Stewart v. State

Morton, J., delivered the opinion of the Court. Appellant was tried by a jury in the Circuit Court for Prince George’s County on an indictment charging rape, assault with intent to rape, and assault and battery. He was found not guilty of rape, but guilty of assault with intent to rape without capital punishment. No verdict was returned by the jury on the assault and battery charge. 1 The court sentenced appellant to twenty years under the jurisdiction of the Department of Correction.

The facts pertinent to a determination of the issues raised on appeal are essentially these: Appellant was operating a taxi cab in Washington, D.C. at approximately 1:00 a.m. on December 27, 1964 when, at a bus terminal, the prosecuting witness, a Captain in the Army Air Force, asked him to transport her to a designated shuttle bus stop in the District in order that she might catch a bus to Andrews Air Force Base. The prosecuting witness testified that she was a stranger to the Washington area and therefore not familiar with the streets; that after they had been riding for a while, she saw a sign indicating that they were entering Maryland and she sensed that something was wrong; that she thereafter tried to j ump out of the cab on several occasions but was restrained by the appellant who told her to behave; that appellant parked his cab in a secluded spot, got in the back seat, and pulled her into the back seat with him ; that she fought and kicked, but appellant succeeded in partially unclothing her; that by striking the appellant a blow under his chin, she was able to hurt him and thereby succeeded in preventing appellant’s penetration of her person; that she then re-clothed herself, soon after which appellant said, “I am sick of this nonsense,” slammed her to the seat and knocked her unconscious. The prosecutrix further testified that when she re ⁵⁶⁸ gained consciousness she found that her clothing had again been removed, and that appellant was kissing her; that she then bit his tongue, after which appellant struck her again and she lost consciousness; that when she again regained consciousness, appellant was in the act of having sexual intercourse with her and to prevent further beating, she agreed to cooperate with him in the intercourse. Afterwards, appellant drove the prosecuting witness to the gates of the Air Force Base.

The prosecutrix did not tell the military police at the gate that she had been raped. She was, however, promptly taken to the Base hospital, where she stated that she had been raped. Appellant testified in his own behalf, admitted that he had sexual relations with the prosecutrix, but claimed that it was with her consent. He testified that at the request of the prosecutrix, he agreed to drive her to Andrews Air Force Base; that on the way, they conversed amicably; that the prosecutrix placed her hand on his thigh; that shortly thereafter, he stopped his cab, they kissed for a time, got into the back seat, discussed the availability of a place to stay for the night, then had sexual relations in the automobile.

The appellant further testified that after the intercourse, the prosecutrix became furious when he told her he was going to take her to the Base and then go home. The appellant admitted striking the prosecutrix when she bit his tongue. I Appellant contends that the charge of assault with intent to rape, of which he was convicted, merged into the criminal act of rape, of which he was acquitted, and consequently, his conviction for the former offense cannot stand. He urges that since it is uncontradicted that the intercourse did occur, he could not be convicted of assault with intent to rape, at least unless it was shown from the evidence that after initially assaulting the prosecutrix by pulling her into the back seat with the intent to rape her, he then entirely abandoned his intention to commit the greater crime of rape.

Appellant claims that there was no evidence to show that he had abandoned his purpose to have intercoursé with the prosecutrix and that the entire episode must be treated as one transaction and not as two separate and distinct crimes. ⁵⁶⁹ We think the appellant misconceives the nature and applicability of the doctrine of merger. The true test of merger under the modern doctrine is whether one crime necessarily involves, the other, vis., when the facts necessary to prove the lesser offense are essential ingredients in establishing the greater offense, the lesser offense is merged into the greater offense. Tender v. State, 2 Md. App. 692; Dunlap v. State, 1 Md. App. 444 . While the doctrine of merger may be applicable under proper factual circumstances to merge a conviction of assault with intent to rape into a conviction for rape, the doctrine applies only to preclude multiple convictions on merged convictions.

Lievers v. State, 4 Md. App. 219; Gee v. State, 2 Md. App. 61. See also Holtz v. State, 1 Md. App. 358 . As the doctrine is applicable only when there have been convictions on each offense, and as the appellant was not convicted of rape, into which he alleges the assault with intent to rape merged, the doctrine has no application. For these same reasons, we recently declined to merge a conviction of assault with intent to rob into the crime of robbery where the