Lanasa v. State

⁶⁰⁵ Burke, J., delivered the opinion of the Court. 1. Antonio Lanasa, together with certain named persons, was indicted in the Criminal Court of Baltimore for the crime of conspiracy. That Court, upon his motion, granted a severance as to him, and after a lengthy trial he was convicted upon the third count of the indictment, and was sentenced to be confined in the Baltimore City Jail for the term of ten years. Erom that judgment he has brought this appeal.

The indictment contains ten counts. The appellant filed a general demurrer to the indictment and also demurred to each count. The second, fourth and ninth counts were quashed by the Court upon motion of the State’s Attorney. The demurrer to the indictment and to each count thereof was overruled.

The traverser then moved the Court to require the State to elect as to the third, seventh and eighth counts, which motion the Court overruled. He was found guilty upon the third count, but was acquitted upon the six remaining counts. Motions for a new trial and in arrest of judgment were filed. He abandoned the motion for a new trial, and the motion in arrest of judgment was overruled by the Supreme Bench of Baltimore City.

JThe object of the conspiracy charged in the counts of the indictment upon which he was tried was as follows: 1. Feloniously, wilfully and of their malice aforethought to hill and murder Joseph Di Giorgio. 3. To wilfully and maliciously injure and destroy the property of Joseph Di Giorgio. 5. Feloniously, wilfully and of their malice aforethought to kill and murder certain members of the family and household of the said Joseph Di Giorgio. 6.

Unlawfully to wound, hurt and injure certain members of the family and household of the said Joseph Di Giorgio. 7. Unlawfully to wilfully and maliciously injure and destroy the property and dwelling house of the said Joseph Di Giorgio. 8. Unlawfully to wilfully and maliciously injure and de ⁶⁰⁶ stroy the property and" dwelling house then ánd there being of the said Joseph Di Giorgio. 10. Unlawfully to extort and obthin unto themselves from the said Joseph Di Giorgio certain money, and property of the said' Joseph Di Giorgio.

The fifth and sixth counts set 'out the names of the persons who' were intended to be injured, and the eighth and tenth counts set out certain overt acts done in' pursuance of the conspiracy. It is important to note that'Joseph Tamburo and Salvatore Lupo are named as co-cónspirators with Lanasa in each count of the indictment, and that upon the evidence of these two men the State relied to connect the appellant with the crime of which he was convicted. These two facts become of great importance when we come to consider the exceptions taken to the rulings of the Court upon the evidence. Phillipi Rei, who is frequently referred to in the record, was an Italian, who, it is alleged; was induced by Lanasa to become one of the co-conspirators.

Rei was killed in Pittsburg by a fellow-countryman named Cinceria a day or two before the explosion at Di Giorgio’s home. On March 30th, .1908, Llip'o pleaded guilty to the eighth count,' and after the conviction of Lanasa was-sentenced to jail for fifteen months-, and two days after Lanhsa’s conviction the State ■ entered a plea of not guilty as to Tamburo. - - - ■ ■ > It was contended -with' great earnestness and ability by the distinguished counsel for the appellant 'that the demurrer1 to the--third count "should have been sustained—lirst, because it charges -no crime secondly, because it does not sufficiently describe the object of the conspiracy. ' In support- o'f the'ino'tion in- arrest of judgment, in addition to the reasons assigned for grounds'of the-demurrer,'it was tinged,' first, that 'there "is an absolute'and-neces'sary repugnancy between the-verdicts rendered by'the-jury, in that--it is sho'wn by the reco'rd that by the verdict of not guilty upon the seventh count of- the .indictment-the traverser-was acquitted of the'identical crime for which he was convicted upon the third count; secondly, ⁶⁰⁷ because the judgment deprives the appellant of his liberty without due process of law in violation of the Fourteenth Amendment of the Constitution of the United States, and constitutes a cruel and unusual punishment in violation of the Constitution of the United States and of the Maryland Declaration of Eights. In the elaborate briefs filed by the counsel for the appellant and the State these questions have been fully discussed, and many cases both in this country and in England upon the law of conspiracy have been called to our attention. It is apparent that upon this subject, as upon most others, there is much real or apparent conflict to be found in the adjudged cases.

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 unlawful agreement and combination of the parties; and, therefore, it is completed whenever such combination is formed, although no act be done towards carrying the main design into effect. 3 Greenleaf on Evidence, 2nd Ed., Secs. 89-91.

It may be said that this statement of the law by Mr. Greenleaf announces the almost tmiversally accepted doctrine upon the subject of criminal conspiracy. This is made perfectly apparent by the numerous citations from text boohs and reports contained in the briefs filed in this case. It is the rule which has obtained in this State since the great case of the Slate v. Buchanan, 5 H. & J. 317 , in which will be found a collection of many cases in which an unexecuted conspiracy to commit acts not in themselves indictable offenses was held to be a criminal conspiracy. 'In the course of his opinion in that case, JuDon Buchakast said': “In 1 Hawk. P. C. 190, ⁶⁰⁸ ch. 72, it is said: ‘There can he no donht, that all combinations whatsoever, wrongfully to prejudice a third person, are highly criminal at common law.’ This is literally adopted and transcribed into 1 Burns Justice, 378, and 3 Wilson's Works, 118.

Chitty, in his 3rd Vol. on Criminal Law, 1139, says: ‘In a word, all confederacies wrongfully to prejudice another are misdemeanors at common law, whether the intention is to injure his property, his person, or his character.’ And in 4 BlacJcstone Com. 137 (Christian’s Note 4) : ‘Every confederacy to injure individuals, or to do acts which are unlawful or prejudicial to the community, is a conspiracy.’ ” We cannot for a moment doubt that a combination and agreement between two or more persons wilfully and maliciously to injure and destroy the property of a third person is a completed criminal conspiracy, and is the subject of an indictment. Nor 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 destroyed, it is ,therefore, not inquired that the object of the unexecuted conspiracy should be set out with great particularity and certainty in the indictment, because 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 unnecessary burden upon the State, and make it impossible in many cases to secure the conviction of the guilty. The position taken by the State, that in a prosecution for such an offense as that charged in the third count, the indictment need not particularly describe the property, the injury or destruction of which was the object of the conspiracy, is well supported. ⁶⁰⁹ by the authorities. 2 Bishop, New Criminal Procedure, secs. 204, 7, 8; 2 Wharton's Criminal Law, ch. 21; U. S. v. McKinley, 126 Federal Reporter, 242; Dealey v. The United States, 152 U. S. 539 ; United States v. Stevens, 44 Fed. Rep. 132, 141; State v. Straw, 42 N. H. 393; Reinhold v. State, 130 Ind. 467 ; People v. Clarke, 10 Mich. 314 ; 8 Cyc. 664, 666. We are of opinion that the third count charged the defendant with a common law conspiracy and sufficiently informed him of the crime charged.

The objection against it is purely technical, as it is not pretended that he was in the slightest degree injured or prejudiced by the general and indefinite description of the property, the destruction of which is charged to have been the object of the conspiracy. On the contrary, the record shows that he was well informed as to the accusation against him. ETor can we discover any necessary repugnance between the verdict of guilty on the third count, and the verdicts of acquittal on the seventh and eighth counts. In those counts the object of the conspiracy was alleged to be “to injure and destroy the property and dwelling house of Joseph Di Giorgio.” The jury might have very reasonably concluded that while the evidence, in their judgment, did not fully support the allegations of these counts, it did satisfy them that it was the purpose of the accused to injure and destroy some of Mr. Di Giorgio’s property.

We must conclude that they were so convinced by the verdict of guilty upon the third count and the acquittal upon the others. The sufficiency of the evidence was a question for the jury, and this Court upon a motion in arrest of judgment has no power to review their finding. We said in Hiss v. Weik, 78 Md. 446 , that, “as an appellate Court we cannot review the findings of the jury upon matters of fact, nor can we pass upon the comparative weight of the conflicting evidence submitted to them. If no error of law had been committed by the inferior Court in any of its rulings, the verdict of the jury, whether right or wrong, just or unjust, and even though it be directly against and in the very ⁶¹⁰ teeth .and face of the preponderance of evidence,- cannot be interfered with here; and there is no power lodged élsewhere to-set the verdict aside, except with the judge before whom the case was tried.” Much that was said in argument in support of the motion, in arrest of judgment cannot be considered by this Court; but could have been appropriately addressed to the trial Court upon an application for a new trial.

It is insisted by the appellant that the indictment, trial, verdict,-judgment and sentence violate the Sixth, Eighth and Fourteenth Amendments of the Federal Constitution, and the Sixteenth and Twenty-first Articles of the Maryland Declaration of Eights.. The Sixth Amendment provides that in all criminal prosecutions the accused shall-enjoy the right to be informed of the nature and cause of the accusation; and the Fourteenth declares that no State shall deprive any person of life, liberty or property without due process of. law. Practically -the same declarations are found in the Twenty-first and Twenty-third Articles of the Declaration of Eights of this State. The object of these provisions was to declare and secure the pre-existing rights of the people as those rights had been established by usage and the settled course of law.

We take it to be settled that when a person accused of crime within a State is subjected, like all other persons, to the law in its regular course of administration in the Courts of justice, he cannot be heard to say that the proceedings and judgment were without due process of law, because law, in its regular and orderly administration through the Courts, is due process of law within the meaning of the constitutional provision, and when the rights of the citizen are thus secured by the law of the State the requirements of the Federal Constitution ax-e gratified. Having hereinbefox’e held that by the law- of this-State the thix-d coxxnt of the indictment is sufficient, it necessarily follows that the appellant has been deprived of no xdght secured to hixn either by the Twenty-first Article- of the Maryland Declax’ation of Eights, or the Sixth or Fourteenth Axnendnxent of the Federah Constitution. It is urged that the judgment should be reveivsed because it ⁶¹¹ constitutes a cruel and unusual punishment in violation of the provisions of the Maryland Declaration of Rights and of the Constitution of the United States. In support of this contention the appellant relies upon the Eighth Amendment of the Eederal Constitution, which forbids the infliction of cruel and unusual punishment; and upon Article sixteen of the Maryland Declaration of Rights, which declares that no law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time hereafter.

To dispose of this question we must understand the real crime of which the accused was charged. Di Giorgio was a prominent business man living in Baltimore City and engaged in the importation of fruit to the Baltimore market. He lived with his wife and family at Walbrook. In order to extort money from him threatening letters demanding money were sent him by an organization or society of men known as “The Black Hand.” He declined to comply with these demands, and on the night of December 10, 1907, a dynamite bomb was placed in the rear room of his dwelling house and exploded, terrorizing the occupants of the house and causing much damage.

Whatever may have been the motive which prompted this act, whether it was an attempt to murder Di Giorgio and his family in revenge for his refusal to pay over money in response to demands made upon him, or had for its ultimate purpose the coercion of Di Giorgio by personal violence into a compliance with these demands, there can be no two opinions as to the heinousness of the crime. It was an act characterized by the most malicious and diabolical wickedness, and should be punished with the greatest severity. We do not think that a sentence of ten years for such a crime would be open to any constitutional or other objections. In the case of Mitchell v. The State, 82 Md. 527 , where the accused had been sentenced to jail for a term of fifteen years upon a conviction for an assault with intent to commit a rape, this Court passed upon the very question now before us, and held that the sentence was not a cruel and unusual punishment within the constitutional prohibition.

It is said in that case that “our ⁶¹² law inflicts pain not in a spirit of vengeance, but to promote the essential purposes of public justice. Severity is not cruelty. The punishment ought- to bear a due proportion to the offense. Crimes of-great atrocity ought to be visited -with such penalties ,as would check, if not prevent, their -commission.

It. is impossible in the abstract to mark the boundaries which separate cruelty from just severity. If the circumstances which accompany the crime are of unusual aggravation, the punishment ought to be unusually severe. But the Courts must adoqrt the methods of punishment prescribed by law. Eo one ought to imagine tha'ü in a free country a Court would have the .power to devise new and singular .modes of punishment.

Its duty is dicere non facere legem. Even where the law confides to the judge the imposition of the sentence -without definite limit, it still may be possible to violate the declaration of rights. If the punishment is grossly and inordinately disproportionate to the offense, so that the sentence is evidently dictated not by a sense of public duty, but by passion, prejudice, ill-will or any other unworthy motive, the judgment ought to be reversed and the cause remanded for a more just sentence.”- While the sentence in this case is severe, it is not open to the objection of being in the sense of the law cruel or unusual. We cannot review the action of the' lower Court in refusing to require the State to elect between certain counts and in overruling the appellant’s demand for a bill of particulars.

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 abnse of discretion in the lower Court resulting in inj ury to the accused, and we find nothing-of that kind in this case. Warren v. Twiller, 10 Md. 39 ; Gibson v. The State, 54 Md. 453 . In Gibsons Case it is said: “Eo- question has been raised in this Court to the refusal of the Court below to compel the State to elect on which count the prisoner should be tried. The practice is well settled in this State that such a motion is addressed to the discretion ⁶¹³ of the Court, and is not a subject of appeal or writ of error.

State v. Bell, 27 Md. 677 .” It is unnecessary to multiply-authorities on this question, as they are practically unanimous in support of the doctrine stated by this Court. 2. This brings us to- the consideration of the thirty-six bills of exception reserved by the accused to the rulings of. the trial Court upon questions of evidence. We have given these careful consideration, but we do not think it necessary to discuss them all separately. We find no reversible error in the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, twenty-third, twenty-fourth, twenty-sixth, twenty-seventh, twenty-eighth and twenty-ninth exceptions.

There was, however, serious error committed by the Co-urt in the sixteenth, twenty-fifth, thirtieth, thirty-first, thirty-second, thirty-third, thirty-fourth, thirty-fifth and