Bloomer v. State

Bowie, J., delivered the opinion of the Court. The appellant, William E. Bloomer, and Upton W. Dorsey, were indicted in the Criminal Court of the City of Baltimore, for conspiracy with others whose names are unknown, to cheat and defraud the Chicago, Burlington & Quincy Railroad Company, etc. ⁵²⁶ The first count charged, that being in possession of certain cards or tickets of the Chicago, Burlington & Quincy Railroad, which contained blank spaces for filling in or writing the name of the person to whom they might have been properly issued and granted, they, together with others unknown, conspired and agreed to fraudulently fill in and insert the names of divers persons, etc., and did fill in and insert the names of divers persons in said cards or tickets, and sell and dispose of the same with intent to cheat and defraud the said Chicago, Burlington & Quincy Railroad Company. The second count charges, that the said Dorsey and Bloomer with divers others, etc., conspired together to cheat and defraud the Chicago, Burlington & Quincy Railroad Company, by fraudulently and wrongfully procuring a large number of cards, tickets, etc., in and upon which no name had been writtén, and which had not been issued, with intent to have them filled up and sell and dispose of the same, and to cheat and defraud the said Company. The third charges the same persons with conspiring to obtain and acquire from the Chicago, Burlington & Quincy Railroad Company, divers large quantities of cards, tickets, etc,, called “ annual passes,” of great value, and to cheat and defraud it thereof.

To which the traversers plead not guilty. The jury returned a verdict of guilty as to Bloomer, and being unable to agree as to Dorsey, were discharged. Several exceptions having been taken upon questions of evidence on the trial, the traverser, Bloomer, appealed. The State having given evidence tending to prove that an officer of the Chicago, Burlington & Quincy Railroad Company, and of the Burlington & Missouri Railroad, having in his possession certain blank annual passes over said roads, six of each, to be filled up and used by him, in the course of his official duties in travelling over the same, lost the same in Washington, about the middle of ⁵²⁷ January, 1877, and having proved that a pass over the one road, does not authorize the holder, to travel over the other, hut each requires a different pass, the witness identified one of the passes of the Chicago, Burlington & Quincy Railroad, shown him as one of those stolen from him, and testified that no one had any authority to use those passes, in the form in which the one shown him was. “ To make the pass properly available, the blank space on its face must he filled up with the name of the person using it, by the proper officer of the Company." * * * * “ No one hut witness had authority to fill up and issue the passes of the O. B. & Q. Railroad, that witness had with him at Washington.

Witness had not filled up any of them when they were stolen from him, or authorized any one to fill them up ; they were entirely blank," etc. The State then offered three Burlington & Missouri River Railroad annual passes in evidence, and proposed to show they were passes precisely of the same character, and in possession of the witness, for the same purposes as to the Burlington & Missouri River Railroad, as the others already given in evidence in respect to the Chicago, Burlington & Quincy Railroad, and that no one but witness had authority to issue said B. & M. R. Railroad passes, and that they were never issued by him, but were stolen from him at the same time with the passes of the C. B. & Q. Railroad, already given in evidence. It was represented by the State, that this proof would be followed by evidence, tracing the B. & M. R. Railroad passes into the hands of Bloomer and Dorsey, for the purpose of unlawfully and fraudulently dealing with them, and showing they did unlawfully and fraudulently deal with them. The object or purpose of this offer was to show in connection with the evidence before given, and thereafter to he given, that the traversers fraudulently obtained, and had in their possession, and dealt with the Chicago, Burlington ⁵²⁸ and Quincy passes, in respect to which the conspiracy is charged in the indictment, and in manner and form as therein charged. The traversers objected to the admission of the testimony offered, unless the State .proposed to follow the same, by proof that the B. & M. R. R. passes, were obtained and dealt with by the traversers, “ in pursuance of a confederation or combination between the traversers, and for the purpose of defrauding the C. B. & Q. R. R., as set forth in the indictment.” The Court overruled the objection, and allowed the evidence offered, to he given according to the tenor of said offer.

To which ruling the traversers excepted. It is urged on their behalf, that this was equivalent to an attempt to establish a conspiracy, to deal unlawfully with the passes of one road, by showing a like conspiracy as to the passes of another. The legal grounds of this exception are, that the testimony offered, does not tend to prove the matters in issue, and the facts are collateral to the charges in the indictment. The elementary rule of evidence, that the testimony must he confined to the points in issue, is based not only on the reason, “that such evidence tends needlessly to consume the public time, to draw away the minds of the jurors, and to excite prejudice and mislead,” hut, “moreover, that the adverse party, having had no notice of such evidence, is not prepared to rebut it.” 1 Taylor’s Ev., sec. 298.

We are admonished by this distinguished author, that “The due application of this rule, will occasionally tax to the utmost, the firmness and discrimination of the Judge ; so that, while he shall reject as too remote, every fact which merely furnishes a fanciful analogy, or conjectural inference, he may admit as relevant, the evidence of all those matters which shed a real, though perhaps an indirect and feeble light on the question in issue.” Ibid. ⁵²⁹ The object of the evidence excepted to, was to prove, in connection with the evidence previously submitted, and that proposed to be submitted, that the traversers fraudulently obtained and had in their possession, the Chicago, Burlington and Quincy Railroad passes, in respect to which the conspiracy is charged in the indictment. In other words, to establish a fraudulent intent, by proving possession of passes of the same kind and description over another railroad, which were stolen at the same time, and from the same person. The most recent, and well considered authorities, establish we think, beyond question, the admissibility of such evidence in analogous cases. In prosecutions for the utterance of forged instruments, it has been held competent to prove that the traverser had about the same time in his possession, other forged instruments than those which were the subject of the indictment. 3 Greenleaf’s Ev., sec. 111; Rex vs. Wylie, 1 New Rep., 91 ; 1 Leading Crim. cases, 185, and cases cited in note 1.

In Wood vs. The U. S., 16 Peters, 360 , in a libel for violating the Revenue Laws, by the use of false invoices, the Supreme Court, by the late Mr. Justice Story, held that fraud might be deduced from other invoices of the plaintiff in error, of goods imported before and after the importation of the goods in question. That learned Jurist said, it was an exception to the general rule, excluding evidence not directly comprehended within the issue; or rather, perhaps it may with more certainty be said, the exception is necessarily embodied in the very substance of the rule; fdr whatever does legally conduce to establish the points in issue, is necessarily embraced in it, and therefore a proper subject of proof, whether it be direct or ■ presumptive. Vide also The King vs. Wylie, 4 Bos. & Pul., 92; United States vs. Wood, 14 Peters’ Rep., 430. There are some decisions ⁵³⁰ to the contrary, but the ruling of the Court below, in our opinion, is sustained by a great preponderance of reported cases in England and the United States.

Besides the special exception set forth in the first bill of exceptions, the traversers reserved a general exception, to all the evidence, and the right to move the Court to exdude it from the jury, if the whole evidence should not he legally sufficient to support the indictment. The State’s witness, Tonzaline, having testified on his cross-examinatson, that a certain railroad pass, No. 64, shown to him, and now filled up, “H. M. Beidler and one,” is now numbered 64, hut under that number, you will find thenumber “38 rubbed out,” the traversers moved the Court to exclude the same from the jury, “ until it is first shown that the traversers combined or conspired with others, to make said alteration, or‘that said alteration, was made by one or the other of them, in execution of such previous conspiracy to do the acts charged in the indictment.” Which motion the Court overruled, and the traversers excepted. The action of the Court below is based upon the theory, that the alteration of the passes is one of the fraudulent acts charged in the indictment, and it is competent to the State to prove the facts charged in any order it chooses; “ but the State will have to prove before the traversers can in any way he held responsible, that they conspired and agreed together to make this improper use of the tickets, and that it was done by conspiracy.” This exception involves the admissibility of the evidence of alteration “per se,” as v/ell as the order of its admission. Before any act can he evidence against a man, it must he shown to he an act done by himself, or another, acting by his authority, or in pursuance of a common design.

The text hooks on Evidence speaking of the acts and declarations of one of a company of conspirators, say: ⁵³¹ “ A foundation should first be laid by proof sufficient in the opinion of the Judge to establish prima facie, the fact of conspiracy between the parties, or at least proper to be laid before the jury as tending to establish such fact. The connection of the individuals in the unlawful enter-prize being thus shown, every act and declaration of each member of the confederacy in pursuance of the original concerted plan, and with reference to the common object, is in contemplation of law, the act and declaration of them all.” Vide R. vs. Stone, 6 T. R., 528, 529; 25 How. St. Trials, 1277, 1313, S. C., 2 Pet., 358, 365 ; Crowninshield’s Case, 10 Pick., 497 ; U. S. vs. Gooding, 12 Wheat., 469 ; Com., vs. Eberle, 3 Ser. & R., 9, cited 1 Taylor’s Evidence, note 1, p. 540. This learned writer qualifies this general rule in the next section, as follows : “ Sometimes for the sake of convenience the acts or declarations of one are admitted in evidence, before sufficient proof is given of conspiracy; the prosecutor undertaking to furnish such proof in a subsequent stage of the cause.

But this mode of proceeding rests in the discretion of the Judge, and in seditions or other general conspiracies is seldom permitted, except under particular and urgent circumstances; for otherwise, the jury might be misled to infer the fact itself of the conspiracy from the declaration of strangers. Still, as a conspiracy need not be established by proof which actually brings the parties together, but may be shown like any other fact by circumstantial evidence, the detached acts of the different persons accused, including their written correspondence, entries made by them, and other documents in their possession relative to the main design, will sometimes from necessity be admitted as steps to establish the conspiracy itself. On this subject it is difficult to establish a general inflexible rule, but each case must in some measure be governed by its own peculiar circumstances.” The Court below seems to have adopted the order of pro ⁵³² ceeding sanctioned by the last citation, admitting the evidence provisionally, not absolutely. There was, therefore, no violation of principle or practice, as to the order of evidence, in admitting the testimony.

As to the competency of such proof “perse,” the filling up or alteration of the pass, was an index or badge of fraud of a very significant character, which connected with the fact of its being stolen conduced to prove the fraudulent design of some one,, whoever it was that made the alteration ; it was a circumstance which might be linked with other facts yet to be developed to sustain the charges made in the indictment. It was admitted only on condition that such proof would be supplied — and such ruling was correct. The State having called one Edwin B. Giles, who testified, that he lived in Camden, and knew the traverser Bloomer, and looking at pass, (No. 64,) was asked whether or not he was present at an interview between Bloomer and any one in reference to the same ? Id reply the witness said: “Sometime early in the year 1811, he happened to be in a ticket office in Philadelphia, and while there Bloomer and Wilson were bargaining over a pass.” Being asked what he had to do with the pass, he testified, that Wilson told him he had bought it, and being in tbe printing office of Wilson one evening, he was called to fill in a pass ; it was blank when it was handed him, and being asked, “who filled up the name ‘H. M. Beidler and one,’ ” objection was made by the traverser.

Whereupon the Court withholding its decision as to the objection, and in order to pass upon the question raised, examined the witness and permitted the counsel for the State to examine him in the presence of the jury, as to the conversation he heard between Bloomer and Wilson in Philadelphia, and subsequent interviews between him