Freud v. State

Briscoe, J., delivered the opinion of the Court. . The appellants in this case were indicted jointly with Harry Friedman and Moritz Cinsberg in the Criminal Court of Baltimore City for the crime of conspiracy. The indictment contains six counts. The first count charges that they unlawfully did conspire, combine, confederate and agree together by divers false pretenses, false and subtle means and devices, and by feloniously, wilfully and maliciously burning a store house, then situate in the city of Baltimore, and in the lawful tenancy, possession and occupation then and there of Moritz Cinsberg, the storehouse not being then and there parcel of any ⁶³⁸ dwelling house, with intent thereby to injure.and defraud the'Michigan Fire and Maxine Insurance Company, a corporation,. and by unlawfully and maliciously burning certain goods, chattels and properties of Moritz Ginsberg, situate then and there in the storehouse, and then and there insured against fire in favor of Moritz Ginsberg by the Michigan Fire and Marine Insurance Company, a corporation, to obtain and acquire unto themselves certain moneys and properties of the Michigan Fire and Marine Insurance Company, a corporation, then and there being, and to cheat and defraud the Michigan Fire and Marine Insurance Company, a corporation, thereof; against the peace, government and dignity of the State.

The second count is identical in terms with the first, except it- alleges that certain other persons to the jurors unknown participated in the conspiracy. The third is the same as the first, except it alleges the moneys and properties which the traversers intended to obtain and acquire from the Michigan Fire and Marine Insurance Company was of the value of $2,000, the amount of the insurance policy in favor of the traverser, Moritz Ginsberg. The fourth is practically the same as the third, with the addition that other persons to the jurors unknown were parties to the conspiracy. The fifth is like the first, with the addition that it alleges that the object of the conspiracy was “to obtain and acquire unto themselves certain moneys and properties of the Michigan Fire and Marine Insurance Company, to wit, $758.67.

The sixth charges the same conspiracy as the fifth, but adds that “other persons to the jurors unknown were parties thereto.” On the 28th of January, 1916, two of the traversers, Harry Miller and Harry Friedman, demurred to the indictment, and the demurrer was overruled by the Court. The demurrer was to the whole indictment, and no reasons are assigned in the record as a ground for the demurrer. There ⁶³⁹ are six counts in the indictment, and each of the counts, we think, sufficiently charges in varied form the conspiracy, the means by which the unlawful object was to be accomplished, and that the purpose of the conspiracy was criminal and unlawful. The crime was sufficiently alleged and the object of the conspiracy was described with sufficient clearness and particularity to conform to the rule established in such cases.

There was no error in overruling the demurrer. Blum v. State, 94 Md. 377 ; Lanasa v. State, 109 Md. 606 ; Garland v. State, 112 Md. 86 ; State v. Buchanan, 5 H. & J. 317 ; 8 Cyc. 664. There were a number of preliminary motions on the part of the traversers prior to the trial which were overruled by the Court, and the action of the Court on these motions, it is contended, constitutes reversible error. They appear from the docket entries to be as follows: Feb. 10.—Demand for further bill of particulars.

Demand overruled. Feb. 10.—Motion to require State to elect upon which count of the indictment Harry Miller and Ha.rry Friedman shall be put upon trial. Motion overruled. Feb. 10.—Motion on behalf of Miller and Friedman to quash counts Has. 1, 2, 3 and 5 of the indictment.

Motion overruled. Feb. 10.—Motion on behalf of Gottlieb Freud for severance from Harry Miller' and Harry Friedman, and motion overruled. It is well settled that the action of the Court in refusing to require the State to elect between certain counts of the indictment and in overruling the demand for a further bill of particulars are not open for review by this Court. In Lanasa v. State, 109 Md. 612 , this Court said: Those motions were addressed to the sound discretion of the Court, and its action upon them is not the subject of an appeal in the absence of some gross abuse of discretion resulting in injury to the accused. ⁶⁴⁰ In the present case, the traversers had been furnished with a bill of particulars as to the place and time of the offense by letter, and this was filed in the ease, and this letter had been accepted and assented to by their counsel as a proper bill of particulars, Jules v. State, 85 Md. 305 ; Warfield v. State, 116 Md. 604 ; Cunard v. Francklyn, 111 N. Y. 513 ; Witkowski v. Paramore, 93 N. Y. 470 .

In State v. Bell, 27 Md. 676 , it is distinctly held that motions to elect are addressed to the discretion of the inferior Court and are not reviewable by this Court. Bailey v. State, 4 Ohio, 440; State v. Leonard, 22 Mo. 449 . For the reasons stated in sustaining the ruling upon the demurrer 'there was no error in overruling the motion to quash certain counts of the indictment. The conspiracy alleged in the several counts of the indictment was the same offense and related to the same transaction charged in varying forms and method to meet the proof.

The indictment was in proper form and sufficiently charged the offense, and the traversers could not have been prejudiced by this ruling. State v. McNally, 55 Md. 559 ; Wharton Crim. Law, secs. 416, 422, 423; Commonwealth v. Winnemore, 2 Brewster (Pa.), 378. The questions presented by the rulings upon the objection to the traversers being arraigned, as set out in the second exception, and to the overruling of the motion for a continuance of the case, as embraced in the third exception, were matters within the sound discretion of the trial Court, and are not subjects of review by this Court.

It appears that the motion for a severance as to Moritz Ginsberg was granted, and upon his arraignment he entered a plea of guilty. The other three pleaded not guilty and elected to be tried by a jury. On the 17th of February, 1916, the traverser Friedman was acquitted and the traversers Miller and Freud were convicted. On June 6th a motion for a new trial by Miller and Freud was overruled by the Supreme Bench of Baltimore.

On June 8th Miller was sen- ⁶⁴¹ fenced to the Baltimore City Jail for two years and six months, and Freud was sentenced thereto for the period of two years. From the judgment so entered upon the verdicts they have each appealed. At the trial of the case the traversers reserved sixty-five bills of exception, a larger part of them being to the rulings of the Court upon the admissibility of testimony, and many of these present the identical question raised by subsequent motions to strike out the testimony which had been admitted over the objection of the traversers and to which ruling they had previously excepted. It would tend to no useful purpose, even if it was considered desirable, to discuss separately these exceptions, because many of them are of a kindred nature, and have been frequently passed upon by this Court in similar eases.

We are satisfied, after a careful examination of each of them, that the Court below committed no reversible error in its rulings on the questions presented, or that these rulings were prejudicial to the rights of the traversers under the facts disclosed by the record in the case. The questions raised by the fourth, fifth, sixth and seventh exceptions relate to the admission in evidence of certain acts and declarations of one of the conspirators made during the progress and in furtherance of the object of the conspiracy. The witness Moritz Ginsberg, who had pleaded guilty and who was called as a witness for the State, in course of bis examination had testified that Miller, one of the traversers, had approached him about five weeks before the fire, and stated that he could bum his store and collect the insurance, and also told him of other places that he had burned. He was then asked: “Can you in more detail tell the jury what he told you at that time ?” Since the case of Bloomer v. State, 48 Md. 530 , and Lawrence v. State, 103 Md. 20 , it cannot be doubted that the acts and declarations of each co-conspirator are admissible in ⁶⁴² evidence, within the limitations of the rules adopted and applied in those cases.

In the case at bar the Court frequently, in the course of the trial and at the conclusion of the testimony, instructed the jury that certain testimony was admitted as against certain defendants who were named hy the Court. Such testimony must be considered by you only as to those traversers against whom it was admitted, and not against the other or others. There was no error in admitting the evidence in the eighth, eleventh and twelfth exceptions relating to the inventory of the stock in store of the traverser Ginsberg. It had been prepared by the witness and the traverser Freud, and was proper evidence in the case.

The ninth and tenth exceptions are unimportant and the ruling of the Court thereon could not have injured the traversers. The admission in evidence of the lease between Ginsberg and Dugan & Eephew of the property burned and in Ginsberg’s possession at the time of the fire; also certain suits of clothing which had been recovered from the home of the traverser Friedman and from certain pawn shops in the City of Baltimore; the policy of insurance; the check of the insurance company, and the proof of loss, which had been filed with the insurance company, was clearly admissible, and the