103

136 Md. 128

BAEHR v. STATE.

No. 15.

Court of Appeals of Maryland

February 18, 1920

Appeal from Criminal Court of Baltimore City; Walter I. Dawkins Judge.

"To be officially reported."

George M. Baehr was convicted of bastardy, and he appeals. Affirmed.

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

Frank Driscoll and William H. Lawrence, both of Baltimore, for appellant.

Alexander Armstrong, Atty. Gen. (Wm. Pinkney Whyte, Jr., Asst. Atty Gen., and Horton S. Smith, Deputy State's Atty., of Baltimore City, on the brief), for the State.

THOMAS J.

The appellant was indicted and convicted in the criminal court of Baltimore of bastardy. The indictment charged that the child was begotten on the 13th of February, 1918, and that it was born on the 1st of October, 1918. The case was tried before the court without a jury on the plea of not guilty, and this appeal brings up for review the rulings of the court below on the evidence embraced in five bills of exception.

The indictment was found on the 25th of November, 1918, and it appears from statements of counsel in the record that the trial was postponed several times to enable the traverser to secure the attendance of Harry De Moss as a witness for the defense. The case was finally tried on the 19th of February 1919, without this witness, and, as will be shown in our discussion of the evidence, several of the exceptions grew out of repeated efforts of counsel for the traverser to introduce in evidence the declarations of De Moss to the effect that he had sexual intercourse with the prosecuting witness about the time the child is alleged to have been begotten.

The prosecuting witness testified that she became acquainted with the traverser about the 1st of February, 1918, and was introduced to him by her cousin; that the first time she had sexual intercourse with him was on the 13th of February, 1918, at the boarding house of Mrs. Snall, on Light street; that she did not discover that she was pregnant until March; that the child, a boy, was born on the 1st of October, 1918, and that the traverser was his father; that at the time the baby was born she was sick with the "Spanish influenza," and that her doctor told her that the baby was "a seven months and two weeks baby." On cross-examination she testified as follows:

"Q. Miss Brown, are you sure that this took place at Mrs. Snall's house? A. Yes, sir; I am positive. Q. When did he first have intercourse with you? A. On the 13th of February. Q. Where were you on the 13th of February? A. At Mrs. Snall's house. Q. Were you any other place on the 13th of February? A. No, sir. Q. Now, you heard, at the station house, the testimony of Mr. De Moss that he had had intercourse with you around that time? A. No, sir. Mr. Smith: Wait a minute; I object. The Court: Object to what? Mr. Smith: To what De Moss said at the station house. The Court: I think the objection ought to be sustained."

The first exception is to this ruling.

The witness was then asked by counsel for the state if the traverser ever said anything to her mother in her presence, and she said that her mother found it out and went to him and asked him if he realized that he "had me in trouble," and that he said, "Yes;" that her mother asked him what he intended to do about it, and he said, "I intend to marry her;" that her mother said, "What is your reason for not marrying her now?" and that he said that his father intended to get him a position in the navy as first-class yeoman, and that as soon as his father got him the position he would marry "me," and that on the day they expected to be married, on Saturday, June 8th, he came to her house and told her mother that he wanted to change his mind. On recross-examination she testified as follows:

"Q. When was that Thursday night? A. It was in June. Q. What time in June? A. It was the 7th; it was on the 8th, on a Thursday. Q. Now, at the station house, didn't the magistrate then ask Mr. Baehr [the traverser] if he would marry you, and Mr. Baehr said 'No,' didn't he? A. Yes, sir. Q. What reason did he give then? Mr. Smith: Objected to. The Court: I think we ought to hear that. Q. What reason did he give at the station house? Mr. Smith: Objected to. Mr. Driscoll [counsel for the traverser] is trying to get in a statement made by Baehr which is pure hearsay, something told to him. The offer is to prove that he said that De Moss had had something to do with the girl, and I object to it. The Court: I think, if that is the purpose of it, it should be sustained. He can make his statement in regard to that."

After discussion by counsel, the court said, "I sustain the objection," and the second exception is to the refusal of the court to allow the question to be answered.

Mrs. Brown, the mother of the prosecuting witness, testified that, when she heard of her daughter's condition, she went to the traverser and asked him if he realized that he had her daughter in trouble, and that he said "Yes"; that she asked him what he was going to do about it, and that he said he was going to marry her; that she said to him, "What are you waiting for?" and that he said his father was going to get him a position in the navy, and that he did not want him to know about it until he got the position; that she gave him until the last of the week to get the position, and that on Saturday, when her daughter was getting ready to be married, he came to her house about 9 o'clock in the morning, and that when she took him into the parlor he said: "Mrs. Brown, I have changed my mind; I am not going to marry May;" that she asked him his reason, and he said to her, "It was another fellow implicated in it;" and that she then told him that the only thing her daughter could do with him was to go down to the station house with him.

The traverser testified that he first met the prosecuting witness on the 15th of February, 1918, at a ball at Hazazer's Hall; that he was introduced to her by her cousin; that he took her home from the ball, and had intercourse with her at her house that night. He was then asked by his counsel if he knew of anybody else who had had intercourse with her, and when an objection to the question was sustained, he was asked the following question, "Q. Did you hear any one say that he had intercourse with May Brown between the 15th of February and 1st of March, in May Brown's presence?" and the third exception is to the refusal of the court below to permit the question to be answered.

The traverser further testified that he made an effort to locate De Moss, but had been unable to do so; that he and the prosecuting witness were at a party together about two weeks after the 15th of February; that when he started to take her home she went into the hall and said she was going up stairs to get her coat; that after waiting for her for some time he attempted to go into the hall to call her, but found that his way was blocked by a man named Flynn, who said that some one wanted him in the kitchen; that when he went in the kitchen he found that no one was in there; that he thought it was very funny, but that he took her home. He then said:

"After that, though, through a conversation I overheard De Moss and a couple of more fellows talking about it and-"

At that point counsel for the state objected, and the court said:

"Tell what Miss Brown said."

The traverser then said:

"She said, she told me after I told her about it. I asked her about it, and she claimed that De Moss had

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