Green v. State

Parke, J., delivered the opinion of the Court. Albert Green was tried on an indictment of three counts. By the first count he was charged with rape upon Margaret Beeman, a young unmarried woman; the second count was for an attempt to ravish her; and the third count was for a common assault and battery. The jury found him guilty under the third count, and he was sentenced to the penitentiary for six years.

The questions on this appeal arise on the rulings on the evidence, and sixteen exceptions were reserved, but the seventh exception does not present any question for review, and the thirteenth and fourteenth have formally been abandoned, and the evidence admitted under the eighth exception was admissible, as it was competent to show the bruised condition of the body of the prosecutrix on the day after the crime. 1. The testimony of the prosecutrix and of the other witnesses for the State tended to establish rapes at night by the traverser and his cousin Oscar Green, and the return of the victim to her home as quickly as she could escape from her assailants. The prosecutrix reached her home about mid ⁷⁷ night, and her mother, with whom she lived, testified that she heard her daughter crying as she came up the path. When she entered the home the mother asked her what was the matter, and the admission of her daughter’s subsequent statements, over the objection of the traverser, constitute the first five exceptions.

The evidence of the mother is that, when her daughter said that they had taken her out in the woods, the mother fainted and required the attention of a doctor. In the morning, the daughter showed the mother her bruises, and said that Albert, Ered, and Oscar Green had driven her to the woods, where Albert Green, the traverser, and his cousin, Oscar Green, had connection with her. When the mother lost consciousness, a neighbor, Mrs. Thomas James, was sent for and came about midnight, when, according to her testimony, the daughter made a complaint to her and exhibited the bruises. Over the traverser’s objection the court directed the witness to state what she complained about, and the sixth exception is to the court’s permitting this question to be asked.

There was no reason why this inquiry should not be made, and her reply was that the daughter had said “she had been out with those three boys and they had assaulted her.” After this reply was given, no further action was taken by the accused in reference to this testimony. By the rulings of the court on the ninth, tenth, eleventh, and twelfth exceptions, it appears that a man, who was a first cousin of the woman assaulted, and his wife, went the next morning after the assault to see the prosecutrix, and were allowed to testify in reference to the complaint then made. The man stated that the prosecutrix had “complained about these boys taking her in the car and mistreating her,” by which, he explained, he understood “they took advantage of her.” His wife’s testimony was that the prosecutrix “just told me that these fellows had taken her up the mountain and showed me the bruise marks on her hip.” So far as the court is advised, there are three decisions in our reports dealing with this subject of the admissibility ⁷⁸ of the complaint of the victim of an alleged rape or its attempt. In Parker v. State (1887), 67 Md. 329 , 10 A. 219 , the alleged rape occurred on Saturday and the girl ravished made no complaint until the Friday following, when the mother discovered the hidden blood-stained garment of her daughter, who then told her mother of the crime.

The victim had testified to the commission of the offense, and the mother was subsequently called and asked what reason her daughter had given for hiding her underclothing. The traverser objected, but the witness was allowed to1 repeat the girl’s answer, which was a detailed narrative of the crime, and of her uncle’s demand to conceal the clothing and his threat to kill her if she made any revelation. The court decided that this evidence was not admissible, on the ground that it was “simply hearsay, a narration of a past event, and not the language of ’any emotion caused by the supposed occurrence.” Page 331 of 67 Md., 10 A. 219, 220. In making this ruling, the opinion declared that: “It would have been competent to prove on the examination in chief that the party alleged to have been injured made complaint while the injury was recent; but the details and circumstances of the transaction cannot be proved on such examination by her declarations. '* * * When an outrage has been committed on a woman, the instincts of her nature prompt her to make her wrongs known, and to seek sympathy and assistance.

The complaint which she then makes is the natural expression of her feelings. It may therefore be shown in evidence as a circumstance which would usually and probably have occurred in case the offense had been committed.” It will be observed that, except in excluding the details and circumstances of the crime, this general expression does not prescribe any other condition with reference to the content of the complaint. The court, however, did mention an apparently rigid limitation upon the admissibility of the complaint, that it be made “while the injury was recent.” .This requirement, however, was not absolute in point of time, but relative to the circumstances of the particular case, as is ⁷⁹ clear on authority, and demonstrated by the ease of Legore v. Maryland (1898), 87 Md. 735, 737 , 41 A. 60, 61 , where the court, in speaking to this point, said: “If, however, the complaint be not made immediately after the occurrence, it is competent to explain the delay by showing that it was prevented by circumstances consistent with the instincts of her nature, prompting her to make it known.” Accordingly, it was determined that, under the circumstances, a complaint, made on the husband’s return in the evening, of an attempt to rape made- in the morning of that day, was receivable in evidence. Although the question argued and specifically considered on the appeal in the case last cited was the-remoteness in time of the complaint, recourse to the: record in Legore v. Maryland, supra, which was an appeal from a conviction under an indictment for an assault with intent to- ravish, will show that the point raised on the second bill of exception was the right to ask the prosecutrix, “Did you tell your husband when he came home that night about Legore’s conduct ?” and to let in her reply, “I told my husband of Legore’s. conduct when he came home that night,” and that the third bill of exception was to the ruling by ‘which the State proved by the husband that the wife complained to him of the assault of Legore on her.

While the point was not discussed, the evidence given under these two bills of exceptions illustrates the accuracy of the observation, made for the court in the opinion by Chief Judge Bond in the appeal of Blake v. State, 157 Md. 75, 79 , 145 A. 185, 187 , that: “It has not been the practice in this state to restrict the testimony of a complaint to a mere yes or no answer. Some statement of -the nature of the complaint has been regarded as. admissible at least for the purpose of showing the. character of the: act complained of, and we think this a proper application of the rule.” In Legore v. State, supra, the particulars and details of the assault were not narrated, but. the time, the place, the nature of the act, -and the name of the alleged offender were evidently given in evidence as a matter of course, since the ⁸⁰ only objection to tbe admissibility of tbe testimony discussed in the opinion was that the complaint was not promptly made. A complaint by tbe victim of a rape is an accusation of tbe perpetration of tbe crime, and in order for tbe complaint to be relevant it must be made of tbe particular offense of wbicb tbe party charged is indicted. In order, therefore; for tbe complaint to be admissible, it must necessarily concur with tbe indictment in tbe unities of time, place, act, and actor.

Accordingly, if a witness be asked if a complaint were made; and answer simply that it bad been, the jury would infer a correspondence of tbe -accusation made by tbe complaint with tbe essential averments of tbe indictment; so- tbe -advantage of having tbe -witness state tbe time, place, crime, and name of tbe wrongdoer is tbe difference between a ¡mediate and immediate evidence of a fact. Tbe practice in this jurisdiction would seem to be so- marked by common sense that there is no reason why it should be disturbed. Tbe crime of rape is accomplished by force, and is- so frightful and shocking to- tbe physical and nervous system of tbe victim that it is generally manifested by disordered and torn clothing, bruises -and wounds, outcry, and as prompt a disclosure to family,’ relatives, or intimate friends as tbe circumstances admit. Should any of these corroborative indicia of tbe crime be not established, it would commonly be a, just basis for tbe contention that the- woman consented.

So, if it should appear in -any case that tbe prosecutrix bad not made complaint, tbe failure would weigh heavily against tbe State and in favor of the- accused, unless satisfactorily •explained. There seems no question that tbe defense may prove an 'absence of complaint at tbe time of tbe crime and, so, it is but just to- allo*w tbe prosecutrix to be corroborated by tbe proof of her complaint recently made. 2 Wigmore >on Evidence (2nd Ed.), sec. 1135. As secrecy-and isolation ■are usually tbe conditions under wbicb tbe crime is committed, and tbe testimony of tbe man and tbe woiman are in •conflict on tbe vital issue of whether or not force has been employed, some- corroboration of tbe woman is important in tbe proof of tbe crime, but, aside- from what may be admis ⁸¹ sible as part of the res gestae, there are but few instances in which there is any corroborative evidence bnt that furnished by the complaint of the prosecutrix and the state of her body and clothes. So, of necessity the complaint of the victim, if recently made after the alleged outrage, is admissible.

If tbe complaint is admissible, it would seem .sensible and logical to require the terms and circumstances of the declaration likewise to be offered in evidence, in order that the testimonial weight to- be given the complaint may be the better judged, since limiting tbe testimony to- a categorical answer to the question of the fact of complaint leaves to the witness the decision of what constitutes a complaint, and if the conclusion is in the affirmative, the triers are left to an acceptance of the fact of a complaint hut to speculate as to the content of the complaint, unless the traverser assume the risk of opening by cross-examination an inquiry on tbe details. It is a universal rule that the prosecutrix may testify that she has made a complaint of the wrong, and when and to whom, and the persons to whom she has complained may be called to prove that fact. Whether or not the details and circumstances which she stated would bo inadmissible in evidence, except when elicited in cross-examination or by way of confirming her testimony after it bad been impeached, has variously been regarded. Greenleaf on Evidence (16th Ed.), vol. 3, sec. 313, vol. 1, secs. 162h, 469c; 1 Phillips on Evidence (4th Am.

Ed.), 184; 1 Taylor on Evidence (6th Ed.), 532; Starkie on Evidence (6th Am. Ed.), 699; Whartons Crim. Ev. (10th Ed.), sec. 273; 1 Wharton on Crim.

Law (8th Ed.), sec. 566; Wigmore on Evidence (2nd Ed.), sees. 284 (2), 1134, 1760, 1761; Thayer’s Gases on Evidence (2nd Ed.), 643-645; Reg. v. Walker, 2 Moody & R. 212. The rule as narrowly formulated in Parker v. State, 67 Md. 331 , 10 A. 219 , became broadened in practice in this jurisdiction,