delivered the opinion of the Court.
James V. Giles and John G. Giles were found guilty by a jury of raping a sixteen-year old girl and were sentenced to death. From the judgment and sentence entered on the verdict they have appealed to this Court.
Shortly thereafter when the stranded man and girl saw three young colored men (the Gileses and Joseph Johnson) approaching, Stewart became alarmed and rolled up the windows and locked the doors. The trio first demanded money and cigarettes, but were told by Stewart that he had neither. One of the intruders, using obscene and vulgar language, threatened to drag the man out of the automobile and carnally know the girl. And when Stewart refused to turn the girl over to them and warned them they would get into trouble, one or more of them threw rocks at the automobile, shattering the windows, and reached in and unlocked the doors. As Stewart jumped out of the automobile to hold off the attack he was struck in the face with a rock and knocked unconscious. At the same time Joyce, not knowing that Stewart had been knocked out, got out of the other side of the vehicle and fled into the woods. She had gone only a short distance when she tripped and fell. She remained where she fell in the underbrush trying to hide.
After this episode, the evidence as to what took place is conflicting. Joyce testified that the several acts of intercourse were forcibly had against her will and without her consent. On the other hand, John denied that he had ever had intercourse with the girl. And James, though admitting intercourse, claimed that it was with her consent.
According to the girl, John was the first to find her. He laid on top of her until James and Joseph also arrived. In the meantime she pleaded with John to let her go farther into the woods to avoid being found by the other two and told him that he could follow her later. She thought that if she could get away from him she could get away from all of them. After discovery by the trio, although they neither threatened her at
According to John, he followed the girl into the woods, though he claimed he did not then know that she was a woman. Although she suggested that he could, he did not have intercourse with her. They sat in the woods five or ten minutes and kept quiet to avoid being found by James and Joseph. The girl told him that if he would help her get away, she would let him have intercourse with her. He attempted to help her by keeping quiet, but when they moved they were heard and their whereabouts discovered by the other two with the aid of the girl calling to them. She told them she knew what they wanted and disrobed herself to the waist and stipulated the order in which they were to have intercourse with her. [The girl told the police that John had not had intercourse with her and repeated what she had told the police at the preliminary hearing, but at the trial, though admitting that she had previously stated that he had not, she testified that she had not told the truth and that John too had had sexual relations with her on the night in question.]
According to James, he went into the woods only to look for his brother John and not for the girl. She called him over to where she was, took her clothes off and insisted that he have intercourse with her. He did not know whether John had had intercourse with the girl.
When Stewart regained consciousness, he heard Joyce “whimpering” in the woods and immediately made his way to the home of a nearby resident to have the police called. Ser
James, having spent the night hiding in the woods, was arrested at his home the next morning, but John, who had spent most of the intervening time hiding in the woods, was not apprehended until two or three days later. In statements to the police following their arrest, James admitted that he had thrown rocks at the automobile; that he had chased the girl into the woods; that he argued with his brother as to who would be first to have intercourse with her; that he had intercourse last, after John and Joseph; and that he was having intercourse with the girl when the police car arrived. John, in his statement, admitted his presence at the scene of the crime; that he had chased the girl into the woods; but denied that he had had intercourse with her.
Seven questions are presented by the appeal. We shall consider them, not in the order presented, but in what appears to us to be a logical sequence.
(i)
The appellants contend that it was prejudicial error per se and a violation of their constitutional rights not to have had a member of their own race on the jury panel. The claim is without merit.
The record discloses that the defendants, instead of challenging the array of prospective jurors at the outset of the trial, in accordance with the accepted practice, moved, at the very end of the trial, for a mistrial because there were no Negroes on the jury panel which tried the case. We think the objection may have come too late to raise a question as to the composition of the jury, but that is a question we need not decide, for even if it is assumed, without deciding, that the question was not waived, there was no evidence that Negroes
When the absence of Negroes from a jury panel is not by design, a defendant is not thereby denied a fair and impartial trial. See
Jackson v. State,
(«)
The appellants insist that the trial court should have asked the prospective jurors on their voir dire a question they requested: “Have any one of you any bias or prejudice against a defendant who is a Negro, when the complaining witness _s a white woman?” But instead of the proposed question, the court asked: “Do you have any bias or prejudice with respect to the Negro race such as would preclude you from giving a Negro a fair and impartial trial as you would a white man ?”
While the court might well have asked the proposed question, we do not think that failure to do so deprived the defendants of a jury that was competent and qualified to try them. Since the only purpose of a
voir dire
examination is to probe for the existence of cause for disqualification, we think the general question asked was sufficient to determine whether any juror was biased or prejudiced for or against the defendants and whether his mind was free to hear and impartially
In
Lee v. State,
The question asked by the trial court was sufficient to disclose racial bias and prejudice. See
Humphreys v. State, 227
Md. 115,
(iii)
The defendants have raised two questions with respect to rulings on the evidence.
First, they dispute the correctness of the refusal to permit the prosecuting witness to testify on cross examination whether she had ever had a venereal disease and whether her parents allowed her to go out late at night. The sustaining of the objections to these questions was not improper. While the rule is that when consent is asserted as a defense in a rape case, the
general
character or reputation (as distinguished from
specific
acts) of the prosecuting witness with respect to chastity
The first question (relating to a venereal disease) would certainly have also permitted a probing into
specific
acts, and, even if it had been answered in the affirmative, it would have had no probative value on the issue of consent. If in fact the prosecutrix had a venereal disease, she could have contracted it from the defendants; or by means other than intercourse; or by a single previous sexual experience with another, an inquiry into which is forbidden by the rule in
Shartzer v. State,
The second question (relating to the keeping of late hours) also has no probative value in determining prior character or reputation of the prosecutrix for unchastity. Such an inquiry —like the question in the
Humphreys
case with respect to the reputation of the prosecutrix for having associated with colored men — would not give rise to an inference, even if true, that she was unchaste. We think this question as framed was clearly objectionable as' to substance, but even if it is assumed that the inquiry was aimed at the reputation of the prosecutrix for staying out late at night (and not at the reputation for having parents that allowed her to do so), the question- was nevertheless a collateral one that was irrelevant under the
Humphreys
ruling, and was therefore properly excluded. Cf.
State v. Brown,
(iv)
The defendants contend that the trial court should have directed a verdict of not guilty because the evidence was insufficient in law to sustain a conviction. The contention is without substantial merit.
There was some evidence tending to indicate consent on the part of the prosecuting witness, which, if believed by the trier of facts, would have been a complete defense to the charge of rape. But there was also evidence of violent acts and verbal threats on the part of the defendants, which, if believed, would have been the equivalent of such force as was reasonably calculated to create in the mind of the prosecutrix an apprehension of imminent bodily harm that could have impaired or overcome her will to resist. See
Hazel v. State,
O)
The defendants further contend that Section 5 of Article XV of the Constitution of Maryland, providing that the jury in criminal cases shall be judges of the law as well as the facts, violates the due process and equal protection -clauses of the Fourteenth Amendment to the Constitution of the United States. We think not. The defendants, though recognizing that the same contention (at least insofar as due process was concerned) was made, but was rejected by this Court, in
Slansky v. State,
We recognize, of course, as we did in
Slansky,
that all other
The provision of § 5 of Art. XV of the Maryland Constitution that “[i]n the trial of all criminal cases, the Jury shall be the Judges of Law”
4
has not been construed as all inclusive, and some limitations upon its scope have been recognized ever since its adoption. Thus, for instance, in
Franklin v. State,
While it is true that in the
Slansky
case, we were primarily concerned with a claim that due process had been violated, we see no reason in this case, where the claim of unconstitutionality is also based on an alleged denial of equal protection, why the holding here should be different from the holding there.
(vi)
There is also a contention that the defendants were denied due process and equal protection of the law by the failure of the trial court to give an advisory instruction as to the law even though the defendants made no request therefor. This contention, like that in point (v), also lacks merit. The claim here is that even if a jury may determine what principles of law are to be applied in a criminal case, it may not in a capital case be left without any instruction as to the law. But the claim overlooks the fact that a defendant may waive his right to require an instruction in a capital case as he may in any other criminal case.
As noted herein, Rule 756 b makes it mandatory upon the trial court to advisorily instruct the jury as to the law at the request of either party. Section f of the rule further provides that a party may object to the failure to give any instruction or an inadequate one. But in this case neither the State nor the defendants requested an instruction or objected to the failure of the court to give one as to the law. The only statement made by the court to the jury at the close of the evidence • — ■ which was certainly not an instruction though it is designated that in the record — merely informed the jury that it could render any one of three verdicts.
Although there is nothing in the record to so indicate, it may be assumed that the State’s Attorney as well as the de
While Rule 756 g
7
permits this Court of its own motion to take cognizance of and correct any plain error material to the rights of the accused even though not included in the assignment of errors, we are unable to say that the failure to request an instruction or to object to the failure to give one under the circumstances in this case was such an error as this Court ought to take notice of. See
Martel v. State, 221
Md. 294,
Eurthermore, even if it is assumed that the defendants had a constitutional right to have the jury instructed as to the law, it is clear that in a case such as this, where they were represented by competent and experienced counsel, even constitutional rights may be waived by not asserting them.
Lenoir v. State,
The final contention that the sentence was excessive is likewise without substance. Since the penalty was one of those prescribed by the statute, it is not excessive, and there is no basis for a reversal for that reason.
Merchant v. State,
Judgments affirmed.
Notes
. The holding in
Slansky v. State,
. Since the decision in
Slansky,
Indiana has modified by judicial interpretation the concept that a jury has an “exclusive” right to determine the law in criminal cases. See
Beavers v. State,
. See, for example,
Pierce v. State,
13 N. H. 536;
State v. Burpee,
. Rule 739 b, in effect when this case was tried, provided that the jury should be told that it was the final judge of the law in every case in which advisory instructions were given, but the word “final” was omitted from section b of the revised and renumbered Rule 756 that became effective January 1, 1962.
. Rule 738, in effect when this case was tried, permitted a defendant to move for an instruction or for a directed verdict based
. The historical origin of the constitutional provision and the distinction between the power of the jury to apply the law to the facts in a criminal case and the right of a jury to determine the law as well as the facts has been discussed by the bench and bar of this State on many occasions during the last three decades. See, for example, Markell, Trial by Jury — A Two-Horse Team or a One-Horse Team?, 42 Md. St. Bar Ass’n Rep. 72; Dennis, Maryland’s Antique Constitutional Thorn, 92 Pa. L. Rev. 34; Henderson, The Jury as Judges of Law and Pact in Maryland, 52 Md. St. Bar Ass’n Rep. 184; Prescott, Juries as Judges of the Law: Should the Practice be Continued, 60 Md. St. Bar Ass’n Rep. 246. See also the debate on the subject in 39 Md. St. Bar Ass’n Rep. 71, et seq., and the note in 1 Md. L. Rev. 175.
. See also the provisions of Code (1957), Art. 5, § 16.