Henze v. State

Pattison, J., delivered the opinion of the Court. The appellant, Howard Henze, was convicted in the Criminal Court of Baltimore City of the crime of receiving stolen money, the property of the Mercantile Bant. The indictment under which he was tried is in these words: “The jurors of the State of Maryland, for the body of the City of Baltimore, do on their oath present that H. Howard Henze, late of the City of Baltimore aforesaid, on the fifteenth day of December in the year of our Lord nineteen hundred and twenty-four at the City of Baltimore aforesaid, one hundred thousand dollars current money of the value of one hundred thousand dollars current money, of the goods and chattels, moneys and properties of the Mercantile Bank, a corporation, then lately before feloniously stolen, taken, ³³⁵ and carried away, unlawfully did then and there have and receive, then and there ’ well knowing the said goods and chattels, moneys and properties to have been feloniously stolen, taken and carried away, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.” The defendant demurred to the indictment on the ground that it fails to name either the alleged thief, or the person from, whom the money alleged to have been stolen was received. This form of indictment has been used for many years in this state, and not until now has it ever been assailed, so far as we are informed.

It is contended by the appellant that the necessity for naming, in the indictment, the person from whom the stolen money was received, arises from an amendment to section 423, of article 27, of the Code of 1912, made by the Act of 1918, ch. 424, which provides that the receiver mentioned in said section may be prosecuted and punished, “although such receiver shall have received such money, goods or chattels or things from a person other than the person by whom such money, goods or chattels or things shall have been stolen.” It was said in State v. Hodges, 55 Md. 138 , that “in this state the Code merely prescribes the punishment for receiving stolen goods and does not, in any manner, change the nature or character of the offense itself.” It is true that this was said before the passage of the amendment referred to, bnt the amendment does not, we think, change the nature and character of the offense. There is, in our opinion, no new offense created by the amendment as claimed by the appellant. The offense still remains a common law offense, and it was only necessary to set ont in the indictment the circumstances necessary to constitute the offense at common law. To state such offense it was not necessary to allege in the indictment the name of the thief or the person from whom the property was received. ³³⁶ In the trial of the case, twenty-four exceptions were taken to the rulings of the court upon the evidence.

The defendant in his brief stated that he would discuss the exceptions in what he deemed the order of their importance, and we will follow the same order in passing upon them. The ninth exception will be first considered. This exception was taken to the court’s refusal to allow the defendant to put in evidence certain facts offered by him while Earrell was upon the stand on cross examination. Earrell was the person charged and convicted of having stolen the money which the appellant Henze is here charged with having received, knowing it to have been stolen.

Farrell testified that he was at the time serving a twelve year sentence in the Maryland Penitentiary for the larceny of the money of the Mercantile Bank of Baltimore City, that when he stole the money he was employed by that bank, where he hacl started about the year 1916 as a runner, but during the period in which the money was stolen, commencing in 1921, and ending in 1924, he was a clerk in the savings department of the bank. He first met Henze in the fall of 1921, when he was but seventeen years of age, was introduced to him by Kerr, the receiving teller of the bank. Henze at that time was a book-maker in the City of Baltimore. Shortly after the meeting, Henze gave Farrell his telephone number, also an identification number, which were thereafter used by Earrell in his betting with Henze.

The first bet made by Earrell was in 1921. Hntil that time he had never bet. upon the races, except a few times when at the races. His first bets with Henze were two dollars, probably twice a week, some for himself and some for Kerr. He then increased his bets to five, ten, twenty, and one hundred dollars.

For about a year he kept a record of his winnings and losses. , When he began to bet, the bets were made with his own j money, but after he got up to twenty dollars, the money belonged to the bank, and at the end of the first year he had lost $11,000 of the bank’s money, which he had paid to ³³⁷ Henze from the savings department of the hank. Seven or eight months after starting to bet, he bet $500, which he lost. This bet was for Kerr, but it was not paid by Kerr, and he, Earrell, paid it out of the money of the bank. The money at times was. paid to Henze in the bank, and a,t other times in the cigar store of John Naff, on the northeast corner of Carrollton Avenue and Baltimore Street.

The money was left at the store with Henze, if he was there; if not, with Naff or Naff’s father, in accordance with Henze’s direction. When the money was paid to Henze in the bank, it was paid to him in the booth used by those having safe deposit boxes in the bank. After the first year of his betting, and after he had learned that he had taken $11,000 of the bank’s money, hisi bets, increased to more than $500, some as high as $2,500, and on one race he lost $5,000, and was unable to get this amount together when Henze called at eleven o’clock the next day, the hour at which he usually collected his money, and he told Henze to come back in the afternoon, at which time he paid him $5,000 of the bank’s money. After that, in the early part of 1924, Henze required him. td make a deposit of $2,000 with Naff at the latter’s store.

At the time Earrell was taking this money from the bank, he was receiving a salary of only $110.50 a month, which fact was known to Henze, to whom he gave over $100,000 of the bank’s money within a period of about three years. In his testimony Earrell stated very fully the methods used by him in taking the money of the bank, without being detected either by the officials of the bank or by the auditor upon his semi-annual visits to the bank, but we do not deem it necessary to prolong this opinion by stating the methods employed by him, as it will serve no useful purpose. This closed the examination in chief, and the defendant proceeded with his cross-examination, when the witness was asked if the place of Elynn, a book maker of Baltimore City, was not raided in 1923, to which the State by its counsel objected. Whereupon the court and counsel, at the suggestion of the court, withdrew to its chambers, and there the court called upon the counsel for defendant to make an ³³⁸ offer of proof, which he did.

The offer, in substance, was as follows: It is the purpose of the defense in further eross-eramination of the witness Earrell, and by other witnesses, to show that all of the bank officials, including the president, vice-president, cashier and board of directors, as well as the employees, knew that Farrell was betting on the races, not only with Henze, but with other book makers, and at various race tracks; that he had bet at Flynn’s sums of money at various times, on races, in excess of $50, sometimes as much as $100;' that Farrell had been arrested at Flynn’s place in July, 1923, and that the fact of his arrest was known to the officials and employees of the bank; that Healy, the president of the bank, had questioned witness about the raid and that Farrell admitted to him that he had been betting on the races at Flynn’s and other places; that Healy, a number of times thereafter, called Farrell to account for his betting on horse races; that Healy was told by Burns, the detective, that Farrell was betting on races, and, although the officials of the bank had such information, no investigation of his accounts was ever made; that racing sheets and racing forms and printed information concerning horse racing were at all times found in and around the bank, and this was known to the officials and employees of the bank; that Farrell placed bets for employees of the bank, including Dee, Johnson and Kerr, and that this fact was known to the officials of the bank, and further that the facts above stated were not only known to the officials of the bank, but Henze knew that such facts were known to them, and in addition thereto, that Farrell, in making his bets on horse races, would use the telephone which led through the telephone exchange or switchboard of the bank, and that these telephone conversations were audible to the clerks in the bank; that Farrell received long-distance telephone calls at Naff’s store and from out of town, that Naff was ordered by him to pay his telephone and telegraph bill; that he subscribed for and had information concerning horse racing from out of town individuals sent to Naff’s store; that Farrell visited various ³³⁹ tracks in and ont of the state “at some of which he was accompanied by, or saw, not only officials, but employees of the bank,” and that Henze knew of these facts; that Ear-roll “told people, including the employees of the bank, that he was betting on the races with money furnished him by a combination of friends and relatives, which information was not only in the possession of the defendant Henze, but many others”; that Farrell placed in an envelope, during the year 1923, $2,000, and left it in the custody of Naff, to be opened only in the presence of Half, Henze and Farrell; “that on one occasion the witness (Farrell) not being able to meet his obligation to Henze at eleven o’clock in the morning, which obligation represented the loss of a bet made by him, the witness (Farrell), with Henze, on the preceding day, opened the envelope in the presence of Faff and Henze, and stated that the reason why he had been “unable to meet the obligation was that the people for whom he had been betting did not come to town.” At this point in the offer of proof, the court interrupted the counsel for defendant, and stated that it was prepared to rule on the matter upon the objection by counsel for the State, which objection was made by the State, and the court stated that the “offer of proof comprehended some matters which the court thinks are clearly admissible, namely: First, That portion having to do with the placing of the $2,000 on deposit with Half; and the explanation given by the witness to the defendant Henze, as to the reason given for the using of a part of same. Second. Everything that the witness may testify to as to what he told Henze as to the source of the money which he was betting, and particularly his statementto Henze that some of said money came from employees and officials of the bank. Third.

All evidence as to winnings made by the witness, Farrell.” It then said: “The court is of the opinion, as to the remainder of the offer of proof, that the admission of such testimony can only have one effect, and that it is immaterial and irrelevant. Its only effect would be to confuse the minds of the jury and to make a fictitious issue in this case, namely, whether or not the officers of the ³⁴⁰ bank were themselves guilty of misconduct in the management of the bank’s affairs. If the defendant will go a step further and offer to prove that the officials of the bank knew, or had reason to know, that Farrell, a clerk, employed at a salary of $110.50 a month, was placing bets with Henze, in amounts running sometimes as high as $5,000 a day, and that this knowledge did not cause such officials to make any inquiry as to the source of Farrell’s money for the placing of said bets, then the court would be of the opinion that such evidence might tend to prove that Henze, the defendant, as a reasonable man, was not placed upon similar inquiry. In the absence of such additional offer, the court will sustain the objection to the line of proof thus far offered, with the exception of the items thereof specified at the beginning of these remarks.” Then it was suggested by counsel for the defense to include within the offer that the “officials of the bank had reason, from facts which were within their knowledge, as set worth in the above offer of proof, to know that the said witness, Farrell, was betting large sums of money on the races for a long period of time, and that the fact that the bank officials had such information was known to the defendant Henze.” This was objected to by the State and the objection sustained by the court, upon the ground that the offer was too general.

It was then suggested by counsel for the defendant that there be added to the offer the fact that the president and cashier of the bank “were aware of the witness’ (Farrell’s) betting on horse .racing in varying amounts, as disclosed to them by Captain Burns, and from other sources, and felt it necessary to admonish the witness Farrell, on at least twelve occasions, against betting on the races, during the period of five years, all of said things being known to Henze.” To this the court said, “Well, of course, that has already been ruled upon and refused,” to which ruling the counsel for the defense noted an exception, and the court replied “Yes, exception noted to all adverse rulings.” The facts that the money was stolen, and that Henze received a part of it, are not disputed. The only disputed ³⁴¹ question was whether Henze received the money knowing it to have been stolen. In deciding that question, it was not necessary for the jury to find that such guilty knowledge was direct or actual. It was sufficient if circumstantial and inductive, and the receiver believed or reasonably suspected, from the circumstances of the transaction, that the money was stolen. 34 Cyc., page 516.

The defendant contends that the evidence offered should have been admitted in order that the jury could have seen and understand the neutralizing effect of such evidence upon other facts within the knowledge of the defendant, which other facts, considered alone, might have been regarded by the jury as sufficient to cause him to believe that the money bet with him by Earrell was the money of the bank. It was contended by the defendant that if the officials of the bank knew of the facts contained in the offer, and the defendant knew that such officials were in possession of those facts, he could rightly assume that the officials had assured themselves, by investigation, that Earrell was not paying his losses from the money of the hank. The court, in rejecting the evidence, took the position that the evidence offered, to be admissible, should have been coextensive with the knowledge of the defendant, that is, to be admissible, it should have shown, not only that the bank officials know that Earrell was betting on the races, but that they knew the extent to which he was betting, as well as all other facts known to the defendant in relation to said betting. It might have been, had the officials of the