Shanks v. State

Marbury, C. J., delivered the opinion of the Court. Appellant was indicted in Baltimore City for the crime of rape, tried before the court sitting without a jury, found guilty, and sentenced to be hanged. From the judgment and sentence of the Criminal Court of Baltimore this appeal is taken. During the course of the trial, evidence was offered of the result of various blood tests, taken by Dr. Freimuth, a toxicologist attached to the office of the Chief Medical Examiner of the State and former toxicologist and serologist of the Federal Bureau of Investigation in Washington.

No objection was made to the qualification of Dr. Freimuth, but the admission in evidence of the result of these tests was objected to, and constitutes the basis for this appeal. Scientific tests of human blood are now almost universally used in appropriate cases and the results are accepted as evidence where they are found to be admissible for the purpose offered in a particular legal proceeding. The possibilities were first brought to the attention of the medical world when Dr. Karl Landsteiner, afterwards a Noble Prize winner, announced in 1900 the result of his experiments showing that all persons, without regard to race, sex or health, could be divided into three blood groups (later increased to four). Other discoveries were made later, and the blood tests now given are generally known as the Landsteiner-Wiener, Landsteiner-Levine or Landsteiner-Bernstein tests.

These tests have been recognized by the courts in Europe since 1924, their chief use being in paternity cases. Up to 1929, the tests were said to be used in over 1,500 court cases in Vienna. In Germany, they had been used in over 5,000 cases by 1929. In Great Britain, they were ⁴⁴⁰ used in two murder cases as early as 1930 and 1931.

The first case in this country seems to have been in 1931. In the early cases evidence of. the tests was not admitted, because the courts here were not convinced of their general acceptance and reliability. See State v. Damm, 62 S. D. 123, 252 N. W. 7 ; Beuschel v. Manowitz, 241 App. Div. 888 , 272 N. Y. S. 165. Blood tests are now accepted everywhere, scientifically, as accurate, and the courts and legislatures have generally followed the same view.

The trial courts in this State have so accepted them for a number of years, and the Legislature in 1941, by Chapter 307 of the Acts of that year, specifically provided that such tests could be used in bastardy proceedings. Flack’s Annotated Code, 1943 Supp., Art. 12, See. 17. The Act provides that the result of the test shall be received in evidence “but only in case definite exclusion is established.” Discussions of the general subject may be found in an article by Dr. Flack, Vol. 23, American Bar Association Journal, page 472, in Wigmore on Evidence, 3rd Ed., Vol. 1, pars. 165A and 165B, beginning page 616, in an article by Milton J. Vogelhut of the Baltimore City Bar, The Daily Record, November 18, 1935. See also Journal of Criminal Law and Criminology, Vol. 25, p. 198; Yale Law Journal, Vol. 43, p. 651; Oregon Law Review, Vol. 17, p. 177.

Almost all of the reported cases have to do with paternity tests, which are an extension of the ordinary blood -tests. The testimony of Dr. Freimuth, in this case, explains the blood grouping in the following words: “There are in the main four major blood groups in the international system of grouping, and they are: “Group 0, in which you will find approximately 45% of the population; “Group A, in which you will find approximately 42% of the population, and “Group B, in which you will find approximately 10% of the population, and “Group AB, in which you will find the remaining 3%.” ⁴⁴¹ The paternity tests are based upon further scientific discoveries, that the child of two people having the same blood, group cannot be in one of the other blood groups, but if the two parents have different blood grouping, then a different situation arises. The statutes, including the Maryland statute above referred to, generally provide, and the cases generally hold, that blood tests in paternity cases are only evidence in case definite exclusion is established. That means that if the child has blood 0, and both the mother and the putative father have blood 0, that is no evidence that the putative father is really the father, because 45 per cent, of the population have that same blood.

But if the child has blood A and both the mother and the putative father have blood 0, then it is evidence to exclude the father, because a combination of two persons both with blood 0 cannot produce a child with group A. In the case of State ex rel. Slovak v. Holod, 63 Ohio App. 16 , 24 N. E. 2d 962 , it was held that it was not error to refuse to instruct the jury that the blood test offered in that case showing the impossibility of the paternity of the putative father was conclusive. The evidence was admitted in that case for whatever weight it might have. The jury convicted the accused in spite of the negative proof of the blood test.

This case was decided in 1939, and was very severely criticized in an article in the Iowa Law Review, May, 1940, No. 25, page 823, because it was said that the scientific results are absolutely perfect and other testimony should not be allowed to controvert the clear and undisputed scientific fact. However, in the case of Schulze v. Schulze, Sup., 35 N. Y. S. 2d 218, decided in 1942, the Supreme Court of New York admitted evidence from blood tests excluding plaintiff as the father of the child, in a divorce action, and stated that it gave full weight to this evidence, citing as precedents three other N#w York cases, D’Agostino v. D’Agostino, 173 Misc. 312 , 17 N. Y. S. 2d 905 (annulment case), In matter of Lentz, 247 App. Div. 31 , 283 N. Y. S. 749 (paternity case), and In re Swahn’s ⁴⁴² Estate, Surr. Ct., 158 Misc. 17 , 285 N. Y. S. 234. Also in the case of Hobson v. Hobson, decided in 1942 by the New South Wales Supreme Court, 59 W. N. 85, a suit was brought by a husband for a dissolution of marriage on the ground of adultery by the wife.

The petitioner disavowed the paternity of the child by the marriage. Blood tests showed that he was excluded as the possible father of the child. This conclusion was accepted by the court in spite of the fact that the evidence was insufficient otherwise. But the court also held that the result of tests, showing that the co-respondent could not be excluded as the possible father, was insufficient to establish the adultery charged against the co-respondent.

In the paternity case of Arais v. Kalensnikoff, 10 Cal. 2d 428 , 74 P. 2d 1043 , the test showed the accused could not be the father of the child. He was convicted and appealed on the ground that the judgment should be reversed because the medical result was conclusive. The court disallowed this claim, and said that it was expert evidence to be given due weight, but was not conclusive. In the case of Euclide v. State, 231 Wis. 616 , 286 N. W. 3 , a blood test was ordered in a bastardy case which showed that the accused should be excluded.

The trial court would not admit this blood test, but the Supreme Court reversed the judgment, and granted a new trial in order to give the accused the right to present in proper form medical conclusions based on blood tests. In the case before us, the prosecuting witness, while going home about 2 o’clock in the morning on December 31, 1944, was seized by someone, beaten, carried into a vacant yard, kept there for some time, was criminally assaulted twice, and then was permitted to leave. The appellant was arrested on the morning of the- same day at his home in Baltimore County, police having discovered that he had been in the neighborhood of the crime. At the time of his arrest, an overcoat with blood stains on it was found in his room behind a wardrobe.

When asked how he got these blood stains he told the officer that he was in a fight with a colored girl in front of 1603 ⁴⁴³ Edmondson Avenue, and that was how the blood got, on his overcoat. The girl was identified as Elizabeth Moore. She was sent for by the police and asked in appellant’s presence if she had been in a fight with him. She said she had been beaten up by him and that her nose was bleeding as a result, but denied that she had put certain scratches on his face.

Appellant did not say whether the blood came from the scratches on his face or from the colored girl. The prosecuting witness identified appellant as the man who had assaulted her. The motorman of the street car which took the appellant to Govanstown the morning of December 31st noticed that his face was scratched and that he had blood on his overcoat, and there were other witnesses who testified against the appellant and whose testimony tended to show that he was the criminal. The clothes of the prosecuting witness had blood on them which she testified had not been there before the attack, and the doctor at Franklin Square Hospital, who examined her at 4:45 on the morning of the attack, testified that she was bleeding then.

A police sergeant found blood on the snow in the yard and also saw the prosecuting witness with blood running into her ° eyes. The bloody coat of the accused was offered in evidence. Dr. Freimuth made five separate blood tests which showed as follows: Blood from coat of accused, type O. Blood from Elizabeth Moore, the colored girl, with whom the accused had a fight, type A. Blood from the prosecuting witness, type O. Blood from clothes of prosecuting witness, type O. Blood from the snow found in the yard, type O. It is urgently pressed upon us by appellant that the testimony of Dr. Freimuth with respect to the blood found upon the coat of appellant should have been excluded because it was in violation of the constitutional right of the appellant to refuse to testify against himself. It is difficult to say how this contention can be sustained.

Clothing is admissible in evidence if it is so connected with a crime as to throw light upon a mate ⁴⁴⁴ rial inquiry iii the case. Ford v. State, 181 Md. 303 , 29 A. 2d 833 . In the case of Allen v. State, recently decided by this Court, 183 Md. 603 , 39 A'. 2d 820, 823, the constitutional guarantee attempted to be invoked in this case was discussed at considerable length, and cases from many jurisdictions cited. That was a case where an accused, on a witness stand, was required to try on a hat found at the scene of the crime.

This Court speaking through Judge Melvin said, “In passing upon these border-line cases, of which the one at bar is a striking illustration, the test is who furnished or produced the evidence?” In his opinion Judge Melvin also quotes from the case of Ward v. State, 27 Okl. Cr. 362, 228 P. 498 , the following passage, which shows the distinction between experiments made by the accused in court and experiments made outside of court and testified to by other witnesses: “The difference is this, * * * that when such comparisons and experiments are made outside of court,