Greenwald v. State

Hammond, J., delivered the opinion of the Court. In this case the jury found the appellant Greenwald, a physician of Elkton, guilty of conspiring with Ott, a taxi driver, to violate the marriage laws of Maryland by issuing a false certificate of pregnancy to a female minor so as to permit her to marry without parental consent. Error is claimed in the admission of testimony as to the acts and declarations of the taxi driver in relation to four occurrences, similar, but prior in time, to that alleged in the indictment as evidencing the conspiracy. The indictment charged that on February 6, 1958, the taxi driver and the physician conspired and agreed, each with the other, to violate the marriage laws by knowingly and unlawfully causing to be issued and issuing a certificate of pregnancy to Jacqueline Oster, a female minor who was not pregnant, so as to aid her and her future husband, Donald McFarland, to obtain a marriage license in Cecil County.

The ²⁴⁸ appellant was convicted at another trial of the substantive offense of perjury, for the signing and giving out of the false certificate of pregnancy on February 6, 1958, and his conviction was affirmed in Greenwald v. State, 221 Md. 235 . The record does not disclose it but we are told in the briefs and at argument that on July 14, 1958, the date of the indictment in the case before us, the Grand Jury of Cecil County found eighty-five indictments against Greenwald, forty-two charging perjury and forty-three charging conspiracy on the days of the commission of the overt acts alleged in the perjury indictments. The testimony below was that on February 6, 1958, Donald McFarland and Edward Rutledge came from Baltimore to Elkton to apply for marriage licenses. Ótt, the taxi driver, told them that if the clerk of the court asked whether they had their parents’ consent they should answer that their girls were pregnant. This they did and were advised by the clerk that in that case the law required a doctor’s certificate of pregnancy.

They returned to the taxi, and Ott said: “This will cost you $15.” They paid him. Ott went into Dr. Greenwald’s office before the boys. When they entered, the doctor said: “I understand your girls are pregnant,” asked the names of the girls and how far advanced were the pregnancies and, when he was told, filled out and signed certificates to the effect that he had examined the girls and found them to be three and one-half months pregnant. Jacqueline Oster was not, in fact, pregnant.

The doctor did not ask for, and was not paid, any fee. Ott solicited and was paid an additional five dollars after the boys left the office. On February 10, four days later, McFarland and Miss Oster were issued a license and were married. It was shown that in 1957 on May 8, July 20, August 31, and November 19, similar certificates were issued by Dr. Greenwald to applicants brought to him by Ott.

All of the eight individuals testified as to what occurred and what Ott told them to do, including his ascertainment that the couple were unable to get a license without a certificate, his request for a fee and its payment to him, and the ultimate issuance of the doctor’s certificate and the marriage license. In three ²⁴⁹ of the instances he advised telling the doctor the girl was several months pregnant, took the couple, or one of them, to the doctor and went in the office alone ahead of his clients. In the fourth instance neither of the applicants even saw the doctor; Ott got the certificate and brought it to them. Appellant says both the prior acts and the declarations of Ott improperly were admitted in evidence to his prejudice.

His grounds of objection as to the acts differ from those as to the declarations. He acknowledges that to aid in proof of the crime charged the State generally may prove prior acts, even though they constitute a crime, that tend to show motive, intent, a common scheme or design, absence of mistake or accident, or identity, if such a showing has relevance in establishing a principal fact at issue or matter in dispute. Ward v. State, 219 Md. 559 ; King v. State, 190 Md. 361 . He concedes that this general rule is applicable in cases of conspiracy.

Bloomer v. State, 48 Md. 521 ; State v. Barnes (Conn.), 44 A. 2d 708, 709 . His argument on the point is that the details of the prior acts differ from those of the occurrence of February 6 to a degree that keeps them from having common features sufficient to make them properly probative of a common plan or design, citing 2 Wigmore, Evidence, Sec. 304, (3rd Ed.) (He reférs to the fact that in two of the earlier instances both boy and girl were seen by the doctor, whereas only the boy was on February 6; in another, neither boy nor girl saw the doctor; in one case the doctor, after asking the girl to stand, felt her abdomen and asked her menstrual history.) The appellant’s contention as to the declarations of Ott during the four earlier occurrences is that they were hearsay and inadmissible against Greenwald because the two defendants were charged in the indictment as having conspired only on February 6, 1958, and (as the law undoubtedly is) the declarations of one conspirator generally are admissible against another only on the theory of agency, which can exist only during the period of the conspiracy, and not before it begins or after it ends. We think the contentions of appellant are not sound. The prior acts all were shown to have great similarity, if not ²⁵⁰ identity, with those of February 6 on all significant points: the solicitation by Ott, the advice as to claiming pregnancy, the receiving of the fee, Ott’s instructions and arrangements, the failure of the doctor to examine the girl at all, or his examining her so cursorily as to amount to no examination at all, the issuance of the pregnancy certificates, and the absence of collection of a fee by the doctor himself.

This course of conduct established not only a similarity of result but also (in' the words of Wigmore in the section relied on by the appellant): “Such a concurrence of common features” that the various acts “are naturally to be explained as caused by a general plan of which they are the individual manifestations.” The prior acts properly were allowed in evidence on the theory of general plan. Not only were the prior acts admissible as showing a common scheme and design but also as acts occurring during a continuing conspiracy. In conspiracy there may be a design and plan common to a series of separate conspiracies, as in United States v. Johnson, 165 F. 2d 42 ; State v. Barnes and Bloomer v. State, both supra; State v. Glidden (Conn.), 8 A. 890 ; King v. State (Miss.), 86 So. 339 ; or a common scheme and design which is but one continuing conspiracy evidenced by a series of overt acts done in furtherance of it. In Maryland, as generally, the gist of a conspiracy is the entering into of the illegal scheme or design, and once this occurs, the crime is complete without the doing of an overt act (the means of accomplishing the conspiracy need not be alleged in the indictment, Hurwitz v. State, 200 Md. 578 ).

In proving the conspiracy it is not necessary to demonstrate that the defendants came together and actually agreed in terms to a design and to pursue it by common means. If it be proved that the defendants sought the same objective and that one performed one function and the other another in the attainment of that objective, the inference that they were engaged in a conspiracy will be justified. If the conspiracy contemplated as its purpose the commission of one offense, the continuance of the result of the commission of that offense would not necessarily continue the conspiracy, but if the conspiracy contemplated the continuous cooperation ²⁵¹ of the conspirators in the perpetration of a series of offenses against the sovereign within its scope and purpose, it was in effect “a partnership in criminal purposes,” and continued until the time of its abandonment or the final accomplishment of its purposes. Remus v. United States (6th Cir.), 291 F. 501, 504-505 .

The record shows that Ott and Greenwald, beginning at least as early as May 8, 1957, conspired to violate the marriage laws of Maryland by bringing about the delivery of marriage licenses issued on the strength of false certificates of pregnancy of female minors. The common plan here is not to be distinguished from that found to constitute a single continuing conspiracy in United States v. Kissel, 218 U. S. 601 , 54 L. Ed. 1168 (to eliminate free competition in the sugar industry); United States v. Manton (2nd Cir.), 107 F. 2d 834 (to obstruct justice and defraud the United States by obtaining gratuities from parties to law suits in order to insure them a favorable finding by the judge); Blumenthal v. United States, 332 U. S. 539, 557-558 , 92 L. Ed. 154 , 168-169 (salesmen who made illegal sales above a ceiling price of a particular brand of whisky obtained from the same wholesaler had a single purpose to raise illegally the price of that whisky); United States v. Rosenberg, (2nd Cir.), 195 F. 2d 583 , cert. den., 344 U. S. 838 , 97 L. Ed. 652 , reh. denied, 344 U. S. 889 , 97 L. Ed. 687 (Sobell, a co-conspirator of the Rosenbergs, contended unsuccessfully that two espionage conspiracies, one involving ordinary military secrets and the other involving atomic secrets, with the latter of which they claim Sobell had no connection, were separate and distinct conspiracies). In Archer v. State, 145 Md. 128 , 145 et seq., two conspiracies (to obtain money by false pretenses made to customers and others who might be induced by the false pretenses to become customers, with the intention to cheat and defraud the customers and others) were alleged, one beginning August 11, 1917, and continuing to December 19, 1921, and the other beginning January 1, 1921, and continuing to December 19, 1921. The court held the statute of limitations to be one year from the date of the presentment but said ²⁵² also (1) that the contention that the crime charged was complete on the day the traversers were alleged to have first conspired was not valid; (2) that the conspiracy was a continuing one, so that the bar of the statute of limitations was avoided if a conspiracy was shown by an overt act within the period of limitations, and (3) that the proof as to this aspect could be aided by proof that the conspiracy began before the period of limitations.

The court quoted the language of Mr. Justice Holmes in United States v. Kissel, cited above: “ ‘But when the plot contemplates bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators to keep it up, and there is such continuous cooperation, it is a perversion of natural thought and of natural language to call such continuous cooperation a cinematographic series of distinct conspiracies, rather than to call it a single one/ ” and found the Maryland cases to support the rule of the quoted language. The fact that the indictment before us laid the conspiracy on February 6 is not controlling if the proof showed that the conspiracy was a continuing one that began before February 6. In criminal cases generally the state is not limited to the date set out in the indictment but may show that the crime charged occurred at any date within the period of limitations. Novak v. State, 214 Md. 472, 477 ; Wilson v. State, 200 Md. 187, 193 .

The rule generally applicable is applicable in trials for conspiracy. See People v. Raymond (Ill.), 130 N. E. 329 . There the indictment charged that the conspiracy was entered into on May 18, 1918, and proof that it began before May 18 was offered. The court held it could be shown that the conspiracy had been formed at any time within eighteen months before the indictment was returned.

Goldberg v. United States (5th