Malone v. StateMalone v. State
The indictment in this case charges the offense of carnal knowledge of a girl under the age of twelve years. The trial resulted in a judgment of conviction for the lesser offense of assault.
We do not see that it is necessary for us to recite the salacious and obscene details of the evidence incident to the alleged offense.
The evidence for the State tending to connect the accused with the сrime charged rested primarily on the testimony of the complaining party, who was eleven years of аge.
The appellant claimed and testified that he did not molest the little girl in any manner.
The disputed factuаl issues thus presented were addressed to the jury for determination and decision. Appellant’s counsel does not contend otherwise.
The only question of critical concern for our review relates to the rulings of the court incident to the introduction of a specific character of evidence.
About twо months subsequent to the time of the alleged offense, the prosecuting witness was examined by a physician. The doctor testified that he found an “organism resembling gonococcus, generally known as gonorrhea.” Ovеr timely objection by appellant’s counsel the trial judge permitted this proof.
The position of the dеfendant’s attorney is supported by the holding in Marshall v. State,
*434 In later decisions by the Supreme Court the rule in the Mаrshall case, in this aspect, was not followed.
In the case of Williams v. State,
This authority is cited in Weems v. State,
The Supreme Court again reviewed this question in Hull v. State,
It is true that in the Supreme Court cases proof was established that the accused was also infected with the venereal disease at the time of the alleged assault.
In the instant case there is no evidence to this effect. In fact, therе is positive proof that the accused did not have the disease.
The authorities cited supra, however, approve the admissibility of the evidence because it tends to establish the corpus delicti.
Under this theory it would become a matter of no material concern whether or not the accused рarty was infected with the malady at the time of the alleged assault.
The rule is well established that proof оf the identity of the accused is not an essential part of the corpus delicti. Vernon v. State,
“Corpus dеlicti means the body or substance of the crime, and may be defined in its primary sense as the fact that a сrime actually has been committed. As applied to a particular offense, it means the actuаl commission by some one of the particular crime charged. The words are sometimes employеd with a secondary meaning to indicate the subject of the crime and its visible effect, such as the body of the person murdered or the ruins of a house burned.” 23 C.J.S., Criminal Law, § 916, page 181.
See also Weaver v. State,
We find support for our view in authorities from other jurisdictions.
In the case of People v. Liggett,
It is pointed out in apрellant’s brief that the examination and the findings of the physician were two months after the date of the allеged assault. On the basis of these facts it is urged that the evidence was too remote in point of time to bе admissible.
We are unable to agree with this position.
It is a matter of common knowledge that gonorrhea, if not arrested, will continue in infectiousness much longer than two months.
There is no evidence in the instant case that the little girl was infected with the disease prior to the alleged assault, and there was no proof that she was free from it at any time subsequent thereto and before the physician made the examination and found the indicated results.
The case of State v. Colombo, 1 Boyce, Del. 96,
In that case the evidence was based on an examination which was made twelvе weeks after the alleged assault.
In the case of Fields v. State,
“Appellant assigns as error the admission of the testimony of Dr. W. J. Sheddan relative to the diseased condition of the little girl. The act of sexual intercourse occurred September 30, 1940, and his physical *435 examination of the little girl was on December 7, 1940, only about two months after she had been raped by appellant. At that time the dоctor discovered that she had á well developed case of gonorrhea. The examination wаs not so remote as to preclude, admission of the evidence. 4 Elliot on. Evidence, § 3107.”
The opinion makes no reference to proof of the infectiousness of the accused. Apparently this evidential factor did not influence in any manner the holding of the court.
Written charge numbered 1 refused to the defеndant is abstract. The prosecution did not rely on circumstantial evidence.
Charge numbered 21 also refused is. covered by given charges and the oral instruction of the court.
We do not find any reversible error in the record.
The judgment below is ordered affirmed.
Affirmed.