LUSBY v. STATE
No. 265, September Term, 1957.
Court of Appeals of Maryland
Decided May 26, 1958.
217 Md. 191
The cause was argued before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Joseph A. DePaul and Ignatius J. Keane, with whom was Joseph G. Lindamood, Jr., on the brief, for appellant.
Joseph S. Kaufman, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, and Blair H. Smith, State‘s Attorney for Prince George‘s County, on the brief, for appellee.
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
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 referring 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 triаl 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 uni-
“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 rеfused 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 thе 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
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 deсlared.
(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 * * *”
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 whiсh 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 рersons, 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). However, 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
At common law, in the trial of offenses agаinst 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 upоn 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);
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 continuеd 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
Judgment and sentence affirmed, the appellant to pay the costs.
PRESCOTT, J., filed the following dissenting opinion.
I agree with the majority opinion on all matters other than the amount of prejudice to the defendant created by the state‘s attorney‘s persistence in “getting to the jury” the information that both the defendant and the prosecuting witness had taken lie detector (polygraph) tests and that he desired to offer the results of those tests. When the question concerning the fact that the prosecuting witness had taken such a test was first asked her, the trial court very properly sustained an objection to the question, but failed to grant a motion by the defendant for a mistrial. The state‘s attorney, thereafter in spite of the previous ruling by the court that such evidence was inadmissible, asked practically the same question in the presence of the jury. He asked Sergeant Gray if the defendant and the prosecutrix had submitted to the tests. In addition, the record makes it plain that there were lengthy conferences at the bench relating to the admissibility vel non of this evidence. This was most damaging to the defendant‘s case. It was obvious to all, including the jury, that the defendant and the prosecuting witness both had been subjected to lie detector tеsts, and the results were favorable to the state‘s attorney‘s case; otherwise, he would not have stubbornly pressed for their admission.
What was the purpose of the state‘s attorney in bringing these tests to the attention of the jury, not only a first but a
In dealing with situations of this nature, our predecessors stated the rule in Nelson v. Seiler, 154 Md. 63, 72, 139 A. 564 (1927), as follows:
“Generally, the choice of measures to protect the fair, unprejudiced, working of its proceedings is left to the discretion of the trial court, and only in exceptional cases will its choice be reviewed in this court. In the greater number of instances the injection into a trial of matter other than that involved in the issue to be decided is cured by withdrawal of it and an instruction to the jury to disregard it, but there may, of course, be instances in which it would not be cured in this way, and terminating the trial and taking the case up afresh before another jury would be the only adequate means of correction. Those instances are exceptional, but they do arise. Waldron v. Waldron, 156 U. S. 361, 363; State v. Moran, 99 Conn. 115; Review of decisions in L. R. A., 1918D, 4; Balto. & O. R. Co. v. Boyd, 67 Md. 32, 42; Garlitz v. State, 71 Md. 293, 305; International Co. v. Clark, 147 Md. 34, 42; Duffy v. State, 151 Md. 456; Thompson on Trials, secs. 960, 965 * * * On appeal this court is concerned only with the effect оn the appellant‘s rights; and he was in effect denied the protection of rulings of the court, evidence not to be considered in the decision of the issue being tried was persistently given to the jury by counsel and its damaging tendency enlarged upon;
* * * And it would seem to follow by equal reasoning that, if prejudicial misconduct is such that it could not be adequately cured by an instruction, a refusal of the only measure of protection left to the moving party, a termination of the trial, should be reviewable on appeal. This is in accord with conclusions adopted elsewhere. Waldron v. Waldron, 156 U. S. 361, 383. For these reasons we consider the overruling of the motion to have been reversible error.”
In the case just quoted from, the trial court, as in the principal case, had overruled a motion for a mistrial by the defendant because of the insistence by the plaintiff‘s counsel that certain evidence was admissible. Although the trial court had cautioned the jury to pay no attention to the questions asked and to draw no inferences from them, this Court held that the failure to grant a motion for a mistrial was reversible error, for the prejudicial misconduct could not be adequately cured by an instruction to disregard the question. It will be noted this was a civil case in which a money judgment only was obtained; in the case at bar, a man‘s liberty is at stake, his long prison sentence depending upon the veracity of one witness alone.
In McAllister v. State, 140 Md. 647, 118 A. 147 (1922), there was a similar holding in a case tried by the court, though not a ruling for failure to grant a motion for a mistrial. At page 652, this Court said: “The questions * * * in themselves imputed to the witness the crime of forgery and imported a knowledge by thе state‘s attorney of the truth of the charge.” (Emphasis supplied.) In the instant case, the same thing happened. The state‘s attorney‘s insistence upon the admissibility of the evidence that the defendant and the prosecuting witness had taken lie detector tests imported his knowledge of the results of those tests and that they were favorable to the state. The McAllister case was tried by the court, without the aid of a jury, and it was urged that in cases tried before the court, the strictness of the rules of evidence should be somewhat relaxed. This Court said аt page 652: “* * * we are unable to say * * * that the trial court prob-
In Duffy v. State, 151 Md. 456, 470, 135 A. 189 (1926), this Court made another similar ruling. There, the persistence of the attorney for the state in asking questions after he had been informed they were inadmissible was held to be reversible error. In quoting, with approval, from People v. Hamilton, 268 Ill. 400 (1915), it was said: “‘To each of these questions an objection was sustained, but the mere asking of such questions was prejudicial. There is no possible theory upon which it can be claimed that such an examination was competent, and it seems incredible that a state‘s attorney should so far forget the duty devolving upon him in a criminal prosecution as to adopt such methods to attempt to discredit a defendant and to endeavor to prejudice the jury against him.‘”
In Leeks v. State, 245 P. 2d 764, 770 (Okla.), the Court, of its own volition, raised the question of the objectionable nature of evidence concerning lie detector tests and held that such evidence materially affected the defendant‘s right to a fair trial. In People v. Welke, 68 N. W. 2d 759 (Mich.), an officer, who had given a lie detector test to the defendant was permitted to testify as to the events that occurred between him and the defendant at the time of the test, but he did not testify as to the results of the test. This witness stated that during the course of the test he told the defendant he was lying, and this was held reversible error. In State v. Kolander, 52 N. W. 2d 458 (Minn.), it was held reversible error to allow testimony that a defendant refused to take a lie detector test.
In People v. Wochnick, 219 P. 2d 70 (Cal.), a state‘s witness was permitted to testify to a conversation had with the defendant during the course of a lie detector test on the dеfendant. The witness testified that when a knife, the murder weapon, was shown to the defendant there was a violent reaction on the graph, and then the witness related the conversation that he had had with the defendant. The trial court specifically instructed the jury that it could not consider that portion of the conversation that related to the lie detector test as indicating whether or not there was any reaction to any technical test. The appellate court held, however, that
This Court has not heretofore had occasion to pass upon the question of the admissibility of the results of a lie detector test. The rationale of the out-of-state cases, briefly stated, would seem to be as follows. It is almost universally held that the results of such tests are inadmissible, in the absence of stipulation by the parties, whether offered by the state or proffered by the defendant.1 Henderson v. State, 230 P. 2d 495 (Okla.), and the cases and authorities named therein; Cf. 3 Wigmore, Evidence, (3rd ed.) sec. 998. There seems to be only one reported case to the contrary, which was not appealed. People v. Kenny, 3 N. Y. S. 2d 348, 350. Where the results of the test have not been revealed and the state has taken the initiative and produced testimony showing that a lie detector test had beеn administered, it is not prejudicial if used as a step in connection with proof of the voluntary nature of a confession, Tyler v. United States, 193 F. 2d 24, 31, or if the results are favorable to the defendant, LeFevre v. State, 8 N. W. 2d 288, or if there be other independent evidence, properly admitted, that is highly unfavorable to the defendant, and which is likely to have a strong influence upon the jury, Tyler v. United States, supra. Such evidence, however, is or is not prejudicial and grounds for reversal depending upon the facts and circumstances of each case, where there is a lack of other strong evidence against the defendant and the conviction rеsts upon questionable or
The above conforms to the rule laid down by this Court in the Maryland cases first cited herein; so, the facts of the case at bar will be considered in the light of that rule. The facts of this case are unusual to the extent that the conviction rests entirely upon the truthfulness of a seventeen year old daughter of the defendant. She claimed the illicit association with her father occurred over a period of several years. There were other children in the family. No witness, including these other children, testified to having seen the slightest intimation that there was any undue interest by the father in this daughter. There is not a shred of evidence to corroborate her story other than the fact, if it may be called corroboration, that she had a “marital vagina.” She frankly admitted that she had had intercourse with her “boy friend.”
In a situation of this kind where the offense is claimed to have taken place in the home late at night, the defendant is in an extremely difficult and dangerous position. It is impossible for him to offer witnesses directly to refute the accusation; his only possiblе recourse is personally to deny it. The trial court, recognizing the obviously perilous position of the defendant, should have jealously guarded his rights to a fair and impartial trial. The state‘s attorney realized the weakness of his evidence, and, although objections to his questions were sustained, successfully conveyed to the jury that these tests had been given to both the prosecuting witness and the defendant, and the results of those tests were favorable to the state. This was doubly injurious and prejudicial to the defendant: not only was such evidenсe inadmissible, but when conveyed to laymen without any information as to the dependability of such tests, there is no way to measure the weight that the jury may have given such tests. They may well have considered the results as conclusive of guilt, even though the reason for their inadmissibility is their lack of