Simmons v. State

Parke, J., delivered the opinion of the Court. Edgar B. Simmons was indicted on eighteen counts. The indictment charged him with larceny of money from the Citizens’ Bank of TIurlock, Maryland, under the counts with odd numbers, and with obtaining money from the bank by ¹⁶⁰ false pretenses •unde'r the counts with the even numbers. Every one of the counts in larceny is followed by a count charging the obtaining of a similar sum of money from the same owner by false pretenses.

The identity of the victim and of the amount and the relative correspondence in time of the crimes charged, and their presentment in separate counts, but in the alternative and sequential forms of'larceny and false pretense, disclose that the offenses alleged in the several counts were associated or cognate crimes. Before pleading the traverser demanded a bill of particulars. The one furnished was amended (Jules v. State, 85 Md. 305 , 36 A. 1027 ), and the first question raised is the sufficiency of the final particulars furnished by the State. The bill of particulars did not apply to the counts in the indictment which charged larceny, but did furnish the particulars of the offense charged in every one of the counts for the crime of false pretenses.

There-was no occasion for a bill of particulars of the larcenies. The day and year, the sum of the current money taken, and its value, and the name of its owner, and the felonious taking from its possession by the traverser, were distinctly and clearly alleged in the approved form in every one of the counts charging a larceny. Code, art. 27, sec. 559; State v. King, 95 Md. 128 , 51 A. 1102 ; State v. Barrett, 148 Md. 155 , 128 A. 744 ; Wedge v. State, 12 Md. 232 . ' With respect to the even-numbered counts of the indictment, a different problem arises, because the State had there availed herself of the statutory provision that the indictment need not state the particular false pretenses intended to' be relied on in the proof. When this is done, the right of the traverser to a definite statement of the false pretense of which he is accused is assured by the statutory requirement that, upon his application to the state’s attorney before the trial, the traverser shall be entitled to the names of the witnesses and a statement of the false pretenses intended to be given in evidence.

Code, art. 27, sec. 555. The traverser at bar made this demand, and the State complied, but ¹⁶¹ the sufficiency of the bill of particulars is raised. The State furnished the names of the witnesses, whose listing, however, did not restrict the State to their number nor control or affect the competency of witnesses, and, in its discretion, the trial court may allow the State to produce other witnesses than those whose names are so furnished. Cairnes v. Pelton, 103 Md. 44 , 63 A. 105 ; Schaumloeffel v. State, 102 Md. 473 , 62 A. 803 .

So; the- objection to the particulars furnished could not be entertained on the ground that the State had failed to furnish the names of the witnesses for the prosecution; and the reasons assigned were that the particulars were legally insufficient; and that they were a variance from the facts alleged in the false pretenses charged in thq counts of the indictment, and inadmissible if offered in evidence. There can be no question raised of the form and completeness of the particulars, and, so; the exception is one of substance, and goes to the admissibility of the facts stated tq establish the crime of false pretenses. It, therefore, becomes necessary to consider the crime of “false pretenses,” which, for our present purpose, is defined by statute to bo when any person shall by any false pretense obtain from any other person any chattel, money, or valuable security, with intent to defraud any person of the same; although an intent to defraud any particular person is not necessary provided it be proved that the traverser did the wrongful act with the intent to defraud, but a mere promise for future payment, although not intended to bei performed, is not sufficient to constitute the false pretense. Code, art. 27, secs. 139, 558; Hawthorn v. State, 56 Md. 535 ; Hochheimer’s Criminal Law (2nd Ed.), sec. 319.

The bill of particulars was addressed to a number of counts, whose similarity and that of the related sections of the bill of particulars' will make a separate consideration unnecessary. It is shown by the bill of particulars that, throughout the entire period of the commission of the crimes charged, the traverser was the president of the bank which ¹⁶² was the victim of the false pretenses set forth in the several counts of the indictment; and that he was, also-, the president of the Franklin Credit & Finance Corporation, against whose deposit account in the bank the several sums of money alleged to have been unlawfully obtained by the traverser were ultimately attempted to be charged. .The- false pretenses stated in the bill of particulars were that, on the various occasions when he procured money from the bank, the traverser’s deposit account was overdrawn, and that he so obtained the specified sums of money by, previously, falsely and fraudulently representing to the bank (1) that he had been granted the authority and power to execute and issue a certain charge ticket or paper writing of the Franklin Credit & Finance Corporation for the sum of $2,000, drawn upon the bank and payable by it to the traverser; and (2) that the Franklin Credit & Finance Corporation had previously conferred upon the traverser the power and authority to- have' charged to the corporation’s account of deposit with the bank specific checks, which were drawn on the bank by the traverser at divers times when he had no- sufficient deposit or funds, and payable to various parties for sundry sums, and that the said bank, by reason of such false and fraudulent representations, had so paid these checks for the benefit and upon the request of the traverser and to the persons specified by his order in writing. The substance of the offense was the obtaining of the money and, with a fraudulent intent, depriving the lawful owner of its title and possession. While in both classes of the false pretenses set out in the bill of particulars, the money did not manually pass from the possession of the bank to the actual possession of the traverser, the money of the bank was so situated that the bank could and did make a complete transfer of the money to the traverser without actual delivery to him; and such transfer was effected by the bank paying out its money on the order of the traverser to his nominees by reason of the prior false and fraudulent pretense or representation by the traverser to the bank that the money ¹⁶³ of the hank, induced to he paid out for the benefit of the traverser, had been agreed by the Franklin Credit & Finance Corporation should, by the direction of the traverser, be charged against the deposit account with the bank of the Franklin Credit & Finance Corporation.

The bank was made the innocent agent of the traverser to pay to the parties indicated for the traverser’s use and benefit the several sums of money agreed to be paid by the bank, for the traverser. The passage of the title, possession and control of the money from the bank to the indicated third parties at the traverser’s request, or in accordance with his written order, was an obtaining of the money by the traverser as fully and completely as if the physical delivery had been made to the traverser in person. Schaumloeffel v. State, 102 Md. 470, 473-475 , 62 A. 803 ; Brill’s Cyclopedia of Criminal Law, vol. 2, sec. 1261; 25 C. J., p. 606, sec. 34; Comm. v. Langley, 169 Mass. 89 , 47 N. E. 511 ; Comm. v. Harley, 7 Metc. (Mass.), 462; Comm. v. Wood, 142 Mass. 459 , 8 N. E. 432 ; In re Dunfee, 219 N. Y. 188 , 114 N. E. 52 ; Foster v. State, 16 Ala.

App. 458 , 78 So. 721 ; Clark v. State, 14 Ala. App. 633 , 72 So. 291 ; Sandy v. State, 60 Ala. 58 ; State v. Balliet, 63 Kan. 707 , 66 P. 1005 ; State v. Mendenhall, 24 Wash. 12 , 63 P. 1100 ; Rand v. Comm., 176 Ky. 343 , 195 S. W. 802, 806 ; Comm. v. Coe, 115 Mass. 481 ; People v. Woods, 59 Cal. App. 740 , 212 P. 41 ; People v. Mutchler, 309 Ill. 207 , 140 N. E. 820 ; Russell on Crimes (8th Ed.), vol. 2, pp. 1477, 1478, note q. From these considerations and on the authorities cited, the false pretense or fraudulent representation set forth in the bill of particulars with reference to every one of the counts in false pretenses was a false and fraudulent representation of a material and existing fact by the traverser, who knew the fact represented not to be true, but adapted to induce the bank to part with its money in the specified amount.

The objections urged by the traverser are, therefore, without foundation, and the rulings of the lower court on the motion oí ne recipiatu/r and on the exceptions to the amended bill of ¹⁶⁴ particulars must be sustained. Tbe motion of ne recipiatur was filed two days after tbe filing of tbe amended particulars and was, therefore, too late; but tbe court bas considered it here as though it were a motion filed to strike tbe bill of particulars from tbe record on tbe same grounds wbicb would have been presented by a timely motion of ne recipiatur. Horner v. Plumley, 97 Md. 279 , 54 A. 971 . The traverser filed a motion to quash tbe indictment, wbicb was overruled, and an exception noted.

He then demurred to the indictment, and this demurrer was not sustained. Tbe grounds upon wbicb tbe motion to quash tbe indictment and tbe demurrer are based are so similar that they do not require separate discussion. No argument bas been addressed to tbe court to the'effect that tbe counts sounding in larceny are bad; and an examination discloses that they contain all tbe essential averments in an accepted, adequate and certain form. Hochheimer’s Criminal Law (2nd Ed.), secs. 374, 375.

Tbe counts charging tbe crimes of false pretenses are specifically attacked for the alleged reasons that they neither charge the commission of a crime, nor state tbe necessary averments to constitute tbe crime, with tbe requisite certainty and definiteness of good pleading. The several counts directly charge tbe traverser with tbe acts constituting tbe offensé of false pretenses and state tbe ownership of tbe moneys obtained, tbe person defrauded by the representation, tbe place where and tbe time when tbe crimes were committed, and by proper averments leave no essential element to be supplied by intendment, argument or implication. Schaumloeffel v. State, 102 Md. 470 , 62 A. 803 ; State v. Blizzard, 70 Md. 385 , 17 A. 270 ; State v. Edwards, 124 Md. 592 , 92 A. 1037 ; Armacost v. State, 133 Md. 292 , 105 A. 1471 Tbe traverser was, therefore, apprized of tbe accusation against him by tbe precise and certain allegation of every fact necessary to be proved in order to convict him of tbe crime ‘ charged,. Tbe statute relieves tbe State of tbe necessity of ¹⁶⁵ setting out in the indictment with particularity the false pretenses intended to be relied upon by the State, but provides that these, with the names of the witnesses, shall, on application, be furnished the traverser by the State.

Schaumloeffel v. State, 102 Md. 470 , 62 A. 803 ; Jules v. State, 85 Md. 305 , 36 A. 1027 ; Carnell v. State, 85 Md. 1 , 36 A. 117 ; State v. Blizzard, 70 Md. 385 , 17 A. 270 ; Code, art 27, secs. 555, 558, 559. Mone of the eighteen counts of the indictment charges more than a single offense, and it is not bacl for duplicity. Hochheimer’s Criminal Law (2nd Ed.), sec. 96; Wharton on Criminal Prac. & Proc. (10th Ed.), sec. 652.

When the several counts in the indictment are taken separately, they are every one found to be good on demurrer; and the remaining vice urged is presented by the contention that the indictment is bad as an entirety because of a misjoinder of counts. Since each count must embody a distinct and complete accusation of a single crime, the general rulo that permits the joinder of several counts in an indictment is a recognition of the doctrine that distinct offenses may be charged in an indictment. So, the prevailing practice is that not only counts for misdemeanors may be joined, but, also, counts for several felonies, and, likewise, counts for felony and misdemeanor, subject to the qualification that, generally, the different counts present different aspects of the evidence of the same offense or, if not of the same offense, the offenses charged are of the same general nature and permit the same mode of trial. The matter of a misjoinder is generally left to the discretion of the trial court, and the courts will guard against injustice and abuse whenever apparent, and not permit such a joinder of counts as will embarrass the traverser in his defense by, in. the court’s sound discretion, quashing the indictment, permitting a nolle prosequi as to a count or counts, or compelling the prosecution to elect on which count or counts to proceed.

Wharton on Crim. Prac. & Proc. (10th Ed.), secs. 335, 338-342, 654, 887; Hochheimer’s Crim. Law (2nd Ed.), sec. 106; 1 Chitty, Crim.

Law, 249, ¹⁶⁶ 250; Pointer v. United States, 151 U. S. 396 , 14 S. Ct. 410 , 38 L. Ed. 208 ; Hawker v. People, 75 N. Y. 487 . The offenses of larceny and of obtaining money or other property by false pretenses are closely allied, and difficulty is often experienced, because of their analogy, in ascertaining which of the two crimes has been committed. The distinguishing difference is that in larceny the owner has no intention to part with his title and possession to the person taking the property, while in false pretenses he does intend to part with his title and possession, but it is obtained from him by fraud. 2 Whartons Crim. Law (12th Ed.), secs. 1207, 1208.

Mr. Bishop’s conception of the distinction is thus stated: “It is in short that when only possession and not title had passed the taking is larceny otherwise it is obtaining by false pretenses.” 2 Bishop on Criminal Law (9th Ed.), sec. 414 (4). The practical difficulties, in the course of the administration of this branch of the criminal law that is concerned with the fine and technical distinctions frequently arising in the determination of whether the crime committed is larceny or false pretenses, are reflected in section 139 of article 27 of the Code, which, after defining the crime of false pretenses and prescribing- its punishment, provides that if, upon the trial of any person indicted for such misdemeanor, it shall be proved that he obtained the- property in question in any such manner as to amount in law to larceny or robbery, he shall not by reason thereof be entitled to' be acquitted of such misdemeanor, and no person tried upon such misdemeanor shall be afterwards liable to be prosecuted for larceny or robbery upon the same facts. There is no inherent incongruity or repugnancy in the joinder of the offenses of larceny and false pretenses. In the present instance the wrongful conduct of the accused was alternately charged, first, as a felony and, then, as obtaining money by false pretenses.

The course of the trial is the same in the two grades of offense, and, if there had been any hardship or injustice wrought the defendant by the joinder, the trial court had the power, in its sound judicial discretion, to ¹⁶⁷ correct the adverse situation. As was said in State v. Sutton, 4 Gill, 494, 498, it “is settled by the case of Burk v. State, 2 H. & J. 426 , and, therefore, no argument on our part is necessary to maintain the decision of the county court, that a felony and misdemeanor may be joined in the same indictment.” Manly v. State, 7 Md. 135, 148, 149 ; Wheeler v. State, 42 Md. 566 ; State v. McNally, 55 Md. 563 ; Stevens v. State, 66 Md. 203 , 7 A. 254 ; State v. Bell, 27 Md. 675 , 92 Am. Dec. 658 ; State v. Blakeney, 96 Md. 711 , 54 A. 614 . Wharton expressly states that obtaining money by false pretenses and larceny from the person may be joined in different counts in the same indictment.

Wharton on Crim. Prac. & Proc. (10th Ed.), secs. 651, 887; Pointer v. United States, 151 U. S. 396, 400, 404 , 14 S. Ct. 410 , 38 L. Ed. 208 . The precedents and usage in this state support the joinder of the offenses, and leave to the sound discretion of the trial court, by the familiar methods at its command, the protection of the accused against being confounded or embarrassed in his defense, or the jury distracted.

State v. Edwards, 124 Md. 592 , 92 A. 1037 ; Freud v. State, 129 Md. 636, 639, 640 , 99 A. 934 ; Delcher v. State, 161 Md. 475 , 158 A. 37 ; State v. Lassotovitch, 162 Md. 147, 156, 157 , 159 A. 362 ; Lanasa v. State, 109 Md. 602, 612, 613 , 71 A. 1058 , and supra. After the ruling on the demurrer, the traverser interposed a plea of limitations to the nine counts which presented him for obtaining money by false pretenses. The court ruled this plea bad, as the crime so charged, although a misdemeanor, was punishable, at the discretion of the court, by fine and imprisonment, or by confinement in the penitentiary for not less than two years nor more than ten years, as the court shall award. Code, art. 27, sec. 139.

As decided in Schaumloeffel v. State, 102 Md. 472 , 62 A. 803 , the provision of the statute of limitations, found in Code, art. 57, sec. 11, that no prosecution for any misdemeanor shall be commenced unless within one year from the time of the offense cominitted, except those punished by confinement in the penitentiary, does not apply to the crime of false pretenses, because it is ¹⁶⁸ the liability to punishment in the penitentiary, and not the punishment actually inflicted, which controls the inclusion of the crime of false pretenses within the exception. On a plea of not guilty the traverser was then tried by jury, which rendered a verdict of not guilty of larceny, but guilty of false pretense on all counts of the indictment. The verdict was followed by a motion for a new trial, which the court overruled in the exercise of its discretion (McCurdy v. State, 151 Md. 438, 440 , 135 A. 161 ), and this was followed by a motion in arrest of judgment. The grounds urged were: (1) Those assigned on the objections to the amended bill of particulars; and (2) the demurrer to the indictment and to the plea of limitations; (3) the errors alleged to have been ¡made by the court in its rulings on the