Rasin v. State

Sloan, J., delivered the opinion of the Court. This is an appeal from a judgment of the Criminal Court of Baltimore City. The appellant, Carroll Wilson Rasin, had been indicted by the grand jury of Baltimore City for having unlawfully had and received the goods, chattels, moneys and property of William Wallace Lanahan and others, to wit, the sum of six hundred seventy-five dollars, the said Carroll Wilson Rasin knowing the same to have been feloniously stolen, taken, and carried away. The appellant elected to be tried by a jury, whose verdict was guilty as charged in the indictment, and from the judgment thereon this appeal is taken.

It appears that on August 21st, 1926, a shortage was discovered in the accounts of W. W. Lanahan & Co., a copartnership, amounting to $113,705.57. This shortage had been an accumulation of abstractions of funds by Norman II. Eishach and J. Stephen Kelley covering a period of about four years. It further appears that audits of the books of the Baltimore office of Lanahan & Co. were made twice a year at stated periods until August 21st, 1926, and on these occasions Eishach and Kelley had been able, through drafts made on the New York branch of Lanahan & Co., to cover the shortages for the times consumed in making the audits.

On this occasion, however, their plans failed to work out, and the shortages covering the whole period of the peculations came to light. It develops that a very large part of the money taken by Eishach and Kelley from Lanahan & Co. had gone to the appellant. Eishach had been the cashier in Lanahan’s brokerage and banking office, with Kelley as his ssistant, and each w«s kept constantly informed by the other of his movements with respect to the taking, from time to time, ⁴³⁴ of the cash making np the shortage. Eishach, on account of ill health, ceased to be active in his work after December 24th, 1925, and after that Kelley performed the duties theretofore performed by Fishach.

Fishach died August 28th, 1926. It appears from the record that some time in 1922 the appellant brought a check to Lanahan’s office, which he asked Kelley to cash. Kelley asked Mr. Lanahan whether he should cash it and was very emphatically told that he should not. Thereafter it appears that the appellant did not come into the office of Lanahan & Co., but frequently, perhaps a hundred times, he called Fishach or Kelley on the ’phone and arranged with one or the other to meet him outside of the office, usually somewhere in the Calvert Building, with such amounts of money as he requested, and they would take the cash from the cash drawer in the cashier’s cage, meet the appellant at the appointed place, hand over the cash to him, and take from him a check for the amount, which was to be turned in when informed by the appellant that the same would be good.

The demands of the appellant on Fishaeh and Kelley came much faster than his ability to make good his checks, until finally Fishach, Kelley, and the appellant found themselves so involved in their shortages with Lanahan & Co. that there was no hope of their being able ultimately to conceal the peculations, and the exposure came on August 21st, 1926. The indictment in this case is founded on a check dated June 5th, 1926, drawn on the Park Bank, for $615, signed C. Wilson Basin, which was surrendered by Kelley to Daniel H. Flynn, of the firm of of Lanahan & Co. August 22nd, 1926. On the day following the surrender of the check by Kelley, a conference was held at the office of L. Vernon Miller, counsel for Lanahan & Co., at which the appellant, and Mr. Duer and Mr. Flynn, of Lanahan & Co., and Mr. Miller, were present. At this meeting the whole matter was discussed, and Mr. Basin made the claim that he-had borrowed amounts of money from time to time from Fishach and Kelley, and there contended that whatever he owed of ⁴³⁵ this money he owed to them.

He began by claiming that he owed them $2,000, but this was increased from time to time during the conference, until he balked at the sum of $45,-000. It developed later, however, that he did admit owing $27,000. It appears from the record that another conference was held at the office of the state’s attorney on September 4th, 1926, at which wore present Mr. O’Conor, the state’s attorney, Mr. Adams, deputy state’s attorney, Messrs. Lanahan, Duer and Flynn, of Lanahan & Co., Mr. Vernon Miller, counsel for Lanahan & Co., Mr. Piper, counsel for Easin, and Mr. Easin.

At this conference the appellant made the statement which was offered in evidence without objection, while Mr. Flynn, the first witness for the State, was on the stand, designated, “Statement of Carroll Wilson Easin, made in connection with State’s Attorney’s Investigation of Defalcations in the Office of W. W. Lanahan and Company,” which will be referred to later on in this opinion. There were three exceptions taken by the appellant which are the subject-matter of this appeal. The first was on the denial of the motion of the appellant’s counsel to strike out the testimony of Kelley concerning the $675 check, counsel saying: “If Kelley’s story is true — if the State’s theory is true and Kelley has stated the truth concerning the $675 check, it is not evidence to prove this indictment, because it makes out a case of larceny and not a case of receiving stolen goods.” Section 5 of article 15 of the Constitution of Maryland provides that “in the trial of all criminal cases the jury shall be the judges of law as well as of fact.” The appellant selected as the tribunal to try his case-a jury, who, under the constitutional provision quoted, were to be the judges of the law as well as of the facts. Under such circumstances the court only determines the admissibility of testimony and the competency of witnesses.

Jules v. State, 85 Md. 313 . The effect or weight of the evidence, once admitted, is for the jury, and if the jury in this case were of the opinion that the appellant received from Kelley the sum of $675, which Kelley testified he stole from Lanahan & ⁴³⁶ Co., knowing it to have been stolen, then tbeir verdict would logically be “guilty.” If, in the opinion of the appellant’s counsel, the proof showed that the appellant, if guilty of anything, was guilty of larceny and not guilty of receiving stolen goods, we presume they argued the point to the-jury, and that they, being the judges of the law as well as of the facts, considered the issue of larceny or receiving stolen goods, and in this case decided that the appellant was guilty of receiving and not guilty of larceny. On the theory of the appellant himself, the only charge upon which he could be tried was that of receiving stolen goods. He made the claim, and reiterated it, that he had been borrowing money from Fishach and Kelley, and that he had not gotten anything from Lanahan & Co. The appellant never admitted that he had been guilty of larceny, and on his own theory the only thing left for the jury to say was whether he knew Kelley had stolen this sum of $675 from Lanahan & Co., which he asserted he had borrowed from Kelley.

The motion of the appellant’s counsel amounts to a demurrer to the evidence, and this court has repeatedly held that such motions cannot be entertained in criminal cases, the Court saying, in Dick v. State, 107 Md. 11 , 17: “The motion to strike out the testimony was in legal effect a demurrer to the evidence and an attempt to obtain an instruction from the court to the jury to render a verdict for the defendant, and it is well settled that this cannot be done in Maryland, where the jury in criminal cases are the judges of the law and of the legal effect and legal sufficiency of the evidence, and the court only determines the admissibility of the evidence.” See also Bloomer v. State, 48 Md. 539 . The second exception was to the proffer of the appellant to prove that the witness Robert E. Ensor, manager of the stock department of Lanahan & Co. had, on April 30th, 1926, lost at a crap> game at 340 Fallsway, Baltimore, the sum of nine hundred dollars in cash. The witness had been called by the appellant, apparently to prove that it was a custom among the employees of Lanahan & Co. to have their own ⁴³⁷ cheeks cashed at Lanahan’s banking house, and that in the case of Ensor he had been in the habit of making bets on horses. We cannot imagine what possible connection there could be between Ensor’s transactions and those of the appellant.

There is nothing in the testimony of Kelley or the appellant to show that either of them had any dealings with Ensor, or that Ensor’s transactions touched the appellant anywhere. Counsel for the appellant, at the hearing of this appeal, stated that the appellant did not abandon either the first or second exception, but that they would not argue them, and presented no authorities applicable to either exception. The only authorities presented as to either of them were several with reference to the first exception, applicable only to states where it was the duty of the court to charge the jury as to matters of law in criminal cases. The exception on which the appellant stands is the third, and that was to the comment in his argument by the state’s attorney on a statement made by the appellant, when called to the stand for the purpose of testifying as to the voluntariness of his alleged statements, confessions, or admissions, prior to the statement of September 4th, 1926.

While Mr. Flynn was on the stand a stenographic report, which covers fifteen pages of the record, setting forth in detail the questions by Mr. O’Oonor, state’s attorney, and Mr. Adams, his assistant, as well as the answers of the appellant, with here and there an interjection by appellant’s counsel, at the conference held on September 4th, 1926, at the office of the state’s attorney, was offered in evidence. The first question of Mr. O’Oonor, according to the record, was: “Mr. Rasin, of course you understand, I am sure, that in what we are attempting to do it is without thought or expectation of any consideration or promises from us to you for what you will say?” to which the appellant answered, “Oh, yes;” Mr. O’Conor next saying, “I mean that I cannot be put in the position of having offered you any