Brennan v. State

• Decision Date: 29 June 1926
• Docket Number: 42.
• Citation: 134 A. 148,151 Md. 265
• Parties: BRENNAN v. STATE.
• Court: Maryland Court of Appeals

134 A. 148

151 Md. 265

BRENNAN v. STATE.

No. 42.

Court of Appeals of Maryland

June 29, 1926

Appeal from Criminal Court of Baltimore City; Charles F. Stein Judge.

George Brennan was convicted of bastardy, and he appeals. Reversed and new trial awarded.

Urner and Offutt, JJ., dissenting.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, and WALSH, JJ.

Abram C. Joseph, of Baltimore (Daniel C. Joseph, of Baltimore, on the brief), for appellant.

Herbert Levy, Asst. Atty. Gen. (Thomas H. Robinson, Atty. Gen., and Herbert R. O'Conor, State's Atty., for Baltimore City, and Herman M. Moser, Asst. State's Atty., both of Baltimore, on the brief), for the State.

WALSH J.

The appellant was convicted of bastardy by a jury in the criminal court of Baltimore city, whereupon the court suspended sentence and paroled him on condition that he pay the sum of $2.75 weekly for the statutory period, for the support of the alleged illegitimate child, and from this action of the court this appeal was taken.

The state has filed a motion to dismiss the appeal on the ground that a suspension of sentence is not a final judgment, and that hence no appeal can be taken, but, for the reasons stated by us in the case of Kelly v. State, No. 25 133 A. 899, this term, where the same question was raised, we think this motion must be overruled. There are twenty-six bills of exceptions in the record, all pertaining to rulings on the evidence, and, as many of them relate to or raise the same questions, we will, so far as possible, group them together in disposing of them. The first exception was taken to the court's action in permitting the prosecuting witness to state who was the father of her child. The objection to this is apparently based on the theory that the answer of the witness would be only the expression of an opinion. This is not always true. Usually the prosecuting witness testifies, as she did in this case, that the defendant is the only person with whom she has had improper relations, and under such circumstances her testimony as to who the father is cannot properly be said to be an expression of opinion; it is a statement of fact. But, even where it is an opinion, we think the prosecuting witness has sufficient special knowledge to justify her expressing such an opinion. The whole proceeding is based upon her allegation as to who the father is, and we see no reason why she should not be permitted to tell the jury the name of the man who she claims is the father.

The defendant endeavored to show at the trial below that a married man, with whom the prosecuting witness had some association, and who, on June 4, 1924, the day the child was born, committed suicide, was the child's father, and most of the exceptions were taken to the refusal of the lower court to admit certain testimony which the defendant claimed tended to prove the guilt of this man. The third to the sixth exceptions, inclusive, relate to certain alleged admissions made by this man to his relatives, and these exceptions will be considered in connection with the twenty-fifth and twenty-sixth, which were taken to the court's refusal to permit the defense to show the contents of a letter found on the married man's person at the time of his death. The seventh and eighth were taken to the court's ruling that the married man's wife could not be asked whether she accused her husband of having gone out with the prosecuting witness and what he said, and why she sent for the prosecuting witness at the time she did, but we see no error in these rulings. The facts proposed to be shown are not relevant to the issue and would open up a line of inquiry which might lead very far afield. The wife's suspicions are certainly not competent to prove her husband the father of this child, and as there was no denial of the husband's acquaintanceship and association with the prosecuting witness there was no occasion or reason to try to prove this association by mere hearsay evidence.

The ninth exception was taken to the court's refusal to permit a witness to testify that on the day the child was born relatives of the prosecuting witness visited the married man at the store where he was employed. It is difficult to understand on what theory this evidence was offered, and we find no error in its exclusion. The second and tenth exceptions relate to testimony showing the manner in which the married man died, and these exceptions will be considered later. The eleventh to the twenty-second exceptions, both inclusive, all pertain to efforts on the part of the defendant to show that about three months before the child involved in this case was born the married man had a baby carriage sent to the home of the prosecuting witness. Most of the rulings involved in these exceptions were clearly correct, because of the failure of the questions to indicate any connection between the sending of the carriage and the married man, or because of the inability of the witnesses to testify of their own knowledge that the carriage was ever delivered; but, aside from these objections, we do not think, under the circumstances of the case, that the testimony was admissible at all. It appears from the record that this married man was quite intimate with the family of the prosecuting witness; that about a month before the baby carriage was alleged to have been sent to her home her mother gave birth to a child, and this man became the child's godfather, and it would seem to be a great deal more likely that the baby carriage was intended for this child rather than for the then unborn child of the prosecuting witness. There was not even a proffer to show that the carriage was sent to the prosecuting witness; the only proffer being that it was sent to her home, which was also that of her parents.

The general rule is that declarations of a third party are not admissible to show that such third person is the father of a child. Baehr v. State, 136 Md. 128, 134, 110 A. 103; 7 C.J. 991. If this is so, it certainly cannot be held that actions of a third party which are, to say the least, as susceptible of an innocent construction as they are of an imputation of guilt, can be introduced to show that such third party is the father. It should always be borne in mind that the real inquiry is as to the guilt or innocence of the defendant, and, while the courts permit evidence as to the prosecuting witness' association with other men under suspicious circumstances at or about the time of conception, such testimony should be limited to matters which tend to prove illicit relations between the prosecuting witness and such other men. As was said by Chief Judge Boyd in the case of Seibert v. State, 133 Md. 309, 314, 105 A. 161, 163:

"Such evidence may sometimes be very material, especially when the

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