Rau v. State

• Decision Date: 16 January 1919
• Docket Number: 92.
• Citation: 105 A. 867,133 Md. 613
• Parties: RAU v. STATE.
• Court: Maryland Court of Appeals

105 A. 867

133 Md. 613

RAU v. STATE.

No. 92.

Court of Appeals of Maryland

January 16, 1919

Appeal from Circuit Court, Baltimore County; Allan McLane, Judge.

"To be officially reported."

Roy Rau was convicted of assault with intent to commit statutory rape, and he appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, STOCKBRIDGE, and CONSTABLE, JJ.

C. Gus Grason, of Towson, and William H. Lawrence, of Baltimore, for appellant.

Philip B. Perlman, Asst. Atty. Gen. (Albert C. Ritchie, Atty. Gen Ogle Marbury, Acting Atty. Gen., and George Hartman State's Atty., on the brief), for the State.

BRISCOE J.

The traverser was indicted in the circuit court for Baltimore county, and was convicted by the verdict of a jury, on the fourth count of the indictment; and sentenced to be confined in the Maryland House of Correction for the period of 2 years. He brings this appeal from that judgment.

The indictment contained six counts. The first and second counts were abandoned by the state, and the traverser was adjudged not guilty by the jury on the third, fifth, and sixth counts of the indictment upon the trial.

The fourth count, upon which the traverser was convicted, alleges that the traverser, on the 25th day of April, 1918, at the county aforesaid, in and upon one Martha Lohmeyer, who was then and there a woman child, under the age of 14 years unlawfully did make an assault, and her, the said Martha, did then and there beat, with the intent then and there the said Martha feloniously to carnally know and abuse, contrary to the form of the act of assembly in such case made and provided, and against the peace, government, and dignity of the state.

The questions to be determined by us are presented upon exceptions reserved to the rulings of the court below upon evidence in the course of the trial.

The first exception of the appellant was taken to the refusal of the court, upon objection by the state, to permit the prosecutrix to be asked upon cross-examination and to answer the following question:

"Q. Didn't you, about a year ago, tell your mother that a man by the name of Horton, who was your neighbor, had put his person in your person?"

The law upon the admission of this character of testimony in cases of this kind seems to be fully settled by the weight of the judicial decisions, as well as by the leading authorities and text-writers in this country.

The traverser in this case was convicted on the fourth count of the indictment, charging the statutory offense of an assault with intent to have carnal knowledge of a female child under the age of 14 years, under section 17, article 27, of the Code, and consent was in no way an element of the offense.

The prosecutrix, under the law, by reason of her age, was not capable of consenting to sexual intercourse with the traverser, and the question of her prior intercourse with another or chastity was not a material issue, and could not reflect upon his guilt or innocence, under the fourth count of the indictment.

In State v. Roderick (Ohio) 14 L. R. A. (N. S.) 723, the authorities in many of the states are collected and reviewed in an interesting note by the annotator, and the conclusion from all the cases is thus stated:

"In the case of statutory rape, consent is no element in the crime; the victim by reason of her tender years is legally incapable of consenting to her defilement. The question of her chastity is therefore entirely immaterial, and the courts are virtually unanimous in excluding all evidence relating to it." Weatherford v. Weatherford, 20 Ala. 548, 56 Am. Dec. 206, 2 Wigmore on Evidence, 983; Greenleaf on Evidence, vol. 1, §§ 461, 585; Wharton on Criminal Evidence, § 486.

In Shartzer v. State, 63 Md. 149, 52 Am. Rep. 501, this court said:

"After a full examination of all the cases, and the principles on which they are based, we are of opinion that the prosecutrix on a charge of rape could not be asked the question whether she had previously had connection with another person, but that evidence in regard to the general character of the prosecutrix for truth and veracity or for chastity was admissible, but not proof of specific acts which tended to show that she was an immoral person." Brown v. State, 72 Md. 477, 20 A. 140; Avery v. State, 121 Md. 236, 88 A. 148.

The question propounded in this case was therefore improper, because the evidence that was sought to be introduced was proof tending to show particular instances and specific acts of the want of chastity with other men than the accused, and did not go to the impeachment of her general character for truth and veracity even if such testimony was admissible at all in cases of this kind, and if this method of cross-examination was permissible. The general rule, as we have stated, is well settled that in order to impeach the credit or veracity of a witness the examination must be confined to his general reputation, and not permitted as to particular facts.

Mr. Wharton in his work on Criminal Evidence, § 486, says:

"A witness may be discredited by evidence attacking his character for truth and veracity, but particular independent facts, though bearing on the question of veracity cannot be put in evidence for this purpose."

And it is further said it has been held inadmissible in cases of this kind, in order to attack veracity, to prove the bad character of a female witness for chastity, or to show that she is a prostitute. This general rule has been applied in a number of cases in this court. Shartzer v. State, 63 Md. 149, 52 Am. Rep. 501; Hoffman v. State, 93 Md 388, 49 A. 658; Richardson v. State...