Bennett v. State

Brunb, C. J., delivered the opinion of the Court. The principal question in this case seems to be a novel one in this Court with regard to double jeopardy. On this appeal the defendant challenges his conviction of what is often referred to as statutory rape (and will be so referred to below) on the ground that he had previously been convicted on his plea of guilty to a charge of contributing to the delinquency of a minor, and that the present prosecution is for the same offense and on the same facts as were involved in the delinquency case. He also contends that the evidence was insufficient to support his conviction in the present case.

The latter contention is not sustainable. There was evidence showing that as the defendant, then twenty-three years old, was walking with the prosecutrix, then a thirteen year old girl, towards her home at about, or shortly before, midnight on the night of February 17, 1961, they came to a bakery parking lot, that they entered it and that at a place between two trucks and a wall of the bakery, he undertook to have sexual relations with her. This much the defendant admits. The girl claims, and he denies, that penetration of her body occurred.

He claims that he desisted just as penetration was about to occur, because she began to cry. There is evidence of ejaculation. The defendant’s chief reliance for his contention that the evidence was insufficient is that a physician who examined the girl on the afternoon of February 18, about fourteen hours after the incident, was unable to determine from his examination whether sexual intercourse had or had not occurred the night before. He did, however, find the hymen not to be intact.

There is, in addition, medical testimony that when the girl was examined by a doctor a ²¹¹ little over two months after this episode, she was found to be about two months pregnant. She testified that she was seven months pregnant at the time of the trial below in September, 1961. She denied having had intercourse with anyone other than the defendant, and there was no contradiction of this testimony. The evidence was ample to warrant the trial court’s finding that the defendant was guilty of statutory rape.

The question of double jeopardy is the serious question in this case. Though there is no transcript of the proceedings on February 27, 1961, in the trial magistrate’s court, before us (and we assume that none exists), we think that essentially the same evidence was before the magistrate as was presented in the Circuit Court, with the exception of that showing pregnancy and indicating that it began at about the time of the occurrence which gave rise to both proceedings. There is no suggestion that this evidence was or could have been known at the time of the juvenile court proceedings before the magistrate. The prosecution before the magistrate was under § 291 of the Code of Public Local Lazvs of Allegany County (1955 Ed.), referred to below as the Local Laws, for contributing to the delinquency of a child under the age of eighteen years. 1 Jurisdiction over such an offense is vested exclusively in the Magistrate for Juvenile Causes under § 284 (b) (2) of the Local Laws.

Under § 285 3 delinquent child is defined (in part) as one “(e) who is engaged in any occupation which is in violation of law, or who associates with immoral or vicious persons; or (f) who so deports himself as to injure willfully or endanger the morals of himself or others.” (No question has been raised as to whether the prosecutrix met at least some phase of this definition.) The prosecution in the Circuit Court was under Code (1957), Art. 27, §§ 462 and 12. The first count of the information charged a felony — carnal knowledge of a woman child under the age of fourteen years ²¹² (statutory rape). The second count charged attempted statutory rape (§ 12, supra), but was abandoned when the issue of double jeopardy was raised. The defense of former jeopardy is available in this State as a matter of common law unless and except as altered by statute.

Robb v. State, 190 Md. 641, 650 , 60 A. 2d 211 ; Bennington v. Warden, 190 Md. 752 , 59 A. 2d 779 ; State v. Adams, 196 Md. 341, 344 , 76 A. 2d 575 ; Eggleston v. State, 209 Md. 504 , 121 A. 2d 698 . Though it is not provided for by any provision of the Maryland Constitution, 2 it is a firmly established part of our law. Gilpin v. State, 142 Md. 464 , 121 A. 354 . Judge Pattison there said ( 142 Md. at 466 ): “The rule forbids a second trial for the same offense whether the accused at the former trial was acquitted or convicted.” He then observed: “The rule, though a simple one, is sometimes difficult in its application.” There is a vast number of cases dealing with the subject, and the close relationship which exists between double jeopardy and res judicata has been clearly recognized.

State v. Coblentz, 169 Md. 159, 164 , 180 A. 266 , and cases there cited (including the Gilpin case, which is one of those characterized as really presenting the defense of res judicata under a plea of double jeopardy); Rouse v. State, 202 Md. 481, 486 , 97 A. 2d 285 . The relationship of double jeopardy to the doctrine of common law merger of offenses has also been recognized. Veney v. State, 227 Md. 608, 612-13, 177 A. 2d 883 . That case makes it clear that the old doctrine of merger no longer exists in this State, but as Judge Prescott there said: “But this does not mean that the later and more modern concept of merger of offenses, whether it be considered under such terms as 'double jeopardy,’ ²¹³ ‘merger/ or ‘divisibility of offenses’ fails to play an important role in criminal prosecutions today.

For, as this Court pointed out when it quoted R.C.L. in Gilpin, supra (142 Md. p. 469) to the effect: “Tt [common law merger] has no application where both crimes are misdemeanors or both are felonies, though one may be of a much graver character than the other and punishable with much greater severity; but in such a case another principle applies, that is if the lesser felony [or offense] is a necessary ingredient of the other, a conviction of one will bar a prosecution for the other by virtue of the twice in jeopardy rule. * * *” ’ See also Williams v. State, supra [ 205 Md. 470 , 109 A. 2d 89 .] “* * * 22 C.J.S., Criminal Law, § 10, states the true test of whether one criminal offense has merged into another is held to be not whether the two criminal acts are successive steps of the same transaction, but whether one crime necessarily involves the other.” .Tt is evident in the instant case that the two prosecutions which resulted in the appellant’s convictions were under two quite different statutes. It is also evident that the same general facts gave rise to each prosecution. It was not, however, until after the pregnancy of the prosecutrix became known, that the State apparently felt itself in a position to press a charge of rape. To sustain the latter charge one element— penetration — had to be proven, which it was not necessary to prove in order to establish the charge of contributing to the delinquency of a minor.

It would seem, however, that there was no fact in addition to the facts necessary to establish the charge of rape which would have had to be proven in order to establish the offense of contributing to the delinquency of a minor. The first problem seems to be whether this is a case of a single act or series of acts constituting offenses under two different statutes, or a case in which the lesser offense of contributing to the delinquency of a minor is an offense necessarily included in the major offense of statutory rape. Each ²¹⁴ of the offenses here is statutory, and we are not dealing with familiar common law offenses in which one lesser offense is clearly recognized as an essential element in establishing a greater offense, as, for example, an assault is an essential ingredient of a battery. Under the first suggested classification the prosecution would be unable, in the circumstances of this case above set forth, .to meet the test usually applied and commonly known as the Blockburger rule, which is thus stated in Blockburger v. United States, 284 U. S. 299 , at 304: “Each of the offenses created requires proof of a different element.

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” The Supreme Court cited Gavieres v. United States, 220 U. S. 338 , in support of this rule and also cited with approval and quoted from Morey v. Commonwealth, 108 Mass. 433, 434 (which seems to be the foundation case for the rule expressed in Blockburger) as follows: “A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution under the other.” Here, statutory rape would require the proof of a fact which need not be established to support conviction for contributing to the delinquency of a minor, but the converse is not true on the facts of this case involving a child of thirteen. We agree with the view of the Supreme Court of California expressed by Traynor, J., in People v. Greer, 30 Cal. 2d 589 , 184 P. 2d 512 , on facts which presented a like question to ours, that the offense of contributing to the delinquency of a minor is included in a charge of statutory rape. There the defendant had first been tried under an information charging ²¹⁵ violations of three different sections of the California Code: § 261 (1) of the Penal Code, statutory rape (minor under 18) ; § 288 of the Penal Code, lewd and lascivious conduct (minor under 14) ; and § 702 of the then Welfare & Institutions Code, contributing to the delinquency of a minor (under 21 years of age). The jury disagreed on the first two counts and found the defendant guilty on the third.

He was tried again on the first two counts, to which he entered a plea of double jeopardy. He offered proof of his former trial on offenses under the above three sections and of his conviction of the third of those offenses, but the trial court rejected his proffer. There was evidence to show that he had compelled his thirteen year old stepdaughter to submit to intercourse on several occasions, and he was convicted on his second trial of violations of §§ 261 (1) and 288, supra. He then appealed.

The California Supreme Court rejected as without merit the appellant’s claim of double jeopardy based upon his being retried on the counts as to which the first jury had disagreed. It then in effect upheld his contention of double jeopardy based upon his prior conviction on the charge of contributing to the delinquency of a minor, and remanded the case for consideration of proof of the prior trial and conviction and for determination of whether or not separate acts served as the bases for the several counts of the indictment. Section 1023 of the California Penal Code deals with double jeopardy and provides in part: “When the defendant is convicted or acquitted, or has been once placed in jeopardy upon an indictment or information, the conviction, acquittal, or jeopardy is a bar to another indictment or information * * * or for an offense necessarily included therein, of which he might have been convicted under that indictment or information.” (Italics added). This statute was held applicable in the Greer case, for the reason that the charge of contributing to the delinquency of a minor was considered to be an “included offense” under its terms.

The court, speaking through Justice Traynor, said ( 184 P. 2d at 517 ) : ²¹⁶ “Statutory rape (section 261 (1)) and lewd and lascivious conduct (section 288) * * * are offenses against minors under 18 and 14 years respectively, whereas section 702 protects minors under 21. Consequently, the age groups covered by sections 261 (1) and 288 of the Penal Code are necessarily included within the age group covered by section 702 * * *. It is inconceivable that the acts described in sections 261(1) and 288 would not contribute to the delinquency of a minor. * * * Since every violation of sections 261 (1) and 288 is also a violation of section 702, the offense defined in the latter is an offense necessarily included in the offenses defined in sections 261 (1) and 288. * * * “Respondent contends, however, that all three of the offenses involved herein contain different elements. It is true, that each offense is stated differently in the codes and that defendant could have contributed to the delinquency of a minor without committing statutory rape * * * Nevertheless, the converse is not true.

We are holding, not that these offenses are identical, but that every violation of sections 261 (1) and 288 necessarily constitutes a violation of section 7Q2 * * * ” We do not have any statute comparable to § 1023 of the California Penal Code. In general, the latest draft of the American Taw Institute’s Model Penal Code, the Proposed Official Draft of May, 1962 (the M. P. C. (1962)) seems to favor the rule of the Greer case and of the statute just referred to under § 1.07 (1) (a), and it adopts the Block-burger rule under § 1.09 (1) (c). As to the latter, see Comment in the A. D. I. 1956 Tentative Draft No. 5 of the Model Penal Code, § 1.10 (1) (c), p. 57, that section now being renumbered as § 1.09.

There is an extensive citation of statutes and of cases in the A. L. I’s Double Jeopardy (1935), the Official Draft of a part of its project on Administration of the Criminal Raw, which deal with the problem with which we are now concerned. See particularly the Commentaries on ²¹⁷ §§ 16 and 17 of that