Bloomer v. State

• Decision Date: 03 May 1878
• Citation: 48 Md. 521
• Parties: WILLIAM E. BLOOMER v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

48 Md. 521

WILLIAM E. BLOOMER v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

May 3, 1878

APPEAL from the Criminal Court of Baltimore City.

The case is stated in the opinion of the Court. The exceptions eight in number, are sufficiently set out in the opinion. A verdict of guilty was rendered against the traverser, William E. Bloomer, but as to the traverser, Upton W. Dorsey, the jury being unable to agree, were discharged. The traverser Bloomer, appealed.

The cause was argued before BOWIE, STEWART, BRENT, MILLER, ALVEY and ROBINSON, J.

Charles Marshall, for the appellant.

Bernard Carter and S. Teackle Wallis, for the appellee.

Charles J. M. Gwinn, Attorney-General, filed a brief on behalf of the appellee.

BOWIE J., delivered the opinion of the Court.

The appellant, William E. Bloomer, and Upton W. Dorsey, were indicted in the Criminal Court of the City of Baltimore, for conspiracy with others whose names are unknown, to cheat and defraud the Chicago, Burlington & Quincy Railroad Company, etc.

The first count charged, that being in possession of certain cards or tickets of the Chicago, Burlington & Quincy Railroad, which contained blank spaces for filling in or writing the name of the person to whom they might have been properly issued and granted, they, together with others unknown, conspired and agreed to fraudulently fill in and insert the names of divers persons, etc., and did fill in and insert the names of divers persons in said cards or tickets, and sell and dispose of the same with intent to cheat and defraud the said Chicago, Burlington & Quincy Railroad Company.

The second count charges, that the said Dorsey and Bloomer with divers others, etc., conspired together to cheat and defraud the Chicago, Burlington & Quincy Railroad Company, by fraudulently and wrongfully procuring a large number of cards, tickets, etc., in and upon which no name had been written, and which had not been issued, with intent to have them filled up and sell and dispose of the same, and to cheat and defraud the said Company.

The third charges the same persons with conspiring to obtain and acquire from the Chicago, Burlington & Quincy Railroad Company, divers large quantities of cards, tickets, etc., called "annual passes," of great value, and to cheat and defraud it thereof.

To which the traversers plead not guilty. The jury returned a verdict of guilty as to Bloomer, and being unable to agree as to Dorsey, were discharged.

Several exceptions having been taken upon questions of evidence on the trial, the traverser, Bloomer, appealed.

The State having given evidence tending to prove that an officer of the Chicago, Burlington & Quincy Railroad Company, and of the Burlington & Missouri Railroad, having in his possession certain blank annual passes over said roads, six of each, to be filled up and used by him, in the course of his official duties in travelling over the same, lost the same in Washington, about the middle of January, 1877, and having proved that a pass over the one road, does not authorize the holder, to travel over the other, but each requires a different pass, the witness identified one of the passes of the Chicago, Burlington & Quincy Railroad, shown him as one of those stolen from him, and testified that no one had any authority to use those passes, in the form in which the one shown him was. "To make the pass properly available, the blank space on its face must be filled up with the name of the person using it, by the proper officer of the Company." * * * *

"No one but witness had authority to fill up and issue the passes of the C. B. & Q. Railroad, that witness had with him at Washington. Witness had not filled up any of them when they were stolen from him, or authorized any one to fill them up; they were entirely blank," etc.

The State then offered three Burlington & Missouri River Railroad annual passes in evidence, and proposed to show they were passes precisely of the same character, and in possession of the witness, for the same purposes as to the Burlington & Missouri River Railroad, as the others already given in evidence in respect to the Chicago, Burlington & Quincy Railroad, and that no one but witness had authority to issue said B. & M. R. Railroad passes, and that they were never issued by him, but were stolen from him at the same time with the passes of the C. B. & Q. Railroad, already given in evidence. It was represented by the State, that this proof would be followed by evidence, tracing the B. & M. R. Railroad passes into the hands of Bloomer and Dorsey, for the purpose of unlawfully and fraudulently dealing with them, and showing they did unlawfully and fraudulently deal with them.

The object or purpose of this offer was to show in connection with the evidence before given, and thereafter to be given, that the traversers fraudulently obtained, and had in their possession, and dealt with the Chicago, Burlington and Quincy passes, in respect to which the conspiracy is charged in the indictment, and in manner and form as therein charged.

The traversers objected to the admission of the testimony offered, unless the State proposed to follow the same, by proof that the B. & M. R. R. passes, were obtained and dealt with by the traversers, "in pursuance of a confederation or combination between the traversers, and for the purpose of defrauding the C. B. & Q. R. R., as set forth in the indictment."

The Court overruled the objection, and allowed the evidence offered, to be given according to the tenor of said offer. To which ruling the traversers excepted. It is urged on their behalf, that this was equivalent to an attempt to establish a conspiracy, to deal unlawfully with the passes of one road, by showing a like conspiracy as to the passes of another.

The legal grounds of this exception are, that the testimony offered, does not tend to prove the matters in issue, and the facts are collateral to the charges in the indictment.

The elementary rule of evidence, that the testimony must be confined to the points in issue, is based not only on the reason, "that such evidence tends needlessly to consume the public time, to draw away the minds of the jurors, and to excite prejudice and mislead," but, "moreover, that the adverse party, having had no notice of such evidence, is not prepared to rebut it." 1 Taylor's Ev., sec. 298. We are admonished by this distinguished author, that "The due application of this rule, will occasionally tax to the utmost, the firmness and discrimination of the Judge; so that, while he shall reject as too remote, every fact which merely furnishes a fanciful analogy, or conjectural inference, he may admit as relevant, the evidence of all those matters which shed a real, though perhaps an indirect and feeble light on the question in issue." Ibid.

The object of the evidence excepted to, was to prove, in connection with the evidence previously submitted, and that proposed to be submitted, that the traversers fraudulently obtained and had in their possession, the Chicago, Burlington and Quincy Railroad passes, in respect to which the conspiracy is charged in the indictment.

In other words, to establish a fraudulent intent, by proving possession of passes of the same kind and description over another railroad, which were stolen at the same time, and from the same person.

The most recent, and well considered authorities, establish we think, beyond question, the admissibility of such evidence in analogous cases.

In prosecutions for the utterance of forged instruments, it has been held competent to prove that the traverser had about the same time in his possession, other forged instruments than those which were the subject of the indictment. 3 Greenleaf's Ev., sec. 111; Rex vs. Wylie, 1 New Rep., 91; 1 Leading Crim. Cases, 185, and cases cited in note 1.

In Wood vs. The U. S., 16 Peters, 360, in a libel for violating the Revenue Laws, by the use of false invoices, the Supreme Court, by the late Mr. Justice STORY, held that fraud might be deduced from other invoices of the plaintiff in error, of goods imported before and after the importation of the goods in question.

That learned Jurist said, it was an exception to the general rule, excluding evidence not directly comprehended within the issue; or rather, perhaps it may with more certainty be said, the exception is necessarily embodied in the very substance of the rule; for whatever does legally conduce to establish the points in issue, is necessarily embraced in it, and therefore a proper subject of proof, whether it be direct or presumptive. Vide also The King vs. Wylie, 4 Bos. & Pul., 92; United States vs. Wood, 14 Peters' Rep., 430. There are some decisions to the contrary, but the ruling of the Court below, in our opinion, is sustained by a great preponderance of reported cases in England and the United States.

Besides the special exception set forth in the first bill of exceptions, the traversers reserved a general exception, to all the evidence, and the right to move the Court to exclude it from the jury, if the whole evidence should not be legally sufficient to support the indictment.

The State's witness, Tonzaline, having testified on his cross-examinatson, that a certain railroad pass, No. 64, shown to him, and now filled up, "H. M. Beidler and one," is now numbered 64, but under that number, you will find the number "38 rubbed out," the traversers moved the Court to exclude the same from the jury, "until it is first shown that the traversers combined or conspired with others, to make said alteration, or that said alteration, was made by one or the other of them, in execution of such previous conspiracy to do the acts charged in the indictment."

Which motion the Court overruled,...