Seibert v. State

• Decision Date: 21 November 1918
• Docket Number: 24.
• Citation: 105 A. 161,133 Md. 309
• Parties: SEIBERT v. STATE.
• Court: Maryland Court of Appeals

105 A. 161

133 Md. 309

SEIBERT v. STATE.

No. 24.

Court of Appeals of Maryland

November 21, 1918

Appeal from Circuit Court, Harford County; Wm. H. Harlan, Judge.

"To be officially reported."

Frederick W. Seibert was convicted of bastardy, and he appeals. Reversed and remanded for new trial.

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

Harry S. Carver, of Bel Air, for appellant.

Philip B. Perlman, Asst. Atty. Gen., and Ogle, Marbury, Acting Atty Gen. (Albert C. Ritchie, Atty. Gen., and Walter R. McComas State's Atty., of Bel Air, for Harford County, on the brief), for the State.

BOYD C.J.

The appellant was convicted of bastardy in the circuit court for Harford county. The indictment alleges that the child was begotten on the 20th day of February, 1917, and was born on the 22d day of November, 1917. There are 24 bills of exception in the record-all of them presenting rulings of the court on the admissibility of evidence. The first and eleventh were not pressed at the hearing, and some of the others can be grouped in our consideration of them.

The second, third, fourth, and fifth embraced questions which were apparently intended to show that the prosecuting witness, Rosa Wirsing, had met the traverser at different times between the latter part of February and the 20th of October, 1917, when he was accused before the justice of the peace of being the cause of her condition, which resulted in the birth of the child on the 22d of November. One question referred to the 8th of April, one to some time in May or June, one to a time in September, and the last was whether she had seen the traverser between the latter part of February and the 20th of October. The evidence sought to be elicited by those questions was clearly irrelevant and immaterial. It is said by the attorney for the appellant that inasmuch as the prosecuting witness testified that she first told the traverser on October 20th that he was the father of the child, of which she was then pregnant, he had the right to inquire why she had not previously told him. In the first place she did not testify that that was the first time she had told him. The question was: "Did you ever tell Frederick W. Seibert that he was the father of your child?" and she answered: "On the 20th day of October, the day he was arrested." She might very well have recalled that time, as she appeared before the justice of the peace then and he called upon her on that day in reference to the charge, without meaning that they had never talked about it at any other time, but assuming that she meant that she did not tell him at any other time the evidence sought to be introduced by those questions would not have been material. One of the occasions referred to was when she met him at the house of his sister when one of the latter's children was baptized, another was when she was driving down the road from her father's house to her brother's house and the traverser was driving behind her in the same direction, and another was when the traverser and his sister went to the house of the father of the prosecuting witness to inquire of her father about a wheat fan. It could not be expected that on such occasions she would accuse the traverser with being responsible for her unfortunate condition. The question in the fifth exception asked the traverser how often he saw her from the latter part of February until the 20th of October. If in fact he did have sexual intercourse with her about the 20th of February, which resulted in her pregnancy and the birth of the child, why was it to be expected of her that she would tell him of it? There is no doubt that she did become pregnant, and she did give birth to a child on November 22d. If he had had intercourse with her he knew it without being told of it, and it is not likely that she would have told him, unless something occurred to cause her to do so, such as his calling upon her the day he was arrested. There was no proffer to follow up the questions by showing admissions or statements by her which would have been admissible, but the object seems to have been to prove simply that she had said nothing to him. The rulings in those exceptions were clearly correct.

The ruling in the sixth was also. Charles Lieske went with the prosecuting witness, her sister, her two brothers, and another witness to Havre de Grace on October 20th, when the charge was preferred against the traverser before the justice of the peace. He was asked: "Coming down from there what was said by Rosa Wirsing in reference to the parentage of the child?" He replied: "All I know is, I said I didn't think it was Fred's. Lizzie said. 'We will tell more about it when it was born."' The court struck that out, and the sixth exception was taken. It cannot be pretended that what Lizzie said was binding on the state, and the answer was not responsive to the question. If the object was to prove that Rosa said nothing, and thereby have the jury infer what is sometimes permissible to be inferred by reason of the silence of a party, no harm was done, as in the answer to the questions immediately following that exception, it was testified by that witness that Rosa made no remark, and that was not excluded. She was not called upon to make any remark, as she was then returning from the justice of the peace where she had just made an affidavit to the effect that the traverser was the father of the child of which she was pregnant, and she was not called upon to discuss the question with that witness.

While Charles Lieske was still on the stand he was asked about the time of his being at a place called "Little Neck," which we understand to be the name of a farm where he worked. He said he left there on account of his health in January; that he went to the hospital on the 17th of January. He was then asked: "About that time did you remember Rose Wirsing being over there with Martin Rider?" and replied: "Yes, her and her brother." He was later asked: "What did you see them [Martin Rider and Rosa Wirsing] doing there at Little Neck; in what attitude were they?" The court ruled it out, as "beyond the limit, before the middle of January." That is presented by the seventh exception. In the eighth Helen A. Lieske was asked whether Rosa was at her brother Fred's at Little Neck with Martin Rider in January, and in the ninth there was a proffer to prove by that witness that Rosa Wirsing in January, 1917, "sat on the lap of Martin Rider in a caressing way." It was further offered to prove by that witness "that in October, 1916, she saw her brother Fred at Rosa Wirsing's father's, when Rosa was there and saw her brother Fred with his hands up her clothes feeling her legs." We can consider those exceptions together.

The general rule announced in 3 R. C. L. § 44, on page 763, was quoted in Jones v. State, 132 Md. 142, 103 A. 459, and is as follows:

"Evidence is admissible to show that the mother had sexual intercourse with other men at about the time the child was begotten," and the mother may be interrogated on this point, "but evidence tending to show that she had illicit

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