Garland v. State

Thomas, J., delivered the opinion of the Court. The appellant was indicted in the Criminal Court of Baltimore City for unlawfully conspiring with one W. Wallace Elliott and a certain other person to the grand jurors unknown to unlawfully obstruct the due administration of justice in said Court. ⁸⁵ The defendant demurred to the indictment and to each count thereof; the demurrer was overruled and the trial resulted in a verdict of guilty. During the trial nine exceptions were reserved by the defendant; the first seven to the refusal of the Court to allow certain questions to be asked and answered in the cross-examination of a witness for the State; the eighth to the refusal of the Court to strike out the answer of the witness, and the ninth to the overruling of a motion by the defendant, at the conclusion of the State’s testimony, to strike out all of the evidence produced by the State, “or any part thereof, which may be inadmissible.” After the verdict the defendant filed motions for a neAV trial and in arrest of judgment. These motions were overruled by the Supreme Bench of Baltimore City, and the defendant was sentenced to pay a fine of $200 and costs, from which judgment he has appealed. 1.

The indictment contains sixteen counts. The demurrer to the first, second, seventh and eighth counts was not pressed in this Court, but it is insisted that the other counts are defective because they fail to give to the defendant any definite or certain information of the ci’ime with which he is charged; and because they “are vague and uncertain, and in each of them the obj ect of the conspiracy is set out as a conclusion of law.” The first and seventh counts charge as the object of the conspiracy “unlawfully and corruptly to endeavor to influence the jurors of the Grand Jury aforesaid of the September term of the said Court for the said year nineteen hundred and eight, in the discharge of their duty as such jurors as aforesaid, so as to cause said charge against the said Marcyz Plasynski to be dismissed by said Grand Jury for the September term of said Court.” The second and eighth counts state that the conspiracy was “unlawfully and corruptly to endeavor to impede the jurors of the grand jury aforesaid—in the discharge of- their duty ⁸⁶ as such jurors as aforesaid, so as to cause said charge ag’ainst the said Mareyz Plasynsld to he dismissed,” etc. In the other counts the object of the conspiracy is charged as follows: 3rd, 9th and 13th. “Unlawfuly and corruptly to obstruct the due administration of justice in said Oourt in said cause therein and then pendng as aforesaid.” 4th, 10th and 14th. “Unlawfully-and corruptly to impede the due administration of justice in said Oourt in said cause therein then pending as aforesaid.” 5th, 11th and 15th. “Unlawfully and. corruptly to endeavor to obstruct the due administration of justice in said Oourt in said cause therein then pending as aforesaid.” 6th, 12th and 16th. “Unlawfully and corruptly to endeavor to impede the due administration of justice in said Court in said cause therein then pending as aforesaid.” The nature of the crime with which the appellant is charged, as 'well as the requisites of good pleading in such cases, have been so recently and fully considered and stated by this Court, as to require and admit of but little further discussion. It is well established by the decisions in this State, and by the great weight of authority elsewhere, that the gist of the common law offense of conspiracy is the unlawful combination and agreement. The agreement may be to commit a crime or to accomplish an unlawful purpose or to do a lawful act by a criminal or unlawful means, but in neither case is an overt act necessary to the completion of the offense.

Where the object of the combination is to commit a crime or to do an unlawful act, the means by which it is to be accomplished are immaterial, the offense being the unlawful agreement to accomplish the criminal or unlawful purpose. In an indictment charging the common law offense, the means by which an unlawful or criminal object is to be accomplished need.not be stated, and in stating the object it is only necessary for the indictment to show that the purpose of the conspiracy is criminal or unlawful. When the agreement ⁸⁷ is to commit an. offense known to the common law or created by statute,, it.is not necessary, in stating the object of the conspiracy, to set out the offense with the accuracy or detail required in an indictment for that offense. The reason for the rule is that the crime of conspiracy does not consist in the accomplishment of the unlawful object, or in doing-the acts by means of which the desired end is to be attained, but the essence of the offense is, as we have stated, the unlawful combination and agreement for any purpose that is unlawful or criminal.

This rule does not, of course, apply to conspiracies to d'o a lawful act by unlawful means. In such cases it must appear by the indictment that the means to be employed are unlawful. In State v. Buchanan et al., 5 G. & J. 317 , Judge Buchanan states that at common law a conspiracy to do anything that the law forbids is indictable, and that “ the case of the King v. Marbry and others, 6 T. R. 619, was a conspiracy to pervert the course of justice, which is of itself an indictable offense.” The same learned judge, after a most careful review of the decisions in England “running through a space of more than four hundred years,” says that it is clearly settled “that in a prosecution for a conspiracy, it is sufficient to state in the indictment, the conspiracy and the object of it; and that the means by which it was intended to he accomplished need not he set out, being only matters of evidence to .prove the charge, and not the crime itself, and may be perfectly indifferent.” In the case of Blum v. State, 94 Md. 375 , the appellants were indicted in the Criminal Court of Baltimore City “for conspiracy ‘by means of divers false pretenses 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 $2,500.00, and to cheat and defraud such persons and corporations.” Judge Peabce, after stating that a “large part of the able brief of the ap ⁸⁸ pellants, and of the oral argument of their distinguished senior counsel (the late Wm. Pinkney Whyte), 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,” said “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 the indictment as established by the decision in State v. Buchanan,—where all the authorities are elaborately reviewed.

No decisions in this State are more highly regarded than those rendered by Chief Justice Buchakak, and we think his opinion in that case is sustained by the weight of authority. In 6 Am. and Eng. Ency. of Law, 2nd edition, note page 587, it is said that the law there laid down has been doubted in a few isolated instances, but that it has not been successfully assailed. It was denied in State v. Richey, 9 N. J. L. 293, but this view was disapproved by Chief Justice Greek 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, sustained 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.” In the very recent case of Lanasa v. State, 109 Md. 602 , the object of the conspiracy charged in the third count was “to willfully and maliciously injure and destroy the property of Joseph Di Georgio,” and counsel for the appellant in that ⁸⁹ case insisted, as is contended by the distinguished counsel for the appellant in this case, that the object of the conspiracy was not sufficiently described, but this Court, in the opinion delivered by Judge Bubke, said: “Upon the settled law of this State and' upon the authority of well reasoned cases in other jurisdictions, we cannot agree that the count assailed is in any respect defective, or that the judgment should be arrested. A conspiracy may be described in general terms, as a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose; or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means. It is not essential that the act intended to be done should be punishable by indictment. The essence of the offense consists in the unlaivful agreement and combination of the parties, and therefore is completed whenever such combination is formed, although no act is done towards carrying the main design into effect. * - * We cannot for a moment doubt that a combination and agreement between two or more persons willfully and maliciously to injure and destroy the property of the third person is a completed criminal conspiracy, and is the subject of an indictment.

ETor is it necessary to the completion of the crime that the conspirators should determine in advance what particular property should be injured or destroyed. To hold that the law cannot interpose and arrest by criminal procedure the malicious purposes of the conspirators, unless they had agreed upon the destruction of some particular property would strip it of its most beneficent preventive powers and leave the confederates at liberty to consummate their wicked purposes. The law is not so impotent and ineffective. As it is not essential to the completion of the offense that any particular property should be detroyed, it is, therefore, not required that the object of the unexecuted' conspiracy should be set out with great particularity or certainty in the indictment, only such facts need be stated as shall fairly and reasonably inform the accused of the offense with which he is charged.

To require more in such a case would be to put an ⁹⁰ unnecessary burden upon the State, and make it impossible in many cases to secure the conviction of the guilty.” In the case of Commonwealth v. Eastman and Others 1 Cushing, 224 , the Court held that: “If the alleged conspiracy be an unlawful agreement of two or more persons to do a criminal act which is a well-known and recognized offense at common law, so that by reference to it as such, and describing it by the term by which it is familiarly known, the nature of the offense is clearly indicated, in such a case a charge of conspiracy to commit the offense, describing it in genera] terms, will be proper.” In 8 Cyc. 664, it is said: “In charging the intended offense, the indictment need only be certain to a common intent. The crime intended to be accomplished by the conspiracy need not be described in the indictment with the accuracy or detail which would be essential to an indictment for the commission of the offense itself, but need only be designated as it is known to the common law or defined by statute. Allegations of acts which if committed would have constituted the crime are not required; but where the intended offense has no designation at common law, or having a designation the indictment does not so refer to it, but attempts to state its ingredients, they must be stated as fully as if the indictment were for the commission of the offense itself. If the purpose of the conspiracy be the doing of an act which is not an offense at common law, but only by statute, such purpose must be set forth in such a manner as to show that it is within the terms of the statute.” It cannot be doubted that it is an indictable offense at common law to obstruct the due administration of justice, and sec. 28, Art. 27 of the Code, provides for the punishment of any person who shall corruptly “obstruct or impede, or endeavor to obstruct or impede, the due administration of justice,” in any Court of the State.

The indictment here is not for obstructing the due administration of justice, but for a conspiracy having for its object an unlawful and criminal purpose. If an indictment charging a conspiracy to obtain ⁹¹ certain properties of certain persons “by means of divers false pretenses and representations, and other false and subtle means and devices,” and an indictment charging a conspiracy to “willfully and maliciously injure and destroy the property” of a certain person, without naming the pioperty,- or the means by which it was to be destroyed, sufficiently informed the accused of the crime with which they were charged, an indictment • charging a conspiracy to unlawfully and corruptly obstruct tbe due administration of justice in a certain case in a certain Court, is not less certain and definite. In view of the decisions to which we have referred, and the great number of authorities cited in support of them, we cannot hold that the indictment in this case fails to sufficiently state the object of the conspiracy, or to inform the accused of the crime with which he is charged. It is true there are many means by which the due administration of justice may be unlawfully and corruptly obstructed, resort to which would be an indictable offense,- coming within the general designation,- but the unlawful agreement may not have gone to the extent of determining which of these means was to be employed in the accomplishment- of its object, and such determination was not essential to the completion of the conspiracy. 2.

In support of the motion in arrest of judgment, it is urged that the counts in the indictment charge apparently the same offense, and that the indictment is, therefore, bad for duplicity. It is conceded that an indictment may contain several counts charging the same offense, but it is claimed that they should, nevertheless, apparently charge different offenses. Without referring to the authorities cited in support of this contention, it is only necessary to say that the several counts in the indictment in this case are not exactly alike, and we think that there is sufficient variation to obviate so technical an objection. 3. Marcyz Plaszynski kept a saloon on his premises, No. 1625 Eastern avenue, Baltimore City.

On Sunday, the 33th ⁹² of December, 1908, his place was raided, and on the samé day he was arrested and charged before the appellant, one of the Police Justices of Baltimore City, with selling intoxicating liquor on Sunday, and was committed for the action of the Grand Jury. This charge was pending before and was dismissed by the Grand Jury on the 15th of December, 1908. W. Wallace Elliott, the co-conspirator, was called by the State and testified that he was employed as solicitor by the George Brehm Brewing Company, and that his duties were to attend to all outside business of the company and to solicit new business; that he knew Mareyz Plaszynsld, and 'that he was a customer of the brewery company. When asked to tell all he knew in regard to meeting Justice Garland, the appellant, on Tuesday, the 15th of December, 1908; “the circumstances surrounding it, and' how it came about and what happened,” he testified as follows: “I will start on the morning when I arrived at the brewery.

I arrived at the brewery on that Tuesday morning—Tuesday, December 15th—at my usual hour, which is eight o’clock in the morning. The rest of the force get there a little earlier than I do. I had left the brewery office for some purpose—■ 1 don’t know what—for a few minutes, and when I came back in the office I was informed that Hr. Plaszynsld hád been there and stated that his case would come up befoi'e the Grand Jury that day and wanted us to do what we could for him.

We talked the matter over in the office, and I made the remark, I did not see what we could do for him; and Mr. Broadbelt, he replied, ‘Well, why don’t you see Bill Garland; perhaps he can do something?’ I said, ‘I don’t see what he can do; he is the committing magistrate.’ ‘Well,’ he says, ‘he has friends,’ and you don’t know what he can do.’ I then said, ‘Come to Mr Brehm’s private office;’ and I told him that it had been suggested that I see Mr. Garland; and he says, ‘Well, see him.’ I then proposed to call him up over the telephone, to make an appointment to ineet him uptown. I called him up over the telephone, told him who I was, and asked him if he could meet me uptown ⁹³ at the Equitable Gafe at about ten o’clock. He told me to make it a quarter of ten. He said to me he had a good deal of business to attend to; to make it a quarter of ten o’clock.

I went uptown and arrived there on time, and so did Ur. Garland. He met me in the cafe in the Equitable Building. I asked him to step outside into the corridor, which he did.

I then said to him, ‘Judge, I