Beard v. State

Morton, J., delivered the opinion of the Court. Appellant was tried at a court trial in the Circuit Court for Baltimore County under a four count indictment charging ■forgery, procuring forgery, uttering a forged document and obtaining money by false pretenses. He was found guilty of uttering and the State entered a stet as to each of the other counts. The appellant was sentenced to imprisonment for a term of ten years.

The appellant contends that he could not be convicted of the crime of uttering a forged document since the proof showed that he not only committed an uttering, but completed the of fense of obtaining money by false pretenses. He argues that the two offenses merged, the greater offense absorbing the lesser, thus precluding a conviction of the lesser offense. He cites Sutton v. State, 2 Md. App. 639. This Court has stated that the common law doctrine of merger is now not followed in Maryland but that a modern concept of merger of offenses has been adopted.

Chittum v. State, 1 Md. App. 205 . The true test under the modern doctrine is whether one crime necessarily involves the other. Tender v. State, 2 Md. App. 692. That is to say, when the facts necessary to prove a lesser offense are essential ingredients in establishing the greater offense, the lesser ⁶⁸⁷ offense is merged into the greater offense.

Dunlap v. State, 1 Md. App. 444 . The rationale of the modern doctrine is that a person should not be twice punished for the same acts whether the offenses charged by reason of such acts be deemed to be inconsistent, duplicitous or to have merged. Tender v. State, supra. Thus, with regard to merger, in a trial on multiple charges, the doctrine is applicable only to preclude multiple convictions on merged offenses.

Gee v. State, 2 Md. App. 61 . So in Sutton , where the only false representation was the uttering, which was an essential part of the conviction for false pretenses, the doctrine applied to prevent the convictions of both false pretenses and uttering and we vacated the uttering conviction. But in Lievers v. State, 4 Md. App. 219 the judgment upon conviction of uttering was affirmed, the doctrine of merger not applying because there was no conviction of false pretenses, a nolle prosequi having been entered to the count charging that offense. In the instant case the appellant was convicted only of uttering, a stet having been entered to the count charging false pretenses.

Therefore the doctrine of merger did not apply. As the doctrine was not applicable, the uttering offense did not, in any event, merge into the offense of false pretenses and the contention of the appellant fails. In Boone v. State, 2 Md. App. 80, 114 we said that a failure to consummate a crime is an essential element of an attempt to commit the crime and that evidence that a crime has been committed will not sustain a verdict on an attempt to commit it. The appellant suggests that since money was obtained by him by means of the forged check, which check was the basis of the uttering conviction, the crime of obtaining money by false pretenses was consummated.

Thus, he argues, the uttering conviction was improper because the uttering was merely an attempt to obtain money by false pretenses. We do not so consider it in the instant case. Uttering, Md. Code (1967 Repl. Vol.), Art. 27, § 44, and obtaining money by false pretenses, Code, supra.

Art. 27, § 140 are separate and distinct crimes. Although, as we have stated, under proper circumstances, an uttering offense may merge into a false pretense offense, attempting to obtain money by false pretenses is also a