Klein v. State, 2.

• Decision Date: 01 December 1926
• Docket Number: No. 2.,2.
• Citation: 135 A. 591
• Parties: KLEIN v. STATE.
• Court: Maryland Court of Appeals

135 A. 591

KLEIN

v. STATE.

No. 2.

Court of Appeals of Maryland.

Dec. 1, 1926.

Motion for Reargument Overruled

Jan. 18, 1927.

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

George Klein was convicted of bastardy, and he appeals. Reversed and remitted.

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

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

Herbert Levy, Asst. Atty. Gen., and Rowland K. Adams, Deputy State's Atty, of Baltimore (Thomas H. Robinson, Atty. Gen., and Herbert R. O'Conor, State's Atty., of Baltimore, on the brief), for the State.

WALSH, J. George Klein, the appellant, was indicted and tried in the criminal court of Baltimore city on a charge of bastardy, and, the trial having resulted in his conviction, he has taken this appeal. The testimony shows that the prosecuting witness, Helen J. Sowers, a divorcee, 33 years of age, entered the employ of the Greenwald Packing Corporation in Hagerstown as a bookkeeper in July, 1923, and remained with this company for 6 or 8 months. She testified that the traverser, who was local manager, made overtures to her on the first day of her employment, and frequently thereafter, but that she successfully resisted his advances, except on an occasion on Sunday, December 2, 1923, when she alleges he had relations with her which resulted in her pregnancy and the subsequent birth of a child. During the morning of the day in question the prosecutrix, the traverser, and various other employees of the Greenwald Packing Corporation were engaged in taking inventory, but the prosecutrix stated that, when she returned after lunch, only the traverser was there; that about 3 o'clock he came to the cage in which she was working, and, upon her refusal to accede to his requests, he forcibly had intercourse with her. She further stated that she remained in the store until 5 o'clock, did not tell her mother of the occurrence until the following day, did not tell any one else about it at all, continued working for the company until discharged about the middle of January, 1024, did not know she was pregnant until the following June, and did not try to communicate with the traverser about the matter until after the child was born on August 23, 1025. The traverser on his part denied that he ever had relations with the prosecutrix; and, though admitting that he helped take the inventory on the morning of December 2d, he produced evidence to show that he left Hagerstown and went to Baltimore on the 3 o'clock bus that afternoon. The case was tried three times below, each trial resulting in a verdict of guilty, but on the first two occasions the supreme bench of Baltimore city granted the traverser a new trial. On the third occasion his motion for new trial was overruled, and the trial court thereupon passed an order suspending sentence and paroling the appellant to pay $15 a month for 14 years, and from this sentence, judgment, and order this appeal is taken.

During the course of the proceedings below the traverser demurred to the indictment, file a motion in arrest of judgment, and excepted to ten rulings on various other matters; and he also now objects to the form of the sentence imposed. No mention is made of the demurrer in the appellant's brief, and at the argument it was stated that, though he did not wish to press it, he did not abandon it. The demurrer apparently sought to raise the question of venue, the act of intercourse having occurred in Washington county, the child having been born in Baltimore county, and the prosecution being brought in Baltimore city. It was held in State v. Hardesty, 132 Md. 172, 103 A. 461, that a prosecution for bastardy in Maryland could be brought where the father or child lived, or where the intercourse which resulted in the illegitimate birth occurred, and, as the indictment alleged, and the evidence showed, that the appellant, at the time this prosecution was brought, resided in Baltimore city, the criminal court there undoubtedly had jurisdiction. We accordingly find no error in the overruling of the demurrer.

The first exception arose in this way: Counsel for the state and the traverser agreed in the presence of the court that the illegitimate child should not be present in court at the trial. On the day of the trial, the child was brought into court, and remained there until 10:30 a. m., and it also appeared that some of the jurors were in the courtroom for half an hour or longer before the child was removed. When counsel for the traverser objected to the child's presence, the judge ordered its removal, and directed the trial to proceed. The record then states that the traverser objected to this action of the court, and took an exception. We find no error in the court's action. The record shows that the child was removed half an hour before the jury which tried the case was sworn, so that, strictly speaking, the child was not present at any stage of the trial; it was only there prior to the trial. In addition to this, the judge ordered its removal as soon as its presence was called to his attention, so that the only thing the traverser could possibly have objected to was the court's direction that the case proceed to trial after the child had been removed. It would seem to be obvious that such an objection cannot be sustained. Without the agreement, the child could properly have been at the trial, and its inadvertent presence for a short time before the trial certainly cannot constitute reversible error. And in fairness to counsel for the state we deem it proper to say that they explained that the child was present without their knowledge, and their statement in this regard is not questioned by counsel for the traverser.

The second exception was taken generally to certain preliminary remarks which the trial judge addressed to the jury. It seems that the jury which heard the case had been engaged in the trial of civil cases, and, after the jury was sworn, but before anything further was done, the court undertook to advise the jury of some of the differences between their duties in a criminal case and in a civil case in Maryland. He called their attention to the presumption of innocence which surrounds the accused in a criminal case, discussed the degree of proof needed for a conviction, gave an explanation of the doctrine of reasonable doubt, told them several times that they were the judges of both the law and the facts in a criminal case, and concluded with the statement that all he had told them was merely advisory, and that the jury, being judges of both the law and the facts, were not bound by what he had said. At the conclusion of these remarks, which cover nearly five pages in the record, counsel for the traverser objected to them generally, and then excepted to the court's action in overruling his objection. At the argument in this court it developed that the real objection was to some of the comments which the learned court below made regarding the doctrine of reasonable doubt, and counsel for the appellant has strongly urged that part of the court's discussion of this doctrine was erroneous. However, as we do not think this question is properly before us, we will not undertake to decide it. Under the Constitution of Maryland (section 5 of article 15), juries in criminal cases are the judges of both the law and the facts, and hence the court cannot give them binding instructions in such cases. But the judges can give them advisory instructions, and, though juries are not bound by them, the practice of giving such instructions at the request of either party has long been sanctioned in Maryland, and they may also be given by the court of its own motion without any request from either party. Simond v. State, 127 Md. 2040, 93 A. 1073; Beard v. State, 71 Md. 275, 17 A. 1044, 4 L. R. A. 675, 17 Am. St. Rep. 530; Bloomer v. State, 48 Md. 521; Forwood v. State, 49 Md. 531.

And it has also been held "that, If the court does instruct the jury, and does so erroneously, and...