Wagner v. State

Briscoe, J., delivered the opinion of the Court. This case was submitted and argued with the case of Cochran v. State, ante, page 539, and as most of the questions and points presented on the record now before us, were fully considered and disposed of in the opinion filed, in the Cochran Case, it will not he necessary for us to review and discuss those questions again in this case. The traverser here was indicted in the Criminal Court of Baltimore for a violation of the State Primary Election Law. He was acquitted on the first eight counts of the indictment, and convicted on the ninth and tenth counts thereof and recommended by the jury to the mercy of the Court.

He was sentenced on the 22nd of August, 1912, to two jears and six months in jail, and fined five hundred dollars and costs. From this judgment he has taken this appeal. The questions presented arise upon a demurrer to the indictment, and upon the rulings of the Court below upon various motions, interposed during the course of the trial and upon rulings on evidence, as set out in the several hills of exceptions in the record. The questions raised on the first, second, fifth, sixth, seventh, eighth, eleventh, twelfth, twenty-first, twenty-second, twenty-sixth and twenty-seventh exceptions are identical with those passed upon by us in the case of Cochran v. State, and for the reasons stated in the opinion in that case, our conclusions there will he re-affirmed and applied here.

There was no error in the rulings of the Court, upon the third and fourth exceptions, in this case. Mr. John B. A. Wheltle, the president of the Board of Police Commissioners of the City of Baltimore, was called as a witness, upon the part of the traverser, to sustain the ⁵⁶¹ motion to quash the indictment upon the ground that certain persons, other than the grand jurors, were improperly in the grand jury room while they were considering the charges covered by this indictment. Mr. Wheltle upon cross-examination testified “That. he was before the Grand Jury in response to an order of Court as a witness, and was custodian of the ballot boxes representing the Board of Police Commissioners, and that he had nothing else to do in the room, and was simply there while the Grand Jury was inspecting the contents of the boxes and during the time he was in the Grand Jury room they did not do anything else, except to inspect the ballots in the ballot box which had been produced, and this was the first box to be inspected, and that he thinks this was sometime about the 15th of September, although he did not know when, and that it could not have been as late as the last day of September.” Upon re-direct examination he was asked the following questions: “Q. Did you or not hear the members of the Grand Jury during the time you were present on this particular occasion discuss the count of the ballots ? Q. What discussion, if any, did you hear by the members of the Grand Jury during the count of the ballots of the Eighth Precinct of the Twenty-third Ward?” The Court below, we think, properly sustained the State’s objection to the questions and refused to permit the witness to answer them. .

The evidence sought to be elicited from this witness was entirely immaterial and irrelevant. There was no evidence to show that either the presentment or indictment was based solely upon the count of the ballots. We held, in Cochran v. State, Supra, that the presence of Mr. Wheltle, in the Grand Jury room, under an order of Court, would not vitiate the indictment, under the facts of that case. We find nothing on the record, in this case, to show, that