Blum v. State

³⁷⁷ Pearce, J., delivered the opinion of the Court. The appellants, together with one Isaac Harris, were indicted in the Criminal Court of Baltimore City for conspiring “by means of divers false pretences and representations, and other false and subtle means and devices to obtain and acquire unto themselves certain properties, moneys, goods and chattels,” of certain corporations and persons named in the indictment, and of certain other persons to the jurors unknown, of the value of $2,500, and to cheat and defraud such persons and corporations. A bill of particulars as to Samuel Blum was demanded and filed. The traversers pleaded “not guilty,” and the case was tried before the Court, resulting in a verdict of acquittal in favor of Harris, and of conviction against the two appellants, who were sentenced to confinement in jail for twenty months.

Seven exceptions taken by the traversers to the admissibility of evidence offered by the State are brought up for review by this appeal. Philip and Samuel Blum entered into partnership as wholesale grocers in Baltimore, in 1894, as Blum Bros., continuing in business under that firm name until February 8th, 1900, when Isaac Harris was admitted as a partner, and the firm name was changed to Blum Bros. & Harris. The following facts were agreed on at the trial. That the firm of Blum Bros. & Harris took out license for $1,000 May 1st, 1900, for 300 W. Lombard St. That Annie Blum, mother of Philip and Samuel Blum, took out license for $500 May 1st, 1900, for 212 Albemarle St. That Sarah Rosensweig, sister of Philip and Samuel Blum, took out two licenses, one May 1st, 1900, for $500, for 300 N. Pine St., and one December 1st, 1900, for $500, for 417 W. Saratoga St. That Wm.

Harris, brother of Isaac Harris, took out license November 2nd, 1900, for $1,000, for 428 S. Paca St., and that Ida Block, wife of Isaac Block, the bookkeeper of Blum Bros. & Harris, took out license December 1st, 1900, for $500, for 815 Ashland Avenue. That the assets of Blum Bros, at the time Harris was taken in were $6,000, and their liabilities ³⁷⁸ $2,500, and that Harris put in $2,500 furnished by his wife, making the net assets of Blum Bros. & Harris $6,000. A number of witnesses were examined on each side and the record embraces a mass of testimony. A large part of the able brief of the appellants, and of the oral argument of their distinguished senior counsel, was devoted to a criticism of the indictment, which it is contended does not set forth the offense with the clearness and certainty necessary to apprise the accused of the crime with which they stood charged, since the State contented itself with stating the offense in the same generic terms employed in the definition of the offense at common law, and failed to descend to such particulars as are necessary to inform the Court of the facts alleged, in order to determine whether they are sufficient in law to support a conviction, and to enable the accused to avail themselves either of an acquittal or a conviction in event of future prosecution upon the same charge.

If the indictment was thus insufficient and defective, the only course was to demur, as the learned counsel well knew. Hawthorn v. State, 56 Md. 533 . But relying upon their contention that no legal proof of such allegations as were made in that indictment could be furnished, in the language of their brief, “they resorted to the plea of not guilty, depending upon the ruling of the Court for its own guidance, sitting as a jury, to save them from conviction upon insufficient and illegal proof.” No demurrer having been interposed to the indictment, we would not be warranted in reviewing it here, but we deem it proper to say in order to avoid the creation of any doubt upon the question, that we regard the sufficiency of this indictment as established by the decision in State v. Buchanan, 5 H. & J. 317 , where all the authorities were elaborately reviewed. No decisions in this State are more highly regarded than those rendered by Chief Justice Buchanan, and we think his opinion in that case is sustained by the weight of authority.

In 6 Amer. and Eng. Ency. of Law, 2nd edition, note, p. 587, it is said that the law there laid down has been doubted in a few isolated instances, but ³⁷⁹ that it has not been successfully assailed. It was denied in State v. Rickey, g N. J. L. 293, but this view was disapproved by Chief Justice Green in State v. Norton, 23 N. J. L. 44, and by Chief Justice Beasley in State v. Donaldson, 32 N. J. L. 151; the former saying that the great weight of authority, the adjudged cases no less than the most approved elementary writers, sustain the law declared in State v. Buchanan , and the same view is held by the Courts of Connecticut, Illinois, New York, Pennsylvania and North Carolina. The case of U. S. v. Cruikshank, 92 U. S. 542 , is not, in our opinion, in conflict with this view, the prosecution there being under the statute of the United States known as the Enforcement Act, and the indictment failing to specify in any of the counts what right or privilege granted or secured by the Constitution or laws of the United States, the traversers had conspired to defeat.

The first exception was taken to the admission in evidence of the books of account of the traversers, and it should be observed that the offer of these books is the first step of the prosecution. The first witness sworn was G. W. S. Mus-grave, a member of the bar, who testified that as counsel for Harris, on December 3rd, 1900, he filed a bill against the two Blums for the appointment of a receiver of the firm, that this proceeding was by consent, and that he and Mr. Sonnehill, counsel for the Blums, were appointed receivers ; that upon qualifying, he went to the store and took the key from the constable who was in charge under an attachment which had been issued, and opened the store and took possession of everything in the store including the books. Thereupon the State offered in evidence certain books, ledgers, sales books, cash book, and bill files purporting to be the books and files of Blum Bros. & Harris, and also a book purporting to be the ledger of Blum Bros. To this offer the traversers objected, whereupon the State’s Attorney assured the Court that this would be followed up by proof of where the books had been since they came into possession of Musgrave, that no change had been made in them, and that they were the books ³⁸⁰ of Blum Bros. & Harris, though Musgrave admitted he did not know in whose handwriting the books were.

The traversers renewed their objection to the introduction of the books in evidence, but the Court overruled the objection and admitted the books, which were subsequently made the basis of much of the important testimony for the State. The principal and most serious ground of this exception is, that this ruling virtually compelled the traversers to furnish evidence against themselves, in violation of the 22nd Article of the Declaration of Rights of this State, and the fourth and fifth amendments to the Constitution of the United States. This objection, the State seeks to meet by saying that the books had been voluntarily turned over by the traversers to the receivers, and hence, if the books contained admissions, they could be used as any voluntary oral admission by the traversers could be used, and that as the proceeding for the appointment of receivers was by consent, it could not be likened to one instituted by a hostile party for the express purpose of compelling the traversers to produce their books to be used against them. No authority was produced to sustain this position, though, if correct in itself, it needs none.

But it is not correct to say that the books had been voluntarily turned over to the receivers for the purpose for which they are now sought to be used. If we should grant, for the sake of argument, all that may fairly be implied from the fact that the proceeding for receivers was by consent, the fact would remain that the books were surrendered under the order of the Court, and what is far more important, and indeed vital to the determinatton of the question, the further fact that it cannot for a moment be contended that the appointment of receivers contemplated any criminal proceeding against the traversers, and that they can therefore be held to have waived any constitutional privilege in their defense. The purpose of a receivership is the preservation and proper disposition of the subject of litigation. The receiver is not the representative of the State,-nor even of the creditors, but the hand of the Court whose control is exerted for the benefit of ³⁸¹ those ultimately found entitled to the subject of litigation, and not to aid the State in making out a case in a criminal prosecution.

It cannot therefore be claimed that the order appointing receivers could give, or was designed to give, any such power over the books as is here claimed, or that it could operate to change a rule of evidence in the administration of the criminal law. The effect of the order, upon the admission of the books in this case, can have no other or greater effect than an express order directed to the traversers, if there were no receivership, commanding them to produce these books and papers to be used in evidence for the State. The first inquiry therefore we are required to make is whether the admission of these books and papers was a violation of any constitutional privilege of the traversers. The maxim nemo tenetur se ipsum acensare is derived from the common law and was re-affirmed in Magna Charta, whence it was transferred in slightly varying form to the constitutions of the several States of our Union.

In the Declaration of Rights embodied in the Constitution of Maryland of 1776, it appeared in this form : ‘ ‘That no man ought to be compelled to give evidence against himself, in a common Court of law, or in any other Court, but in such cases as have been usually practiced in this State, or may hereafter be directed by the Legislature” ; and it was unchanged in the Constitution of 1851. But in the Constitution of 1864, it was in these words: “That no man ought to be compelled to give evidence against himself;” and it so stands in the Constitution of 1867 now in force. In Broadbent v. The State, 7 Md. 416 , decided under the Constitution of 1851, it was contended that the Act of 1847, which in certain cases required parties in proceedings against them for fines, to answer under oath any bill of discovery filed by the Lottery Commissioner, was unconstitutional. It was very properly held that the Legislature had the power to compel the party to give evidence against himself, but in so deciding, Chief Justice LeGrand used the following forcible language: “But although it is competent to the Legislature to alter the rules of evidence so as to compel ³⁸² a party to give evidence against himself, it is nevertheless a power of such transcendent and overwhelming importance that a just regard ior the liberties of the citizen should, at all times, induce the most cautious and jealous exercise of it by the Legislature ; and especially should Courts of Justice anxiously and narrowly watch it, and never, under any pretence whatever, extend it beyond the limits to which the strictest interpretation of the language of the Legislature confines it in the particular case.” And the Constitutional Convention of 1864, whether impressed by this admonition, or by its own perception of the danger inseparable from the posession of this power by the Legislature, withdrew it from the Legislature altogether in criminal cases.

If it was the duty of Courts anxiously and narrowly to watch and restrict the exercise by the Legislature of a conceded power, how much more imperative is the duty to watch their own course and avoid the unconscious exercise of a power which is denied alike to the Legislature and to the Courts ! We have not forgotten that the exact privilege we are now considering is that of refusing to give evidence against oneself, and that, speaking literally, this means a refusal to answer a question which may lead to conviction for crime, and that in most cases of that character this is the personal privilege of a witness on the stand, which must be claimed by him under oath, and cannot be claimed for him by counsel or by a party to the proceeding who desires to avoid the effect of his answer, and that it does not appear from the record in this case that the privilege was claimed under oath by any of the traversers ; but that rule we apprehend is only applicable in a collateral proceeding where the party is a witness only, and not in a criminal proceeding where he is the party charged and then on trial. Moreover, the Fourth and Fifth Amendments to the Constitution of the United States which are in pari materia with articles 26 and 22 of our Declaration of Rights, have been held in Boyd v. U. S., 116 U. S. 616 , to be intimately related to each other and to throw great light on each other. In that case the Court said : “The unreasonable ³⁸³ searches and seizures condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth amendment; and compelling a man in a criminal case to be a witness against himself, which is condemned in the Fifth Amendment, throws light on the question, what is an unreasonable search and seizure within the meaning of the Fourth Amendment.

And we have been unable to perceive that the seizure of a man’s private books and papers, to be used in evidence against him, is substantially different from compelling him to be a witness against himself. ” The earliest case to which we have been referred as precisely in point, and it would be difficult to find one more succinct and