Toomer v. State

Thomas, J., delivered the opinion of the Court. The appellant was indicted, tried and convicted undei section 395 of Article 27 of the Code, and was sentenced to the penitentiary for the period of ten years. There was a demurrer to the indictment and to each count thereof. The section of the Code referred to provides that “Every person who shall knowingly send or deliver, or shall make, and, for the purpose of being delivered or sent, shall part with the possession of any letter or writing, with or without a name subscribed thereto, or signed with a fictitious name, or with any letter, mark or other designation, threatening therein to accuse any person of any crime of an indictable nature under the laws of this State, or of anything, which, if time, would bring such person into contempt or disrepute or to do any injury to the person or property of anyone, with a view oi intent to extort or gain any money, goods or chattels or other valuable thing shall be guilty of a felony, and being convicted thereof shall bo punished by imprisonment in the penitentiary for not less than two nor more than ten years.” By this section it is made a felony to either knowingly send, deliver or make and, “for the purpose of being sent or delivered,—part with the possession of any letter or writing,” etc., threatening therein “to do any injury to the person or property of anyone with a view or intent to extort or gain any money, goods or chattels or other valuable thing.” The first count in the indictment charges that the accused “feloniously did knowingly send a letter without a name subscribed thereto to one A. Henry Strasbaugh in said coun ²⁸⁸ ty> by the name and description of Strosbough threatening therein to do an injury to the property of said A. Henry Strasbaugh with a view and. intent to extort and gain money from him said A. Henry Strasbaugh, and which letter is as follows, that is to say: 'Strosbough you are requested to leave at this certain place one hundred dollars in small paper money in a small box at the cross roads from Oreswel to the Blair pike back of the old tree with the dop out this is to be put there by three o’clock Wednesday, Hov. 25th, and if not there by that time your buildings will all go up in smoke when you least expect it this is to be left there until taken away you will not be warned but once if this is not complied with this will happen.” The second count charges that he “feloniously did knowingly deliver” said letter to A. Henry Strasbaugh, as in the first count; the third count charges that he “feloniously did knowlingly make and part with the possession of” said letter “for the purpose of being delivered” to A. Henry Strasbaugh, etc., and the fourth count charges that he “feloniously did knowlingly make and part with the possession” -of said letter “for the purpose of being sent” to A. Henry Strasbaugh, etc. The ground of the demurrer is that the letter does not com tain the name of A. Henry Strasbaugh, and the contention of counsel for the appellant is that the prosecuting witness could not, therefore, know that it was intended for him.

But if it was sent or delivered to him, or if the accused made and parted with the possession of it for the purpose of having it sent or delivered to him, it obviously, can make no difference whether his name is in the letter or not. Suppose the appellant had placed the letter, without, any name in it at all, in Mr. Strasbaugh’s house where he knew it would be received by him, would not the legitimate inference be that it was intended for him 'í The means by which such a lettei or writing is delivered is immaterial, provided it contains n threat to injure the person or property of the one to whom it is delivered for the purpose mentioned in the statute, and if the letter set out in the indictment was delivered or sent by ²⁸⁹ the accused, or he made and parted with the possession of it for the purpose of having it sent or delivered to A. Henry Strashaugh, there can be no question of his guilt under the provisions of the Code. The case of State v. Nutwell, 1 Gill, 54 , presented an entirely different question. There the accused was indicted under a statute forbidding any person accustomed to make and sell distilled spirits or other liquors, “to suffer any free negro or mulatto, or any negro or mulatto servant or slave to be in her or their storehouse, or other houses, wherein he, she or they may be accustomed to sell diEtilled spirits or other liquors between sunset in the evening and sunrise on the succeeding morning,” and the Court held the indictment bad because it did not state the name of the slave whom the accused' suffered to be in his storehouse, etc., and did not, therefore, sufficiently describe the offense with which the accused was charged.

The demurrer having been overruled, the prisoner moved to quash the indictment on the ground that it contains four counts, each charging a separate and distinct offense. It is the common and approved practice in this State to insert in the indictment several counts, charging the offense in different ways, and to charge in one indictment, in separate counts,, two or more felonies growing out of the same transaction. Eor instance, there may be several counts for larceny, charging the ownership of the property in different persons, and it is usual to have in the same indictment a count for larceny and another for receiving stolen goods. Where there are several counts in the indictment, charging separate and distinct offenses, the Court may, in its discretion, require the prosecution to elect upon which count he will proceed, or quash the indictment.

That should not be done, however, at the instance of the accused, unless the Court can see that “the chai’ges are actually distinct and may confound the prisoner, or distract the attention of the jury.” But the indictment will not be quashed, where it is obvious on its face, “that the several counts relate to the same transaction, and that the variation of the form in which the offense is charged ²⁹⁰ in the different counts is done with a view to meet the evidence.” Row while the statute in question makes it a felony to either send, deliver or make and part with the possession of such a letter or writing for the purpose of having it delivered or sent, it is apparent that the several counts in the indictment relate to the same transaction, and do not charge separate and distinct offenses, and that the motion to quash the indictment was properly overruled. Wheeler v. State 42 Md. 563 ; State v. McNally, 55 Md. 559 ; Stearns v. State, 81 Md. 341 ; Hochheimer's Crim. Law & Proc., sec. 162; 22 Cyc. 394; 1 Bishop's New Crim. Proc., secs. 449-451.

Arthur Hansom, a witness for the State, testified that ho was a clerk in A. H. Strasbaugh’s store at Creswell, Harford County, Maryland, and that he has known the appellant for .about four years; that after the letter set out in the indictment was found, he got the accused to write a letter for him, for the purpose of securing a sample of his writing, and he then -produced and identified the note. On cross-examination he was asked the following question: '“Was anybody else -other than the defendant under suspicion?” The State objected, the Court refused to allow the question to be answered, and the defendant excepted. The purpose of this question is not disclosed by the record, but the fact that other persons were “under suspicion” could not have reflected in any way upon the question of the guilt or innocence of the accused, or have tended to contradict the witness. , Mr. Strasbaugh testified that on the 25th of Hovember, 1908, he found the letter referred to in the indictment on his barn door, “about three or four feet from the ground, about eight o’clock in the morning,” and that it was not there at dusk the evening before. The State then offered the letter in evidence, the defendant objected, and the seeoiid exception is to the action of the Court in allowing the letter to' be read to the jury.

The ground of this exception, as stated in the appellant’s brief, is that there is a variance between the letter set out in the indictment and the letter read to- the jury; that in the indictment, the letter contains the ²⁹¹ word “unbinond,” while in the letter offered in evidence it is “unbenonce,” and he relies on the statement in Wharton's Am. Cr. Law (2 ed.), page 123, that “A mere variance of a letter will not be fatal, even when the tenor is set out, provided the meaning be not altered by changing the word misspelt into another of a different meaning.” In the letter it is stated that the money must “be put there unbenonce to anyone but yourself,” while in the indictment the money must “be put there unbinond to anyone but yourself,” and there is no change in the meaning of the word', which was a substitute for unbelcnown, and it is not, therefore, a