Weinstein v. State

Oebu’tt, J., delivered the opinion of the Court. The indictment in this case charges Barnet Weinstein with the crime of perjury, and avers that on December 12th, 1921, ⁸² be appeared before Joseph L. McAllister, a justice of the peace of the State of Maryland in and for1 the City of Baltimore, and offered to give security to the State for the appearance before the said justice of one Adolph Markanski, when duly summoned and notified to- answer to a certain criminal charge pending’ against him before such justice, and in connection with that offer deposed and said that his interest in certain property in Baltimore City was absolute and undivided, whereas it was not absolute and undivided; and that on November 22nd, 1921, he appeared before the clerk of the Criminal Court of Baltimore City and offered to give security to the State for the appearance before said court when thereto duly summoned of one Beatrice Riley, to answer a criminal charge pending in said court against her and in connection with s,aid offer deposed that his interest in certain other property in said city was absolute, whereas in fact it was not absolute. And that subsequently he was indicted for perjury in connection with each of these depositions, and on May 21st, 1923, was tried on those charges before the Criminal Court of Baltimore City, and in the course of those trials he was sworn .as a witness and asked whether he was paid or had received any money for giving’ security for the appearance of Markanski before the justice and' for the appearance of Beatrice Riley before the said court to answer the charges respectively pending against them, and that in .answer to said inquiry he had testified that he had not been paid and that he had not received money therefor, whereas in fact he had been paid and had received money therefor. Upon that, indictment he was tried before the Criminal Court of Baltimore City, convicted, and sentenced to six months in the Maryland Penitentiary, and from that judgment and sentence he has taken this appeal.

Before pleading the traverser demurred to the indictment, which demurrer the court overruled, whereupon he pleaded “not guilty.” During the course of the trial twenty eight exceptions were noted by the defendant to rulings of the court upon matters ⁸³ of evidence, and those rulings and the ruling of the court on the demurrer we are called upon by the appeal to review. Naturally the first question to be considered is- the ruling on the demurrer to the indictment. One of the appellant’s objections to that indictment is that it includes in a single count charges of two several distinct, separate and unconnected offences, .and is therefore duplicitous. If that objection is true in fact, it is in our opinion sound in law.

Stearns v. State, 81 Md. 346 ; 31 C. J. 758 and note 92; Wharton., Crim. Proc., par. 392; Bishop, Crim. Proc., par. 432. For if two distinct crimes are charged -in the same count, although they may believe him guilty of one and not guilty of the other, the jury trying the case must nevertheless either convict the1 traverser of both or acquit him of both, since in such a case as this there could be under the laws of this State no splitting of the verdict, and, as said in State v. Smith, 61 Me. 389 , ''This strictness of pleading is necessary in order that the accused may not be in doubt as to the specific charge against him which he is called to defend, and that the court may know what sentence to pronounce.” The question therefore is narrowed to this: Are there in fact two several, distinct and separate offences charged in the single count of the indictment in this case ?

From the averments of the indictment it appears that Weinstein was charged with having, on December 21st, 1921, in offering himself as security in the Markanski case, sworn falsely before the justice concerning his. interest in a property described as 4219 East Lombard Street in Baltimore City, and with having, on November 5th, 1921, in offering himself as security in the Riley case, sworn falsely in the Criminal Court of Baltimore City concerning his interest in properties described as Nos. 26, 26% and 28 Caroline Street in said city. While it is not directly charged, yet the language of the indictment compels the inference, that he was separately indicted for each of those offences, because, after setting out the facts of each charge referred to separately, it avers further, in connection with those charges, “which said ⁸⁴ causes and issues were then and there pending therein and then and there came on to be tried and determined,” and the use of the plural form of “cause” in connection with the fact that the “causes” referred to could only have related to the two charges referred to above, compels the inference that there were two causes. It further appeared that those two “causes” were tried in the Criminal Court of Baltimore City, and while it does not appear from the record that they were consolidated, or even that they were tried at the same time, it does appear that Weinstein’s testimony was the same in each case. It is stated in the appellant’s brief that the two cages were tried at the same time, but in considering the sufficiency of the indictment it is not apparent how that statement can be used to supplement its averments.

But in any aspect of the ease we have this situation, that in each of two separate and distinct cases', one relating to a false statement under oath before the justice concerning his ownership of the Lombard Street property in the Markanski case, and the other to a false statement under oath before the clerk of the criminal court in the Beatrice Riley case concerning his interest in the Caroline Street property, he falsely testified that he had not received money for acting as security in either case. Now one of the essential elements of the crime of perjury is that the false testimony upon which it is based must have been material to the issues or matter in connection with which it was given (2 Wharton, Crim. Proc., par. 1095), and the question therefore arises as to whether both the falso statements charged in this ease were material in each of the two causes in which, they were made. That the statement delating to' the defendant’s receiving money for giving security in the Markanski case was material to the issues in the trial of the charge that he swore falsely as to his interest in the property referred to in that case is, we think, clear, but whether his statement, made in the trial of the Markanski ease, that he did not receive money for giving security in the Riley case, where he was charged with having sworn falsely concerning property referred to in that case, which ⁸⁵ was not the property referred to in the Markanski ease, was material, presents more difficulty.

The indictment must show' the materiality, for, as stated in 2 Wharton, Crim. Proc., par. 1095, “where several distinct parts of the testimony are alleged to be false the indictment or information must distinctly show that each part alleged to be false was material,” and it is as necessary that the materiality of so much of the false statements made in the trial of the traverser for the Markanski perjury, as related to the Biley case should appear as that the materiality of so much of it as related to the Markanski case should appear. The rule in this State as to the nature and sufficiency of an averment of materiality in such a case is stated in the following terms in Deckard v. State, 38 Md. 206 : “The next objection of most importance is, that the materiality of the false testimony to the issue or question depending, is. not sufficiently averred. This materiality must appear in one of two ways, either upon the face of the indictment, or by express averment.- It may sufficiently appear to be material from the nature of the evidence itself, or from certain facts stated by way of inducement in the commencement of the indictment, or its materiality may be stated by way of averment.

But it is sufficient that this appears in one of these two methods; it need not be made so to appear by both. 3 Arch Cr. Pr. 598; 2 Chitty's Cr. Law, 309; 2 Bishop's Cr. Proc., sec. 854.” And in Wharton, Crim.

Proc., par. 1096, the same rule is thus stated: “The indictment or information may set out the materiality to the issues or point of inquiry of the testimony alleged to be false in either of two ways: (1) by a direct averment of that fact, or (2) by setting forth the facts from which the materiality is made apparent or necessarily inferred; .and an averment of the materiality of the alleged false testimony by either of these methods is usually sufficient, although there are occasional oases to the contrary. But it is to. be remembered that a, simple allegation of materiality, without setting out the facts showing such materiality, is merely the .averment of a conclusion of law. ⁸⁶ and snob an averment cannot save an indictment or information otherwise bad — as where it is shown by the facts set forth in