Vogel v. State

It is provided by section 121 of article 23 of the Code of Public General Laws that every officer of any foreign corporation failing to comply with certain statutory requisites for conducting its business in Maryland, "and every agent of such non-complying corporation, who transacts business for it in this State, shall be guilty of a misdemeanor and liable to a fine of two hundred dollars." The appellant was convicted of violating that provision as an agent of the General *Page 269 News Bureau, Inc., a foreign corporation, engaged in the dissemination of racing news, which maintained an office and carried on its operations in this state without having complied with the requirements of the Maryland law. It appeared from the evidence at the trial that the appellant, who had previously been in the service of the General News Bureau as a reporter of racing news in New York, was sent to the Baltimore office of the corporation, a few days before the date specified in the indictment, for the purpose of learning to use, and thereafter using, a teletype machine. This was a part of the apparatus by which the corporation distributed the news which it undertook to supply to its patrons. The machine on which the appellant practiced was disconnected at the time from the system of wires over which the racing information was transmitted.

His only apparent duty was to qualify himself as a teletype operator for employment by the corporation in that capacity. For the week of his training to which the testimony refers he was paid sixty dollars. This was the rate of compensation which he had been receiving from the bureau in New York. Three other men were engaged at the Baltimore office in operating the transmission system, and from one of them the appellant received his salary.

That is the only indication in the evidence as to who was in charge of the office. After the testimony in the case was concluded, and before the argument to the jury, an advisory instruction was read by the court to the jury, as follows: "Under the laws of Maryland you are judge of the law and of the evidence in a criminal case. "Any instruction to you by the court as to the law is, therefore, advisory only and not binding on you. "Subject to that (the above) limitation, the court advises you, that if you believe from the evidence beyond a reasonable doubt that defendant Vogel, on November 16th, 1931, was in the employ of the General News Bureau, Incorporated, and that it is a foreign corporation, that is, a corporation under the laws of Illinois, and was such on November 16th, 1931, and if you further believe said General News Bureau, Incorporated, *Page 270 was, on November 16th, 1931, doing business in the State of Maryland and that the defendant Vogel, on November 16th, 1931, was working for said General News Bureau, Incorporated, in the office, 731 Munsey Building, Baltimore, Maryland, as teletype operator, then the court instructs you such employment of Vogel, coupled with such work by him as teletype operator, if you so find, constitutes said Vogel an agent of the General News Bureau, Incorporated, under the provision of article 23, section 121, providing for a pecuniary penalty on any `agent' of a foreign corporation doing business in Maryland without being authorized to do business in Maryland (if you so find said General News Bureau, Incorporated, to be such foreign corporation on November 16th, 1931, doing business in Maryland on said date, and not being on said date so authorized to do business in Maryland).

"I repeat to you, this instruction is advisory only, and not binding on you — and you are at liberty to disregard it." The defendant excepted to the court's instruction, and the first question to be considered on the appeal is thus presented. As originally enacted by the Acts of 1898, ch. 270, sec. 109C, the statute mentioned in the advisory instruction provided for the imposition of a fine upon any "person or any officer" of a foreign corporation, transacting business in Maryland without proper qualification, who shall presume to act as its "agent or employee." By the amendatory act of 1908, chapter 240 (page 52, sec. 69), the term "employee" was eliminated from the provision, and its application was confined, as it is at present, to officers of the unqualified corporation, and to "every agent" "who transacts business for it in this State." In view of that exclusion of employees from the effect of the act, and its restriction to officers and agents, we are of the opinion that the appellant was not amenable to its penalty. While he was training for a service essential to the prosecution of the corporate enterprise, we are unable to regard that circumstance as a sufficient reason for classifying him as an agent transacting business for the corporation within the purview of the act. He was an employee whose duties were largely mechanical and who had none of the authority *Page 271 which an agent for the transaction of business would ordinarily possess.

The agencies held to have existed in Dick v. State, 107 Md. 11 , 68 A. 286 , 576, and Central of Georgia Ry. v. Eichberg, 107 Md. 363 , 68 A. 690 , 14 L.R.A. (N.S.) 389, cited for the appellee, were those of an attorney at law and a freight solicitor the scope of whose functions was much broader than that of the appellant's service. In consequence of our conclusion as to the meaning and application of the Code provision under which the appellant was convicted, it becomes our duty to hold that the trial court erred in its advisory instruction. A further question remains to be considered.

It is raised by the only other exception upon which the appellant's brief relies, and which was taken because of the refusal of the court to permit his counsel to argue to the jury that his employment by the General News Bureau did not constitute him its agent within the intent of the Code provision under which he was indicted. The right to make such an argument in opposition to the court's advisory instruction, was claimed upon the ground that the jury are the judges of the law in a criminal case, under the Maryland Constitution, and are entitled to have the defendant's theory of the law presented. The trial judge had undoubted authority to express to the jury his views as to the law applicable to the case, with an assurance, which he duly gave, that his opinion was not binding but only advisory. Klein v. State, 151 Md. 484 , 135 A. 591 ; Simond v. State, 127 Md. 29 , 95 A. 1073 ; Luery v. State, 116 Md. 284 , 81 A. 681 , 685; Dick v. State, 107 Md. 11 , 68 A. 286 , 576.

But if such an instruction is erroneous and prejudicial to the defendant, and is made the subject of an exception, it may be reviewed and corrected on his appeal from a judgment of conviction. Klein v. State, supra; Swann v. State, 64 Md. 423 , 1 A. 872 . When a court in the course of a criminal trial exercises its discretionary right to advise the jury as to the law, the proposal of counsel, either for the accused or the state, to controvert the court's instruction, in the argument to the jury, *Page 272 raises a question of serious importance. The opinion of this court in Bell v. State, 57 Md. 108 , 120, included the following statement: "The court has an undoubted right to state to the jury, the legal effect of evidence which has been introduced and submitted to their consideration.

McHenry v. Marr, 39 Md. 532 , 533; Wheeler v. State, 42 Md. 570 . Not having excepted to the statement made by the court of the legal effect of the record, it became the law of the case. Hagan v. Hendry, 18 Md. 177 ; Davis v. Patton, 19 Md. 128 ; Dent v. Hancock, 5 Gill, 127 . Being the law of the case, counsel were not at liberty to argue against it.

Sowerwein v. Jones, 7 G. J. 341. It is true that Article 15, sec. 5 of the Constitution, declares that `In the trial of all criminal cases, the jury shall be the judges of law as well as of fact'; but this court has said that `the words in the Constitution, have no greater signification since their incorporation into the organic law, than they had previously.' Franklin v. State, 12 Md. 236 . This court has also decided, that the court has a right to instruct the jury in a criminal case, as to the legal effect of evidence. Wheeler v. State, 42 Md. 570 ; and having such right, it follows of course, that it also has the right to prevent counsel from arguing against such an instruction.

If a jury should disregard an instruction in a criminal case and convict, the evil can be remedied by granting a new trial. But if they should acquit in disregard of it, there seems to be no remedy. But whatever powers the Constitution may have conferred upon juries in criminal cases, it has conferred none upon counsel. They are still officers of the court, and under its proper control, and if the court expresses an opinion on a question of law, upon which it has a right to express it, and a party considers himself aggrieved by it, he has his remedy, either by petition in the nature of a writ of error, or by a bill of exception.

But counsel have no right, and ought not to be permitted to argue against it before the jury, in order to induce them to disregard it." In that case a judicial record had been admitted in evidence for a restricted purpose. Counsel for the defendant *Page 273 attempted to argue to the jury that the record had a different effect, more favorable to the defense, than that to which it had been specifically limited by the court's ruling. It was in reference to such a question that the quoted language was employed. A question of law involved in the case of Dick v. State, 107 Md. 11 , 68 A. 286 , 289, 576, was whether an attorney at law was an "agent" of his client within the purview of a Code provision relating to embezzlement.

An unsuccessful motion was made by the defendant to strike out the evidence for the State on the theory that in acting as an attorney at law for the collection of a claim he was not an agent as contemplated by the statute under which he was being tried. In the course of the state's attorney's argument to the jury, he stated that the construction of the statute, as to whether the defendant was an agent within its meaning, "was something they had nothing to do with, inasmuch as the court had already determined that question in ruling