Hurwitz v. State

Markell, C. J., delivered the opinion of the Court. This is an appeal from judgment on conviction of conspiracy to violate the lottery laws and of violations of the lottery laws. Most of appellant’s contentions are directed to the charge of conspiracy in the first count of the indictment. That count charges that appellant, Morris Garonzik (or Garon) and Agnes Slipka “unlawfully conspired together and with certain other persons * * * unknown, unlawfully to violate the lottery laws of the State.” Other counts charge specific violations of lottery laws by appellant, Garonzik and Slipka.

Appellant was found guilty by the jury under the first and seven other counts, and was sentenced to seven years in the penitentiary and a fine of $2,000. On motion of appellant, this sentence was stricken out, and he was resentenced to five years in the penitentiary and a fine of $2,000. Though jointly indicted, appellant was tried alone. Garonzik and Slipka testified against him and under Article 27, section 438, of the Code of 1951, are exempt from punishment.

After conviction of appellant the case against Garonzik and Slipka was entered “Stet”. Garonzik testified that Slipka had played numbers, that he gave appellant her name and address because shé wanted to write numbers, that later when he would ask appellant how she was doing, appellant said all right. Before the instant indictment was filed, Slipka’s house was raided and she Was convicted of violation of lottery law and sentenced to not more than four months in the Reformatory for Women and a fine of $500.00. In the instant case she testified that at her trial she did not implicate appellant because she thought he would “take care of” her and she would “serve the time if ⁵⁸² he would pay the fine”;; that the fine was not paid, and after serving six weeks she was “brought into town” and her sentence and the fine were suspended; that at her own trial, she had falsely testified that she was a player, not a writer of numbers, which she actually was.

Though appellant did not pay her fine, he testified that he procured — and paid for — bail for her; her bail so testified. A police lieutenant testified that after arrest appellant told him he had told Slipka “to borrow the money [for her fine] from a loan company, and he would make the monthly payments”; Slipka so testified. One of the alleged errors of which appellant complains is refusal to direct a verdict of not guilty on the ground that the only evidence against appellant was uncorroborated testimony of accomplices — and members of Slipka’s family who admitted having testified falsely at her trial. Without elaborating the testimony beyond the above outline, it is clear that Slipka’s circumstantially full testimony is amply corroborated by appellant’s statement to the police lieutenant and by her bail’s testimony.

By motion to dismiss (the equivalent of a demurrer)' appellant attacked the sufficiency of the conspiracy count in the indictment (a.) as failing to state an offense, (6) as alleging not' facts but a conclusion of law, and (c) as charging only necessary concert of action and plurality of agents to effect the object of the “conspirary”, whereas such concert and plurality do not constitute an indictable conspiracy. It must be admitted that ordinarily the words “unlawfully violate the lottery laws of the State” do not so definitely describe acts done as to charge an offense; they even seem too indefinite to charge acts contemplated as the object of a conspiracy. In United States v. Cruikshank, 92 U. S. 542, 559 , 23 L. Ed. 588 , the court, by Chief Justice Waite said, “In Maine, it is an offense for two or more to conspire with intent unlawfully and wickedly to commit any crime punishable by imprisonment in the State prison (State v. Roberts); ⁵⁸³ but we think it will hardly be claimed that an indictment would be good under this statute, which charges the object of the conspiracy to have been ‘unlawfully and wickedly to commit each, every, all and singular the crimes punishable by imprisonment in the State prison’. All crimes are not so punishable.

Whether a particular crime be such a one or not, is a question of law. The accused has, therefore, the right to have a specification of the charge against him in this respect, in order that he may decide whether he should present his defense by motion to quash, demurrer, or plea; and the court, that it may determine whether the facts will sustain the indictment.” However, in Maryland, in case of criminal conspiracy the form of indictment reflects the nature of the crime of conspiracy, as defined and explained 130 years ago in the opinion of this court, by Judge Buchanan, in State v. Buchanan, 5 H. & J. 317 . For present purposes the outstanding characteristics of the common law crime of conspiracy are (1) that (unlike the federal general conspiracy statute) the crime is complete in the conspiracy without any overt act, and (2) that (like a conspiracy to defraud the United States) a criminal conspiracy may consist of a conspiracy to do things which are not themselves criminal if done by one person. After a review of the English authorities over a period of 400 years, illustrating these two characteristics, the opinion in State v. Buchanan reached the conclusion that, “And such is the character of conspiracy, so ramified is it in its nature, the object and tendency of it being that, from which it derives its criminality, that it would be exceedingly difficult to give a single specific definition of the offense.

But by a course of decisions running through a space of more than four hundred years, from the reign of Edward III, to the 59 of George III, without a single conflicting adjudication, these points are clearly settled: — ” [stating nine points, including] “7th. For a bare conspiracy to cheat or defraud a third person, though the means of effecting it should not be determined ⁵⁸⁴ on at. the time — as in The. King v. Gill & Henry. * * * And 9th. 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 be accomplished need not be set out, being only matters of evidence to prove the charge, and not the crime itself, and may be perfectly indifferent — as in The King v. Eceles, and The King v. Gill & Henry..

From all which it results, that every conspiracy to do an unlawful act, or to do a lawful act for an illegal, fraudulent malicious or corrupt purpose, or for a purpose which has a tendency to prejudice the public in general, is at common law an indictable offense, though nothing be done in execution of it, and no matter by what means the conspiracy was intended to be effected; which may be perfectly indifferent, and makes no ingredient of the crime, and therefore need not be stated in the indictment.” 5 H. & J. 351 -352. In the course of its review of the authorities this court said, “And in The King v. Eccles, 1 Leach’s Crown Cases, 274, the indictment was for a conspiracy, by wrongful and indirect means, to impoverish one Booth, a tailor, and to deprive and hinder him from following and exercising his trade. In the first count in the indictment, the object of the conspirators was alleged to have been accomplished, and in the second count the conspiracy only was charged. It was not denied that the conspiracy was an indictable offense, and the only objection on the part of the defendant was, that the acts done to impoverish Booth, ought to have been set out in the indictment.

But it was decided by the whole Court, that it was sufficient to allege the conspiracy and the object of it, the illegal combination being the gist of the offence; and that it was not necessary to state the means, by which the intended mischief was effected; for that the offence did not consist in doing the. acts by which the end was accomplished, (for they might be perfectly indifferent,) but in the conspiring with a view to effect the intended mischief by any means; and by Buller, ⁵⁸⁵ Justice, that ‘the means were only matters of evidence to prove the charge, and not the crime itself.’ * * * And so in The King v. Gill & Henry, 2 Barnwell & Alderson, 204, the defendants were indicted and convicted of a conspiracy by divers false pretences, and subtle means and devices, to cheat several individuals by name. The prosecution in that case could not have been sustained, on the ground, as has been supposed, that it was for a conspiracy to commit an offense, indictable itself under the Statute 30 George II, against cheating by false pretences; for it is well settled, that in an indictment framed upon that statute, it is not enough to allege generally, that the cheat was effected by divers false pretences, &c. but the particular false pretences must be stated, that the party may know against what he is to defend himself, and that the Court may see that there is an indictable offense charged, as there are some pretences which are not within the statute. 2 T. R. 586; East’s Crown Law, 837.” 5 H. & J. 346, 349 . Though in some respects these principles and rules seem to permit loosely drawn indictments, in other respects they express only the logic and common sense (and sometimes the sheer necessity) of the case. An indictment for robbery or larceny must ordinarily state the property stolen and the name (if kown) of the owner.

If, however, pickpockets conspire to ply their trade in a public place it is manifestly impossible to state what property they conspire to steal or whom they conspire to rob. In Blum v. State, 94 Md. 375, 378-379 , 51 A. 26, 27 , 56 L. R. A. 322, the indictment charged 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, monies, goods and chattels”, of certain named corporations and persons and others unknown, and to cheat and defraud such persons and corporations. There was no demurrer to the indictment, but this court went out of its way to declare the indictment sufficient and to assert its ⁵⁸⁶ adherence to State v. Buchanan. “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 this indictment as established by the decision in State v. Buchanan, 5 H. & J. 317 , where all the authorities were elaborately reviewed. No decisions in this State are more highly regarded than those rendered by Chief Justice Buchanan, and we think his opinion in that case is sustained by the weight of authority.

In 6 Amer. and Eng. Ency. of Law, 2nd edition, note, p. 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. Rickey, 9 N. J. L. 293, but this view was disapproved by Chief Justice Green in State v. Norton, 23 N. J. L. [33] 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, sustain the law declared in State v. Buchanan, and the same view is held by the Courts if Connecticut, Illinois, New York, Pennsylvania and North Carolina. The case of U. S.. v. Cruikshank, 92 U. S. 542 , 23 L. Ed. 588 , 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 Lanasa v. State, 109 Md. 602, 608-609 , 71 A. 1058, 1060 , this court sustained an indictment charging conspiracy “to wilfully and maliciously injure and destroy the property of Joseph DiGiorgio.” After quoting State v. Buchanan the