Domneys v. State

Henderson, J., delivered the opinion of the Court. The appellant was convicted of rape and armed robbery, in a trial before the court and a jury, and sentenced to death. On appeal, three points are raised by counsel who represented the appellant below. These are: (1) that the trial court erred in admitting into evidence a statement made by the appellant to the police, in which he admitted the robbery but denied the rape, (2) that the conduct of the prosecuting witness was such as to render her failure to resist consent in law, and (3) '.that the evidence was legally insufficient to sustain the charge of rape.

We find no merit in any of these contentions. The statement given to the police, according to the testimony of the accused, was forced from him by police brutality, threats, and inducements. But the truth of his testimony was denied by each of the three arresting officers, so that the issue of credibility was for the triers of facts. Cf.

Hyde v. State, 228 Md. 209, 224 . There was legally sufficient evidence to support the charge of rape. According to the appellant’s statement, the appellant and his companion, Calloway, had been drinking and decided to “get some money”. They approached a car parked on Riggs Avenue about 11:45 P. M. on June 6, 1960.

In the car were Miss Johnson and her friend, Trusty. They were hugging and kissing. The appellant and Calloway had a dagger and a pistol. Domneys entered the car at gunpoint and took $5.00 and a wrist watch from Trusty.

One of them drove the car to a remote part of Druid Hill Park, while the other held the gun on Trusty. According to ³⁹¹ the testimony of Miss Johnson, a high school graduate then 19 years old, Domneys took her into the hushes and placing a dagger or razor against her throat, told her to lie down and threatened to kill her if she resisted. He had intercourse with her, and thereafter they returned to the car and all drove back to Riggs Avenue. While the testimony of the prosecuting witness in a rape case need not be corroborated, Doyal v. State, 226 Md. 31, 34 , there was considerable corroborative testimony, including her immediate complaint to relatives and the police, her hysterical condition, and the results of a medical examination which revealed the presence of spermatozoa in her vaginal canal.

Failure to resist under the circumstances would not amount to consent, as a matter of law. Cf. Merchant v. State, 217 Md. 61, 70 , and Smallwood v. State, 216 Md. 16, 17 . A supplemental brief, filed by other counsel, contends that the trial court committed reversible error in ruling, in chambers, that defense counsel would not be allowed to question Dr. Allen, the police doctor who examined Miss Johnson on the night of the rape, about possible sexual experiences of the prosecuting witness with Trusty on the night of the alleged rape.

Dr. Allen testified, quite briefly, that an examination of Miss Johnson’s vagina revealed spermatozoa, and that the condition of the outlet was marital. There was no suggestion, and no proffer, that Dr. Allen knew anything about the prosecutrix’ acts of intercourse with anyone. Cf. Baldwin v. State, 226 Md. 409, 414 .

The defense could argue, of course, that the presence of spermatozoa would not prove that it came from Domneys, since it might have come from Trusty or someone else. But there was no testimony of prior intercourse on the night in question or at any time. According to Trusty and Miss Johnson, they were sitting in the car near her aunt’s home, talking, although Domneys, in his statement but not in his testimony on the stand, said that they were hugging and