Duvall v. State

Offutt, J., delivered the opinion of the Court. The appellant in this case was charged in the Circuit Court for Montgomery County with having had carnal knowledge of “a certain female not his wife,” who was then and there between the ages of fourteen and sixteen years, and upon that charge he was indicted, tried, convicted and sentenced by the court to be confined for one year in the Maryland House of Correction. From that judgment and sentence he has appealed. The only questions raised by the appeal are: First, whether evidence showing that the victim of the crime gave birth to an illegitimate child at ox about the expiration of the normal period of gestation measured from the time when the act of carnal knowledge charged in the indictment occurred, was admissible, and Second, whether the general reputation of the prosecuting witness for chastity was admissible to prove an objective fact, to wit, that such witness had had illicit relations with men other than appellant, which could have resulted in the birth of such child.

These questions are the subject of the three exceptions found in the record. ⁴⁰ The State went to trial on the first, third, fifth and seventh counts of the indictment. The first count charged that the appellant had carnal knowledge of a certain female not his wife between the ages of fourteen and sixteen years on November 20th, 1924; the third count charged a similar unlawful act on December 15th, 1924; the fifth count charged a like unlawful act on January 8th, 1925, and the seventh still another on January 17th, 1925. The female referred to in these counts was called as a witness by the State. Having sworn that she was fifteen years of age on November 15th, 1925, and that she had had sexual intercourse with the traverser in an automobile when he was twenty-two years old between November 1st, 1924, and December 1st, 1924, she was asked whether she had not given birth to an illegitimate child on August 1st, 1925, and was permitted to say over the traverser’s objection that she had.

Her father, called as a witness for the State, was also asked whether she had given birth to an illegitimate child on that date, and he too was permitted to say over objection that she had. These rulings are the subject of the first and second exceptions. The general rule is that the birth of a child at the expiration of the normal period of gestation measured from the alleged act of sexual intercourse is admissible to corroborate evidence showing that the alleged intercourse actually occurred. Wharton, Crim.

Evid. p. 521; Underhill, Crim. Evid. par. 413. And the soundness of that rule can scarcely be denied, when it is considered, that in every such charge there are necessarily involved two elements, (1) that sexual intercourse did actually occur, and (2) that it was committed by the accused. And as the birth of a child is conclusive evidence that sexual intercourse actually did occur between the mother of the child and some male person, it may always be shown to corroborate other evidence tending to show such intercourse at a time when it could, according to the course of nature, have resulted in the birth of the child referred ⁴¹ to in the offer.

The mere fact that it does not prove both elements does not prevent it from proving one. And as the birth of the child could have resulted from the alleged intercourse in .November, in our