Smith v. State

• Decision Date: 17 March 1961
• Docket Number: No. 173,173
• Citation: 168 A.2d 356,224 Md. 509
• Court: Maryland Court of Appeals
• Parties: Edward SMITH v. STATE of Maryland.

Page 509

224 Md. 509

168 A.2d 356

Edward SMITH v. STATE of Maryland.

No. 173.

Court of Appeals of Maryland.

March 17, 1961.

Perry G. Bowen, Jr., Prince Frederick, for appellant.

Thomas B. Finan, Atty. Gen., and James H. Norris, Jr., Sp. Asst. Atty. Gen., and Allen S. Handen, State's Atty. for Calvert County, Prince Frederick, for appellee.

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

PER CURIAM.

Edward Smith was indicted in the Circuit Court for Calvert County for (1) carnal knowledge of his daughter, Algea Smith, a female under the age of fourteen years, (2) assault and battery upon the same girl, and (3) incest upon the same girl. He pleaded not guilty and elected to be tried by the Court, without a jury. The judge entered a verdict of guilty on the first and third counts of the indictment, held that the second count was merged in the other two, and sentenced him to ten years in the House of Correction.

The sole question in this case is whether the evidence was legally sufficient to establish that the appellant was guilty of carnal knowledge of a female child under the age of fourteen, and incest.

The appellant's contention, upon which he seeks reversal, is that there was insufficient proof of penetration.

In September 1959 Algea Smith, then twelve years of age, was attending the eighth grade at Brooks High School and living at home with her mother, father, and nine brothers and sisters. The one-story, tenant farm house in which they lived had four rooms, including two bedrooms, one dining room, and a kitchen. She testified that her father, Edward Smith, had bothered her sexually in September 1959, and both prior and subsequent to that time. She also testified on cross-examination that nobody had had relations with her except her father.

When her father bothered her sexually it usually occurred in the kitchen or dining room on the floor in the middle of the night. Algea slept in a bedroom with her brothers and sisters, and her father slept with her mother in the other bedroom. She testified that the first time it happened she was afraid to complain to any one; that she was afraid of her father and that she finally told her mother, but the latter did nothing about it. When she went to school she complained to Mrs. Gates and Mr. Ward, the guidance counselor, as well as to Mrs. Lola Parks, the supervisor of Pupil Personnel for the Board of Education.

Upon the statements of Algea and her brother, Edward Smith, Jr., she was taken out of her home and admitted to Barrett School on November 2, 1959. Subsequent to her admission to the school it was learned that she was pregnant, and on May 5, 1960, she gave birth to a premature baby, with an estimated gestation of thirty weeks. She alleged her father was the father of this child.

He relies upon the case of Craig v. State, 214 Md. 546, 136 A.2d 243, which involved the crime of common law rape. We agree, as held in the Craig case that proof of penetration is an essential element of rape. Moreover, as in Robert v. State, 220 Md. 159, 151 A.2d 737, we assume that proof of penetration is an essential element of carnal knowledge or, as sometimes called, statutory rape.

In the Craig case, however, the issue presented involved the testimony of an eight year old girl who testified that the defendant had 'messed' with her. There was no other evidence submitted to substantiate the fact that the victim understood the meaning of that term as including penetration. The judgment was therefore reversed and the case remanded for a new...