Robert v. State

• Decision Date: 05 June 1959
• Docket Number: No. 233,233
• Parties: Robert E. ROBERT v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 159

220 Md. 159

151 A.2d 737

Robert E. ROBERT v. STATE of Maryland.

No. 233.

Court of Appeals of Maryland.

June 5, 1959.

John B. Robins, Salisbury, for appellant.

Joseph S. Kaufman, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and Alfred T. Truitt, Jr., State's Atty. for Wicomico County, Salisbury, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, and HORNEY, JJ.

BRUNE, Chief Judge.

The appellant, Robert E. Robert, was found guilty by a jury on two separate indictments which were consolidated for trial. The first charged him with having carnal knowledge of his stepdaughter, Jacqueline, a female child under the age of fourteen years (and with two lesser offenses which were merged in the greater offense); and the second charged him with attempting to perform an abortion upon the same girl. He was sentenced to fifteen years' imprisonment on the first charge and to three years' imprisonment on the second. He raises two contentions on this appeal: first, that the evidence was insufficient to sustain a conviction on the carnal knowledge case; and second, that evidence obtained by two policewomen listening without his knowledge or consent to a telephone conversation between him and his stepdaughter and others was improperly admitted.

The first contention is based upon the alleged insufficiency of proof of penetration, and for this contention the appellant relies upon the case of Craig v. State, 214 Md. 546, 136 A.2d 243, which was a prosecution for common law rape. There is no doubt, as the Craig case holds, that this is an essential element of the crime of rape which must be proved in order to establish guilt. We may assume that it is also an essential element of carnal knowledge (sometimes called statutory rape) under Code (1957), Art. 27, Sec. 462, which makes it an offense to 'carnally know and abuse any woman child under the age of fourteen years.' In the Craig case, however, the only testimony introduced to prove this element was that of an eight year old girl. She testified that the defendant had 'messed' with her. There was nothing to prove her understanding of the meaning of that term as including penetration. The girl's further explanation of what the defendant had done did not clearly supply the lacking evidence either explicitly or as a matter of reasonably sure deduction. The judgment was therefore reversed and the case remanded for a new trial.

In the instant case we have the testimony of a twelve year old girl that she knew what sexual intercourse was, that she knew what caused people to become pregnant and that the defendant had had sexual intercourse with her on several occasions at the motel near Salisbury of which he was the manager and at which she, her mother and the defendant lived. Medical testimony makes it quite clear that the girl had become pregnant before coming to live at the motel in Wicomico County. (Her condition was not shown to have been due to the defendant's action.) There was no effort on either direct or cross-examination to test her knowledge of the meaning of sexual intercourse.

There is also some testimony by the girl to the effect that the defendant was 'messing around' and that the first thing she knew, he stuck something in her. After a careful review of the evidence, we think that this testimony related to the occasion when the defendant was alleged to have used a crochet hook in attempting to perform the abortion and not to any act of sexual intercourse; and we shall therefore not consider it as supporting the charge of carnal knowledge.

We think, however, that the girl's testimony, if believed, was sufficient to sustain the charge of carnal knowledge. There was no need that her testimony be corroborated. Saldiveri v. State, 217 Md. 412, 420, 143 A.2d 70.

In State v. McCall, 245 Iowa 991, 63 N.W.2d 874, 876, it was said that: 'The term itself [sexual intercourse] necessarily includes penetration.' In State v. Diamond, 50 Nev. 433, 264 P. 697, 698, a contention very similar to that of the appellant in the present case was made. The court there said: 'We think her testimony in this regard is the statement of an ultimate fact, and competent to prove this essential element of the corpus delicti. 'Sexual intercourse,' judicially defined, 'means actual contact of the sexual organs of a man and woman and an actual penetration into the body of the latter.' * * * The failure of the prosecutrix to testify to any physical act showing, or tending to show, actual penetration, is, at the most, the omission of a mere detail comprehended within a term, the meaning of which is common knowledge. That the prosecutrix had such common knowledge may be inferred from her testimony in which she said she knew the meaning of the words 'sexual intercourse.' * * * The prosecutrix testified in direct terms that the appellant had sexual intercourse with her, and that she knew the meaning of the term she used to describe the act. * * * If appellant or his counsel though that she did not understand what she was talking about, cross-examination could easily have revealed the fact.'

See also State v. Haston, 64 Ariz. 72, 166 P.2d 141; Osborn v. State, 36 Ala.App. 403, 56 So.2d 786.

In this state we have recently held that testimony in general terms in a case of indecent exposure was sufficient to warrant a conviction. Messina v. State, 212 Md. 602, 130 A.2d 578.

We do not think that the fact that the prosecutrix here was only twelve years old at the time she testified, whereas in the cases cited above the witnesses were fifteen (and in the Diamond case sixteen), calls for any different result in the instant case. None of the decisions suggest that such a line be drawn. In fact the Diamond case cites with approval and quotes from People v. Preston, 19 Cal.App. 675, 127 P. 660, in which the prosecuting witness was twele years old when the act was committed. (The opinion does not show her age at time of testifying.) We think the proper rule is that while the capacity of children to testify is a matter ordinarily within the discretion of the trial court (Saldiveri v. State, supra) their credibility and the weight to be accorded their testimony is a question for the jury to determine. See Wharton's Criminal Evidence (12th Ed.), Sec. 971; cf. Wigmore, Evidence (1957 Supp.) Sec. 507, pp. 159-160, citing many sex offense cases in which the testimony of children as young as four years of age was admitted in evidence under the discretion rule. We also think the jury was entitled to consider the fact that the prosecutrix in the instant case had been pregnant, not as bearing directly upon the crime charged in the indictment for carnal knowledge, but as a factor to be taken into account in weighing her testimony that she understood the meaning of 'sexual intercourse.'

We turn to the second question raised by this appeal--whether the testimony of the two policewomen as to the contents of the telephone conversation overheard by them between the appellant and others at the motel was erroneously allowed into evidence in violation of the Maryland Wire Tapping Act, Code (1957), Art. 35, Secs. 92-99.

The fact that an abortion was attempted on July 20, 1958, is undisputed. There was controversy as to who attempted to perform it. Jacqueline, the prosecutrix, told three different stories at different times. One, which she said the defendant had instructed her to tell, was that she had made the attempt herself; a second, which she said she thought up herself was that her mother had attempted it; and the third, which she insisted at the trial was true, was that the defendant had attempted it. In this she was supported by her mother, and that is the version which the jury evidently believed.

The attempted abortion on July 20th was not successful, and the crochet hook used in the attempt could not then be removed from the child. As a result, she was taken to a hospital in Salisbury the next day and there passed both the crochet hook and a dead fetus. The Maryland State Police were notified and an investigation was begun. A few days later--on July 25th--the defendant left the motel and visited several places in the general vicinity of Salisbury, one of which was Delmar, Delaware. From that point he made a telephone call to the motel, during which he spoke with Jacqueline and some others who were at the motel. He later returned to the motel and was arrested when he did so.

While the defendant was away from the motel a group gathered there which included Mrs. Robert, her mother, her sister, her daughter Jacqueline and the State's Attorney for Wicomico County, a trooper of the State Police, two policewomen who were members of the Abortion Squad of the Baltimore City Police Department, and a Mr. Davis who was employed on a part time basis as night clerk at the motel. The defendant had telephoned to the motel earlier in the day and another call from him was expected. Arrangements were made by the State's Attorney with Mr. Davis for police representatives to listen to the conversation when the expected call came in. These arrangements were carried out and the two policewomen took turns listening to the conversation through a headset which was connected by pressing a key on the motel switchboard. At the trial each of them testified, over objection, with regard to the substance of the conversation which she had heard. Each of them had made notes of the conversation shortly after it occurred, and each of them made use of her notes in testifying. It is not necessary to detail the whole conversation as reported. The first policewoman testified that the 'male voice' inquired of Jacqueline whether she had told the police anything, that she said she had not done so, and that the defendant said to her: 'Well, don't tell them anything, because they will take you away from me.' At the end of the conversation he was also quoted by the other policewoman as saying to Jacqueline: 'Well,...