Archer v. State

• Decision Date: 13 February 1924
• Docket Number: 51,52.
• Citation: 125 A. 744,145 Md. 128
• Parties: ARCHER v. STATE. WILSON v. STATE.
• Court: Maryland Court of Appeals

125 A. 744

145 Md. 128

ARCHER v. STATE.

WILSON v. STATE.

Nos. 51, 52.

Court of Appeals of Maryland

February 13, 1924

Motion for Reargument Denied April 9, 1924.

Appeals from Criminal Court of Baltimore City; Charles F. Stein Judge.

"To be officially reported."

C Graham Archer and S. Burns Wilson were convicted of conspiracy, and they appeal. Reversed and remanded.

Argued before BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS and OFFUTT, JJ.

Wm. L. Marbury and Albert S. J. Owens, both of Baltimore (W. L. Rawls, Lloyd L. Jackson, Jr., and Fendall Marbury, all of Baltimore, on the brief), for appellant Archer.

James McC. Trippe, of Baltimore (Samuel K. Dennis, of Baltimore, on the brief), for appellant Wilson.

Alexander Armstrong, Atty. Gen., and Lindsay C. Spencer, Asst. Atty. Gen. (Robert F. Leach, Jr., State's Atty., of Baltimore, on the brief), for the State.

ADKINS J.

On the 15th day of December, 1922, a presentment was made by the grand jury of Baltimore city against C. Graham Archer, S. Burns Wilson, and Arthur Gordon for conspiracy, in which it is charged that the said Archer during the time mentioned (from August 11, 1917, to December 20, 1921) was engaged in the business of stockbrokerage in copartnership with one O. Howard Harvey, trading under the name and style of Archer, Harvey & Co., in the city of Baltimore, and that the said Gordon was during said period the office manager for said firm, and that said Wilson was an intimate friend and associate of Archer; and that on the 11th day of August, in the year 1917, and thence continuously until and including the 20th day of December, 1921, the said Archer, Gordon, and Wilson did unlawfully conspire, confederate, and agree together and with each other by divers false pretenses to obtain and acquire certain moneys, goods, and properties of the then customers of said brokerage copartnership, and of such other persons as might believe said false pretenses to be true, and thereby be induced to become customers of said brokerage firm with the intention on the part of said Archer, Gordon, and Wilson to cheat and defraud the aforesaid customers and the aforesaid other persons who might believe the said false pretenses to be true and thereby be induced to become customers of said brokerage copartnership of their moneys, goods, and properties, against the peace, government, and dignity of the state.

On January 4, 1923, an indictment was found against the said defendants, containing six counts, the first, third, and fifth of which charge a conspiracy beginning on August 11, 1917, and continuing to and including the 19th day of December, 1921, and the second, fourth, and sixth charge a conspiracy beginning on the 1st day of January, 1921, and continuing to and including the 19th day of December, 1921.

Each of the traversers demurred to the indictment, and to each and every count thereof setting out a number of reasons, including the following:

"Because the offense charged in the presentment in the above-entitled case is different from the offense charged in each and every count of the indictment, and the date of the presentment therefore is not, as a matter of law, the beginning point of the prosecution of the case, and that the beginning point of the prosecution is the date upon which the true bill was found, to wit, the 4th day of January, 1923, and for that reason each and every count of the indictment shows on its face that the misdemeanor alleged to have been committed was not committed within one year next preceding the commencement of the prosecution, to wit, January 4, 1923."

The demurrers were overruled. Whereupon motions to quash were filed by each of the traversers setting out the same reasons as stated in the demurrers, adding this additional reason, viz.:

"Because the offense charged in the presentment and in each and every count of the indictment shows on the face of each thereof that the misdemeanor alleged to have been committed was not committed within one year next preceding the commencement of the prosecution, to wit, December 15, 1922."

These motions were also overruled. Whereupon demurrers to the presentment were filed and overruled. Pleas in abatement were then filed on substantially the same grounds, demurrers to which were sustained. Then followed demands for a bill of particulars which were promptly overruled. A suggestion for removal was also overruled, as was a motion for a severance by C. Graham Archer.

The next step was the filing by all the traversers of a plea of limitations on the ground "that the prosecution in this case was not commenced within one year from the time said alleged offense is charged in said indictment to have been committed," which plea was traversed by the state, and issue joined.

Each of traversers then pleaded not guilty; Archer and Wilson elected to be tried before the court without a jury, and Gordon elected to be tried by a jury, which resulted in a severance as to Gordon. The case then proceeded as to Archer and Wilson.

Practically all of the state's evidence was admitted subject to exception. It included the books and papers of the late firm of Archer, Harvey & Co., and testimony as to entries of those books and contents of the papers, all of which related to transactions prior to December 10, 1921. The books and papers were produced by the trustee in bankruptcy of the late firm, Mr. Cator, who had previously been appointed receiver by the circuit court of Baltimore city and in that capacity obtained possession of the books.

There were also a number of witnesses produced by the state who testified as to transactions had by them with the firm, all of which transactions were prior to the 10th day of December, 1921. The traversers produced several witnesses, none of whom referred to any later transactions.

At the conclusion of the testimony each of the traversers moved to strike out certain testimony, including the books and papers of the late firm, and all testimony relating to the matters contained in said books and papers, and each and every answer of witnesses to questions relating thereto, and all of the testimony offered by the state relating to entries in said books, and the testimony of witnesses with reference thereto, and to conversations alleged to have been had with any of the traversers herein that related to transactions or occurrences that took place more than one year prior to the commencement of the prosecution. And in the same motion were included two prayers, in which the court was asked to rule as a matter of law: (1) That the state has not adduced evidence legally sufficient to show that the misdemeanor charged in any count of the indictment was committed within one year prior to the commencement of the prosecution; (2) that no evidence has been adduced in this case legally sufficient to entitle the court to find this traverser guilty under any count of the indictment.

The court passed the following orders, from which it appears there were four other prayers which do not appear in the record:

"Order by the Court.

The traverser, C. Graham Archer, moves the court to strike out and exclude from its consideration the following evidence, which was admitted subject to exception, namely: [Here follows the language of the motions.] Similar motions offered by S. Burns Wilson. Each of these motions is overruled, with exceptions to each traverser, and with the right to elaborate them nunc pro tunc."

"[Signed] Charles F. Stein."

"Order by the Court.

The first four prayers offered by each traverser are the same as 'motions to strike out evidence,' offered subject to exception, and which motions were offered at the close of the taking of the testimony, and on which motions I will act. The other two prayers are demurrers to the evidence. I refuse to act on any of these prayers and give each traverser the proper exceptions to that refusal.

[Signed] Charles F. Stein, Judge."

Each of the traversers was found guilty and sentenced to 10 years in the penitentiary. From this judgment each of the traversers appealed.

There are eighteen bills of exception, of which all but one relate to rulings on evidence. The eighteenth is to the ruling of the court on the motion to strike out testimony and to the refusal of the court to act on the prayers. Besides, much stress is laid by counsel for traversers on the rulings on the demurrers, motions to quash, and pleas in abatement which are not the subject of bills of exception.

We have thought it wise to dispose first of the eighteenth exception, because, if the refusal to strike out the testimony included in the motion was error, it goes to the root of the whole prosecution. And we think that ruling was erroneous.

Code, art. 57, § 11, provides:

"No prosecution or suit shall be commenced for any fine, penalty or forfeiture, or any misdemeanor, except those punished by confinement in the penitentiary, unless within one year from the time of the offense committed."

Conspiracy is a common-law offense, and is a misdemeanor. Common-law misdemeanors are not "punished by confinement in the penitentiary" in the sense of the above section, unless the Legislature intended by the act of 1916, chapter 556, as repealed and reenacted by chapter 196 of the acts of 1918 and codified as section 654 of article 27 of the Code, to abolish by implication a policy of the state which has been embodied in our statutes for more than a century. If the section of the Code above referred to is to be so construed, it means that there is no longer any limitation as to the time within which any misdemeanor, however trifling, may be presented if it is punishable by "any imprisonment whatever," for by that section the criminal courts are authorized to...