Bennett v. State

• Decision Date: 05 July 1962
• Docket Number: No. 270,270
• Citation: 182 A.2d 815,229 Md. 208
• Court: Maryland Court of Appeals
• Parties: , 4 A.L.R.3d 862 Robert Dale BENNETT v. STATE of Maryland.

Page 208

229 Md. 208

182 A.2d 815, 4 A.L.R.3d 862

Robert Dale BENNETT v. STATE of Maryland.

No. 270.

Court of Appeals of Maryland.

July 5, 1962.

Hugh A. McMullen, Cumberland (Gunter & Geppert, Cumberland, on the brief), for appellant.

Robert S. Bourbon, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, James S. Getty, State's Atty. and Donald W. Mason, Asst. State's Atty., Cumberland, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, HORNEY and MARBURY, JJ.

BRUNE, Chief Judge.

The principal question in this case seems to be a novel one in this Court will regard to double jeopardy. On this appeal the defendant challenges his conviction of what is often referred to as statutory rape (and will be so referred to below) on the ground that he had previously been convicted on his plea of guilty to a charge of contributing to the delinquency of a minor, and that the present prosecution is for the same offense and on the same facts as were involved in the delinquency case. He also contends that the evidence was insufficient to support his conviction in the present case.

The latter contention is not sustainable. There was evidence showing that as the defendant, then twenty-three years old, was walking with the prosecutrix, then a thirteen year old girl, towards her home at about, or shortly before, midnight on the night of February 17, 1961, they came to a bakery parking lot, that they entered it and that at place between two trucks and a wall of the bakery, he undertook to have sexual relations with her. This much the defendant admits. The girl claims, and he denies, that penetration of her body occurred. He claims that he desisted just as penetration was about to occur, because she began to cry. There is evidence of ejaculation. The defendant's chief reliance for his contention that the evidence was insufficient is that a physician who examined the girl on the afternoon of February 18, about fourteen hours after the incident, was unable to determine from his examination whether sexual intercourse had or had not occurred the night before. He did, however, find the hymen not to be intact. There is, in addition, medical testimony that when the girl was examined by a doctor a little over two months after this episode, she was found to be about two months pregnant. She testified that she was seven months pregnant at the time of the trial below in September, 1961. She denied having had intercourse with anyone other than the defendant, and there was no contradiction of this testimony. The evidence was ample to warrant the trial court's finding that the defendant was guilty of statutory rape.

The question of double jeopardy is the serious question in this case. Though there is no transcript of the proceedings on February 27, 1961, in the trial magistrate's court, before us (and we assume that none exists), we think that essentially the same evidence was before the magistrate as was presented in the Circuit Court, with the exception of that showing pregnancy and indicating that it began at about the time of the occurrence which gave rise to both proceedings. There is no suggestion that this evidence was or could have been known at the time of the juvenile court proceedings before the magistrate.

The prosecution before the magistrate was under § 291 of the Code of Public Local Laws of Allegany County (1955 Ed.), referred to below as the Local Laws, for contributing to the delinquency of a child under the age of eighteen years. ¹ Jurisdiction over such an offense is vested exclusively in the Magistrate for Juvenile Causes under § 284(b)(2) of the Local Laws. Under § 285 3 delinquent child is defined (in part) as one '(e) who is engaged in any occupation which is in violation of law, or who associates with immoral or vicious persons; or (f) who so deports himself as to injure willfully or endanger the morals of himself or others.' (No question has been raised as to whether the prosecutrix met at least some phase of this definition.) The prosecution in the Circuit Court was under Code (1957), Art. 27, §§ 462 and 12. The first count of the information charged a felony--carnal knowledge of a woman child under the age of fourteen years (statutory rape). The second count charged attempted statutory rape (§ 12, supra), but was abandoned when the issue of double jeopardy was raised.

The defense of former jeopardy is available in this State as a matter of common law unless and except as altered by statute. Robb v. State, 190 Md. 641, 650, 60 A.2d 211; Bennington v. Warden, 190 Md. 752, 59 A.2d 779; State v. Adams, 196 Md. 341, 344, 76 A.2d 575; Eggleston v. State, 209 Md. 504, 121 A.2d 698. Though it is not provided for by any provision of the Maryland Constitution, ² it is a firmly established part of our law. Gilpin v. State, 142 Md. 464, 121 A. 354. Judge Pattison there said (142 Md. at 466, 121 A. at 355): 'The rule forbids a second trial for the same offense, whether the accused at the former trial was acquitted or convicted.' He then observed: 'The rule, though a simple one, is sometimes difficult in its application.'

There is a vast number of cases dealing with the subject, and the close relationship which exists between double jeopardy and res judicata has been clearly recognized. State v. Coblentz, 169 Md. 159, 164, 180 A. 266, 185 A. 350, and cases there cited (including the Gilpin case, which is one of those characterized as really presenting the defense of res judicata under a plea of double jeopardy); Rouse v. State, 202 Md. 481, 486, 97 A.2d 285. The relationship of double jeopardy to the doctrine of common law merger of offenses has also been recognized. Veney v. State, 227 Md. 608, 612-613, 177 A.2d 883. That case makes it clear that the old doctrine of merger no longer exists in this State, but as Judge Prescott there said:

'But this does not mean that the later and more modern concept of merger of offenses, whether it be considered under such terms as 'double jeopardy,' 'merger,' or 'divisibility of offenses,' fails to play an important role in criminal prosecutions today. For, as this Court pointed out when it quoted R.C.L. in Gilpin, supra (142 Md. p. 469, 121 A. p. 356) to the effect: "It [common-law merger] has no application where both crimes are misdemeanors or both are felonies though one may be of a much graver character than the other, and punishable with much greater severity; but in such a case another principle applies; that is, if the lesser felony [or offense] is a necessary ingredient of the other, a conviction of one will bar a prosecution for the other by virtue of the twice in jeopardy rule. * * *" See also Williams v. State, supra [205 Md. 470, 109 A.2d 89].

'* * * 22 C.J.S. Criminal Law § 10, states the true test of whether one criminal offense has merged into another is held to be not whether the two criminal acts are successive steps of the same transaction, but whether one crime necessarily involves the other.'

It is evident in the instant case that the two prosecutions which resulted in the appellant's convictions were under two quite different statutes. It is also evident that the same general facts gave rise to each prosecution. It was not, however, until after the pregnancy of the prosecutrix became known, that the State apparently felt itself in a position to press a charge of rape. To sustain the latter charge one element--penetration--had to be proven, which it was not necessary to prove in order to establish the charge of contributing to the delinquency of a minor. It would seem, however, that there was no fact in addition to the facts necessary to establish the charge of rape which would have had to be proven in order to establish the offense of contributing to the delinquency of a minor.

The first problem seems to be whether this is a case of a single act or series of acts constituting offenses under two different statutes, or a case in which the lesser offense of contributing to the delinquency of a minor is an offense necessarily included in the major offense of statutory rape. Each of the offenses here is statutory, and we are not dealing with familiar common law offenses in which one lesser offense is clearly recognized as an essential element in establishing a greater offense, as, for example, an assault is an essential ingredient of a battery.

Under the first suggested classification the prosecution would be unable, in the circumstances of this case above set forth, to meet the test usually applied and commonly known as the Blockburger rule, which is thus stated in Blockburger v. United States, 284 U.S. 299, at 304, 52 S.Ct. 180, at 182, 76 L.Ed. 306:

'Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.'

The Supreme Court cited Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489, in support of this rule and also cited with approval and quoted from Morey v. Commonwealth, 108 Mass. 433, 434 (which seems to be the foundation case for the rule expressed in Blockburger) as follows:

'A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.'

Here, statutory rape would require the proof of a fact which need not be established to support conviction for contributing to the delinquency of a minor, but the converse is not true on the facts of this case involving a child of thirteen.

We agree with the view of the Supreme Court of California expressed by Traynor, J., in People v. Greer, 30 Cal.2d 589, 184 P.2d 512, on facts...