Hall v. State

• Decision Date: 28 April 1939
• Docket Number: 24.
• Parties: HALL v. STATE.
• Court: Maryland Court of Appeals

5 A.2d 916

176 Md. 488

HALL v. STATE.

No. 24.

Court of Appeals of Maryland

April 28, 1939

Appeal from Criminal Court of Baltimore City; Joseph N. Ulman Judge.

William Hall was convicted of the crime of bastardy, and he appeals.

Judgment reversed and case remanded for a new trial.

Herman M. Moser and Philip Margolis, both of Baltimore, for appellant.

William C. Walsh, Atty. Gen., H. Vernon Eney, Asst. Atty. Gen., and J. Bernard Wells, State's Atty. for Baltimore City and William H. Maynard, Deputy State's Atty. for Baltimore City, both of Baltimore, for appellee.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, JOHNSON, and DELAPLAINE, JJ.

OFFUTT Judge.

William Hall was convicted in the Criminal Court of Baltimore City of the crime of bastardy, and from the judgment in that case he took this appeal. He was charged with the paternity of a child born of Naomi Saunders on July 18, 1937. The record presents forty six exceptions taken in the course of the trial to rulings of the trial court on the admissibility of evidence offered to prove that the defendant was the father of the child. The basis of all the exceptions is the rule that the mother of a child born in wedlock will not be permitted to testify that some person other than her husband was its father until non access of the husband be first shown, and, the broader rule that until non access of the husband is shown no evidence is admissible to bastardize the child of a married woman.

The testimony to which those exceptions apply may be thus summarized: Mrs. Bessie Meyers, mother of Naomi Saunders testified that before September 1937, her daughter, Naomi Saunders, was living with her sister, Elizabeth Miller, at 1009 Williams Street in Baltimore, that the child was born on July 18, 1937, at 1123 S. Hanover Street, that witness lived at that address until 1938, and she then testified 'that the first time Naomi Saunders came to live with witness was on Barre Street in November of 1937 and that the baby was born July 18, 1937, and also that the baby was born in 1938; that the baby is seventeen months old; that witness is mixed up in her mind; that Naomi Saunders must have lived with her from November 1936; that witness has seen Mr. Saunders, the husband of Naomi Saunders, when he came to the South Charles Street home,' and it may be inferred that witness moved to the South Charles Street home from Hanover Street. She was then permitted to testify over objection that William Hall, the defendant, had contributed from time to time to the support of the child, and that Naomi Saunders was married to her present husband on March 25, 1935, that she lived with him for two months, that the husband lives in Baltimore, and is employed by J. H. Rogers in that city, and that Hall 'went with' her daughter, Naomi, and frequently visited her at the witness' home.

Elizabeth Miller, sister of Naomi Saunders, testified that Naomi Saunders lived with her at 1114 Williams Street for about three months in 1936, and that during that time she saw nothing of her sister's husband, but she knew that he lived at Walbrook, in Baltimore, that during that period of three months Hall called at her house 'three nights a week' to see her sister, that she would be 'out in the evenings many times' and that if her sister saw her husband on such occasions witness would not know about it.

After that testimony had been given, and with no other proof of non access on the part of the husband, Naomi Saunders was allowed over objection to testify that William Hall was the father of her child, that during September, October and November she had had sexual intercourse with no other person, and that Hall contributed to the support of the child. She also testified that she was separated from her present husband July 5, 1935, and did not see him again before the months of September, October and November of 1936, but on cross examination she testified that 'her mother, her sister, and Mr. Hall went to the Moonlight Cafe at the corner of Light and Lee Streets and that Herman Meyers was there and her husband was there also and that her husband, Mr. Saunders, was present all during that time, and that she talked to her husband, Mr. Saunders, and he spoke to her; that she and her husband both spoke together', but that she was not alone with him.

Bessie Meyers, recalled, gave this testimony of her recollection of that occasion:

'Q. Well, there was an opportunity on that evening wasn't there, for your daughter Naomi to have spoken to Mr. Saunders, her husband, wasn't there? A. Not as I know of. I wouldn't say.

'Q. Well, you would not say that she did not speak with him, would you? A. Well, I would not say that she did for I did not see her.

'Q. Well, you could not say that your daughter Naomi did not speak with Mr. Saunders in 1936, could you? A. No, sir.

'Q. She could or she could not? A. She could, I suppose, yes, sir, and she could not.

'Q. That would apply to October of 1936? September, October and November of 1936, wouldn't it? She could have spoken with Mr. Saunders without your seeing or knowing anything about it, couldn't she? A. Of course, she could have. I didn't see her and she didn't say anything to me about it.'

There was also evidence, uncontradicted, that Hall admitted his 'guilt' before a magistrate.

It is apparent that apart from the testimony of Naomi Saunders there is literally no evidence which even tends to prove non access on the part of the husband, except the mere fact of separation. On the contrary, the evidence does show that although the parties were living apart, they were living in the same city, that her husband had to her knowledge a fixed abode there, that they did meet on friendly terms on at least one occasion, and that on that occasion the husband, the wife and the paramour were together.

The indigenous severity of the rule first announced in Goodright v. Moss, 2 Cowp. 591, 98 Eng. Reprint 1258, that neither husband nor wife will be permitted to say after marriage that they have had no intercourse and that therefore the offspring is spurious, has been modified in many American jurisdictions, either by statute, or by judicial decision, and there has been no little criticism of Lord Mansfield's statement that the rule is 'founded in decency, morality and policy', which has revolved for the most part around his use of the word 'decency'. On the one hand it has been suggested that it is inconsistent with decency to allow a married woman to say that her child born in wedlock is the offspring of her illicit passion, and so stigmatize the innocent victim of her guilt with her shame. On the other, that it is consistent with decency to permit the mother to tell the truth, when a refusal to do so will foist upon her husband the nominal paternity of a child which is not his, and to his humiliation add the burden of supporting another man's bastard. The word 'decency' in moral, political and social philosophy, in law, in commerce, and in every day life, has no such fixed or inflexible boundaries that it can be said to mean the same thing at all times to all persons. It cannot therefore be defined in terms of approval or reproach uninfluenced by the subjective emotions and impulses of those who are required to apply it in the characterization of human conduct. And so it has not unnaturally followed that the application of the rule by different courts has varied as the interpretations placed by those courts on the meaning of the word 'decency' used in stating the reason for the rule varied.

As applied to conduct, it might be said that the word means compliance with current standards of socially desirable conduct which are generally accepted as proper, but that would be merely to resolve one doubt in terms of another. Because 'current standards of socially desirable conduct' may mean one thing in one court and something else in another court. One court may hold that it is indecent to permit the mother of a child to brand it as illegitimate, another, that it is even more indecent to compel a husband to assume the paternity of a child which he and every one who has any knowledge of the facts know is not his child, but the child of another. And so the applicable rule has come to be one of case law and precedent varying with what is called the policy of the varying jurisdictions in which it is applied.

In this state the accepted rule is that where a child is born of a married woman neither the husband nor the wife is a competent witness to prove non access at a time when according to the laws of nature the husband could have been the father of the child, and that neither the husband, the wife nor the paramour will be permitted to give testimony which will bastardize the child until such non access be first shown, Craufurd v. Blackburn, 17 Md. 49, 77 Am.Dec. 323; Scanlon v. Walshe, 81 Md. 118, 31 A. 498, 48 Am.St.Rep. 488; Howell v. Howell, 166 Md. 531, 171 A. 869; Harward v. Harward, 173 Md. 339, 196 A. 318; Hale v. State, Md., 2 A.2d 17, but if non access is shown either the husband or the wife is competent to testify to any fact other than non access even though it tends to establish the illegitimacy of the child. Halsbury's Laws of Eng. '2nd Ed. Bastardy and Legitimation', sec. 772 n. e.

The evolution of the rule in this state is peculiar. In Craufurd v. Blackburn, supra, the court, purporting to follow Goodright v. Moss, supra, announced the rule that if marriage be proved or admitted, declarations of the...