Avery v. State

88 A. 148, 121 Md. 229, 1913 Md. LEXIS 50

Opinion

Thomas, J.,

delivered the opinion of the Court.

The appellant in this case was convicted in the Criminal Court of Baltimore City of having committed an abortion upon Eose Graffey, and was sentenced to confinement in the Maryland Penitentiary for the period of ten years. From that judgment he .has appealed on the ground of alleged errors in the rulings of the trial Court on the evidence and in'its instruction to the jury.

The first, sixth, seventh, eighth, ninth,' tenth, eleventh, ■ twelfth, thirteenth, fourteenth and fifteenth exceptions are to questions asked and evidence offered for the purpose of show- • ing that the accused had connection with another girl. In the case of Lamb v. State, 66 Md. 285, the Court quotes with approval the statement of Bayly, J., in Rex v. Ellis, 6 B. & C. 145, that “Generally speaking, it is not competent toi a prosecutor to prove a man guilty of one felony, by proving him guilty of another unconnected felony’; but where several felonies are connected together, and form part of one entire transaction, then the one is evidence to show the character of thb other,” and in the very recent case of Meno v. State, 117 Md. 435, Judge Stocicbkidge, speaking for this Court, said: “The State attempted to prove by the witness Ludi, that the accused had told him that he had performed operations on or treated other girls as showing’ a familiarity on the part of the traverser with what could be done to’ rid a woman of a child. This evidence was admitted over the objection of counsel, and this ruling of the Court was made the subject' of the eighth exception. This evidence was inadmissible . and should have been excluded. There is a class of cases in which evidence may be given of other similar acts done by the accused, but this class of cases is restricted to where the several acts are connected together and form part of one entire scheme or transaction, so that one of the acts forms a basis for a reasonable and proper inference as to the purpose and intent with which the particular act was performed for which the accused was then on trial.” In the case at bar the appellant was charged with having committed an abortion upon the prosecuting witness, and the State had proved, or offered evidence tending to prove, that he had connection with her prior to the commission of tho alleged offense, but it was error to permit the State to show, either by the prosecuting.witness or the girl herself, that he had connection with another girl. The answers to the questions in the sixth and seventh exceptions, however, are not in the record; the answer to the question in the eleventh exception relates to- the conduct of the accused with reference to the prosecuting witness, and the' twelfth exception is to the refusal of the Court to strike out the answer to the question in the eleventh exception. There was, therefore, no reversible error in the rulings complained of in the four exceptions last referred to. There can be no reversal for error without injury, and this Court can not determine whether the appellant was injured by answers to improper questions unless tke answers are set out in the record. The answer to the question in the eleventh exception being admissible, the rulings'.in the eleventh and twelfth exceptions do not constitute ground for reversal.

Counsel for the State concede in their brief that there was error in admitting the evidence referred to in the other exceptions we have mentioned, hut urge that the judgment should not be reversed on that ground because the prosecuting witness stated on cross-examination that the accused had connection with the girl referred to in said exceptions. In her examination in chief, the prosecuting witness, when asked by the State’s Attorney to state why she went to the office of the accused on a particular occasion, said she went there to have her teeth fixed, and that after he had fixed her teeth “he took Frances in another room and had connection with her.” This answer was objected to by counsel for the accused and the Court ordered all after “he took Frances into another room” to be stricken out. The State’s Attorney then said to the witness: “Don’t tell us anything but what you know of your own knowledge — what you saw. You did not see that,” and she replied, “Ho, sir.” On cross-examination, this witness, having stated that she was at the office of the traverser about a week before Thanksgiving, she was asked by counsel for the accused, “How, that is the time you say the doctor first had anything to do with you,” and she replied, “Well, that was the first time, yes, sir; that was the first time. The first time I went up there he had something to do with' Frances'.” Counsel for the accused interrupted her by saying, “Hever mind about Frances. The Court told you not to talk about that.” This is the testimony relied upon by the State to show that the admission of the evidence conceded to be inadmissible was not reversible error. We cannot adopt that view." The prosecuting witness said that she did not see the accused have connection with Eranees, and the Court, therefore, directed her statement to be stricken out, and when she repeated the statement on cross-examination, counsel for the accused cautioned her not to speak of Eranees because the Court had told her not to do so. Under such circumstances it is not probable that the jury was influenced by the statement of the witness omcross examination, and it cannot be held to relieve the positive and affirmative testimony of Eranees herself that the accused had connection with her of its objectionable character or to deprive the accused of the benefit of the exceptions referred to.

In the course of the cross-examination, the prosecuting witness further testified that after she told her aunt that the accused had connection with her, and her aunt whipped her, he came down to her aunt’s house to see the witness and her aunt. She was then asked by counsel for the accused the following questions, referred to in the second, third, fourth and fifth exceptions, to which the Gourt sustained the objections of the counsel for the State: “Gan you tell us what the doctor said to you on that occasion?” “Didn’t the doctor tell you — say something like this to you, ‘Look here, Rose, I understand that you have made a statement in which you have charged mo with doing something to you, and have charged me with ruining you. I want you to tell who ruined. you.’ ” “And then when the doctor asked you that, didn’t you name another person ?” Having stated that she appeared “at the station house against the doctor,” she was asked: “How, you were there on Saturday, the 29th of July; what did you say about the doctor having anything to do with you to the magistrate, while you were living there employed by the family ?” These questions were asked for the purpose of showing that the witness had made statements contrary to her testimony in the case, and there is no reason why she should not have been permitted to answer them. But the record shows that she did afterwards answer the questions without objection. When asked if she did not say to the magistrate that while she was living at the doctor’s house she was employed by his wife, and that during that time “the doctor didn’t do anything to her at all,” she replied that she did not remember. In answer to the question, “Didn’t you testify to the magistrate that he hadn’t anything to do with you,” she said, “I told the magistrate of course, that he had something to do with me, that he ruined me,” and in reply to the question, “Did you have any other conversation with The doctor’ concerning your testimony to be given in this case,” she stated that after she got the whipping her aunt gave her, the next time she went up to the doctor’s she told him that she had written the paper making charges against him and that he got very angry and said to her, “I will come down to your house, and you be at home, he said; and you tell me before your aunt I never ruined you; and if they give you the paper in Court, you tear it up, and swear that Harry Deal ruined you; and I said all right; and I plead with him; and he came down to my house and I told my aunt it was not him, but Harry Deal, and that is when he talked to my aunt.” As the accused ultimately secured the answers of the witness to the questions referred to in said exceptions, he was not injured by the refusal of the Court to allow them to be answered in the first instance.

The nineteenth, twentieth, twenty-first and twenty-second exceptions are to the refusal of the Court below to allow Dr. Simms and Dr. Grant to answer the following questions: “It is in evidence here on the part of a girl, Hose Gaffey, eighteen years of age — August, 1913, she was eighteen years of age- — -that sometime in the middle of'May, 1911, nine days after she had missed, and that was the first time she had missed — a catheter was inserted by Dr. Avery. How, assuming that that is the first time she had ever missed, could you predicate pregnancy upon the fact that she had missed and had missed her menstrual period for a period of nine days ?” “The mere fact that a woman misses and has missed for a period of nine days, can you predicate pregnancy upon the mere fact that a woman has missed for nine days?” Substantially the same questions were asked in the twenty-first and twenty-second exceptions, and the purpose of the traverser was to obtain from the witnesses their opinion whether the fact that the prosecuting witness had, for the first time “missed her menstrual period,” and the further fact that she remained in that condition for nine days would indicate that she was pregnant. In addition to the facts referred to in the questions, the witness had testified that the traverser bad previously had connection with her, and that on the day after he performed the operation referred to she passed a clot of blood. As no reference was made to those facts in the questions, they fall directly within the ruling of this Court in Miller v. Leib, 109 Md. 414. In that case the questions were: “Suppose a lady sixty-one years of age, rather slight, falls and sustains a fracture of the neck of the femur; suppose it were an impacted fracture; what would be the treatment which would be required on the part of a reasonably skillful physician, using reasonable care?” “How long usually would reasonable care require that the Hamilton and Long (splint) or the plaster cast and the- mild extension should remain before the doctor took it off to examine the condition of the fracture ?” “Suppose a lady sixty-one years of age. fell and sustained an intra capsular fracture of the neck of the femur and called in her regular physician, how often would reasonable care require that he should see his patient after his first visit ?” In disposing of the exceptions to these questions, the Court said: “Under these circumstances, the entire suppression of the existence of the plaintiff’s tubercular trouble in the hypothetical questions to which we have referred, put to her medical expert for the purpose of proving professional ignorance or neglect of the defendant in treating her broken hip, and which elicited answers tending to such proof, was improper and the defendant’s exceptions thereto should have been sustained. The sub sequent testimony as to the serious character of her tuberculous trouble and the important bearing which such a state of health has upon the proper treatment to be adopted with persons in her condition when suffering from fractured bones, emphasizes the importance of requiring hypothetical questions put to medical experts to be so framed as mot to give a wrong coloring or undue importance to some of the facts in evidence by the omission or suppression of others.” What was there said by the Court applies with equal force to this case. The omission of any reference to the fact that the traverser, prior to the time mentioned, had had connection with the witness, and the further fact that after the operation was said to have been performed she passed a clot of blood, rendered the questions misleading and fatally defective.

The remaining exceptions are to- the rulings of the Oourt below in permitting counsel for the State, over the objection of the traverser, to ask the wife of the traverser on cross-examination the following questions: “Did you ever take Frances to a house 932 Bond Street, a house kept by Fannie Lewis ?” “Fow — isn’t it a fact that you and a man whose name I will not now disclose, in company with Frances Rowley, went to 932 Bond Street and were refused admission to that house because of the age of Frances Rowley ?” The witness- answered “Fo” to the first question and consequently there was no injury to the traverser. The Court having advised the witness that if her answer to- the second question would tend to humiliate her or subject her “to prosecution” she could refuse to- answer, she declined to answer. It is urged in this Court on behalf of the State that these questions were properly allowed because the evidence elicited was admissible for the purpose of reflecting upon the credibility of the witness. The extent to- which this method of impeaching a witness should be allowed is a question in regard to which there is a great diversity of opinion, and the conclusion reached in Greenleaf on Evidence and Wig- more on Evidence, after a careful review of the numerous cases, apparently favors the rule, now adopted in some of the States, excluding it altogether. It is said in 1 Greenleaf on Evidence (16th Ed.), 585: “A few courts, with courage and wisdom, have taken the step forbidding entirely such cross-examination to character,” and in 2 Wigmore on Evidence, section 983, page 1117, the author says: “There is much to be said in favor of the rule that now obtains in several jurisdictions by which such misconduct is forbidden to be inquired into at all — the rule of total prohibition of cross-examination, as well as extrinsic testimony, on these matters, has thus received sanction, and may be said to be the one most consonant with our best sentiments and with the needs of the time.” In this State it has been repeatedly held that a witness may be asked on cross-examination, for the purpose of affecting his credibility, if he has been in jail, etc. (Smith v. State, 64 Md. 25; McLoughlin v. Mencke, 80 Md. 83) and in the late case of Mattingly v. Montgomery, 106 Md. 461, where the witness drove over the plaintiff and injured her, the Court, in a suit against his master for damages, held that he could be asked on cross-examination, if he had been arrested and paid a fine for fast driving, for the purpose of impairing the weight of his testimony in the case. But in the case of Shartzer v. State, 63 Md. 149, the Court said that the prosecuting witness in the trial of the accused for rape could not be asked whether she had previously had connection with a man other than the prisoner, and Judge Robikson said: “Evidence in regard to general character of the prosecutrix for truth and veracity, or for chastity, was admissible, but not proof of specific acts which tended to show that she was an immoral person.” In the case of Brown v. State, 72 Md. 468, where the traverser was on trial for enticing a young girl from her home for the purpose of prostitution, the Court held that the lower Court properly refused to allow the traverser to ask the prosecuting witness if she did not have connection with a certain man before she went to the house of the traverser, and in disposing of another exception, the Court said that the character for veracity of a female witness can not as a general rule be impeached by evidence of her character for "chastity. In the case at bar the questions objected to in the exceptions we are now considering do not disclose the character of the house referred to, for what purpose the witness took Frances with her, or that she enticed or induced, Frances to go there. So far, then, as the record shows, the questions related to an entirely irrelevant matter that did not tend to discredit the witness and was not admissible for any purpose.

The .record contains what purports to be the instructions of the trial judge to the jury, and below the instructions there is a note that counsel for the traverser reserved an exception “to the ruling of the Court”. The instructions are not included in the bill of exceptions; there is no certificate of the presiding judge that they are the instructions given by him, and that counsel for the traverser reserved an exception to them, and it does not appear by whom the memorandum of the exception was made. Under these circumstances the exception can not be considered by this Court.

Because of the errors referred to in the first, eighth, ninth, tenth, thirteenth, fourteenth, fifteenth and eighteenth exceptions the judgment of the Court below must be reversed.

Judgment reversed'and case remanded for a new trial.