Luery v. State

Boyd, C. J., delivered the opinion of the Court. Solomon Luery, Leah Luery and two other parties were indicted separately for receiving stolen goods, Imowing them to have been stolen. The cases were tried before the Court without a jury — having been by agreement heard together. The property alleged to have been stolen was solder which belonged to the United Railways and Electric Company of Baltimore, and Samuel J. Barrett, an employee of that company plead guilty to the larceny of it.

The Court rendered verdicts of guilty against the two Luerys, and found the other two not guilty. The two appeals taken by the Luerys were heard together, and will be disposed of in one opinion. Leah Luery is the wife of Solomon Luery. They are junk dealers and have a place in the rear of a saloon on the corner of Gay and Lexington streets, and also another place on ILarrison street.

Solomon Luery testified that the main business was on Lexington street and the other place was used for storage. The license was in the wife’s name. There are four bills of exception in the record. The first three present rulings on the admissibility of evidence, and the fourth was taken to the ruling of the Court on a motion ²⁸⁶ to discharge each of the defendants, which will be hereinafter set out.

After two detectives, two policemen and an employee of the railroad company were examined, Samuel J. Barrett was called by the State. The indictments charged the defendants with having received stolen goods on the 10th day of August, 1910. Barrett was arrested in the afternoon of that day, and had a cake of solder in his pocket. After his arrest detectives Davis and Bradley and Barrett went to the comer of Gay and Lexington streets.

Detective Bradley testified that he first went into the defendant’s place alone, showed Mrs. Luery the piece of solder he had taken from Barrett, and asked her if she had bought anything like that in the last two or three months. She said she had not, and then said that officer Cooper had shown her the “lookout sheet” dated the 20th of July, 1910. They are issued by the department to the policemen and detectives, and this one read: “Stolen from Trouble Station, U. Ry. & E. Co., since 1st inst., about 75 lbs. wiping solder in ingots 5% in. long, 2% in. wide and 1% in. thick, stamped 'Extra. Quality Wiping Solder.’ Look over junk stores, plumbers, tinners, etc.” Detective Bradley then went to the door and called detective Davis and Barnett.

The three went into the store, and Bradley gave this account of what then occurred: “When Mrs. Luery saw Barrett she reached down behind the counter and produced this ingot and said, Yes, I bought that. I said, from whom did you buy it ? She said, that man there, meaning Barrett. I said, What did you do with the rest you bought ?

She said, I sold it. I said,' Do you know who to? She said, I don’t know now; I don’t remember.” He then went to Harrison street where he saw Solomon Luery and showed him the piece of solder he had found on Barrett. He said he had not bought anything of that kind.

The piece which Mrs. Luery got from under the counter was marked “Superior Extra Fine Wiping Solder,” and on the piece found on Barrett was marked “Extra Wiping Solder.” ²⁸⁷ The testimony of the witness Fox was that the company used both kinds — the one has more tin in it and is brighter1 than the other. Captain Gilbert, who was connected with the United Railways, said complaint was made to him on February 19th, 1910, that wiping solder was being stolen from the East Baltimore Trouble Station. He went to the junk dealers along certain streets, and the first place he visited was Luery’s on Lexington street. He saw Mrs. Luery and asked if she bought any of that kind of material and she said no.

He told her if any of it came in to notify the police, that they had been losing some of it. Barrett testified that he had been employed at the East Baltimore Street Trouble Station, and said the first tin or solder he took from the company was about seven or eight months before he was arrested; that it was the kind of material Mr. Bradley found on him, and that the company handles solder like the samples shown him. He said he sold the solder taken by him on Lexington street, to Solomon Luery; that he received forty cents a cake for it, and a cake contained five pounds; that it was worth about sixteen cents a pound. He also said that Solomon Luery advised him to continue it.' He was asked whether, after the first time, he sold any more solder to Solomon Luery or wife, and replied that he had, and was asked about how long it was after the first time, and replied, “On various occasions — well, averaging maybe about a week, — five or six days between, and maybe two weeks between.” In answer to how much he took there at that time he said, “Mostly one cake, forty cents worth.” He said he carried the cake in his hip pocket and sometimes he would get forty-five cents from the Luerys, but very seldom, and never did get more than forty-five cents for a five pound cake from them.

He said sometimes Mrs. Luery was there and paid him. He was then asked, “How many times, if you can estimate, between February, 1910, and the 20th of July, 1910, did you take solder1 and sell it down there, either to Luery or his wife Leah,” and answered, “I should judge about half a dozen times.” ²⁸⁸ The first exception was. taken to that question and answer. He then said he would sell it to whichever was there. If both were there, hfe would sell it to either — one would take it and the other pay him. ■ He was then asked, “Hid either Solomon Luery or his wife, or both, say anything to you in reference to coming back,” and replied, “Yes, sir; they told me to come back and if they saw me on the street they wanted to know why I didn’t bring more solder.” Permitting that question to be asked and answered formed the ground for the second exception.

There can be no doubt that it is permissible in a case of this character to prove more than one act as reflecting upon the guilty knowledge of the accused. It might very well happen that one would innocently purchase a cake of solder or other article without having any reason to suspect it had been stolen, but a number of such sales at about one-half of the value of the article, especially if made by an employee of a company which used it, ought to suggest to any one that there was something wrong. In this State there have been many decisions authorizing admission of evidence of other crimes when guilty knowledge or a similar question is involved. In Bloomer v. State, 48 Md. 521 , where a conspiracy .was charged with reference to passes on the C. B. & Q. R. R., some of the same character of passes on the B. & M. B. B. were admitted.

In Bishop v. State, 55 Md. 138 , in which the defendants were indicted for uttering as well as forging a bond, it was held to be competent for the State to show that on or about the time of the charge in the indictment the accused held and uttered similarly forged instruments. In Bell v. State, 57 Md. 108 , evidence of uttering a check on the day after uttering the one charged in the indictment was held admissible, although the traverser had been acquitted of that. In Lamb v. State, 66 Md. 285 , evidence was admitted that the traverser made a subsequent attempt to accomplish an abortion by different means, to show with what purpose and intent he made the attempt charged in the ²⁸⁹ indictment, as well as to corroborate the evidence of the first attempt. The case of Rex v. Ellis, 6.

B. & C. 145, was referred to, in which a shojmian was indicted for robbing his employer’s money drawer of a particular sum of money on a named day, evidence was admitted that the prisoner had robbed the drawer at other times. Bayusy, J., delivering the opinion, said: “Generally speaking, it is not competent to a prosecutor to prove a man guilty of one felony, by proving him guilty of another unconnected felony; bnt where several felonies are connected together, and form part of one entire transaction, then the one is evidence to show the character of the other.” In Carnell v. State, 85 Md. 1 , traveller was indicted for obtaining goods under false pretenses on January 30th, 1896. A letter found in his possession addressed to the president of a hank dated February 22. 3896, asked him to certify to the fact that he had $100.00 on interest in the hank, that he wanted to give a check dated July 2nd, 1896. Below was written: “Hagerstown, Md., 2-27, ’96.

To whom it may concern: The above is all right. Idle money is here, payable July 2, 1896,” and purported to he signed by the president. The Court said: “The representation made in the latter being, according to its purport, subsequent, in date to a similar statement set forth in the hill of particulars, may not prove that the latter was in fact made, yet the letter was admissible for the purpose of showing guilty knowledge. The fact that he had on his person a paper in his own handwriting which contained the same false statement he was charged with in the indictment tends to prove guilty knowledge as to both.” And the Court also said that the letter was admissible for the purpose of-showing that the defendant had devised a scheme to obtain goods wherever he could by falsely representing that he had money on deposit in that hank.

In the ease of Beuchert v. State, 165 Ind. 523 , as annotated in 6 Am. & Eng. An. Cases, 914, many cases are cited to show that in a prosecution for receiving stolen goods, evi ²⁹⁰ dence of the defendant’s possession of other stolen goods prior to or at the time of the commission of the offence is admissible as testimony to establish that the defendant received with guilty knowledge the goods specified in the indictment. Many other cases might be referred to, but we do not understand the general proposition to be questioned.

It is contended, however, that inasmuch as the State failed to prove that the goods alleged to have been received were received at the time named in the indictment, to wit, August 10th, 1910, it was required to select some definite time on which the State relied for conviction, and that evidence of other receipts of stolen goods, in so far as admissible at all, could only be admitted for the purpose of reflecting upon the guilty knowledge of the defendants at such particular time. Of course, the mere fact that the State proved the receipt at a different date from that named in the indictment could make no difference, but, as the record shows, there was a failure to prove the charge on the date named in the indictment, for the solder stolen that day was still in the possession of Barrett when he was arrested, and hence had not been received by either defendant. If application had been made to the Court, it might have