Parker v. State

• Decision Date: 14 November 1947
• Docket Number: 17.
• Citation: 55 A.2d 784,189 Md. 244
• Parties: PARKER v. STATE.
• Court: Maryland Court of Appeals

55 A.2d 784

189 Md. 244

PARKER v. STATE.

No. 17.

Court of Appeals of Maryland

November 14, 1947

Appeal from Circuit Court, Wicomico County; W. Laird Henry, Chief Judge, and Levin C. Bailey, Associate Judge.

I William Parker was convicted of bastardy, and he appeals.

Judgment reversed and new trial awarded.

Hamilton P. Fox, Jr., of Salisbury (Ernest C. Clark and Charles E. Hearne, Jr., both of Salisbury, on the brief) for appellant.

J Edgar Harvey, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and Rex A. Taylor, State's Atty., of Salisbury, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.

MARKELL Judge.

This is an appeal from a judgment on conviction of bastardy. The defendant, besides denying any illicit relations with the prosecuting witness, set up the defense that at the time of the alleged offense he was physically incapable of reproduction. This seems to be a novel defense, but if proved would obviously be conclusive. The only questions now presented are whether the medical testimony on this subject, offered or proffered, was properly excluded.

The alleged offense was committed on or about March 17, 1946. The trial was about a year later. Defendant testified that once only, about ten years ago, he had gonorrhea, 'a bad case,' he 'thought it was pretty bad; it hurt enough'; it lasted about six months; his organs were swollen; he was treated for about six months by a physician said to be now dead; on the day of the trial Dr. McCullough a physician and pathologist, made a 'sterilization examination and diagnosis'; when he was examined he gave Dr. McCullough his 'full case history with respect to gonorrhea,' and answered all the questions asked him. With the exception of the testimony above mentioned, there is no evidence what 'case history' he gave Dr. McCullough or what questions he was asked. Dr. McCullough testified that he made a 'semen examination' and took defendant's 'case history * * * with respect to gonorrhea and other matters pertaining to gonorrhea and sterility.'

Dr. McCullough was asked (Q. 1, 10) from his knowledge and experience, the effect, if any, of gonorrhea as to sterility; (11, 12) the case history of defendant 'with respect to gonorrhea and other matters pertaining to gonorrhea and sterility'; (13) whether from his examination he could say whether or not defendant had ever been operated on for the purpose of sterilization; (15) with respect to sterility, what his examination disclosed 'as of' the present time; based on the testimony of defendant and the case history obtained from him, (18) whether he was in a position to give an opinion as to the cause of his present sterility, (19) whether in his opinion his present sterility existed two years ago, and (20) whether defendant was sterile on March 17, 1946. All these questions were excluded.

Defendant made a proffer, which was also excluded, to show through Dr. McCullough that 'yesterday' a physical examination was made on defendant; that at the same time Dr. McCullough obtained the full case history of defendant and examined defendant to determine whether or not he had ever been operated on for the purpose of rendering himself sterile; that gonorrhea such as defendant had ten years ago in many cases will render a person sterile for life; that, based on defendant's case history and his testimony that he had never had gonorrhea in the past ten years, a man of defendant's age, because of nature, would not ordinarily become sterile within the last two years, and would not have become sterile subsequent to March 17, 1946; that defendant 'was not capable of conception' on March 17, 1946.

From elementary sources of which perhaps judicial notice may be taken, it appears that gonorrhea may cause sterility in a man (Smith, Forensic Medicine, 1925, page 218), and that 'healthy spermatozoa' are essential to fertility, 'it is estimated that in 25 percent of childless marriages the man is at fault,' and 'experimentation with laboratory animals has shown that infecundity may result from deficiency of the reproductive vitamin E.' 21 Encyclopaedia Brittanica, 398. These statements are hardly less definite than the proffer in this case as to when gonorrhea will cause sterility and when sterility is permanent and incurable. It would seem that sterility due to vitamin deficiency might be temporary and curable and might even be selfinduced.

'The law requires proof of probable, not merely possible, facts, including causal relations. * * * But sequence of events, plus proof of possible causal relation, may amount to proof of probable causal relation, in the absence of evidence of any other equally probable cause.' Charlton Bros. Transp. Co. v. Garrettson, Md., 51 A.2d 642, 646. In some circumstances, expert opinion as to possibility may corroborate direct evidence of cause (Langenfelder v. Thompson, 179 Md. 502, 507, 20 A.2d 491, 136 A.L.R. 960) or a chain of evidence of possibilities may show probability or at least corroborate direct evidence (Shanks v. State, 185 Md. 437, 45 A.2d 85, 163 A.L.R. 931). Bethlehem-Sparrows Point Shipyard v. Bishop, Md., 55 A.2d 507, just decided.

In the case at bar direct evidence of the normal relation of cause and effect is met with an attempt to prove impossibility, i. e., physical incapacity. The only direct evidence offered or proffered is (a) a 'bad case' of gonorrhea nine years before the offense and (b) present incapacity a year after. Expert opinion (a) that 'such' gonorrhea 'in many cases' will render a person sterile for life and (b) except from...