Rouse v. State

Hammond, J., delivered the opinion of the Court. The appellant, Walter Rouse, was indicted on the charge of conspiring with William Adams from August 1, 1947 to August 15, 1951, and “with certain other persons to the jurors unknown, unlawfully to violate the Lottery Laws of the State of Maryland.” The appellant prayed a severance, and Adams elected to be tried by the Court sitting without a jury, and was found guilty. His appeal was heard and determined just prior to this appeal on issues not here raised. See Adams v. State, 202 Md. 455 , 97 A. 2d 281 .

The jury found the appellant guilty. Judgment and sentence and this appeal followed. At the outset of the trial, Rouse filed a motion to dismiss, which presented two defenses. The first was a defense of former jeopardy, based on the claim that since he had plead guilty on March 20, 1950 to a number of indictments, all of which charged him with substantive violations of the lottery laws of Maryland, and had been sentenced in each case, he now cannot be tried for conspiracy to commit the substantive crimes of which he has been convicted.

The second defense was that the crime of lottery requires for its commission the concurrent action and cooperation of more than one person, and for various reasons there set forth, that where a ⁴⁸⁴ plurality of agents is necessary for the commission of a crime, conspiracy to commit the crime cannot be maintained or is not a distinct offense or is the. same offense as the substantive crime. The second defense has been abandoned completely in this Court; necessarily it would have failed the appellant in view of the over-ruling of similar contentions in Hurwitz v. State, 200 Md. 578 , 92 A. 2d 575 ; McGuire v. State, 200 Md. 601 , 92 A. 2d 582 ; and Scarlett v. State, 201 Md. 310 , 93 A. 2d 753 . The claim of former jeopardy has likewise been abandoned here, under that name. The backbone of that defense is still argued under the name of res judicata.

Under that broad heading, the appellant makes two points — one, the offenses proven at the trial of March 20, 1950, under the plea of guilty to each indictment, and the testimony of the raiding police officer “were the identical completed conspiracy proven in the instant case”; two, the sentence of three years imposed on the appellant in this case constitutes double punishment for the same offense. In spite of the fact that the.claim of res judicata was not expressly set forth in the motion to dismiss and the plea was “not guilty” (Rules 2 and 3, Criminal Rules of Practice and Procedure), the appellant says that the essentials of the defense of res judicata were all necessarily embraced in the defenses, including former jeopardy, presented by the motion to dismiss and that he may properly raise the defense of res judicata here. We think his contention is sound. In State v. Coblentz, 169 Md. 159, 164 , 180 A. 266, 268 , 185 A. 350 , it was said: “In criminal cases the difference between a plea of former jeopardy and res judicata are so slight as to be hardly .distinguishable, and in many criminal cases, where the plea of former jeopardy was made, the courts in discussing the question applied the principles of res judicata.” The appellant concedes expressly that former jeopardy would not prevent his conviction in the present case, ⁴⁸⁵ because that defense can be invoked only when the crimes are the same in law and in fact; he admits that the crime of conspiracy is not the same in law and in fact as the substantive crime which the appellant, if guilty, conspired to commit.

Gilpin v. State, 142 Md. 464 , 121 A. 354 ; State v. Coblentz, supra; Thompson v. Johnston, 9 Cir., 94 F. 2d 355 ; U. S. v. Rabinowich, 238 U. S. 78 , 35 S. Ct. 682 , 59 L. Ed. 1211 ; Pinkerton v. U. S., 328 U. S. 640 , 66 S. Ct. 1180 , 90 L. Ed. 1489 ; Sealfon v. U. S., 332 U. S. 575 , 68 S. Ct. 237 , 92 L. Ed. 180 . It is plain that while disclaiming reliance on former jeopardy, or autre fois convict, and invoking res judicata, appellant necessarily relies on them. Otherwise, his claim of double, punishment for the same offense would fall, as indeed it must, under the cases. This Court has held “that an acquittal of a particular crime does not bar a subsequent prosecution for a conspiracy to commit the crime.” Scarlett v. State, supra [ 93 A. 2d 757 ].

A conviction of the substantive crime does not change the fact that conspiracy to commit that crime is a different and additional crime, and that separate punishment may be meted out for each. Gilpin v. State, supra; Pinkerton v. U. S., supra. There, two brothers were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count.

One brother was convicted on nine of the substantive counts and on the conspiracy count. The other was convicted on six of the substantive counts and on the conspiracy count. On appeal, the traversers contended that the substantive crime and the conspiracy had merged, or that each substantive count had become a separate conspiracy count, so that there could be but one conviction and sentence. The Supreme Court, in denying this contention, said at page 643 of 328 U. S. at page 1182 of 66 S. Ct.: “The common law rule that the substantive offense, if a felony, was merged in the conspiracy, has little vitality in this country.

It has been long and consistently recognized by the ⁴⁸⁶ Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each á different penalty is well' established. . . A conviction for -the conspiracy may be had though the substantive offense was completed. . . And .'the plea of double jeopardy is no defense to a conviction for both offenses.

(Citing cases).” The Court added: “Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v. United States, supra [CCA 5th, 298 F.] p. 913, ‘If the overt act be the offense which was the object óf the conspiracy, and is also punished, there is not a double punishment of it.’ The agreement to do an unlawful act is even then distinct from the doing of the act.” The State does not dispute, nor could it successfully, the appellant’s contention that the principle of res judicata applies in criminal cases. Scarlett v. State, supra; State v. Coblentz, supra. See also Freeman on Judgments, 5th Ed. Sec. 648; Hochkeimer on Crime and Criminal Procedure, Sec. 46; U. S. v. Oppenheimer, 242 U. S. 85 , 37 S. Ct. 68 , 61 L. Ed. 161 ; Sealfon v. U. S., supra.

For an able discussion of res judicata in criminal cases, see U. S. v. Carlisi, D. C., 32 Fed. Supp. 479. The substance of the appellant’s contention under his theory of the applicability of res judicata is that the evidence used to convict him in the conspiracy case was identical, for all practical purposes, with that used in the trial on the charge of commission of the substantive crimes. Since his claim is factually inaccurate, in that additional evidence to establish the conspiracy was introduced in-the second trial, it is unnecessary to consider the legal conclusions, which would follow if his premise were, sound. In effect under the facts this amounts to a defense of former jeopardy. ⁴⁸⁷ It may be observed that the fact that the acts which constituted the crime involved in the first trial constitute another or separate crime, would not prevent evidence of those acts as part of the full proof from being used against the accused in the second trial.

For example, in Gavieres v. U. S., 220 U. S. 338 , 31 S. Ct. 421, 422 , 55 L. Ed. 489 , the accused was convicted on the evidence of identical acts and words of two crimes, (a) of being disorderly, and (b) of insulting a public official. After being found guilty of the first crime, he pleaded former jeopardy on the trial of the second, and the Court, in rejecting the plea, said: “A single act may be an offense against two statutes; and if each statute requires proof of an additional