Weinecke v. State

• Decision Date: 19 March 1947
• Docket Number: 93.
• Citation: 52 A.2d 73,188 Md. 172
• Parties: WEINECKE v. STATE.
• Court: Maryland Court of Appeals

52 A.2d 73

188 Md. 172

WEINECKE v. STATE.

No. 93.

Court of Appeals of Maryland

March 19, 1947

Appeal from Circuit Court, Baltimore County; Frederick Lee Cobourn and J. Howard Murray, Judges.

Vernon F. Weinecke was convicted of assault with intent to rape, and he appeals.

Judgment affirmed.

Paul B. Mules, of Baltimore, for appellant.

Richard W. Emory, Deputy Atty. Gen. (Hall Hammond, Atty. Gen., and John Grason Turnbull, State's Atty., of Towson, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, GRASON, HENDERSON and MARKELL JJ.

GRASON Judge.

On September 23, 1946, the Grand Jury for Baltimore County returned to the Circuit Court for that county an indictment containing three counts, which charged the traverser with the following crimes: First count: Assault with intent to commit rape; Second count: Assault with intent to have carnal knowledge of a woman child under the age of fourteen years Third count: Common assault. On September 25, 1946, he was arraigned and pleaded not guilty.

The case came on for trial on October 11, 1946, Judges Cobourn and Murray presiding. At that time he was represented by counsel. On that day the traverser withdrew his plea of not guilty and entered a plea of guilty, whereupon testimony was taken in open court. The prosecutrix was examined by the State and cross-examined by counsel for traverser. Other witnesses were called by the State, including the doctor who examined the prosecutrix on August 12, 1946, the day that the crime was committed, as well as Sergeant Young of the Baltimore County police force. This officer procured statements from the accused, which were offered as exhibits 1 and 2. The traverser then offered his wife, his mother, and Mrs. Canoles as character witnesses. A report of Dr. George W. Preston Commissioner of Mental Hygiene, was offered to the court, in which the doctor gave his opinion as follows: 'This man knows the difference between right and wrong and appreciates the nature and consequences of his acts. He gives no sign of any mental illness. In the opinion of the examiner he must be considered sane.'

The appellant contends, in effect, that it is not a crime in this State to attempt to rape a girl under fourteen years of age. Article 27, Section 13, 1943 Supplement to Flack's Code 1939, provides:

1. 'Every person convicted of the crime of an assault with intent to have carnal knowledge of a female child under the age of 14 years, * * * shall be sentenced to confinement in the Maryland Penitentiary for not less than two years or more than ten years * * *

2. 'Every person convicted of the crime of an assault with intent to commit a rape shall be guilty of a felony and shall be punished with death, or, in the discretion of the Court, he shall be sentenced to confinement in the Penitentiary for the period of his natural life, or he shall be sentenced to confinement in the Penitentiary for not less than two years nor more than twenty years; provided, however, that the jury before whom any person indicted for the crime of an assault with intent to commit a rape shall be tried, if they find such person guilty thereof, may add to their verdict the words 'without capital punishment', in which case the sentence of the court shall not exceed twenty years in the Penitentiary, and in no case where a jury shall have rendered a verdict in manner and form as hereinbefore prescribed, 'without capital punishment', shall the court in imposing the sentence, sentence the convicted party to pay the death penalty or to be confined for more than twenty years in the Penitentiary.'

It is argued that the statute does not provide a different or greater punishment for assault with intent to have carnal knowledge of a female child under age of fourteen without her consent than with her consent. That is, if a woman child under the age of fourteen resists her assailant the crime which he commits is no greater than if she did not resist. In other words, the contention is that inasmuch as the statute making it a crime to attempt to have carnal knowledge of a female child under fourteen omitted the words 'with her consent' the punishment, if the assault is resisted, is the same as if the assault is not resisted by the girl. In legal effect, therefore, the offense charged in the first count is the same offense charged in the second count. This being so, then the crime of an assault with intent to commit a rape, provided by the statute, does not apply in a case where the female is under fourteen. Therefore, the sentence of death in this case is unlawful and the appellant could not have been sentenced for more than ten years in the penitentiary. A different construction of the statute, it is urged, would be in violation of the rule that penal statutes are strictly construed in favor of the defendant. On the question of statutory construction the appellant quotes Snitkin v. United States, 7 Cir., 265 F. 489, as well as Sutherland on Statutory Construction, 3d Ed., by Horack, Vol. 3, Section 5604. He cites Rau v. State, 133 Md. 613, 614, 105 A. 867. This case is not in point, as it dealt only with questions of evidence. These are the only authorities cited by appellant.

In Fizell v. State, 25 Wis. 364, the court dealt with the Wisconsin statute. One section made it a crime to ravish and carnally know any female of the age of ten years or...