Cooper v. State, 174

• Decision Date: 25 June 1954
• Docket Number: No. 174,174
• Citation: 205 Md. 162,106 A.2d 129
• Parties: COOPER v. STATE.
• Court: Maryland Court of Appeals

Page 162

205 Md. 162

106 A.2d 129

COOPER v. STATE.

No. 174.

Court of Appeals of Maryland.

June 25, 1954.

Harry E. Goertz and Joseph Loeffler, Baltimore (Bernard J. Flynn, Baltimore, on the brief), for appellant.

W. Giles Parker, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., Anselm Sodaro, State's Atty. Baltimore City, J. Harold Grady and Theodore C. Water, Jr., Asst. State's Attys. Baltimore City, Baltimore, on the brief), for appellee.

Before DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

Charles Cooper, the appellant, was convicted by the Criminal Court of Baltimore, sitting without a jury, of assault upon a woman child under the age of fourteen, with intent to carnally know her, under the fourth count of a six count indictment which also charged rape and statutory rape. He was found not guilty on all counts but the fourth. He appeals from the judgment and sentence which followed his conviction, relying on the claim that the evidence not only was insufficient to convict but actually shows his innocence, particularly if an oral confession be rejected, as he urges it should have been.

The State proved that the appellant, an eighteen year old boy, regularly employed, picked up five other boys and two girls and started on a ride in his automobile about ten o'clock one July night. After cruising aimlessly for a while, he parked at a place at the foot of Clinton Street on private property referred to as Thompson's. There, all of the riders got out except one William Krug and the prosecuting witness, an eleven year old girl, who stayed on the back seat. The others walked away down the road. After a few minutes, Krug came from the car and told the appellant that the girl wanted to see him, and as he walked towards the car, she called to him. He got in the back seat of the car with her. There are different versions given as to what then ensued. The prosecutrix testifies that she was actually and forcibly raped by the appellant. He testified that he was the innocent and unwilling victim of an assault by the prosecutrix, who committed an act of perversion. The oral confession of the appellant to the police is to the effect that he unsuccessfully attemped to have intercourse with the prosecutrix and then was the willing victim of perversion until his sexual desires were satisfied.

The prosecutrix engaged in sexual activity with a third boy, one Avery (at times called Avaria or Aburn by the witnesses). He was in the car with her when the cruising police car drove up, according to the testimony of Officers Thomas and Markowitz, who said that Krug and Cooper were standing with the other girl near the car. The police asked what was going on, saw nothing wrong and received no complaints from the girls who did not seem scared or disheveled. Therefore, they merely asked for the ages, names and addresses of the boys and girls (and were told that all were sixteen except Cooper, who was eighteen), and, according to their standing orders, because the place was private property and 'a dark and lonely spot', ordered them to leave immediately and not to park there.

The appellant's main claim of error is that the testimony of the prosecutrix was so contradictory, unreasonable, inconsistent and improbable as to be totally unreliable and without probative force, in that she said that Cooper was the boy in the car at the time the police arrived, when, actually, it was said by all other witnesses that the boy then in the car was Avery. It is sought to be shown that the offense for which Cooper was convicted was actually committed by Avery and that the prosecutrix is mistaken in her identity of Cooper, and claims that it was he only because he is the owner of the automobile and the one she sat next to on the drive. Rule 7(c) of the Criminal Rules of Practice and Procedure provides that on appeal from a criminal charge which has been tried by the Court, this Court may review both the law and the evidence to determine whether the evidence is sufficient to sustain the conviction and that the verdict of the trial court shall not be set aside: '* * * unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.' The testimony of the prosecuting witness in this case was substantiated, to some extent at least, by the appellant's testimony from the stand--that he was in the car alone with the prosecutrix and that sexual activity was then engaged in. There is no doubt that the time, the place, and the opportunity for the commission of the crime charged was proven. If there be added to the admissions made by the appellant from the witness stand, the confession he gave to the police when he was arrested and charged with the crime, namely, that he had attempted to have intercourse with the prosecutrix, there was ample evidence before the trier of the facts to sustain a conviction of assault with intent to carnally know, if believed. The crime for which the appellant was convicted requires the proving of three elements: first, the assault, without regard to the degree of violence used; second, the intent to carnally know; and third, that the age of the girl be under fourteen. It is admitted that the prosecutrix was under the age of fourteen, and her testimony and the confession,...