Hazel v. State, 144
| Decision Date | 17 February 1960 |
| Docket Number | No. 144,144 |
| Parties | Clifford Earl HAZEL v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Milton B. Allen and Jacques E. Leeds, Baltimore, for appellant.
James H. Norris, Jr., Spec. Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Saul A. Harris, State's Atty., Baltimore, James W. Murphy and Russell White, Asst. State's Attys., Baltimore, on the brief), for appellee.
Before BRUNE, Chief Judge, and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
This is an appeal by Clifford Earl Hazel (the defendant) from the judgment entered and sentence imposed upon his conviction of rape by the three-judge court, sitting without a jury. The sole question presented is whether the evidence was sufficient to sustain the verdict of guilty.
On the afternoon of April 2, 1959, at about 12:20, the prosecuting witness (the prosecutrix or victim) was unloading groceries from her automobile to her home. Within seconds after she entered the house, and while talking to the maid about feeding the youngest of her three children, she felt an arm around her neck and heard the person behind her say, "Don't move, this is a hold up' or words to that effect.' The defendant had apparently followed her through the open doorway. According to the prosecutrix he also said, The threat was also heard by the maid. After directing the prosecutrix to close the front door he demanded money and she gave him between twenty and thirty dollars. The defendant kept his right hand in his raincoat pocket and repeated stated that he had a gun although one was never seen.
On further demand the prosecutrix also gave the defendant her jewelry and pocket book and the maid gave him her ring. When the defendant indicated that he intended to put the prosecutrix, the maid and the three children into a closet, the prosecutrix interposed an objection that it was too small and the defendant gave up the idea. Apparently seeking more jewelry he then took all of them upstairs--though he never released his hold on the prosecutrix--and placed the maid and the children in the bathroom. After a brief search of the master bedroom, he directed the prosecutrix to go back downstairs with him. He took her to the kitchen and informed her he was going to tie her hands. When he asked for a cord she picked out a piece that was 'not too harsh' and he tied her hands behind her. He then gagged her with a towel, although the gas was loose enough to allow her to talk. He then required her to enter the cellar and he followed her. As they descended, the cellar door locked behind them, and could not then be opened from the inside.
After looking around the cellar, the defendant made obscene remarks to and improper advances toward the prosecutrix and when she gasped 'no,' he pulled the gag tight around her throat and almost strangled her. When she protested, he loosened the gas and seeing a dark room in the cellar, took her into it and told her to lie down on the floor. Her hands remained tied behind her. He did not touch her with his hands. But he asked her to raise her legs and she complied, whereupon he knelt down over her and intercourse followed. She stated she 'did not struggle * * * [because she] was afraid for * * * [her] life.' The noise of the children upstairs interrupted the sexual act, and, after the oldest child had opened the cellar door at the command of the defendant, the victim and the defendant returned to the second floor, he shoving her ahead of him up the cellar stairs. Asking where the telephone was he pulled the cord out of the wall and resumed looking for more jewelry. Still leaving the maid in the bathroom, the defendant threw his arm around the prosecutrix and made her go downstairs again. On this occasion they stopped in the living room. The children followed them. There the defendant required the prosecutrix to have intercourse again. During the attack he ordered her to shift her position and lie face downward, which she did. When he had finished he locked the victim in the cellar and left the premises by the front door.
As soon as she was released from the cellar by the children, the victim called the police to report which had happened. The police report shows that only a robery had been reported by the victim over the telephone. When the officers arrived she did not tell them about the rape until they were about ready to depart. She explained this by saying that because the officers had interrogated her only about the robbery she believed they had already gotten her report of rape from her telephone call.
A police sergeant [Viola Hill White] testified that in an interview with the prosecuting witness the day after the rape had occurred, the victim had at no time said that force was used and that, on the contrary, she repeated several times that he was 'extremely gentle.' The victim denied that she had made any such remark, maintaining that she had said she defendant 'was not brutal.' The defendant did not testify but in statements to the police he did not deny the intercourse but claimed that it was with the consent of the prosecutrix. Furthermore, he denied that he had made any threats against the prosecutrix or any of her children. Finally, while he denied having a gun, he admitted having his hand in his pocket and that it could have been there to give the impression that he had a weapon.
Since the defendant thus admitted the intercourse, the only real contention is that the evidence was insufficient to sustain the conviction of rape because the conduct of the prosecutrix was such as to render her failure to resist consent in law.
The criminal statute of this State, although fixing the penalties, does not define the crime of rape. See Code (1957), Art. 27, § 461. However, the law writers generally define common law rape as the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim. Hochheimer, Criminal Law, § 47 (1911); 1 Wharton, Criminal Law and Procedure, § 300 (1957); 44 Am.Jur., Rape, § 2; 75 C.J.S. Rape § 1.
Force is an essential element of the crime and to justify a...
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