Basoff v. State

• Decision Date: 12 January 1956
• Docket Number: No. 77,77
• Citation: 119 A.2d 917,208 Md. 643
• Parties: Barnett BASOFF v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 643

208 Md. 643

119 A.2d 917

Barnett BASOFF v. STATE of Maryland.

No. 77.

Court of Appeals of Maryland.

Jan. 12, 1956.

Charles J. Stinchcomb, Baltimore (Fred Oken and Joseph Rosenthal, Baltimore, on the brief), for appellant.

James H. Norris, Jr., Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Anselm Sodaro, State's Atty., and John C. Weiss, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

This appeal was brought here by Barnett Basoff, a resident of Atlantic City, New Jersey, from his conviction by the Criminal Court of Baltimore on an indictment charging that in October, 1954, he unlawfully used means for the purpose of causing an abortion upon a woman named Margaret Ann Thomas. Code 1951, art. 27, sec. 3.

At the time of the trial in February, 1955, Mrs. Thomas, a waitress, 24 years old, had been separated from her husband, Clinton E. Thomas, for nearly a year and a half. She lived with her sister and her sister's husband in an apartment at 827 North Eutaw Street. She testified that she had never met appellant until October 25, 1954. On that day Daniel Nathanson, proprietor of a grocery store at 260 West Biddle Street, gave her a telephone message 'to meet Rob' on the corner of Eutaw Street and Madison Avenue at 3:30 p. m. She testified that appellant arrived there in a two-tone blue station wagon and asked if she was Margaret. She answered 'Yes,' and he told her to get into the car. He drove her a short distance on Madison Avenue, parked the car, and brought out a doctor's bag. He then took her to a room on the second floor of an apartment house at 801 North Eutaw Street. There he took some surgical instruments out of the bag and sterilized them. After asking her how far the pregnancy was advanced, he told her to lie upon the couch. He then inserted an instrument and told her that he had to strike her womb. When she began to bleed, he inserted a catheter. She paid him $100 for that visit, and he agreed to see her again on the following day.

Mrs. Thomas further testified that on October 26 she received a message from Nathanson to meet appellant that evening at 6:30. She again met him at the corner of Eutaw Street and Madison Avenue, and he drove her in the station wagon to the De Luxe Cabins on the Washington Boulevard about two miles beyond the city line, arriving there at about 7 o'clock. She then testified as follows:

'We went in the cabin. The same thing happened as did the first time. * * * While he sterilized his instruments, I got on the bed. * * * That is when he asked me if I passed anything. I said 'No.' He said he had to turn my womb again. He inserted instruments. Then he said he would have to put another catheter in. He pressed on my stomach. I don't know what, but anyway I passed something. He told me it was all over then. He inserted another catheter to drain the blood, he said. He told me if I got to bleeding too bad, to take the catheter out. Then he gave me some kind of pills in case I started having pains.'

On October 27 Mrs. Thomas, suffering with severe pains, entered the Maryland General Hospital, where she was treated for septic incomplete abortion. She was discharged on November 1, but was a patient there again from December 14 to 16.

On November 1 Policewoman Ethel Diven, assigned to the Pine Street Police Station, began an investigation of the case. She called to see Mrs. Thomas, but was unable to talk with her, as she had been out of the hospital only a few hours and was sick in bed. The policewoman made her next visit to Mrs. Thomas' apartment on November 9. Mrs. Thomas then made a statement and turned over to her a bottle of sulfa drugs which appellant had given her. The policewoman testified that Mrs. Thomas gave her a description of the man who had committed the abortion. On November 18 the policewoman showed Mrs. Thomas the photographs of twelve men, and she identified appellant in one of the photographs.

Officer Robert O'Keefe, of the Atlantic City Police Department, testified that he received a request from the Baltimore City Police Department to investigate Robert Basoff, also known as Barnett Basoff, at the Majestic Hotel. Officer O'Keefe received a description of appellant and later a photograph of him. He testified that appellant was not known at the Majestic Hotel, but he found that Barnett Basoff and Mrs. Rae Basoff were operating the Rainbow Guest House at 151 St. Charles Place. Officer O'Keefe kept this house under surveillance from November 9 to 20. On November 20 he observed a blue station wagon parked in front of the house. The station wagon, a 1953 Chrysler, was registered in the name of Mrs. Rae Basoff. On December 13 the officer arrested appellant on a warrant charging him with abortion. Appellant was tried by the Criminal Court, sitting without a jury, and was found guilty and sentenced to be imprisoned in the Maryland Penitentiary for the term of five years and to pay a fine of $1,000.

I.

Appellant's first contention was that the trial judge erred in admitting the testimony of Mrs. Thomas and Daniel Nathanson as to telephone messages which Nathanson received for Mrs. Thomas at the grocery store. Nathanson testified that appellant visited his store on two occasions, first on or about October 22, and then about a week or ten days later. On the first visit appellant was seeking Mrs. Thomas' address and telephone number. Nathanson told him that she received her telephone calls in the phone booth in the grocery store. He also testified that appellant gave him his telephone number in Atlantic City.

The ground of appellant's objection was that the telephone messages which Nathanson received for Mrs. Thomas were from a person whose voice was not identified. It is a general rule of evidence that in order to render testimony of a telephone conversation admissible, some preliminary testimony, either direct or circumstantial, must be presented to establish the identity of the other person to the conversation. Of course, where the identity or the authority of a person with whom a witness conversed on the telephone is not in dispute, the testimony as to the telephone conversation may be admissible without the person's identification. Baum v. State, 163 Md. 153, 161 A. 244; Colie v. State, 193 Md. 608, 69 A.2d 497; White v. State, 204 Md. 442, 104 A.2d 810.

The essential issue in this case was not whether the telephone messages were true, or what the caller's name was, but merely whether the messages were received. The telephone calls were a link in the chain of facts tending to show that appellant was then man who performed the operation. Appellant came into the store before the telephone calls were received ans asked Nathanson how Margaret could be called. He was informed that she received her calls at the telephone booth in the store. He was known to the prosecutrix as Bob. Appellant met Margaret where the caller said Rob would meet her. After the phone calls were received, appellant came into the store and said that he was Rob, and inquired for Margaret and left his Atlantic City telephone number. We agree that it was permissible to infer that appellant or someone on his behalf made the calls, and that they connected him with the crime alleged. The telephone messages corroborated other facts tending to show the identity of the accused. 6 Wigmore on Evidence, 3 Ed., sec. 1766. See Miller v. Leib, 109 Md. 414, 72 A. 466; Commonwealth v. Aronson, 330 Mass. 453, 115 N.E.2d 362; Kansas City Star Pub. Co. v. Standard Warehouse Co., 123 Mo.App. 13, 99 S.W. 765.

II.

Appellant contended that it was error to permit Policewoman Diven to testify that Mrs. Thomas had identified him as the man who committed the abortion. He contended that the statements were hearsay, and that, as they were allegedly made on November 9 and November 18, several weeks after the criminal offense, they were not a part of the res gestae.

Appellant made no objection at the trial of the case to the policewoman's testimony as to Mrs. Thomas' statements. Therefore, we cannot consider the objection here. One of our rules respecting appeals provides: 'In no case shall the Court of Appeals decide any point or question which does not plainly appear by the record to have been tried and decided by the Court below.' Rules of the Court of Appeals, rule 9.

This rule applies to both civil and criminal cases. When a party has the option either to object or not to object, his failure to exercise the option while it is still within the power of the trial court to correct the error is regarded as a waiver of it estopping him from obtaining a review of the point or question on appeal. The Court of Appeals adopted the rule to ensure fairness for all parties to cases and to promote the orderly administration of the law. Courtney v. State, 187 Md. 1, 48 A.2d 430; Davis v. State, 189 Md. 269, 55 A.2d 702; Banks v. State, 203 Md. 488, 495, 102 A.2d 267.

Appellant objected at the trial to the testimony of Policewoman Diven that she showed Mrs. Thomas the photographs of twelve men and she recognized one of them as that of the man who had produced the abortion. In some States it is held that the testimony of a police officer in a criminal case that the prosecuting witness recognized a photograph as that of the accused is inadmissible as hearsay evidence. State v. Houghton, 43 Or. 125, 71 P. 982. But we accept the rule that where it appears that the prosecuting witness had identified the accused prior to the trial under circumstances precluding suspicion of unfairness or unreliability, the prior identification is admissible in evidence. We think it is evident that an identification of an accused made by a witness for the first time in the courtroom may often be of little testimonial force, as the witness may have had opportunities to see the accused and to have heard him referred to by a...