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Joseph A. DePaul and James E. George A. Burch, Attorney General, Arthur A. Marshall, Jr. John Joseph Grady, appellant, was charged in Prince George's County, under a criminal information with three counts of perverted practices, Md. Code art. The information additionally charged three separate counts of assault and battery. Appellant was convicted by a jury on all six counts, and he was sentenced to three ten-year concurrent terms of imprisonment for the perverted practices charges.

The Court of Appeals in Kucharczyk v. State, Md. Kucharczyk involved a conviction for an unnatural and perverted sex act and assault and battery. The prosecuting witness was a sixteen year old boy who had a full scale I. On cross examination the young man testified contradictorily to the version that he had stated on direct examination. Judge Sybert, writing for the Court of Appeals in Kucharczyk adopted from civil cases the rule that if a witness's testimony is so self-contradictory as to lack probative force, the trier of fact may not be allowed to speculate as to which of the versions is true.

See Balto. Presberry, Md. Baltimore Transit Co. Jolley, Md. In Slacum the Court said:. See also Eisenhower v. Transit Co. Judge Sybert noted that while Kucharczyk involved a criminal case, nevertheless, the rationale of Kaufman, Presberry, Slacum and Eisenhower was apposite. This Court, in Bailey v. State, 16 Md. A review of the testimony reveals that one of the prosecuting witnesses was extremely reluctant, and in the final analysis said nothing.

The other two juvenile witnesses did make glaring, inconsistent statements in that each affirmed and denied that she had touched the appellant's penis. The message comes through, however, loud, clear and consistently that each had performed fellatio upon the appellant. Although there is present in the instant case some self-contradiction on the part of the witnesses and some ambiguity as to whether Mr. Grady's penis was between his legs or "in front of him", the two girls testified unambiguously and clearly to performing acts of fellatio on appellant on one or more occasions. We think the testimony of the two children is not devoid of probative force and that the trial judge properly declined to grant a motion for judgment of acquittal.

The evidence as to fellatio, if believed, was legally sufficient to sustain the conviction. The word "conclusively" is defined in the American Heritage Dictionary of the English Language to mean:. An analysis of the judge's instructions discloses the following: The State must prove its charges against the defendant beyond a reasonable doubt, but a defendant is required to prove his alibi conclusively. As we read the charge, the defendant is held to establish an alibi by a degree of proof that is above and beyond that required to determine his guilt.

The State, the jury was also told, must show guilt beyond a reasonable doubt which, of course, does not mean to a mathematical certainty or beyond any doubt, while the defendant appellant here would seem to be required to establish his alibi beyond any doubt. This Court in Jackson v. State, 22 Md. See also Daniels v. State, 24 Md. State, supra. We note that Robinson, Jackson and Daniels were all filed subsequently to the trial in the instant case. Although appellant did not except to the trial judge's jury instructions, we, under the "plain error" provision of Md.

Rule g, take cognizance of those instructions. See Robinson v. State, supra atJackson v. State, supra atand Daniels v. State, supra at 7. In Jackson we refused to agree that the alibi instruction was, as the State there argued, harmless. We stated at In the case now before us for review, the appellant, because of the State's inability to demonstrate the time frame in which the alleged events took place, had cast upon him by the Court's instruction the Herculean task of establishing an alibi for the entire period of time that he had known the children.

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The predicament in which appellant found himself is made more clear when one realizes that the appellant had known the girls for a period of two to three years. The instruction as given required the appellant "to prove" his "alibi conclusively" for that entire period.

It is doubtful that anyone in free society could meet such an incubus. We are aware that in Floyd v. As we read Floyd it is apparent that the Court meant that if an alibi defense is to be effective it should blanket the entire period of time in which the offense is alleged to have been committed. Clearly the Court did not intend to place upon an accused a duty to prove his alibi conclusively. Turning briefly to the convictions for assault and battery, we observe that Judge McWilliams stated for the Court in Turner v.

Hammond, Md. The docket entries reveal merely that the court "suspended generally" the imposition of sentences upon the assault and battery charges. We think he is right on three of them, although we do not find it necessary in this case to discuss all three reasons.

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One contention not discussed is directed toward the time frame in which the events are alleged to have occurred. Because of the ambiguity surrounding the time of the occurrence or occurrences, appellant perceives a denial of due process. Brunner v. Another reason that appellant advances for reversal of the trial court's judgment was the admission into evidence, over objection, of an indubitable hearsay statement by one of the prosecuting witnesses to the effect that another prosecuting witness had told her what she had done to the appellant at appellant's request.

State Grady v. State Annotate this Case. Court of Special Appeals of Maryland.

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Decided December 20, In Slacum the Court said: "When a witness says in one breath that a thing is so, and in the next breath that it is not so, his testimony is too inconclusive, contradictory and uncertain to be the basis of a legal conclusion. Kucharczyk does not apply simply because a witness's trial testimony is contradicted by other statements which the witness has given out of court or, indeed, in some other trial.

Brooks v. Daley, Md. State, 4 Md. State, 7 Md. State, 10 Md. Carter, 14 Md. Nor does Kucharczyk apply where a witness's trial testimony contradicts itself as to minor or peripheral details but not as to the core issues of the very occurrence of the corpus delicti or of the criminal agency of the defendant. Bell v. State, 2 Md. State, 3 Md. State, 8 Md. State, 9 Md.

State, 12 Md. State, 13 Md. Thompson v. State, 5 Md. Nor does Kucharczyk apply where a witness is forgetful as to even major details or testifies as to what may seem improbable conduct. Gunther v. Nor does Kucharczyk apply where a witness is initially hesitant about giving inculpatory testimony but subsequently does inculpate a defendant. Wilkins v. Nor does Kucharczyk apply where a witness appears initially to have contradicted himself but later explains or resolves the apparent contradiction. Wilson, Valantine and Nutter v.

Nor does Kucharczyk apply where a State's witness is contradicted by other State's witnesses. Scott v. State, supra; Hunt v. Nor does Kucharczyk apply where a State's witness is contradicted by defense witnesses. Johnson v.

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Nor does Kucharczyk apply where a witness does contradict himself upon a critical issue but where there is independent corroboration of the inculpatory version. Tucker v. State, supra, In each of those situations, our system of jurisprudence places reliance in the fact finder to take contradictions or equivocations properly into and then to make informed judgment in assessing a witness's credibility and in weighing that witness's testimony. Even in a pure Kucharczyk situation, the ultimate resolution is solely in terms of measuring the legal sufficiency of the State's total case and not in terms of the exclusion of the contradictory witness's testimony.

Notwithstanding the non-application of Kucharczyk, we must reverse all convictions. This may be referred to as a defense of alibi. The Court tells you that a defense of alibi is a legitimate, legal and proper defense. The defendant may not be convicted of the offense with which he is charged unless the government proves beyond a reasonable doubt that the defendant was present at the time when, and at the place where, the offenses were committed. With reference to alibi, a defendant may be entitled to acquittal if you believe the alibi testimony as his not being present at a time and place of the alleged offense, by taking into consideration this testimony with all the other evidence raising a reasonable doubt of guilt, but in order to prove an alibi conclusively the testimony must cover the whole time in which the crime by any possibility might have been committed, and should be subjected to rigid scrutiny.

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The word "conclusively" is defined in the American Heritage Dictionary of the English Language to mean: "Serving to put an end to doubt or question; Decisive; Final. Such, of course, is not the case. Robinson v. State, [20 Md.

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