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Twining v. State

Decided: March 10, 1964.


Appeal from the Circuit Court for Carroll County; Boylan, Jr., C. J.

The cause was argued on November 14, 1963 before Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. The cause was reargued on February 3, 1964 before the full Court. Henderson, J., delivered the opinion of the Court. Prescott, J., concurs. Marbury, J., filed the dissenting opinion, in which Brune, C. J., and Horney, J., concur.


This appeal is from a judgment in a bastardy case entered upon a jury's finding of guilt. The only errors alleged are (1) the refusal of the trial court to propound certain questions to the talesmen on their voir dire, and (2) ruling of the trial court upon certain proffers of evidence.

The first question on voir dire requested by counsel for the appellant was whether any member of the panel of prospective jurors, or any member of his or her family, had "ever been in a situation similar to that of the prosecuting witness." It is well settled that the nature and extent of the examination rests in the sound discretion of the trial court. Grogg v. State, 231 Md. 530, 532. We find no abuse of discretion here. Just what was meant by the inquiry is not clear. An affirmative reply would seem to call for an admission that the talesman had had a bastard in the family, or had engaged in extra-marital intercourse. It may be questioned whether this would tend to establish bias for or against the accused. Moreover, it is generally recognized that questions having a tendency to disgrace those

required to answer are properly disallowed. See 5 Wharton, Criminal Law and Procedure (Anderson ed.), § 1996; 50 C.J.S. Juries, § 274. In any event, we think the refusal was not prejudicial. The trial court asked several more general questions designed to elicit whether the prospective jurors were related to or acquainted with the prosecuting witness or her family, and whether for any reason whatever they felt that they could not bring in a fair and impartial verdict based upon the law and the evidence. Cf. Giles v. State, 229 Md. 370, 378. The record shows that one prospective juror was eliminated because she answered the last question in the negative.

The other question sought to be propounded related to whether the talesmen would give the accused the benefit of the presumption of innocence and the burden of proof. We find no abuse of discretion here. The rules of law stated in the proposed questions were fully and fairly covered in subsequent instructions to the jury. It is generally recognized that it is inappropriate to instruct on the law at this stage of the case, or to question the jury as to whether or not they would be disposed to follow or apply stated rules of law. See 50 C.J.S. Juries, § 275(2). This would seem to be particularly true in Maryland, where the courts' instructions are only advisory. The case of Lockhart v. State, 145 Md. 602, 614, is clearly distinguishable because the court was there questioning a particular juror, who had expressed what appeared to be an incorrect opinion as to the law, to ascertain his qualification.

This brings us to the rulings on the evidence. It was shown that the appellant and the prosecuting witness began to "go steady" in March, 1961, when they were each twenty years of age. They became engaged, he gave her an engagement ring, and they rented a furnished house in anticipation of marriage in August. They had sexual relations during the period of the engagement two or three times a week in his car, while parked in her driveway. However, in August the engagement was broken because of a quarrel, and there was no further intercourse until October 31, 1961, when there was a reconciliation. She testified that as a result of that intercourse she became pregnant, missing her menstrual period in November. She was delivered of an eight-pound boy on July 4, 1962. The medical

testimony indicated that conception probably took place about October 4, 1961, but that it could have occurred within a period of thirty days before or after that date.

Counsel for the defendant cross-examined the prosecuting witness as to her relations with one Allen Wolfe and one George Immerwahr in September and October, 1961. She admitted that she had "dated" Wolfe "off and on" during that period, but denied that she was "going steady." When asked if, on a former trial, she had not testified under oath that she had not gone with anyone, or had not had a date with anyone, she said she did not mean that she had not gone out with anyone, but that she had not gone steady. At that point the trial court indicated that it would not permit testimony as to dates with persons other than the accused, unless counsel was prepared to show that she had sexual intercourse with such persons. Counsel for the accused then made a proffer that if permitted he would ask the witness if it were not a fact that after she broke with Twining she took a ring from Allen Wolfe, went to dances with him and to drive-in theaters; that she parked in a car with him. The court overruled the proffer, but stated it would permit a question whether or not she had sexual relations with Wolfe within that period. Counsel asked the question and she denied it, although she admitted she had his class ring and had gone out with him. Counsel also made a proffer that, if permitted, he would ask the prosecuting witness if it were not true that she went out with Immerwahr four or five times in September or October, went to drag-races in his car, parked with him, and went to a drive-in restaurant. There was a similar ruling, excluding the proffered evidence.

Counsel for the appellant called Wolfe as a witness for the defense and elicited from him that he had seen her "once or twice a week" during the critical period, took her to the movies and drag-races, and took her for drives. The court sustained an objection to a question as to whether she "parked" with Wolfe, but indicated that a question as to sexual relations would be in order. Counsel for the appellant then asked the witness if he had sexual relations with the prosecuting witness in September or October, and his answer was no. In cross-examination, Wolfe testified that she told him she was in love with Twining.

George Immerwahr, called by the defense, testified without objection that he took the prosecuting witness out four or five times in his car to drag-races or restaurants. He was not allowed to say that he parked with her, for the court ruled that this would not establish sexual relations. Counsel then asked the witness if he had ever had sexual relations with the prosecuting witness, and he testified he had not.

In ruling as it did the trial court relied upon Seibert v. State, 133 Md. 309, 313-314. In that case Chief Judge Boyd, for the Court, had occasion to comment on the general rule that "evidence is admissible to show that the mother had sexual intercourse with other men at about the time the child was begotten, and the mother may be interrogated on this point, * * *." There was testimony that she was seen sitting on the lap of another man "in a caressing way," and on another occasion another man had "his hands up her clothes feeling her legs." The court observed that there was no offer to prove that the prosecuting witness had sexual intercourse with either. "The most the appellant could claim would be that it might be inferred that there was [intercourse] by reason of the liberties allowed by her. * * * Without something more definite than that proffer is, to show that it was followed by sexual intercourse, a jury would not be justified in inferring it."

In Brennan v. State, 151 Md. 265, 269, Judge Walsh, for the Court, said: "* * * while the courts permit evidence as to the prosecuting witness' association with other men under suspicious circumstances at or about the time of conception, such testimony should be limited to matters which tend to prove illicit relations between the prosecuting witness and such other men." It is generally recognized that the evidence must support a reasonable imputation of intercourse. See 1 Wigmore, Evidence (3d ed.), § 133. In Leister v. State, 136 Md. 518, 523, it was held that the trial court properly excluded testimony that the prosecuting witness had frequently gone "buggy riding" or "automobile riding" with another man, since this alone would not have a "sinister or evil" connotation. It would appear that "parking" would have no more sinister connotation at the present day. See also Brasseau v. Padlo, 34 A.2d 186 (Vt.) and the cases collected in 104 A.L.R. 84, 89. "Keeping company"

has been held to be too vague. It has also been said that because a prosecuting witness consents to intercourse under promise of marriage it does not follow that she will do so under other circumstances. On the other hand, evidence of late hours, in connection with other evidence, has been held in some cases to be a sufficiently suspicious circumstance. DeMund v. State, 166 N. W. 328 (Wisc.). Cf. State v. Kvenmoen, 232 N. W. 475 (N. D.).

Counsel for the appellant asked each of his witnesses, Wolfe and Immerwahr, the direct question whether he had had intercourse with the prosecuting witness and obtained a negative answer in each case. If we assume without deciding that proof of parking would permit an inference of sexual intercourse, we think the appellant effectually negatived, by his own witnesses, the fact he was trying to establish by inference. There was no claim of surprise, that the witnesses were hostile, or that they had made any prior inconsistent statements, hence the general rule that a party may not impeach his own witness, rather than the exception, would seem to apply. Bruce v. State, 218 Md. 87, 94; Proctor Electric Co. v. Zink, 217 Md. 22, 32. It is true that in Zink it was pointed out that a jury may disbelieve and disregard the testimony of a witness even though it be uncontradicted and unimpeached, and that one who produces a witness may prove the truth of material facts by other competent evidence. But to argue that merely because the witnesses may have parked with the prosecuting witness, their positive testimony that they had no sexual relations was unworthy of belief, would seem to fall into the category of improper impeachment. Hence the failure to allow the questions as to parking would not add up to reversible error.

While not directly in point, the cases arising under the so-called rule of res ipsa loquitur may be cited as somewhat analogous. It has been repeatedly held that where a plaintiff disproves by his own witnesses the inference of negligence he seeks to draw, he cannot rely upon the inference to establish a prima facie case. Cf. Hickory Transfer Co. v. Nezbed, 202 Md. 253, 263, and Nalee, Inc. v. Jacobs, 228 Md. 525, 532.

Judgment affirmed, with costs.


Judgment affirmed, with ...

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