O'Donnell v. State

Marbury, C. J., delivered the opinion of the Court. The appellants were charged in two indictments brought by the Grand Jury of Baltimore City with obtaining money by false pretenses and with conspiracy to obtain such money. They were tried jointly before a jury in the Criminal Court of Baltimore City and both were found guilty. On a motion for new trial heard by the Supreme Bench of Baltimore, O’Donnell was granted a new trial on the false pretenses charge, but not on the conspiracy charge.

Sanner was denied a new trial on both charges. Subsequently, both were sentenced, and from the judgment of sentence appealed here. They were represented by separate counsel in the trial below, but filed a joint brief here. ⁶⁹⁶ The basis of the charges was that Sanner had a racing stable in which was a race horse “Rounco.” “Rounco” had been quite unsuccessful in his races. O’Donnell also had a stable which included a horse called “Flying Kilts.” This horse was a much better horse than “Rounco.” It is charged the appellants ran “Flying Kilts” under an entry of “Rounco” in two races at the Pimlico race track, one on November 12, 1945, in which the horse that ran came in third, and won a purse of $150, and one on November 27, 1945, in which the horse came in first and won $1,100.

The errors assigned are the admission in evidence of certain compilations from racing records, the permitting a witness to refer to his notes, the permitting of testimony as to the contents of a telegram when the telegram was not produced, and the failure to grant the defendants a new trial. On examination we .find no error in any of these actions of the lower court. The first question arose during the testimony of John M. Heil, assistant secretary of the Maryland Jockey Club, which operates the race track at Pimlico. He produced a large book known as the “Scale Sheet,” which contained the official entry of each horse, the owner’s name, the trainer’s name, and data of the actual running and completion of the race.

From this book he testified to the entries and results of the race of November 12, 1945, and to similar data as to the race of November 27, 1945. This evidence was introduced without objection. Subsequently, he testified that the official records of the Maryland Jockey Club, showing races and results at Pimlico every day, were published as a Daily Racing Form by the Triangle Publications, that these publications are condensed in a monthly chart book, and that every race run on the North American continent is thus published in this book, put out monthly. From this book he had made reviews of the official racing records of the two horses in question, “Rounco” and “Flying Kilts.” These reviews showed the first race and every race each horse had been in since he was a two- ⁶⁹⁷ year-old, how he performed in every race, the money paid in case the horse won, the betting and the jockey.

Counsel for O’Donnell then asked for permission to further examine the witness on preparation of his reviews. The Court said that he would let the reviews in subject to exception, and on cross-examination if anything developed which would make the reviews inadmissible, he would strike them out. The witness then testified from his reviews on all the races run by each of the horses in question, not only at Pimlico, but at other race tracks. It is provided by Code, Article 35, Sec. 68, that any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of said act, transaction, occurrence or event, if made in the regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.

The statute also provides that the term “business” shall include business, profession, occupation and calling of every kind. This statute is clearly broad enough to include the “scale sheet” kept by the Maryland Jockey Club. It has been held by this Court that where the books from which certain items are desired to be offered in evidence are large records, a compilation properly made from these records is admissible. Laporte Corp. v. Pennsylvania-Dixie Cement Corp., 164 Md. 642 , pages 648-650, 165 A. 195 , 168 A. 844 , 108 A. L. R. 1474.

The compilations in the present case were not made entirely from the records of the Maryland Jockey Club, but were made also from the printed monthly chart book, generally called the Daily Racing Form Chart