Lowery v. State

Sobeloff, C. J., delivered the opinion of the Court. After conviction by,a judge in the Criminal Court of Baltimore City, sitting without a jury, Charles Crosby Lowery, twenty-two years old, was sentenced to be hanged for the crime of rape upon his fifteen year old sister-in-law. In this appeal four points are addressed to our consideration. These, will be discussed, though not precisely in the order raised.

They are: First, -that while the court ruled out certain testimony of appellant’s wife, previously admitted subject to.exception, the judge’s remarks at the conclusion of the trial showed that the testimony had prejudicially influenced his mind. Second, that without foundation in- the evidence; the judge took “judicial notice” of' the victim’s virginity: Third, that the punishment' imposed is grossly disproportionate to the offense. A fourth point, not mentioned in the brief, w;as strongly stressed in oral argument, namely, that the judge read a report, not introduced in evidence at the trial, - which influenced his verdict. - There would be.no advantage in a recital of the sordid details of the crime. The record shows a sufficient; ³¹⁷ indeed we may say a convincing, basis for belief beyond a reasonable doubt, in the appellant’s guilt.

The story of the victim is well corroborated. Briefly summarized, there is testimony to show that, pretending that he wanted to get a note at his brother’s house to give the prosecutrix for her sister, his estranged wife, the appelland led the girl to a lot near some garages, where he brutally beat her into insensibility, broke her tooth, raped her, and when she screamed threatened to choke her to death. She made complaint against him within minutes after the event and was taken to the police station almost at once. She pointed out the place of the crime, and police found there articles with blood on them.

Blood was on the trousers of the accused, which the police took into their possession. The girl was treated at the University Hospital. Her mouth and lips were swollen, bruised and cut. She had numerous scratches on both thighs and legs.

There was bleeding not only from the hyman itself, but there was evidence of recent extensive tearing of the genital outlet. In the opinion of the physician who examined her, the girl’s condition indicated that this was her first sexual experience. The accused admitted sexual intercourse with the prosecutrix, but claimed it was with her consent. Indeed, he asserted that he had had sexual relations with her twice the year before.

On the stand he voiced a long series of grievances against his wife and her family. Among other things, he suspected his wife of improper associations with other men. He declared that he wanted to have intercourse with the girl, “figuring [she] would go back and tell my wife and hurt her just as bad as she would hurt me.” 1. A feature of the trial that has been brought under attack is that in almost the very beginning of the trial, as if to provide a background for the prosecutrix’s testimony, the State called the defendant’s wife ánd had her testify to practically nothing, except that a fe’w days before the alleged offense the appellant, having just ³¹⁸ escaped from the House of Correction, made threats against her over the telephone.

The testimony was received subject to exception and, at the conclusion of the State’s case, was stricken out. The defendant’s story, as told on the witness stand, provided a more ample ground for thinking he hated his wife than did the wife’s brief assertion. It may well be that the testimony of the appellant concerning his attitude toward his wife is what the court alluded to when it announced the verdict of guilt, saying that the man is full of hatred toward his wife. As a general rule, it is reversible error for the prosecution to attack the character of the accused before it has been put in issue by him, or to show other unrelated crimes or misconduct likely to cause prejudice against him.

Dobbs v. State, 148 Md. 34 , 129 A. 275 . But the rule is equally established that where the testimony shows motive or intent it is entitled to be admitted. Here, unfortunately, we do not have the benefit of the sidebar conversation between counsel and court when the admissibility of the wife’s testimony was challenged; but we think it clear enough that it was offered to show the motive for the crime. Superficially, one would not suppose that the rape of one woman was motivated by desire to injure another; but such instances are not unknown to modern psychiatry.

A somewhat similar mental aberration, given different expression, was before this court in the case of James v. State, 193 Md. 31 , 65 A. 2d 888 . From what the appellant told the court, it is clear that the act of which he was accused was done not so much from motives more usual in such cases as from a desire to hurt his wife. Under the circumstances, the wife’s story about his threats had a possible significance directly related to the offense charged. If we were of the view that the wife’s testimony was offered, under any guise, merely to show his evil character, or violent disposition, or prior criminal record, we should unhesitatingly declare its admission erroneous.

We should not be disposed to extenuate it simply because ³¹⁹ the defendant later took the stand; for the introduction of a false issue may force an accused to take the stand where he would otherwise have elected to remain silent. Here, according to this defendant’s complicated mentality, his attitude toward his wife was connected with the offense