Brown v. State

72 Md. 468 | Md. | 1890

Robinson, J.,

delivered the opinion of the Court.

The traverser was indicted under section 1 of Article 21 of the Code, for enticing and persuading one Cora Laypold, a girl under eighteen years of age, from the custody and control of her parents “for the purposes of prostitution.”

At the trial below, quite a number of exceptions were taken, all of which however relate to the admissibility of certain evidence offered by the traverser. As to the first five -exceptions, it is sufficient to say that the evidence. was altogether irrelevant, and was therefore properly excluded. We cannot agree, however, with the Court in regard to the evidence offered in the sixth exception. The question before the jury was whether the traverser had enticed or persuaded the prosecutrix from the custody and control of her mother, for the purposes of prostitution. The language of the statute is, any one who shall “persuade or entice from her usual place of abode, or from the custody and control of her parents,” &c. If the prosecutrix went to the house of the traverser of her own accord, and luithout any prompting or inducement on the part of the accused, then the indictment must fail. In Reg. vs. Olifier, 10 Cox’s Crim. Cases, 403, where the traverser was indicted under 24 and 25 Victo., ch. 100, sec. 55, which provides “that whosoever shall unlawfully take or cause to be taken, any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of a misdemeanor, ’ ’ Bramwell, B., said: “I am of opinion that if a young woman leaves her father’s house without any persuasion, inducement, or blandishment held out to her by a man, so that she has got fairly away from home, and then goes to him, although it may be his moral duty to return her to her parent's custody, yet his not doing so is no infringement of this Act of Parliament, for the Act does not say he shall restore her, but only that he shall not take her away. ”

Or if the prosecutrix went with the consent of her mother, or went for any purpose, other than the purposes of prostitution, the traverser was not guilty under this Act. Any evidence, then, which would aid' the jury in determining these questions was admissible. In support of the charge as laid in the indictment, the State proved that the traverser was the keeper of a bawdy house in Frederick City, and that the prosecutrix was a girl about sixteen years of age, living near Boonsboro, in Washington County; that she was brought to the house of the traverser by one Charles Thompson, that as soon as the traverser saw . ‘ “’■mu are nothing but a child,” to which the latter I am no child, and am over eighteen years of age. ” The traverser then sent for a conveyance, for the purpose of sending the girl home, and thereupon she began to cry, “and said she did not want to go home, ’ ’ and begged the traverser to let her stay, till she could get a place of service in Frederick. Now, in view of these facts, the evidence offered by the traverser, to show that, on the morning after the girl’s arrival, she made an effort to get a home for the girl in Frederick, ought to have been admitted. The fact that the traverser was the keeper of a bawdy house was in itself prima facie evidence, that the girl was brought to her house, and permitted to remain there for the purposes of prostitution; and to rebut this, it was clearly competent for the traverser to show, that she permitted the girl to remain there at the request of the latter, and for the sole purpose of getting a home for her in Frederick; and that on the next morning she did in fact make an effort to get her a home. Whether the effort was made in good faith, or for the- purpose of concealing the real motives of the traverser in permitting the girl to remain in her house, were questions for the jury. For the same reason, it was competent for the traverser to prove that during the time the girl remained in her house, she did not in fact have sexual intercourse with any one, and the evidence offered to that effect in the seventh and thirteenth exceptions ought to have been admitted. Now, as to the eighth and ninth exceptions, it is sufficient to say, that after a witness has been examined in chief, and then cross-examined and then re-examined, and has left the witness stand, the question whether the witness shall be re-called for further examination, is a matter resting entirely in the discretion of the trial Court. Cases may occur in which counsel have inadvertently omitted to examine a witness in regard to matters directly bearing upon the question of the guilt or innocence of the accused, and in which the Court may permit the witness to be re-called; but all this is a matter resting in the discretion of the Court, and from the exercise of which no appeal will lie.

We find no error in the rulings on the tenth and fourteenth exceptions. Where it is proposed to discredit a witness by proof of prior contradictory statements, it is well settled in this State that in order to lay the foundation for such evidence the witness must first be interrogated as to the time, place, and person to whom such contradictory statements were made. This is but fair and'just to the witness, in order that he may be enabled to refresh his recollection in regard to such statements, and afforded the opportunity of making such explanations as he may deem necessary and proper.

The question raised by the eleventh exception is one of more than ordinary importance. The character for veracity of a female witness cannot as a general rule, it' is true, be impeached by evidence as to her character for chastity. The impeachment must go to her general character for truth and veracity. To this rule, however, there is a well recognized exception, in cases for rape, in which the general character of the prosecutrix for chastity is, for obvious reasons, always admissible. Not that a rape may not be committed even upon a lewd and dissolute woman, but the fact that she is a lewd woman may have a material bearing upon the question whether the act was committed with or against her consent.

(Decided 19th June, 1890.)

And for the same reason, in cases of this kind, where one is charged with enticing and persuading a girl under the age of eighteen years from the custody and control of her parents for the purposes of prostitution, her character for chastity, the fact that she was a “girl of the town, would have a material bearing upon the question whether she was enticed or persuaded from the control of her parents, or whether she went with her own accord, and with the knowledge and consent of her parents. And with that view, and for that purpose, the evidence was, we think, admissible.

Nor do we see any objection to the evidence offered in the twelfth exception. The traverser testified she did not entice or persuade the prosecutrix from the custody of her mother; that she did not send Thompson for her, and objected to her remaining in her house, and finally consented, for the purpose of getting her a home in Frederick; that she did in fact make an effort to get her a home and failing in this, she went to Boonsborough to see the girl's mother. We see no reason why she should not have been permitted to state her object and purpose in going to see the mother. All this was evidence to go to the jury, and to be considered by them in determining the question as to the motives of the traverser in permitting the girl to remain in her house.

For these reasons the rulings of the Court in the sixth, seventh, eleventh, twelfth and thirteenth exceptions must be reversed.

Hidings reversed, and new trial awarded.