Wentz v. State

• Decision Date: 15 May 1930
• Docket Number: 5.
• Citation: 150 A. 278,159 Md. 161
• Parties: WENTZ v. STATE.
• Court: Maryland Court of Appeals

150 A. 278

159 Md. 161

WENTZ v. STATE.

No. 5.

Court of Appeals of Maryland

May 15, 1930

Dissenting Opinion May 19, 1930.

Appeal from Circuit Court, Carroll County; Wm. Henry Forsythe, Jr. Judge.

David O. Wentz was convicted of having carnal knowledge of the body of his daughter, and he appeals.

Reversed and new trial awarded.

BOND C.J., dissenting.

Argued before BOND, C.J., and URNER, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.

Edward O. Weant and John Wood, Jr., both of Westminster, for appellant.

William L. Marbury, Jr., Asst. Atty. Gen., (Thomas H. Robinson, Atty. Gen., and Theo. F. Brown, State's Atty., of Westminster, on the brief), for the State.

SLOAN J.

The appellant, David O. Wentz, was indicted on a charge that he "feloniously, knowingly and incestuously did have carnal knowledge of the body of Florena Wentz, who was then and there the daughter of the said David O. Wentz, contrary to the form of the statute," etc. The traverser demurred to the indictment, and was overruled. The trial of the case proceeded before the court sitting as a jury, the verdict was guilty, and from the sentence thereon this appeal is taken. In addition to the ruling on the demurrer, there were fifteen exceptions to rulings on the evidence presented to this court.

The appellant contends that the indictment is defective because it does not sufficiently describe the offense. The section of the Code under which the indictment was found is section 314 of article 27, which reads as follows:

"Every person who shall knowingly have carnal knowledge of another person, being within the degrees of consanguinity within which marriages are prohibited by law in this State, shall be deemed guilty of felony, and upon conviction thereof shall be punished by imprisonment in the penitentiary for a term not less than one nor more than ten years, in the discretion of the court."

The appellant sums up his contention by saying "that the indictment was fatally defective in failing to allege that the appellant did the act with which he is charged, then and there well knowing that Florena Wentz was his daughter." What the appellant says the indictment failed to say is what in effect it did say. The word "knowingly" is the word used in the statute, and it is a cardinal principle that an offense literally or substantially charged in the language of the statute shall be sufficient. Kearney v. State, 48 Md. 16, 24; Stevens v. State, 89 Md. 669, 43 A. 929; Benesch v. State, 129 Md. 505, 99 A. 702; Hicken v. State, 146 Md. 251, 126 A. 123; Weller v. State, 150 Md. 278, 132 A. 624; Dunbar v. United States, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390. "The word 'knowingly' or 'well knowing' will supply the place of a positive averment that the defendant knew the facts subsequently stated." Rawle's Ed., 2 Bouv. Law Dict. 1809. If the prosecutrix was not the appellant's daughter, or if he did not know that she was, these would be matters of defense. The indictment as drawn put the appellant on full notice of the charge he was to meet, and, in our opinion, was a sufficient compliance with the requirements of the statute.

Of the fifteen exceptions to rulings on the evidence, the major part of the appellant's brief is devoted to the eighth, ninth, tenth, and eleventh. They were on questions to Della Thomas, another daughter of the appellant, asking whether the father had had intercourse with her, to which she answered that he had. The appellant contends that it was not admissible as raising another issue not included in the indictment; and the state as evidence showing the traverser's sexual disposition, passions, and emotions, and thus rendering the charge as laid in the indictment more probable. "It is well settled that evidence which is relevant is not made inadmissible by reason of the fact that it tends to prove the defendant guilty of a crime other than the one for which he is being tried. Such evidence is not admitted because it is proof of the other crime, but because of its relevancy to the charge upon trial." Cothron v. State, 138 Md. 101, 109, 113 A. 620, 624. Evidence of other crimes of the same character has been allowed as tending to show the guilty knowledge of the offense for which the defendant was indicted (Luery v. State, 116 Md. 284, 288, 81 A. 681, 685, Ann. Cas. 1913D, 161), or of other offenses so connected that they form parts of one entire scheme or transaction from which may be gathered the purpose or intent with which the act was done for which the accused was then being tried. ( Meno v. State, 117 Md. 435, 440, 83 A. 759). In the case of Cothron v. State, 138 Md. 101, 110, 113 A. 620, 624, citing State v. Hyde, 234 Mo. 200, 136 S.W. 316, Ann. Cas. 1912D, 191, it was said that evidence of other crimes had been admitted "to prove the specific crime charged when it tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, (5) the identity of the persons charged with the commission of the crime on trial."

The general rule undoubtedly is, as stated in People v. Sharp, 107 N.Y. 427, 14 N.E. 319, 343, 1 Am. St. Rep. 851, that, "when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his life-time is wholly excluded." Curry v. State, 117 Md. 587, 593, 83 A. 1030.

In cases involving sexual offenses, and especially those grouped together by Mr. Wigmore in the second edition on Evidence, § 398, viz. adultery, bigamy, fornication, criminal conversation, sodomy, indecent liberties, and incest, there seems to be, under the decisions in this country, a very well-recognized exception to the general rule that evidence of other offenses than the one charged is admissible. In Wharton on Criminal Evidence (10th Ed.) p. 170, it is said: "It has been repeatedly held that upon a trial of a charge of having committed any of the crimes known as 'sexual offenses,' evidence of prior acts of the same character are admissible, although such prior act is in and of itself a crime." The same authority, however, says (page 186): "Offenses against other persons than the one against whom the offense with which the defendant is charged was committed are inadmissible."

This is the first time the question has been before this court, but the number...