THOMPSON, J., delivered the opinion of the Court.
George Edward Rice, the appellant, was tried in the Criminal Court of Baltimore before Judge Albert L. Sklar, without a jury. He was found guilty of kidnapping
The prosecutrix, a 5' 8", 135 pound, 22 year old art student, resided alone in Baltimore in one of two third floor apartments at 1500 Mt. Royal Avenue. Appellant, Rice, 6' 4", 215 pounds, lived at 607 Resevoir Street, about six blocks from the prosecutrix's apartment.
Rice testified that while coming home at about 1:45 a.m. on October 13, 1968, from a dance he stopped to buy a six-pack of beer, after which he was approached by a man "dressed like a hippie" who asked him for a match and then asked if he was looking for any "happening". This man told the appellant that he had "a couple of girls working for him." Rice testified that since he was "going home to an empty bed anyway... he said okay to the man", and that they walked to 1500 Mt. Royal Avenue. On the second floor, the man asked appellant to "let me see your bread [money]." Rice put his beer down beside a duffel bag that was there, gave the man ten dollars, was told to go to the third floor and tell the girl "Bobby" sent him.
According to the prosecutrix, she was sleeping in the nude on her mattress on the floor (she had no bed) when she was awakened by a knock on the door at approximately 2:00 a.m. She picked up her fur coat which she kept on the floor next to her mattress and used as a bed for her cats. The coat came almost to her knees but since it did not have buttons, she wrapped it around her. "I was asleep in my apartment and somebody knocked on the door. And I went to answer the door and I opened the door a little bit to see who it was and then I realized it was this man I had never seen before. So then I tried to close the door again, but then he was putting pressure to the other side of the door and broke in.... Well as he entered, when I realized he was going to enter the
She testified that at one point she heard a knock on
After the police had gone, they apparently had intercourse several times. After giving her a drink of water, Rice set his alarm clock for 6:00 a.m. The couple then went to bed and Rice fell asleep. Miss Wilkinson testified
Miss Wilkinson testified that a few minutes after returning home with Rice and after he had gone, she changed her clothes and went next door to tell her neighbor, Jerry Kay, and his wife about what happened. Kay, a medical student, treated her abraded knee and wrist. She called the police on the advice of her friends but upon being told that the police could not control the context of the newspaper report of the incident, she directed them not to pursue the complaint. She testified she did not want her parents to know about it because her father had Hodgkin's disease. About five hours after the incident, Miss Wilkinson changed her mind and decided to report the incident to the police. George Rice was subsequently arrested and his house searched under authorization of a search warrant directing the seizure of "movie cameras, lights, pornographic film, processed and unprocessed." During the course of the search, police removed from a storage space under the couch an envelope bearing the name George Rice and containing 23 color and black and white snapshots of Rice and an unidentified girl either separate or together in various nude poses. The pictures were admitted into evidence without objection. There were no pictures showing the prosecutrix.
The several contentions will be set out separately.
The State relies on Hazel v. State, 221 Md. 464, 157 A.2d 922 which we recently reviewed with some care in Walter v. State, 9 Md.App. 385, 264 A.2d 882.
In Hazel the contention was made the victim did not resist at the actual time of the intercourse, but after citing the difference between submission and consent, the Court found there were sufficient threats of violence prior thereto to justify the trial court's finding that rape had occurred. In Walter we found the victim's fear of policemen was sufficient, under the circumstances, to support the trial court's finding that the victim submitted to the intercourse only through fear.
The appellant relies on several Illinois cases, People v. DeFrates, 33 Ill.2d 190, 210 N.E.2d 467; People v. Qualls, 21 Ill.2d 252, 171 N.E.2d 612; People v. Helton, 245 N.E.2d 1 which, while recognizing the rule a woman need not resist an unwanted sexual relationship if she is reasonably in fear of her safety, apply the rule most strictly and, in our opinion, are thus too narrow in requiring physical resistance by the victim. We do not think sound public policy requires a woman to resist to the extent that she runs a substantial risk of grievous bodily harm. The sounder test is whether the act was performed with or without the consent of the prosecuting witness. Where, as here, a woman submits to a stranger who has forced his way into her home and manhandled her, we do not look upon the case with the same eye as when intercourse occurs after an initially friendly encounter. This will distinguish other cases relied on by the appellant. State v. Dill, 40 A.2d 443 (Del. 1944); State v. Hoffman, 280 N.W. 357 (Wis. 1938); Selvage v. State, 27 N.W.2d 636 (Neb. 1947). Nor do we think Farrar v. United
Maryland Rule 1086 directs this Court to affirm unless a trial judge's findings of facts are clearly erroneous. Williams v. State, 6 Md.App. 511, 252 A.2d 262. After carefully reviewing each witness's testimony, Judge Sklar found:
These findings satisfy the test of whether the prosecuting witness actually consented or merely submitted;
If the intercourse had occurred at the victim's apartment there would be no problem in finding the force used would reasonably justify the trial court's finding a lack of consent. The only real problem, on the facts as recited by the prosecutrix, in justifying the verdict is her failure to call to the police at the door, but her testimony, which was obviously accepted by the trier of the facts, was that she did not know the persons at the door were policemen until after they had departed and she accepted her abductor's statement that they could not enter without a search warrant and that she did not know they could have entered if she had screamed. While all this may be difficult for a sophisticated trier of facts to accept, it is not so preposterous that we can say the trial judge was clearly erroneous in accepting it.
II Sufficiency of the Kidnapping Indictment
Rice contends that his indictment was insufficient in charging that he:
Particularly he alleges the indictment was insufficient because it failed to allege the specific intent required by the statute, Md. Code, Art. 27, § 337 which provides in pertinent part as follows:
He cites Midgett v. State, 216 Md. 26, 139 A.2d 209 which holds an intent to carry is a specific part of the crime, but does not discuss the contents of the indictment. He cites also Baker v. State, 6 Md.App. 148, 250 A.2d 677 which holds an indictment, under a statute prohibiting the delivery of narcotics to a person "legally detained or confined" (Md. Code, Art. 27, § 122A), must specifically charge the legality of the confinement.
Since it is possible to smuggle narcotics into a place of detention for the use of persons other than those legally confined, it is proper to require the indictment to allege specifically that the smuggled narcotics were for the use of legally confined persons. The same logic is not applicable here since it is manifestly impossible for the accused in the instant case to have assaulted the victim and against her consent forcibly have carried her within this State without having an "intent to have such person carried within this State..." Thus, the instant indictment, by implication, alleged the necessary specific intent.
In Bosco v. State, 157 Md. 407, 146 A. 238, the Court of Appeals held that an allegation the accused offered money "in an attempt to bribe the said George E. Benson, justice of the peace as aforesaid, to influence the said George E. Benson, justice of the peace as aforesaid, to decide in his favor a certain prosecution then pending before the said George E. Benson, justice of the peace as aforesaid" was sufficient not only because it was alleged in the language of the statute but also because the language used necessarily implied a requirement of knowledge by the accused that George E. Benson was a Justice of the Peace. The Court explained:
Thus, the Court felt that the allegations were sufficiently clear and specific even if they were implied and not expressed.
III Merger of the Kidnapping and Rape Statutes
Rice alleges that the crimes of rape and kidnapping in this factual situation merge, citing People v. King, 273 N.Y.S.2d 925. The New York rule seems contrary to that reached by a majority of the courts, 17 A.L.R.2d 1003 and is in conflict with the Maryland doctrine of merger which was stated in Stewart v. State, 4 Md.App. 565, 569, 244 A.2d 452 as follows:
At the outset it should be noted the problem here is different from when the victim was moved and confined only slightly, as would be necessary to complete the crime of rape. In the instant case the victim was dragged from her apartment and carried several blocks into the accused's apartment. These actions completed the crime of kidnapping. Thereafter, the crime of rape occurred; the kidnapping was in no way an essential element of that crime because that crime could just as easily have occurred at the victim's apartment. It is not necessary for the State to prove the rape to establish the kidnapping nor to prove the kidnapping to establish the rape. The decision that the kidnapping and rape did not merge is based on only the facts of the instant case. We do not predict the result for future cases involving different facts. Sound public policy requires a person committing
IV Sufficiency of the Evidence to Support Burglary Conviction
Rice alleges there was insufficient evidence to support his conviction for common law burglary since his own testimony showed he went to the apartment because of the prostitution arrangement made with an unknown man. Appellant's argument overlooks the well settled principle there is no obligation on trial courts to believe an accused's testimony. Munger v. State, 7 Md.App. 710, 256 A.2d 888. The trial judge accepted the testimony of the victim and found appellant's intent to be more clearly evidenced by his actions as described by the victim than his own testimony.
V Statute of Limitations as to Photographing Obscene Matter
Under Indictment No. 6475, appellant was convicted of unlawfully and knowingly photographing obscene matter, meaning the pictures, found in his apartment, of appellant with an unknown woman. The prosecutrix was not shown in the pictures introduced in evidence. There was no evidence or inferences arising therefrom as to the time these pictures had been taken or indeed who took them. Under the rule quoted in Ruble v. State, 177 Md. 600, 11 A.2d 455, the State must prove the crime occurred within the period of limitations, Md. Code, Art. 57, § 11. Since there was no proof as to when or who took these pictures, the motion to acquit as to that charge should have been granted. West v. State, 3 Md.App. 123, 238 A.2d 292.
VI Did the Admission of the Obscene Photographs Prejudice the Appellant's Case?
Appellant alleges that his case was prejudiced by admission of the obscene photographs of himself and the unknown woman. Aside from their obvious relevance to
VII Was Appellant Improperly Convicted of Unnatural and Perverted Sexual Acts on the Uncorroborated Testimony of an Accomplice?
Appellant contends that Miss Wilkinson was an accomplice in the unnatural sex act in violation of Md. Code, Art. 27, § 554, and therefore her testimony must be corroborated in order to support a conviction. This contention was rejected in Gregoire v. State, 211 Md. 514, 128 A.2d 243, where the Court found, as in the instant case, the act was not voluntarily performed by the victim.
VIII Is the Unnatural and Perverted Sex Act Statute Unconstitutional?
For the first time on appeal, appellant contends that the unnatural and perverted sex act statute, Md. Code, Art. 27, § 554, is unconstitutional. Having failed to raise this point at trial, appellant cannot raise it for the first time on appeal. See Maryland Rule 1085 and Woodell v. State, 2 Md.App. 433, 234 A.2d 890.
IX Did the Trial Court Err in Allowing the Prosecutrix to Testify on Direct Examination of Her Telling Two Other People About the Rape, and Subsequently Allowing Those Two People to Corroborate What the Prosecutrix Told Them?
Appellant contends that the trial court erred in allowing the prosecutrix, on direct examination, to recount her immediate complaint to her neighbors. It has been held that evidence of a victim's immediate complaint to another person about an alleged rape is admissible. Culver v. State, 1 Md.App. 406, 230 A.2d 361 and Hubbard v. State, 2 Md.App. 364, 234 A.2d 775. It has also been held the details of the complaint are admissible if the victim has been impeached by other witnesses, or cross-examined as to consent or on the basis that her evidence is false. Since in this case the prosecutrix was cross-examined as
All judgments affirmed except as to Indictment No. 6475, photographing obscene pictures, which is reversed without a new trial.