Opinion
[No. 2, September Term, 1962.]
Decided October 9, 1962.
CRIMINAL LAW — Rape — Non-Jury Case — Consent — Trial Judge Held Not Clearly Wrong In Finding Lack Of. In this appeal from a conviction of rape, the trial judge, sitting without a jury, was not clearly wrong in believing the testimony of the victim that she had been forced to submit to the defendant against her will and in finding her testimony not to be inconsistent and contradictory. In reaching this conclusion this Court pointed to corroboration of the victim's claim of force in marks of violence upon her face; blood stains upon her clothing; and some of the testimony of two State witnesses. p. 433
J.E.B.
Decided October 9, 1962.
Appeal from the Criminal Court of Baltimore (FOSTER, J.).
Thomas Irving Greene, Jr., was convicted of rape and of perverted practice by the trial court, sitting without a jury, and from the judgment entered thereon, he appeals.
Affirmed.
The cause was argued before the full Court.
Irving S. Reamer for the appellant.
Gerard Wm. Wittstadt, Assistant Attorney General, with whom were Thomas B. Finan, Attorney General, Saul A. Harris, State's Attorney for Baltimore City, and George J. Helinski, Assistant State's Attorney, on the brief, for the appellee.
Judge Foster, sitting without a jury in the Criminal Court of Baltimore, convicted appellant of rape and perverted practice and sentenced him generally to seven years' confinement. The validity of the perverted practice conviction is not challenged.
Appellant urges that there was insufficient evidence to prove that the intercourse, which is admitted, was not voluntary and that the testimony of the victim to the contrary was so full of contradictions as to make it completely unreliable and of no probative value.
Assuming that it is necessary to decide whether there was error in the judgment and sentence for rape — since the sentence was a general one and within the maximum for perverted practice ( cf. Nelson v. State, 224 Md. 374) — we find no error.
As we read the record, the matter is simply one of credibility, depending on which of the witnesses the trier of fact believed. Judge Foster found the testimony of the eighteen-year-old victim that she had been forced against her will to submit in a parked automobile, to be direct and unembellished and her explanations natural and logical. He was convinced she was telling the truth by her "demeanor and the manner in which she conducted herself on the stand." It follows that he did not find her testimony inconsistent and contradictory. There was corroboration of her claim that force was used to overpower her resistance by marks of violence on her face and blood stains on her clothing, and by some of the testimony of two witnesses for the State. It is plain to us that we cannot say that Judge Foster was clearly wrong in his findings of fact as we would have to be able to do under Md. Rule 886 (which is made applicable to appeals in criminal cases by Rule 772) before a reversal could come about.
Judgment Affirmed.