[No. 32, September Term, 1962.]
Decided October 22, 1962. Certiorari denied, 372 U.S. 946.
CRIMINAL LAW — Rape And Perverted Practice — Both Charges Tried In Same Trial, Which Began A Few Minutes After Arraignment Upon Perverted Practice Charge — No Prejudice As To This Charge, Because Defendant Was Acquitted Of It — No Prejudice As To Rape Conviction, Because Prosecutrix Could Have Testified (As She Did Here) In Separate Rape Trial To Occurrence Of Perverted Practice. p. 527
CRIMINAL LAW — Rape Case — Corroborating Evidence Of Victim's Prompt Complaint Admissible — Objections To Doctor's Testimony As To Victim's Emotional State, And To Policeman's Testimony That Another Officer Had Given Him Description Of Defendant's Automobile, Were Insubstantial. p. 527
CRIMINAL LAW — Comments Of Prosecutor In Closing Argument — No Reversible Error In Denying Mistrial, Where Court Instructed Jury To Decide Case Upon Evidence, And Not Upon Counsel's Remarks, Thus Curing Any Impropriety, If Such Be Assumed. pp. 527-528
CRIMINAL LAW — Rape Case — Jury Conviction — Legally Sufficient Evidence From Prosecutrix Found (Which As Matter Of Law Need Not Be Corroborated), But Which Was Corroborated, To Enable Jury To Be Convinced Of Guilt Beyond Reasonable Doubt — Jury Had Right To Credit Testimony Of State's Witnesses, And To Disbelieve That Given For Accused, Including Alibi Evidence. p. 528
Decided October 22, 1962.
Appeal from the Criminal Court of Baltimore (MANLEY, J.).
William Edward Leek was convicted by a jury of rape, and from the judgment entered thereon, he appeals.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, HORNEY and SYBERT, JJ.
Morris Lee Kaplan, with whom was Michael Lee Kaplan on the brief, for the appellant.
Robert F. Sweeney, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, William J. O'Donnell, State's Attorney for Baltimore City, Joseph G. Koutz, Deputy State's Attorney, and Russell J. White, Assistant State's Attorney, on the brief, for the appellee.
The appellant, convicted by a jury of rape but acquitted of perverted practice, claims prejudice because he was required to be tried on both charges in the same trial, he having been arraigned on the perverted practice charge but a few minutes before the trial began. The claim of prejudice is refuted by the fact the jury found him not guilty of perverted practice. If the cases had been tried separately the prosecuting witness could have testified in the rape case to the occurrence of the perverted practice, as she did, Presley v. State, 224 Md. 550, cert. den. 368 U.S. 957, and, thus, no prejudice arose in connection with the conviction of rape.
The contention of the appellant that it was error to allow the mother of the victim to testify as to the complaints her daughter made on the morning of the rape is without merit. The admission of corroborating evidence that the victim had made complaint promptly was not error. Murphy v. State, 184 Md. 70. See also Shoemaker v. State, 228 Md. 462. The objections of appellant to the admission of testimony by a doctor as to the emotional state of the victim and testimony by a policeman that the description of appellant's automobile had been given him by another policeman were insubstantial.
The State's Attorney commented, apparently in the closing argument, that statements made by the appellant when arrested and the testimony of alibi witnesses were inconsistent. There was no reversible error in the refusal to grant a mistrial. The court instructed the jury that it should decide the case on the evidence and not on the remarks of counsel. If impropriety on the part of the prosecutor be assumed, the cautionary warning of the court cured it. Cohen v. State, 173 Md. 216, cert. den. 303 U.S. 660. Cf. Shoemaker v. State, supra.
The trial court was right in refusing a motion for a judgment of acquittal. There was legally sufficient evidence from the prosecutrix (which as a matter of law need not be corroborated, Doyal v. State, 226 Md. 31; Saldiveri v. State, 217 Md. 412), which was corroborated by her mother and by the police, to enable the jury to be convinced of the guilt of the accused beyond a reasonable doubt.
The jury had the right to give credit to the testimony of the witnesses for the State and to disbelieve that given in behalf of the accused, including that as to the alibi relied on by the accused. Wright v. State, 219 Md. 643, cert. den. 361 U.S. 851.
The letter submitted by the appellant after this case had been argued and decided as a supplement to the brief filed for him by his counsel was clearly irregular and it contained nothing meriting comment.