Reckard v. State

• Citation: 234 A.2d 630,2 Md.App. 312
• Decision Date: 02 November 1967
• Docket Number: No. 285,285
• Parties: Harry Dean RECKARD v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 312

2 Md.App. 312

234 A.2d 630

Harry Dean RECKARD v. STATE of Maryland.

No. 285.

Court of Special Appeals of Maryland.

Nov. 2, 1967.

Certiorari Denied Jan. 18, 1968.

Karl G. Feissner, William L. Kaplan, Hyattsville, on the brief, for appellant.

Edward F. Borgerding, Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Baltimore, and Arthur A. Marshall, Jr., State's Atty., for Prince George's County, Upper Marlboro, on the brief, for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ., and PRETTYMAN, DANIEL T., Special Judge.

MORTON, Judge.

The Appellant, Harry Dean Reckard, was indicted for assault with intent to have carnal knowledge of a female under the age of fourteen years and assault and battery. After entering pleas of not guilty and not guilty by reason of insanity, he was tried before Chief Judge J. Dudley Digges, sitting in the Circuit Court for Prince George's County, without a jury, and found not guilty of assault with intent to have carnal knowledge; guilty of assault and battery; and given an indeterminate sentence not to exceed five years. This was his second trial on the same charges, his prior conviction of assault and battery having been set aside on the basis of Schowgurow v. State, 240 Md. 121, 213 A.2d 475.

The six-year-old prosecuting witness was a resident of Virginia at the time of the second trial. Although her mother and father came from Virginia to testify, they refused to subject their daughter to the jurisdiction of the Maryland Court and the State was permitted, over objection, to use the transcript of the child's testimony given at the first trial. In this appeal, the Appellant contends that this procedure offended his Constitutional rights. We disagree.

It is well settled that where a witness is beyond the jurisdiction of the Court, a transcript of the testimony given at the previous trial between the same parties involving the same subject matter may be admitted into evidence; and this does not contravene either the rights accorded by the Sixth Amendment to the United States Constitution or Article 21 of the Maryland Declaration of Rights 'to be allowed counsel; to be confronted with witnesses * * * to examine the witnesses for and against him on oath.' Contee v. State, 229 Md. 486, 489, 184 A.2d 823, Britton v. State, 2 Md.App. 285, 234 A.2d 274.

The Appellant cites no authority, and we are unaware of any, that would require the State's Attorney to follow the Appellant's suggestion that the prosecuting witness's deposition should have been taken when it was discovered that she was beyond the jurisdiction of the Court. The Appellant also claims that the State's Attorney should have resorted to the provisions of the Uniform Act to Secure the Attendance of Witnesses from without a state in Criminal Proceedings, Md.Code, Art. 27, Sec. 617-623. This Court, however, has recently held in Britton v. State, supra, that a State's Attorney is not required to utilize the provisions of that Act.

The record indicates that immediately after the child had been molested, she and her five year old companion, Laura, went to the nearby apatment of Laura's parents, where they encountered a Mrs. Lingo. Laura, still crying, told Mrs. Lingo what had just occurred while the prosecuting witness stood by sobbing and mute. The Appellant complains that it was error to permit Mrs. Lingo to relate to the Court what had been told to her by Laura since it violated the hearsay rule.

It is well settled law in Maryland that statements and acts of third parties are admissible in evidence when they are so closely connected with the crime as to constitute a part of the res gestae. Little v. State, 204 Md. 518, 105 A.2d 501; Alexander v. State, 198 Md. 395, 84 A.2d 98; Robinson v. State, 57 Md. 14.

The formula governing res gestae testimony was enunciated in Wilson v. State, 181 Md. 1, 26 A.2d 770:

'The test as to whether a declaration or act offered in evidence is part of the res gestae is whether it was contemporaneous with the commission of the crime and so connected with it as to illustrate its character. Whether such a declaration or act is an immediate accompaniment is tested, not by the closeness in time, but by causal connection. A definite limit of time cannot be arbitrarily fixed for the reason that so long as the main transaction continues, declarations and acts emanating from it become a part of it.'

Likewise, the Court of Appeals in Patterson v. Baltimore and Ohio Railroad, 133 Md. 276, 105 A. 159, stated:

'The decisions of this court upon the subject of the admissibility of res gestae declarations have held that the question depends upon the facts and circumstances of the particular case, and that there is no inflexible rule as to what lapse of time between the commission of an act and the making of the proffered declaration is sufficient to cause its rejection as not being a part of...