State v. Rappaport

Prescott, J., delivered the opinion of the Court. The appellee was indicted by the Grand Jury in Howard County on the charge of feloniously voting in the Primary and General Elections held in this State from the year 1946 until 1952, when he had been convicted of the crime of grand larceny in the first degree, a felony, in the County of New York in the State of New York, and for which he had received no pardon. A motion to dismiss the indictment was filed. After preparing and filing a comprehensive and able opinion, Judge Macgill granted this motion, and the State appeals from the order of dismissal.

The appellee, Max A. Rappaport, was indicted in the Court of General Sessions, County of New York, in the State of New York on nine separate counts and on November 9, 1944, he entered a plea of “guilty” to the crime of grand larceny in the first degree, which was the first count in the indictment. On March 15, 1945, the docket entry shows that: “Upon the aforesaid plea of guilty, the Honorable John A. Mullen, Judge of this Court, suspended sentence upon the said Max Rappaport and placed him on probation, and ordered ⁵²⁵ restitution to be made in the sum of $15,000.00 in amounts fixed by the Probation Department of this Court”. The appellee subsequently came to Maryland and voted on seven occasions, from the year 1946 to the year 1952, in the elections held in this State. He was indicted by the Grand Jury of Ploward County as above noted, the indictment containing seven counts.

Each count charged him with feloniously voting in either a Primary or General Election held in this State from the years 1946 to 1952. The determinative question of this appeal is, what is the signification of the word “convicted”. Art. I, Sec. 2 of the Constitution of Maryland reads, in part, as follows: “No person above the age of twenty-one years convicted of larceny or other infamous crime, unless pardoned by the Governor, shall ever thereafter, be entitled to vote at any election in this State; * * *.” (Emphasis supplied). Sec. 193 of Art. 33 of the Code (1951) states: “If any person who shall have been convicted of bribery, felony or other infamous crime, under the laws of this or any other state, and who has never received pardon for such offense * * * shall thereafter vote or offer to vote at any general, special or primary election in this State, he shall, upon conviction thereof be adjudged guilty of a felony, * * (Emphasis supplied).

From what has been said above, it readily is seen if what occurred in the Court of General Sessions in New York did not constitute a “conviction”, the Court’s ruling in granting the motion to dismiss was correct. The highest Court of the State of New York had occasion to consider this question nearly a half a century ago. In the leading case of People v. Fabian, 192 N. Y. 443 , 85 N. E. 672 , Fabian was indicted for knowingly voting at an election when he was not qualified. The alleged disqualification was based on the fact that the voter previously had been indicted for burglary, and upon his ⁵²⁶ trial therefor a verdict of guilty had been rendered against him, although no judgment was ever entered upon the verdict; sentence having been suspended.

The pertinent provision of the New York Constitution (Art. 2, Sec. 2) and the law of New York relative to the offense charged (Laws 1901, p. 1669, c. 654, par. 2, subd. 10) in their end result were the same as the above quoted sections of the Maryland Constitution and Maryland law. That is, they required a previous “conviction” of a crime of a named magnitude. Fabian demurred to the indictment on the specific ground that a voter had not been “convicted” within the meaning of the Constitution and disqualifying statute unless the verdict against him had been followed by a judgment. It was his contention that the “conviction” necessary to work a disqualification was not simply a verdict of conviction but that it must have been a judgment of conviction.

The Court in a very thorough and careful opinion pointed out the analogy between the laws that disqualified witnesses from testifying because of the previous conviction of crime, and those that prevented voting for the same reason. The Court stated, under the common law, witnesses who had been convicted of infamous crimes were denied the privilege of testifying; but, were not deemed to have been so convicted unless the record established the rendition of a judgment upon the verdict. It referred to Greenleaf on Evidence, par. 375, and stated it was the judgment, and that only, which was received as the legal and conclusive evidence of the party’s guilt for the purpose of rendering him incompetent to testify. The Court then reasoned it did not seem proper to authorize the disfranchisement of a voter simply because a verdict had been found against him, and yet require proof that the verdict had been followed by a judgment in order to effect the disqualification of a witness.

It then pointed out there had been somewhat similar holdings in cases in Illinois and Massachusetts; and, in finally sustaining the demurrer said: “For the reasons which have been given * * * the duty to disfranchise a person convicted of bribery or any infamous crime * * * authorizes such disfranchisement only upon a conviction in the more comprehensive sense of that term — that is to say, upon a judgment based ⁵²⁷ on a