Thompson v. State

Marbury, C. J., delivered the opinion of the Court. Appellant was indicted by the grand jury of Baltimore County for receiving stolen goods. These goods are described in the indictment as “3,630 gallons of gasoline of the value of 17 cents per gallon, current money of the United States,, of the goods and chattels of the American Oil Company, a body corporate.” He plead “not guilty,” was tried before, a jury, found guilty and sentenced, to serve nine months in the penitentiary. The verdict was found on October 26, 1944, and after a motion for a new trial had been made.and heard, the sentence was imposed on November 30, 1944.

On the same day as the imposition of the sentence, an order for an appeal to this Court was filed. On January 5, 1945, appellant made a motion to strike out the judgment and sentence, on the ground that the indictment was void for failing to state With the particularity required by law, the alleged crime for which the appellant was convicted, and that the indictment failed to properly describe the articles alleged to have been received as stolen goods. The State filed a motion ne recipiatur, on the ground that the motion was not filed within the term of court in which the judgment was rendered. The lower court on January 8, 1945, granted this motion, for the reason assigned, and for the additional reason that the court was without authority to entertain the motion filed subsequent to the entry of the appeal.

Appellant excepted to what he described as the court’s refusal to° grant his motion to strike out the ⁵⁵⁷ judgment and sentence and to the granting of the State’s motion ne recipiatur. No appeal from the court’s action on these motions, or either of them, was taken. There is, therefore, nothing before us on this point. It may, however, be observed that in addition to the reasons given by the lower court, Article 27, Section 649, of the Annotated Code provides that no judgment upon any indictment shall be reversed for any matter which might have been a subject of demurrer to the indictment.

No demurrer was filed in this case to the indictment. There have been numerous cases in this Court holding that failure to demur prevents a traverser from raising such a point later. Wilson v. State, 181 Md. 1, p. 8 ; 26 A. 2d. 770; Cowman v. State, 12 Md. 250 ; McCurdy v. State, 151 Md. 438 , 135 A. 161 . There are three exceptions in the record, taken in the course of the testimony.

Ringley, the man who stole the gasoline, who was, at the time of testifying, serving a sentence in the Baltimore City Jail for the theft, was giving his version of the occurrences at the appellant’s garage at the time the gasoline was supposedly delivered there. He was asked whether he had any conversation with the appellant that night, and he said he had. He said he was called into the office by the mechanic and “Mr. Thompson wanted to talk to me over the telephone.” He was asked if he recognized the voice over the telephone as that of Mr. Thompson. He said that the only way he could tell he was Mr. Thompson “he told me just who he was that night.” He was then asked what was the conversation.

Before ruling on an objection to this question the court said “Do you know whether it was Mr. Thompson, or not?” And the witness said “No sir. I couldn’t say whether it was Mr. Thompson or not. I was only talking to him on the telephone, sir.” The objection to the witness relating the conversation was sustained. The State then asked this question, “What identification, if any, did the individual on the other end of the line give to you, to advise you who was talking?” Over the objection of the traverser, the witness was per ⁵⁵⁸ mitted to answer.

This ruling of the court constitutes appellant’s first exception. The answer to the objected question was not responsive. It repeated the same statement the witness had previously made without objection. He said, “Well, the mechanic came out to the truck and told me Mr. Thompson wanted to talk to me over the telephone about the shortage of gasoline.” Then he was asked, “Now when you got to the phone, who did the party on the other end say it was talking?” He answered, “He said — I answered the telephone and said hello.

He said this is Mr. Thompson, he said.” The