Seidman v. State

Bruñe, C. J., delivered the opinion of the Court. The defendant-appellant, George Seidman, was convicted under each of seven separate indictments charging him with the statutory offense of pandering and under another indictment charging him with conspiracy “with one Earl Fifer, and certain other persons whose names are to the [Grand] Jurors * * * unknown, to violate the Pandering Laws of the State of Maryland.” All eight cases were tried together in the Criminal Court of Baltimore before a jury. The defendant’s motion for a new trial, applicable to all eight cases, was denied and he was sen ³⁰⁹ tenced to six years’ imprisonment on each case, all of the sentences to run concurrently. He appeals.

The defendant contends: first, that each of the pandering indictments was defective and should have been dismissed; second, that he was convicted on the uncorroborated testimony of accomplices; third, that the trial court abused its discretion in denying the defendant’s motion to remove the case, or in the alternative to grant a postponement because of publicity; and fourth, that the evidence was insufficient to sustain his conviction for conspiracy. The chief basis for the appellant’s contention that each of the pandering indictments is insufficient is that none of them states the name of the woman from whose illicit earnings the defendant is alleged to have received money. Each of these indictments is based upon § 430 of Art. 27 of the Code (1957) which reads as follows: “Any person or persons who knowingly receive any money or other valuable thing ‘without lawful, actual bona fide consideration’ from the earnings of any woman or girl engaged in prostitution shall be guilty of a felony, and upon conviction thereof shall be sentenced to the penitentiary for not less than three nor more than ten years.” Each of the seven indictments for pandering under which the defendant went on trial (Nos. 3334-3336 and 3339-3342) contained one count based upon § 430 above quoted. 1 All of these were in the same form, except that each alleged a different date of the offense charged (which varied from March 18, 1960 to May 10, 1961) and charged that Seidman, on a date specified, at Baltimore, “feloniously did knowingly receive a certain sum of money, to wit, the amount whereof is to the Jurors aforesaid unknown and a certain other valuable thing a further de ³¹⁰ scription whereof is to the Jurors aforesaid unknown, without lawful, actual and bona fide consideration, from the earnings of a certain woman whose name is to the Jurors aforesaid unknown, who was then and there engaged in prostitution; * * *." Presentments were filed in the conspiracy and pandering cases on September 1, 1961, the defendant was released on bail on September 5, the indictments were returned on September 8, copies thereof were served on the defendant on September 28, 1961, and on that date he was arraigned and pleaded not guilty in all of the cases. A week later, on October 5, he filed a demand for particulars under each of the ten indictments, (including the two mentioned in footnote 1).

This demand was a single document which referred to all ten cases. Item 4 of this demand sought “the name of the person ‘who was then and there engaged in prostitution’ ” as set forth in Indictments Nos. 3334-3342. On October 6 the State answered the demand for particulars, stating as to two items that it had no such written statements, papers, documents, etc. as were sought, and excepting to the other five demands, including Item 4. There was a hearing on the demand and answer on October 6th.

It is somewhat difficult to ascertain from the record precisely what the court’s ruling was, but it seems clear that at that time the defendant did not get the information sought by Item 4. 2 On October 13 the defendant moved to dismiss the indictments in the pandering cases (but not in the conspiracy case) because of the indefiniteness of the indictments. On October 17 the State filed an answer to Item 4 of the demand for particulars in which it listed the names of nine women alleged to have been engaged ³¹¹ in prostitution and identified them separately, one with each of the nine indictments Nos. 3334-3342. The defendant’s brief states (and the State does not challenge the statement) that at the hearing on October 6, the court upheld the State’s exception to Item 4 and that the trial judge later reversed his decision and required the State to furnish the names. Documents in the record show that orders to summon all nine of the named women to testify for the State in the conspiracy case (no reference being made to the other cases) were received by the Sheriff’s office on October 11.

A hearing was held on October 17 on the defendant’s motion to dismiss and the motion was denied. Subsequently, on October 23, just before the cases went to trial, the defendant asked for a list of witnesses who had appeared before the Grand Jury in order to determine whether the nine women named in the response to Item 4 filed on October 17 had appeared before that body and hence whether their names were necessarily known to it. The State objected to furnishing the information and the court denied the request, stating that it came too late and also noting the absence of precedent for it. We do not have the benefit of anything in the record to show the basis for the court’s denial of the defendant’s motion to dismiss the indictment.

It is inferable from the dates above stated that it was due at least in part to the fact that the names of the women involved had actually been furnished to the defendant by the time of the argument. The ruling might also have been based upon the fact that the motion had not been filed until after the defendant had pleaded and under Md. Rule 725 b 3, as then in force, the motion came too late, unless the court should “permit it to be made within a reasonable time thereafter.” See Mazer v. State, 212 Md. 60 , 127 A. 2d 630 . (This particular provision as to time has not been included in Md. Rule 725 as revised, effective on January 1, 1962.) This possible ground to support the order has not been suggested by the State, and it seems at least fairly inferable that it could not have been successfully asserted, since it seems that the court did entertain and rule upon the motion after the defendant had pleaded, pursuant to the discretionary power contained in former Rule 725 b 3 above set forth. ³¹² Several general rules, we think, are clearly established: that an indictment must be so framed as to inform the defendant of the charge against him in order that he may prepare his defense and may also protect himself against a subsequent prosecution for the same offense; that an indictment in the language of the statute upon which it is based is generally good; that if the identity of a person referred to in an indictment which would ordinarily have to be stated, is unknown to the Grand Jury, the fact that it is unknown may be stated and the indictment will be sufficient; and that a bill of particulars forms no part of an indictment and hence cannot make an otherwise defective indictment good. No lengthy citation of authorities to support these statements of the law of this State seems necessary.

See such cases as Mincher v. State, 66 Md. 227 , 7 A. 451 ; Delcher v. State, 161 Md. 475 , 158 A. 37 ; State v. Lassotovitch, 162 Md. 147 , 159 A. 362 (containing an extensive review of cases); Adams v. State, 202 Md. 455 , 97 A. 2d 281 , reversed on another ground 347 U. S. 179 ; each of which cases supports one or more of the propositions above stated. Cf. Dize v. State, 212 Md. 1 , 128 A. 2d 427 , involving an arrest warrant and decided under rules applicable to indictments. The rights of a defendant in a criminal case to be informed of the accusation against him and to have a copy of the indictment or charge in due time (if required) to prepare for his defense are protected by Art. 21 of the Maryland Declaration of Rights, and all other rules respecting indictments must, of course, accord protection to those rights. 3 A problem sometimes ³¹³ arises as to whether or not an indictment in the words of the statute (such as we have here) is sufficiently informative and if not, whether sttch defect is fatal or can be met by furnishing a bill of particulars.

Bills of particulars have long been recognized in Maryland criminal practice (see Neusbaum v. State, 156 Md. 149 , 143 A. 872 ; Lanasa v. State, 109 Md. 602 , 71 A. 1058 ), and have been provided for as a matter of right in the instances mentioned in note 3 to this opinion. In other instances, their grant or refusal has been (and under our present Rule 715 a continues to be) ordinarily within the discretion of the trial court. The difficulty of problems of the kind stated was recognized by Judge Offutt in the Neusbaum case; and the two different types of situation have also been pointed out in a number of other cases. Neusbaum itself upheld a short, statutory form of indictment.

Larmore v. State, 180 Md. 347 , 24 A. 2d 284 , upheld an indictment in the words of the statute, pointing out that any generality in it could have been corrected by a bill of particulars. Richardson v. State, 175 Md. 216, 218 , 200 A. 362 , also upheld an indictment in the words of the statute as being sufficiently informative. It said nothing about a bill of particulars. On the other hand, lack of a full allegation of an essential matter where known, even though the indictment may follow the language of the statute or of a statutory authorization, may be fatal and was so held in State v. Nutwell, 1 Gill 54 ; State v. Blizzard, 70 Md. 385 , 17 A. 270 (failure to describe sufficiently the security allegedly obtained by false pretenses or to state its ownership); Armacost v. State, 133 Md. 289 , 105 A. 147 (failure to state ownership of property allegedly obtained by false pretenses) ; State v. Lassotovitch, supra.

Both the Nutwell and the Lassotovitch cases involved the giving of the names of third persons, as does the present case. In Lassotovitch the names omitted were those of persons to whom the defendants were charged with having paid less than prescribed minimum wages. In that case this Court said ( 162 Md. at 155 ) : “We have been ³¹⁴ unable to find any cause in this state upholding an indictment under that class of statutes spoken of by Judge Miller in Mincher v. State, supra, illustrated by statutes prohibiting the sale of liquor on Sunday, where the name of the party to whom the liquor was alleged to have been sold has been omitted. We are of the opinion that the statute now before us is of that class, and that the indictment should contain an allegation setting forth the names of the ‘laborers, workmen or mechanics’ who were paid, on the date alleged, less than the current rate of per diem wages in the locality where the work was performed.” We think that the present case falls into the same category and that the rule recognized in Lassotovitch and in Delcher is applicable—that a bill of particulars is not a part of the indictment and cannot supply the lack of an allegation required to be stated therein.

On their face the seven indictments for pandering would appear to be good as being in the words of the statute and as containing allegations of lack of knowledge on the part of the Grand Jury as to a fact or facts which would ordinarily be required to be stated. Adams v. State, supra. However, the names of the women, if known, should, we think, have been stated in accordance with the authorities above cited. See also State v. Underwood, 155 P. 194 (Ore.) ; Perkins on Criminal Law, p. 336, n. 35.

The real difficulty here arises from the question of whether or not the allegations that the names of the women were unknown to the Grand Jury is a correct allegation. The State argues that “the record is devoid of any evidence that the Grand Jury had such knowledge or that such information could have been readily obtained.” The court’s ruling denying the defendant a list of witnesses who had appeared before the Grand Jury cut him off from the most convincing evidence which he could possibly have adduced to show that the Grand Jury did know who the women were. 4 The request was broadly phrased, ³¹⁵ but the colloquy makes clear the exact question as to which the information was sought. The State objected to being required to furnish the information, and the court sustained its position. We have not been referred to, nor have we found, any case in this State which is directly in point on the situation presented in the instant case.

Md. Rule 725 b applied in 1961 (as it does now) to “[djefenses and objections based on defects in the institution of the prosecution or in the indictment,” and required that such objections (other than lack of jurisdiction or failure to charge an offense) be raised before trial. Failure to raise such an objection amounted to a waiver thereof, from which the court might, however, grant relief for good cause shown. Under Rule 725 a then (as now) a motion to dismiss or for other appropriate relief was a proper pleading, and demurrers and motions to quash were abolished. A motion to quash filed after Rule 725 a had been adopted was treated by this court, as it had been treated by the trial court, as a motion to dismiss in State v. Cherry, 224 Md. 144 , 167 A. 2d 328 .

Here the motion filed on October 13, 1961, was properly designated as a motion to dismiss. In terms in use prior to the adoption of Rule 725 a (or its predecessor) this motion would have been a motion to quash (or a motion in the nature thereof), rather than a demurrer, and its scope therefore would not have been limited solely to matters appearing on the face of the indictment. For reasons more fully stated below we think that in the situation existing in this case it was an appropriate means of raising the question with which we are now concerned. The rule most widely recognized in other jurisdictions is, we think, that if the grand jury knew, or with reasonable effort could have known a fact, which, if known, should have been stated in the indictment, an allegation that it is not known to the grand jury is not sufficient to sustain a conviction, and further, that if the defense raises a reasonable inference that the grand jury knew or with reasonable effort could have known such a fact which is stated as unknown, then the State must assume the burden of justifying the allegation of absence of knowledge by showing that the grand jury did not in fact have knowledge or could not reasonably have obtained it.

See Carter ³¹⁶ v. State, 87 N. E. 1081 (Ind.), accepted in Wertheimer v. State, 169 N. E. 40, 45 (Ind.); State v. Klasner, 145 P. 679 (N. Mex.); Carlisle v. State, 93 S. W. 2d 730 (Texas); Bishop’s New Criminal Procedure (2d Ed. 1913), section 549, p. 445, section 550, pp. 446-47, and section 552, p. 448, and the many cases cited therein; but cf. cases seemingly contra cited at p. 448, and see Merwin v. People, 26 Mich. 298, 301 , in which the court seems to say that the burden is on the defendant to prove that the grand jury actually had knowledge. The cases which have dealt with this problem have generally, if not invariably, dealt with it on the basis of evidence developed at the trial rather than on matters presented at a preliminary hearing. We see no reason why, in proper circumstances, it may not be raised as a preliminary matter. As Bishop points out (op. cit. supra, § 550), the question really is not whether there is a variance, which we suppose could be decided only after trial, but is whether a necessity exists for allowing some matter to be alleged as unknown to the grand jury which would have to be stated if it were known to, or reasonably ascertainable by, the grand jury.

See Adams v. State, supra. It is, we take it, the rule that in the absence of any evidence to the contrary, the allegation that a matter is unknown to the grand jury will be presumed to be true, Coffin v. United States, 156 U. S. 432, at 451 ; but we see no reason for holding that the correctness of the allegation may never be inquired into before trial, and we think that under our Rules and practice it may be. In the instant case the hill of particulars, when furnished, and the previous issuance of summonses for the very persons named in the bill to testify as witnesses in the conspiracy case were sufficient, we think, to give rise to a reasonable inference that the grand jury either knew, or could with little trouble have ascertained, the names of the prostitutes from whose earnings the defendant was charged with receiving money or some other thing of value. The bill of particulars linked each of the alleged prostitutes with one particular indictment, and each particular indictment (as we have noted) referred to a specific date.

It seems a fair inference that the source or sources which furnished the information which served as the basis for the ³¹⁷ charges in the indictments •—• whether such information came from the police officers whose names appeared as witnesses on the backs of the indictments or from other persons—could have provided, if they did not actually provide, the names of the alleged prostitutes involved. Since the bill of particulars had been furnished and the order for summons for witnesses in the conspiracy case had been filed before the hearing on the motion to dismiss, we think that the foundation for the inference of knowledge or ready means of knowledge on the part of the grand jury was then known or readily available as a part of the court records and was clearly apparent when the motion was renewed and again denied just before the trial began. Rules 725 b 4 and 6, as then in force (now included in substance in Rules 725 c and d), plainly contemplate that all issues of fact pertaining to such a motion may be determined in advance of the trial. In the situation here presented, it seems to us proper to apply at the motion stage of proceedings the same rule which the cases generally apply after the evidence has been produced at the trial with regard to material facts stated in the indictment to be unknown to the grand jury.

Cf. Watts v. State, 99 Md. 30 , 57 A. 542 , involving (inter alia) a motion to quash based upon an amendment to an indictment and holding such a motion proper. We are, accordingly, of the opinion that in the light of the inference fairly deducible from the facts, it was incumbent upon the State to show that the Grand Jurors did not know, and could not with reasonable effort have learned, the names at the time the indictments were isstted. The State chose not to undertake the burden, resting instead on arguments that there was no evidence in the record to show that the jurors did know the names of the prostitutes.

If the burden rested upon the accused to prove absolute knowledge on the part of the grand jury of something alleged to be unknown, such a burden could scarcely be sustained where, as here, the trial court denied the appellant his best means of