Lusby v. State

141 A.2d 893, 217 Md. 191, 74 A.L.R. 2d 695, 1958 Md. LEXIS 603

• Court: Court of Appeals of Maryland
• Decided: May 26, 1958
• Docket: [No. 265, September Term, 1957.]
• Status: Published

Opinions

Horney, J.,

delivered the opinion of the Court.

Oden C. Lusby (the defendant) was convicted of incest in the Circuit Court for Prince George’s County by a jury. He appealed, assigning as error the refusal of the trial court to declare a mistrial, the ruling on the sufficiency of the evidence pertaining to parentage, the denial of the defendant’s motion for a directed verdict, and the misconduct of the prosecuting attorney.

The seventeen year old prosecuting witness testified that she lived with her father and a younger brother and sister in an apartment in Hyattsville. On Saturday, June 29, 1957, she returned to the apartment shortly before midnight and went into the bedroom to prepare for bed. Her brother and sister were not at home that night. While she was undressing-her father called to her and told her not to go to bed. She knew what he wanted “because he had done it before.” The defendant then engaged in sexual intercourse and an alleged perverted practice with his daughter in the bedroom. This illicit relationship had begun when the daughter was thirteen years old, and had been continued thereafter at varying intervals, infrequently at first—once or twice a week. But as time went on the assaults were intensified—occurring sometimes every night of the week. The daughter was dependent on her father for her means of living. He often used abusive language, and she was afraid to do anything about the continued assaults for a long period of time. Finally she mustered enough courage to tell her boy friend what had happened. The boy friend told his mother, and thereafter the prosecutrix was permitted by the boy’s mother to stay at their house. A medical examination revealed that the prosecutrix had a “marital vagina.” She also admitted having twice engaged in sexual intercourse with her boy friend.

The trial court granted the defendant’s motion for a directed verdict of “not guilty” under the indictment for the perverted practice.

The alleged errors in the trial of the defendant on the indictment for incest concern (i) the alleged prejudicial evidence with respect to the taking of polygraph or lie detector tests, and the misconduct of the prosecuting attorney in re-ferring to such evidence, (ii) the insufficiency of the evidence as to the parentage of the prosecuting witness, and (iii) the question as to whether the prosecutrix was a victim or an accomplice. We will consider the errors assigned in the order presented.

(i). Polygraph Tests.

The ruling of the trial court with respect to the statement by the prosecutrix that she had taken a lie detector test was not error. In examining the prosecuting witness, the State’s Attorney asked her if she had been given any tests. She replied, “Yes sir, a lie detector.” An objection to this response was sustained, and the trial judge then and there instructed the jury to disregard the answer of the witness.

Of course, the result of a lie detector test is almost universally excluded as evidence. But in this case, there is no question as to the admissibility of the result. Nor is there a question as to the admissibility of the fact of taking a test. The objection to the statement made by the prosecutrix was aimed not at its admissibility,¹ but at its prejudicial character. The only case we have been able to find on this point holds that the fact of taking was not prejudicial. In State v. Sheppard, 100 Ohio App. 345, 128 N. E. 2d 471 (1955), it was said:

“The results of the test were not inquired about, and the simple fact that a test was made by agreement of the witness under the circumstances could not prejudice the defendant’s case.”

This decision was affirmed in State v. Sheppard, 165 Ohio St. 293, 135 N. E. 2d 340, cert. denied 352 U. S. 910 (1956).

We are unable to find that the trial court was wrong when it ruled that the statement made by the prosecutrix was not prejudicial, and refused to declare a mistrial. The granting of a motion for a mistrial is within the discretion of the trial judge, and there is nothing in the record to indicate that he abused his discretion. In State v. Waterbury, 133 Iowa 135, 110 N. W. 328 (1907), it was held that the question of prejudice is a matter which the trial court is in the best position to judge, and its decision should not be reversed unless it is clear that there was prejudice. Under the circumstances in this case, we think the prompt action of Judge Gray, in instructing the jury to disregard the answer of the prosecutrix, fully satisfied the right of the defendant to a fair trial. See Cohen v. State, 173 Md. 216, 195 A. 532, 196 A. 819 (1937).

There remains the inquiry whether the conduct of the State’s Attorney was so prejudicial as to deprive the defendant of a fair trial. Obviously, the prosecuting attorney was-determined not to accept the propriety of the court’s ruling. as to the polygraphic tests. On. several occasions during the course of the conferences of counsel with the judge at the bench, the State’s Attorney referred to the polygraph tests which had been given the defendant as well as the prosecutrix. And, during his examination of Sergeant E. F. G. Gray, of the Prince George’s County Police Department, he asked the detective sergeant, “What, if any, tests were given the defendant?” The court again promptly sustained the objection to the question, and it was not pressed further. The defendant contends that the several colloquies between counsel and the judge at the bench could be heard by the jury, but there is nothing in the record to substantiate this contention. He further argued that the action of the State’s Attorney in continually referring to the “tests” which had been made were prejudicial and constituted grounds for a mistrial, but, again, there is nothing in the record to support this argument. We are unable to hold that the efforts of the State’s Attorney to introduce evidence as to lie-detector tests (subsequent to the statement by the prosecuting witness which we have already discussed) went beyond the limits permitted by the court’s ruling made in a conference at the bench while the detective sergeant was on the stand. We find no objection 'by the defendant to this ruling made at that time, nor was the motion for a mistrial renewed when a question relating to tests was asked and the defendant’s objection was sustained. There was no answer to the improper question propounded to the detective sergeant on the witness stand. And all • other reference to polygraphic tests were made at the bench, ■ ostensibly out of the hearing of the jury.

Generally speaking, the courts require the party prejudiced 'by the asking of an improper question to preserve his rights by a seasonable objection or motion for a mistrial. See Annotation, 109 A. L. R. 1089. See also Stoskoff v. Wicklund, 49 N. D. 708, 193 N. W. 312 (1923), and State v. Waterbury, supra.

In 53 Am. Jur., Trial, Sec. 971, it is said:

“It is impossible to define all the circumstances that may constitute an urgent necessity justifying [the declaration of a mistrial and] the discharge of a jury in a criminal case. Except as found in the decided cases, the matter is left to the sound discretion of the presiding judge, acting under his oath of office, having due regard to the rights of the accused and the state. The power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes.”

There is nothing in the record to show any “plain and obvious” reason why a mistrial should have been declared.

(ii). Proof of Parentage.

The testimony of the prosecutrix to the effect that the defendant was her father was sufficient proof of her pedigraic status. The defendant contends that the State did not prove by competent evidence that the prosecuting witness was his daughter; that the only evidence produced was hearsay; and that the State should have introduced evidence of greater reliability, such as a birth certificate or other documentary evidence.

31 C. J. S., Evidence, Sec. 226 (b), states that: “It has been held proper, where the evidence is otherwise competent, for one to testify to facts of family history which relate to him, such as the identity of his parents, or other relations ;]í ;]í >¡< ”

In Comstock v. State, 14 Neb. 205, 15 N. W. 355 (1883), it was said:

“It is certainly competent for one who, from his earliest recollection, has been a member of one’s family, given his name, and reared in the belief, and in all ways given to understand that he is a son in the household, to testify of his parentage. His testimony may not be satisfactory or conclusive of the fact, but it is at least admissible for what it is worth in the minds of the jury, and clearly sufficient to make a prima facie case, thus throwing the burden of overcoming it upon him who controverts it. To so rear a child, is in the nature of an admission of parentage, and should be so regarded.”

See also In re Gane’s Estate, 114 Cal. App. 17, 299 P. 550 (1931), in which a daughter was allowed to testify that she was the natural child of her mother.

It was pointed out in Crawley v. Selby, 208 Ga. 530, 67 S. E. 2d 775 (1951), that the hearsay rule refers only to declarations of pedigree by deceased or unavailable parties, and not to testimony by one who is a witness in the case. The opinion further states: “Since the witness is herself the one to whom the facts relate, it is not necessary for her to first establish by independent evidence her relationship to her family * * *. It has also been held proper for one to testify to facts of family history which relate to him.” And see Dazio v. Wainwright, 81 So. 2d 96 (La. App. 1955), which held that: “A proper distinction must be made between an unsworn hearsay declaration resorted to to prove an essential fact and the testimony of a witness on matters within his personal knowledge.” Other cases applying the same rule where-one member of a family testified to his relationship to another member include Vargas v. Vargas, 131 Cal. App. 2d 748, 281 P. 2d 18 (1955), and Helekahi v. Laa, 32 Hawaii 1 (1931).

None of the Maryland cases on pedigree evidence involved direct testimony of a relationship but instead concerned declarations of deceased persons, which, incidentally, .are admissible as an exception to the hearsay rule. See Gray v. Rideout, 190 Md. 204, 57 A. 2d 778 (1948); Craufurd v. Blackburn, 17 Md. 49 (1861) ; Copes v. Pearce, 7 Gill 247 (1848); State, use of Charlotte Hall School v. Greenwell, 4 G. & J. 407 (1832) ; Walkup v. Pratt, 5 H. & J. 51 (1820). Plowever, in the Craufurd case, even such declarations are referred to as primary evidence, not as secondary evidence, to be excluded when a witness having personal knowledge is available.

In the instant case, the testimony of the daughter was not hearsay. Her testimony was not controverted. And, if believed, it was sufficient to establish proof of the fact that the defendant was her father. The weight of the evidence was for the jury.

(iii). Prosecuting Witness—Victim or Accomplice?

Under the circumstances in this case, the prosecutrix was a victim and not an accomplice. The defendant urges that since the prosecuting witness was an accomplice, he could not be convicted on her uncorroborated testimony, and for that reason the trial court should have granted his motion for a directed verdict of “not guilty” of incest. His argument is that initially she may have been the victim of his odious acts, but that during the ensuing four year period there came a time when she acquiesced and thereby became an accomplice.

At common law, in the trial of offenses against the chastity of women, the testimony of the prosecuting witness was sufficient evidence to support a conviction, and neither another witness nor corroborating circumstances were necessary. 7 Wigmore, Evidence (3d ed. 1940), Sec. 2061. There are numerous cases in other jurisdictions which do not require corroboration of an incestuous relationship even if the female participant was an accomplice,² but there are none in Maryland. Compare, however, the statement in Basoff v. State, 208 Md. 643, 119 A. 2d 917 (1956), in which we held, at p. 654, that: “[A] woman upon whom an abortion has been performed [with her consent or even on her solicitation] is regarded * * * as a victim * * *, rather than * * * a participant * * *. [And] her testimony does not require corroboration where it establishes satisfactory proof of the guilt of the accused.”

Whether a participant in an incestuous relationship is an accomplice or a victim must depend upon the facts in each case. Obviously, the relationship will not submit to a rigid rule. 7 Wigmore, Evidence (3d ed. 1940), Sec. 2060(b), footnote 7. That the status of a participant is entirely a factual one is demonstrated by those cases which hold that the woman will be an accomplice where she freely and willingly consents to the sexual union. See, for example, State v. Terry, 199 Iowa 1221, 203 N. W. 232 (1925); State v. Clark, 27 Idaho 48, 146 P. 1107 (1915) ; Knowles v. State, 113 Ark. 257, 168 S. W. 148 (1914); Solomon v. State, 113 Ga. 192, 38 S. E. 332 (1901) ; State v. Kellar, 8 N. D. 563, 80 N. W. 476 (1899).

Where, however, a passive participant in an incestuous relationship does not freely consent to copulation, and where the sexual union is achieved by force, threats or undue influence on the part of the aggressive participant, the passive participant is not an accomplice, but a victim. See State v. Stalker, 169 Iowa 396, 151 N. W. 527 (1915), (not accomplice unless she willingly consented); State v. Hornaday, 67 Wash. 660, 122 P. 322 (1912), (not accomplice, but unwilling victim within his power) ; Schwartz v. State, 65 Neb. 196, 91 N. W. 190 (1902), (not accomplice although relationship continued over two years); Whittaker v. Commonwealth, 95 Ky. 632, 27 S. W. 83 (1894), (victim, not accomplice, even though relationship long-continued). See also McCreary v. Commonwealth, 163 Ky. 206, 173 S. W. 351 (1915) ; Gaston v. State, 95 Ark. 233, 128 S. W. 1033 (1910); State v. Kouhns, 103 Iowa 720, 73 N. W. 353 (1897).

Even if the prosecuting witness were an accomplice, it has been held that evidence of a marital vagina is sufficient corroboration of the testimony of the prosecuting witness. People v. Stratton, 141 Cal. 604, 75 P. 166 (1904).

As Judge Collins pointed out in Gregoire v. State, 211 Md. 514, 128 A. 2d 243 (1957), there is a distinction between mere submission and actual consent. At p. 520 he said:

“Consent, in law, means a voluntary agreement * * * to do something proposed by another. ‘Consent’ differs very materially from ‘assent’. The former implies some positive action and always involves submission. The latter means mere passivity or submission, which does not include consent.”

In the present case there was sufficient evidence from which the jury could find that, although the daughter had assented to the sexual union with her father, she had not consented to it. There was evidence that the incestuous relationship was odious to her. She was afraid of her father. But her dependence on him compelled her to remain under his roof and continue the unholy relationship whenever he demanded. The jury could also have found that the participation of the daughter was not voluntary. And, of course, “the burden of proving the witness to be an accomplice is * * * upon the party alleging it [the defendant] for the purpose of invoking the rule, * * 7 Wigmore, Evidence (3d ed. 1940), Sec. 2060(e). There was no such proof in this case. The denial by the trial court of the motion of the defendant for a directed verdict of not guilty of incest was clearly right.

Judgment and sentence affirmed, the appellant to pay the costs.

1 . There is authority that it is proper to sustain an objection to the admissibility of the fact of taking or a refusal to take a lie-detector test. See Henderson v. State, 94 Okla. Crim. 45, 330 P. 3d 495 (1951), and State v. Kolander, 336 Minn. 309, 53 N. W. 3d 458 (1953).

2 . See State v. Wood, 235 N. C. 636, 70 S. E. 2d 665 (1953); People v. Gibson, 301 N. Y. 244, 93 N. E. 2d 827 (1950); State v. Haston, 64 Ariz. 72, 166 P. 3d 141 (1946); State v. Aker, 54 Wash. 342, 103 Pac. 420 (1909). See also the dictum in State v. Dziob, 133 Conn. 167, 48 A. 2d 377 (1946).