Summons v. State

Parke, J., delivered the opinion of the Court. At the same time the appeal of David H. Summons from the judgment of the Circuit Court for Carroll County in the case considered in the preceding opinion (ante, 382) was heard, his other appeal from a sentence of the same court for a similar crime was argued. The questions presented in the second case are sufficiently different to require separate treatment. As in the case first considered, Summons was indicted on two counts which charged him with the crimes of false pretenses and of a conspiracy to defraud.

He was tried before the court, acquitted of a conspiracy to defraud, but convicted of obtaining the sum of $5,000 by false pretenses, and sentenced to the penitentiary for a period of five years to run concurrently with his sentence imposed in the case immediately preceding this appeal on the docket of the October term of this court. The demurrer to the indictment was overruled and the traverser does not argue that there was any error in this ruling nor does the court find any ground for a reversal on this point. Code, art. 27, secs. 555, 558; Carnell v. State, 85 Md. 1 ; State v. Blizzard, 70 Md. 387 . The testimony on the part of the prosecution tended to prove that the prisoner was in Carroll County for the purpose of selling the common stock of the Summons Einance Corporation, a Delaware corporation, and that he obtained the sum of $5,000 from the prosecuting witness, Miss Margaret Harris, by a sale to her of one thousand shares of the stock, which had no face value, at five dollars a share, by means of these false pretenses: 1.

That a certain G. Harry Bevard had sent the prisoner to the prosecuting witness and had advised that she take $5,000 worth of the stock at once, and that the promissory ³⁹³ note produced by the prisoner was one which the said Bevard requested her to sign. 2. That he had sold stock of the company to Gf. Harry Bevard and Ivan L. Hoff, an attorney at law. Accompanying these fraudulent misrepresentations of existing facts was the other false pretense that the stock was productive and the executory concurrent promise that if the stock did not increase to ten dollars a share in four months the prisoner would come back and give the buyer $2,500 for 250 shares.

Bishop on Criminal Law (9th Ed.), secs. 419-424; Re g. v. Jennison, Le. & Ca. 157, 9 Cox C. C. 158; Reg. v. Bates, 3 Cox C. C. 201; Reg. v. West, Dears & B. 575, 8 Cox C. C. 12; Reg. v. Fry, Dears & B. 449, 7 Cox C. C. 394. The traverser reserved forty-five exceptions to the trial court’s rulings on the testimony. Twenty-three of these exceptions are not discussed in the prisoner’s brief, and were abandoned on the argument. The court has examined them without discovering any reversible error, as the evidence admitted was either preliminary, or not prejudicial, or relevant and material.

The remaining twenty-two exceptions are relied upon by the prisoner to obtain a reversal, and they will now be considered. 1. The prosecuting witness had testified that the prisoner had sold her the stock on April 27th, 1927, and had delivered to her a contract in writing on the back of the receipt, which he gave for the $5,000 which she had paid him for the stock. The contract was produced by the prosecuting witness and referred to by her in testifying; and, when the prisoner did not return within four months and give her $2,500 for 250 shares of the stock, as he had promised, she stated that she wrote to the company and informed it that she had not received any “interest” (dividend) and received a letter in reply that- she had destroyed. Over the objection of the prisoner, she was allowed to testify that she had made an unsuccessful effort by correspondence to have the company take the stock off her hands.

This testimony was irrelevant, unless it were made relevant and material by some term of ³⁹⁴ the written contract which is not included as a part of the record, and, therefore, the record does not place this tribunal in the position of the trial judge when he made his rulings on the first, second, and third exceptions. However, if it be granted that the testimony was objectionable, either on the score of its irrelevancy or of its formal defects, it is not perceived how its admission constituted reversible error, since it did not work any injury to the prisoner, in the absence of any testimony that the prisoner had represented that the company would buy the stock. 2. The prosecution produced Ernest E. Weaver, who lived in Wilmington, Delaware, who was a stockholder .in the company, a director from April, 1927, and its treasurer from July 27th, 1927, to January 9th, 1928. Over.the objection of the prisoner, this witness was permitted to testify that a committee had been appointed to investigate the affairs of the company, that he had been its chairman, and that the committee had investigated the financial standing of the company and the conduct of its affairs.

This testimony was preliminary, and was of matters within the personal knowledge and experience of the witness, and so it was not necessary to produce the minutes and records of the corporation to show these facts. Accordingly, there was no error in the court’s rulings on the twelfth, thirteenth and fourteenth exceptions. 3. Upon the objection of the prisoner, the witness had not been permitted to testify to the value of the stock sold the prosecuting witness, but the court did permit him to state that he knew what property the company had until he severed his official relations with it on January 9th, 1928; and that in one sense it had less property then than in April, 1927. The witness was, also, allowed to say that he knew what property the company had about April 27th, 1927; to specify and locate its realty, and to disclose that the property in Baltimore was listed by the company at certain values, which the witness did not give, except in one instance, when he named the price at which a property in Baltimore was fixed in the lease; to reveal that one of the properties in Baltimore ³⁹⁵ had been taken over by the holder of the mortgage; and to state that the report to the company, made in the spring of 1927 by the committee of which he was the chairman, showed that $25,000 was the extent of the resources of the company in excess of its liabilities.

The objection to this evidence is on the ground that the testimony of the witness was not the best evidence of the facts narrated. This objection is raised by exceptions fifteen to twenty-two, both inclusive. Much of the testimony was of a preliminary and inconclusive nature, and none of it, even if erronieously admitted, was so prejudicial to the prisoner' as to constitute reversible error, except the statement, which was admitted by the ruling on the twenty-second exception, of the relative value of the assets and liabilities as found by the committee of investigation. The report of the committee was the embodiment in writing of the collective knowledge of the members of the committee after a thorough investigation conducted for the purpose of finding the facts set forth in the report.

The chairman himself had devoted two months to this investigation, which, in connection with his having been a director and a treasurer, made him a competent witness to testify from knowledge thus acquired by personal investigation and observation. The testimony of this witness under the-twenty-second exception was simply a summation from his official knowledge of the records and property of the company, and is admissible. The principle is thus stated by Wigmore on Evidence (2nd Ed.), sec. 1230: “Where a fact could be ascertained only by the inspection of a large number of doeumentsi made up> of very numerous detailed statements — as the net balance resulting from a year’s vouchers of a treasurer or a year’s account in a bank-ledger — it is obvious that it would often be practically out of the question to apply the present principle by requiring the production of the entire mass of documents and entries to be perused by the jury or read aloud to them. Tho convenience of trials demands that other evidence be allowed to be offered, in the shape of a competent witness who ³⁹⁶ has perused the entire mass and will state summarily the net result.

Such a practice is well established to be proper. Most courts require, as a condition, that the mass thus summarily testified to shall, if the occasion seems to require it, be placed at hand in court, or at least be made accessible to the opposing party, in order that the correctness of the evidence may be tested by inspection, if desired, or that the material for cross-examination may be available.” The concluding sentence of this quotation, which states the practice in most jurisdictions, is necessarily subject to the qualification that the proponent of the testimony can produce, or secure the production of, the mass of voluminous testimony so summarily testified to' by the witness. In this case the documentary evidence was in the custody of a third party in its principal office in Delaware, and so it was not available, because it was not procurable under a subpoena duces tecwn, nor was evidence of its contents otherwise obtainable, since a commission to take testimony in criminal cases is