Simond v. State

Boyd, C. J., delivered the opinion of the Court. The appellant was indicted in the Criminal Court of Baltimore City for conspiracy. There are four counts in the indictment, the first of which charges “that on the sixth day of October, in the year of our Lord nineteen hundred and fourteen, there was in the First Precinct of the Third Election District of Anne Arundel County, in the State of Maryland, a general registration of voters as by law provided, and that there was then in the said precinct of said election district of said county a meeting of a Board of Registry, duly appointed, qualified and organized, held for the purpose of said general registration of voters in said precinct of said election district of said county, as by law provided; “And that Edward J. Simond, otherwise called Edward J. Simon, late of said city, on the said sixth day of October, in the year of our Lord nineteen hundred and fourteen, at the city aforesaid, unlawfully did con ³¹ spire, combine, confederate and agree with Jacob Knight, Frank S. Revell, William J. Fitzpatrick and George L. Noel to procure unlawfully and fraudulently to register in said election precinct, that is to say, in said First Precinct of said Third Election District of said county, divers persons not then having a legal right to register therein; against the peace, government and dignity of the State.” The second count is the same, except it, alleges that the traverser unlawfully did conspire, etc., with said four persons “and with certain other persons! whose names are to the jurors aforesaid unknown, to procure unlawfully and fraudulently to register,” etc. The third count alleges that the traverser unlawfully did conspire, etc., with the four persons named “to procure divers persons unlawfully to register in and under certain names, not the names of such persons to- be procured to register, at the general registration of voters aforesaid, and at the meeting of the said Board of Registry so held for the purpose of said general registration of voters, in said precinct,” etc. The fourth count is the same as the third count except it alleges that the traverser unlawfully did conspire, etc., with those four- “and with certain other persons whose names are to the jurors aforesaid unknown, to procure divers persons,” etc. The defendant made a demand for a bill of particulars, which was refused. He demurred to the indictment, and each count thereof, and the demurrer was overruled.

He then entered a plea of not guilty and upon a trial before a jury was convicted. After motions for a new trial and in arrest of judgment were overruled, judgment was entered and he was sentenced to confinement in jail for one year. From that judgment this appeal was taken. In addition to the rulings on the demurrer and the demand for a bill of particulars there are forty-one exceptions in the record presenting the rulings of the Court in reference to evidence. 1.

There can be no difficulty about the demand for a bill of particulars, as that is a matter generally resting within ³² the sound discretion of the trial Court, Lanasa v. State, 109 Md. 602 , and there is nothing in this case to bring it within any exception to the rule. 2. Section 89 of Article 33 of the O'ode provides: “If at any general registration of voters or at any meeting of a Board of Registry held for such purpose or for revision thereof, as provided in this article, any person shall falsely personate a voter or other person, and register or attempt or offer to register in the name of such voter or other person, or if any person shall register or attempt to make application to register in or under the name of any other person, or in or under any false, assumed or fictitious name or in or under any name not his own; or shall register in two election precincts; or having registered in one precinct shall attempt or offer to register in another; or shall fraudulently register or attempt or offer to register in any election precinct, not having a legal right to regiter therein * * * every such person, upon conviction thereof shall be punished by imprisonment in jail or in the penitentiary for not less than six months nor more than five years.” Objection is made to the first’ and second counts because they, to quote the brief, “do not sufficiently aver the alleged offense in that they do not charge: 1. At what registration the traverser procured unlawfully to register divers persons; nor 2. Before what board this unlawful registration was had; nor 3.

The purpose of said registration.” In the first part of those counts, it is distinctly alleged that there was on the 6th day of October, 1914, in the precinct named a general registration of voters as by law provided, and that there was then in said precinct a meeting of the Board of Registry duly appointed, ■ qualified and organized, held for the purpose of said general registration of voters in said precinct, as by law provided; and it then goes on to allege that the traverser on the said sixth day of October, 1914, unlawfully did conspire, etc., with the four named “to pro ³³ cure unlawfully and fraudulently to register in said election precinct, that is to say, in said, first precinct of said third election district of said county, divers persons not then having a legal right to register therein.” It might perhaps have been better to have gone on to state, as was done in the, third and fourth counts, “at the general registration of voters aforesaid,” etc., but the traverser could not possibly have been left in doubt as to what registration, what board or what purpose was meant. The prior part of those counts of the indictment had informed him of all that was necessary, and there could have been no possible reason for stating what was alleged in that part of the indictment if the latter part referred to some other registration, board, etc. The State was called upon to prove the facts set out in the first part just as it would have been if they had been repeated in the latter part of the counts. There can be no question about the third and fourth counts, and we will not refer to the demurrer further, except to say that in our judgment the cases of State v. Buchanan, 5 H. & J. 317 ; Lanasa v. State, 109 Md. 602 , and Garland v. State, 112 Md. 83 , fully sustain the sufficiency of this indictment. 3. It would prolong this opinion beyond a reasonable length to discuss separately each exception, and, as far as can be conveniently done, we will group them.

The first was taken in course of the opening statement of the attorney for the traverser. Without quoting all that was said by him, some statements of law by him were unquestionably not “entirely accurate in every respect,” to use the language of the trial Judge. It may be that the attorney intended them to be qualified by what he said at other places — that the tráverser could not be convicted by the uncorroborated or unsupported testimony of the co-conspirators — but he had at times omitted that qualification, and had also given as one reason for the rule, “that a man might come in and say that an innocent man was a party to the conspiracy, and would procure immunity for himself; because, when he taires the witness stand, he is immune.” That is not the law of this ³⁴ State, and. such a rule would be a dangerous one 1» announce, as thus broadly stated. There was nothing in the case to show that there was any understanding or agreement with the prosecuting officer, approved by or known to the Court, that either of the alleged co-conspirators should be immune if he testified fully and truthfully as to the matter charged, as was spoken of in Lowe v. State, 111 Md. 1 , and there is nothing in that opinion which would justify such a startling and dangerous proposition as that just quoted from the opening statement.

That opinion concludes by showing that even under the circumstances of that case, if the State’s Attorney declined to discontinue the case or the Governor declined to grant a pardon, the Court would be relieved of further responsibility, but it was not suggested that it could give relief. When, then, objections were made to the statement, the Court might have been even more emphatic than it was ifi. its disapproval. Chief Judge Alvey said in Garlitz v. State, 71 Md. 293 , that it was “certainly the right of a Judge, and it may often be his imperative duty to exercise” the right to give his full and emphatic dissent from the unwarrantable contention of counsel while arguing a question of evidence before the Judge, “in a very positive and emphatic manner.” That was said by him in reference to a trial for murder. If it can be done during an argument before the Judge on a question of evidence, surely it can be during an opening statement, as otherwise a jury may be utterly misinformed as to their duties.

We have thought it proper to say this much, but if there could have been any possible injury done by the very moderate statement of the Judge, immediately following the exception there appear statements of the attorney and of the Court which removed all possible danger of the traverser being injured by anything presented in the first bill of exceptions, and hence we need not say more on the subject. 4. Before passing on the other exceptions it will be well to recall some of the leading facts disclosed by the record, in order that the questions raised may be better understoood. ³⁵ The traverser had conducted a saloon at Curtis Bay, in Anne Arundel County, about six years. He bought a place in Stony Creek and moved there the latter part of March or first of April, 1914. He had a hotel there and also ran a general store.

On his place is a steamboat -wharf at which the Stony Creek boat stops. He had been registered at Curtis Bay, but after he moved to Stony Creek he registered in the first precinct of the third district of Anne Arundel County. The general registration days in 1914, for registering voters in that county, were September 22nd and 23rd and October 6th and 7th. Jacob Knight and George L. Noel, two of those named in the indictment, with whom Simond was alleged to have conspired, had been indicted and plead guilty prior to the trial of Simond.

Mr. Novell, another named in the indictment, who was a member of the State Central Committee and was active in getting voters to register, had not then been tried. Noel was called by the State. He testified that he lived at 300 East Hamburg street, Baltimore, and that he was registered in the 24th Ward of that City. He said he had known the traverser about fifteen years and had done some sign-painting for him at his place in Stony Creek; that on Monday, October 5th, he met him on Light street in Baltimore and had a talk with him about some work; he said: “I saw him later in the day and he told me to meet him at Ferry Bar at half-past eight, and I met him and there was a boatload of men there and we all went together.” He was asked: “What,