Delcher v. State

Pattison, J., delivered the opinion of the Court. Three indictments -were returned by the grand jury of Baltimore City against the appellant, Milton B. Delcher, a vice-president- of the Chesapeake Bank of Baltimore City, for certain alleged criminal transactions whereby the accused obtained money from said bank prior to the appointment of the receiver. In the first- of these indictments, No. 173 on the 1931 docket of the Criminal Court of Baltimore City, the accused was charged with larceny and false pretense in respect of certain transactions whereby “Young’s System, a corporation,’b obtained certain funds from the bank. The appellant, ⁴⁷⁸ by the second indictment, Eo. 174, was charged with said offenses in respect of two< transactions whereby he received certain funds of the bank, which were used by him in the purchase, through W. W. Lanahan & Co., brokers, of certain shares of stock for his individual account.

The third indictment, Eo. 175, charged larceny and false pretense in respect of certain transactions whereby “Charles Decorators, Inc., a corporation,” in which the accused was financially interested, obtained certain funds from the bank on the strength of an alleged false representation made by the accused to the bank’s board of directors. The State and defense agreed that the three indictments should be tried by the same jury at the same time. The verdict of the jury upon the charges contained in indictment Eo. 173 was not guilty. The verdict as to the second indictment, Eo: 174, was guilty on the second and fourth counts, the larceny counts, but not guilty on the first and third, the false pretense counts.

As to the third indictment, Eo. 175, the jury found the accused guilty on the first, third, fifth, seventh, ninth and eleventh counts of the indictment, the false pretense counts, but not guilty on the others, the larceny counts. The defendant was thereafter sentenced to a term of five years in the Baltimore City Jail on the conviction in each of said indictments, the sentences to run concurrently. Erom that judgment an appeal was taken to this court. Thereafter, motions to strike out the verdicts, judgments and sentences upon those counts in the two' indictments upon which the appellant had been found guilty were filed, and overruled by the court.

And from the rulings of the court thereon appeals were taken to this court. The four appeals were subsequently consolidated in one record by order of this court passed on July 2nd, 1931. The indictments being filed, bills of particulars were demanded by the defendant, and, upon the filing of the same, exceptions taken thereto were overruled. Whereupon a demurrer was filed to each count of the indictments, and these, ⁴⁷⁹ too, were overruled.

Thereafter the defendant moved to quash the indictments, which motions were also overruled. The indictment in Ho. 174 contained four counts. The first and third charged the larceny of the respective sums therein named, alleging the same to be the property of the Chesapeake Bank. The second and fourth counts charged, in the nsnal form, the obtaining of the sums named therein by false pretense.

The bill of particulars was furnished the defendant under section 555 of article 27 of the Code, which gave to him a statement of the false pretense intended tO' be given in evidence, as well as the names of the witnesses, and it is, we think, in full compliance with the statute; but, should it be held otherwise, the defendant was not thereby hurt, inasmuch as he was acquitted upon those counts of the indictment (Burgess v. State, 161 Md. 162 , 155 A. 153 ; 31 C. J., sec. 553, page 880, note 2); and the same may be said as to the action of the court in its ruling upon the motions to quash. With the false pretense counts eliminated from consideration, the demurrer to the remaining larceny counts, which were in the usual form, was properly overruled. In .fact, the defendant in his brief is silent upon the action of the court in its rulings upon the hill of particulars, the motion to quash, and the demurrer to the indictment, in Ho. 174. He confines his discussion therein to the action of the court in overruling the bill of particulars, the motion to quash, and the demurrer to the indictment, in Ho. 175.

This last-mentioned indictment contained twelve counts. In the first, third, fifth, seventh, ninth and eleventh, the traverser was charged with obtaining- the respective sums of money therein named by false pretense, and upon these counts he was found guilty. In the other counts he was •charged with larceny, and was found not guilty. The State, in its bill of particulars, in answer to the demand of the defendant, as to the first count of the indictment, Ho. 175, stated that the traverser, Milton B. Belcher, vice-president of the Chesapeake Bank, engaged in the banking ⁴⁸⁰ business in that city, did from on or about tbe 7th of November, 1928, up to and including tbe 31st day of December, 1928, obtain from tbe bank tbe sum of money therein named upon the representation made by him to the hank and its directors “that one Bruno H. Buckholz, who was then and there the president of the Charles Decorators, Inc., was an antique dealer having a place of business on North Charles Street, in said city, by the name of Buckholz, and that the said Bruno H. Buckholz was a man of substantial means and financial responsibility; whereas, in truth and in fact, as he, the said Milton B. Delcher, then and there well knew, the said Bruno H. Buckholz was not an antique dealer on North Charles Street, and was not a man of substantial means and financial responsibility, and was not the antique dealer named Buckholz on North Charles Street; “And that the said Milton B. Delcher did, in addition, during the above-mentioned period, approve, okay and direct the honoring and payment by the bank of certain checks of the Charles Decorators, Inc., drawn on the Chesapeake Bank .of Baltimore, a corporation, as and when the same were received by or presented at the said bank for payment, when he, the said Milton B. Delcher, then and there well knew that the said Charles Decorators, Inc., did not (when the said checks were received and presented for payment as aforesaid) have sufficient money on deposit with or at the said Chesapeake Bank of Baltimore, a corporation, to meet and pay the same, and knew that the financial condition, status and circumstances of the said Charles Decorators, Inc., was not such as to warrant said hank honoring, meeting and paying said checks, as aforesaid.” The other counts of the indictment, wherein the traverser is charged with obtaining money under false pretense, differ from the first only as to the period in which the money was obtained and in the amount so obtained.

Exceptions were filed to the bill of particulars as to the first, third, fifth, seventh, ninth and eleventh counts of the indictments, whereby the defendant was charged with obtaining money under false pretense, the grounds of the exceptions being: ⁴⁸¹ (1) Because the said alleged bill of particulars does not “sufficiently inform the defendant of the charges in said counts that he has to answer in the trial of said cause.” (2) Because it “does not clearly, properly and sufficiently designate or describe the means, instruments, methods or instrumentalities alleged to have been used in the perpetration of the alleged false pretense so that there can be no mistake as to the identification of the means, instruments, methods and instrumentalities that may be produced in evidence by the State in support of said” counts of the indictment. (3) Because the allegations of the bill of particulars contained therein “are insufficient in law to sustain” said counts in the indictment and the offenses charged therein. (4) Because the allegations in said bill of particulars as to the counts of the indictment “do not constitute a criminal offense under the Laws of the State of Maryland, nor do- the allegations * * * constitute the offense of false pretense” under said laws. There was a further ground contained in the exceptions— that the bill of particulars did not contain a list of names of the witnesses, as required by the statute, but it is admitted by the defendant in his motion in arrest of judgment that the names of such witnesses were furnished him.

In Jules v. State, 85 Md. 312 , 36 A. 1027, 1029 , where the defendant was charged with obtaining money under false pretenses, this court said: “The office of a bill of particulars like this is — First, to inform the defendant of the names of the witnesses the State expects to call; and, secondly, to furnish him with a statement of the false pretenses intended to be relied on, and given in evidence. Code, art. 27, sec. 288. It was the theory of the State, and during a part of the argument also that of the defense, that a bill of particulars of this kind is no part of the pleading, and therefore not subject to demurrer. And that this view is correct is apparent from the nature of the statement of particulars, which, as we have seen, is intended only to- furnish the false pretenses ⁴⁸² intended to be given in evidence, and tbe names of tbe witnesses.

As is said in section 702, Whart. Cr. Pl.: ‘The adoption of such bills, instead of the exacting of increased particularity in indictments, is productive of several advantages. It prevents much cumbrous special pleading and consequent failures of justice, as no demurrer lies to bills of particulars; and it gives to the defendant, in plain, unartificial language, notice of the charge he is to meet’.” In this case the bill of particulars, we think, fully meets the requirements above stated.

The statement of the facts found in the bill of particulars furnished under the statute sufficiently enabled the defendant to prepare his defense, 31 O. J. 751 and 752. And we find no error in the court’s action in overruling the defendant’s motion to quash, the grounds of which were practically the same as those contained in the exceptions to the bill of particulars. The demurrer to the indictment is based chiefly upon the grounds: (1) .That the false pretense counts of the indictment, when read in conjunction with the bill of particulars, show each count to be bad because it attempts to charge a series of false pretenses rather than the one act of false pretense; (2) that, by an examination of the second paragraph of the bill of particulars taken in conjunction with each false pretense count of the indictment, it will be shown that the charge therein stated is larceny rather than false pretenses; and (3) that there was not only a mingling in the same count of separate and distinct crimes of false pretenses, but there was a mingling in the same count of the crime of false pretenses with the crime of larceny. A bill of particulars is no part of the indictment or pleading, and it is, we think, well settled that, where the indictment is in the usual form and not demurrable on its face, it does not become so when considered in connection with the bill of particulars.

Mor can a defective indictment be made sufficient by a bill of particulars. Dunlop v. United States, 165 U. S. 486 , 17 S. Ct. 375 , 41 L. Ed. 799 ; Com. v. Davis, 11 Pick. (Mass.) 432; Jules v. State, 85 Md. 305 , 36 A. 1027 ; State v. Lehigh Valley R. Co., 94 N. J. Law, 171, ⁴⁸³ 111 A. 257 ; State v. Dix, 33 Wash. 405 , 74 P. 570 ; 31 C. J. 753; and we do not find that the indictment violates the rule that not more than one offense can be charged in one count of the indictment. Each of the false pretense counts charges that the alleged offense was committed at the specific time therein stated.

In the first count, the offense is alleged to have been committed on the 31st day of December, 1928; the third count on the 29th day of June, 1929; the fifth on the 31st of December, 1929; the seventh on the 19th of May,' 1930; the ninth on the 7th of October, 1930; and the eleventh on the 14th of [November, 1930. It is true that the bill of particulars alleges, and the proof shows, that the amount alleged in each of the false pretense counts was received on various days and times preceding, and inclusive of, the day named in the indictment. In other words, the amount named in the indictment was the aggregate amount obtained by the traverser at different times through a period immediately preceding and inclusive of the date mentioned therein; for which reason it is contended by the appellant that the indictment is defective because of duplicity, he going so far as to claim that there should have been a count for each of the items obtained at the different times, which would have necessitated, as disclosed by the evidence, the insertion of 554 counts in the indictments. The disclosures made by the bill of particulars or the evidence offered, or by both, that the amount named in the indictment was obtained at times prior to and inclusive of that date, would not, for the reasons already stated, render the indictment, in which the time was specifically alleged, demurrable.

And, while we do not decide, as there is no necessity for so doing, it would hardly seem essential to the validity of the indictment that there should be a separate count covering each of the items in a series of continuing offenses, had those facts appeared upon the face of the indictment. After the disposition of the exceptions to the bill of particulars, and the motion to quash and the demurrer to the indictment, one Pranklin Cole, sales manager for W. W. ⁴⁸⁴ Lanahan & Co., investment brokers, was called to the stand as a witness by the State, and testified that he, on or about the 4th day of September, 1930, had a transaction with Mr. Delcher, the defendant, in which the latter placed an order with him for two hundred shares of the General Theatre Equipment. The defendant at this point moved to strike out the answer of the witness, unless the State agreed to follow it up and prove the corpus delicti. This objection, as stated, was made in conjunction with the motion to quash and the exceptions to the bill of particulars.

In response thereto', the court ruled that it would admit the evidence subject to the condition that the State offered evidence establishing the corpus delicti. “Thereupon the motion to strike out the answer of the witness was overruled and an exception noted by the defendant.” This evidence was offered in support of the charge against the traverser in indictment Ho. 174, which, we have said, contained four counts, in two of which (the first and the third) the defendant was charged with the larceny of money, the property of the Chesapeake Bank, and in the other two (the second and fourth) with obtaining money from the bank under false pretense. In the bill of particulars to the second count of the indictment, it was alleged that the traverser, a vice-president of the bank, “did issue a check for $7,230.90, dated September 4, 1930, drawn on the said Chesapeake Bank, payable to the order of W. W. Lanahan & Co., and signed Milton B. Delcher, he, the said Milton B. Delcher, not having at said time a checking account with the said bank, and not having on deposit sufficient money for the payment of said check; that said check, on or about the 6th day of September, 1930, was honored and paid by the said Chesapeake Bank; * * * the said cheek for the said sum of $4,230.90, having been issued in payment of the purchase price of certain stock bought personally and individually by the said Milton B. Delcher, then and there well knowing that at the time of the issuance of said check, and the payment of said check, he did not have a checking account with the ⁴⁸⁵ said Chesapeake Bank, and that he did not have sufficient funds on deposit at the time said check was paid, to meet the payment thereof.” It is alleged in the bill of particulars to the fourth count that the defendant “did induce and cause Guy W. Meeks, who was then an employee of said bank, to issue a cashier’s check in the amount of $5,831.46, drawn by the said bank on the said bank, and signed G. W. Meeks for Cashier, payable to the order of W. W. Lanahan & Co., and dated