Blum v. State

• Decision Date: 17 January 1902
• Parties: BLUM et al. v. STATE.
• Court: Maryland Court of Appeals

51 A. 26

94 Md. 375

BLUM et al. v. STATE.

Court of Appeals of Maryland

January 17, 1902

Appeal from criminal court of Baltimore city; Pere L. Wickes, Judge.

Philip and Samuel Blum were convicted of false pretenses, and appeal. Reversed.

Argued before MCSHERRY, C.J., and BRISCOE, BOYD, PAGE, PEARCE, and SCHMUCKER, JJ.

Wm Pinkney Whyte, Martin Lehmayer, William Colton, and Wm. F Campbell, for appellants.

Atty Gen. Rayner, Robert M. McLane, and Edgar Allan Poe, for the State.

PEARCE J.

The appellants, together with one Isaac Harris, were indicted in the criminal court of Baltimore city for conspiring, "by means of divers false pretenses and representations, and other false and subtle means and devices, to obtain and acquire unto themselves certain properties, moneys, goods, and chattels" of certain corporations and persons named in the indictment, and of certain other persons to the jurors unknown, of the value of $2,500, and to cheat and defraud such persons and corporations. A bill of particulars as to Samuel Blum was demanded and filed. The traversers pleaded, "Not guilty," and the case was tried before the court, resulting in a verdict of acquittal in favor of Harris, and of conviction against the two appellants, who were sentenced to confinement in jail for 20 months. Seven exceptions taken by the traversers to the admissibility of evidence offered by the state are brought up for review by this appeal.

Philip and Samuel Blum entered into partnership as wholesale grocers in Baltimore in 1894, as Blum Bros., continuing in business under that firm name until February 8, 1900, when Isaac Harris was admitted as a partner, and the firm name was changed to Blum Bros. & Harris. The following facts were agreed on at the trial: That the firm of Blum Bros. & Harris took out license for $1,000 May 1, 1900, for 300 West Lombard street; that Annie Blum, mother of Philip and Samuel Blum, took out license for $500 May 1, 1900, for 212 Albemarle street; that Sarah Rosensweig, sister of Philip and Samuel Blum, took out two licenses,--one May 1, 1900, for $500, for 300 North Pine street, and one December 1, 1900, for $500, for 417 West Saratoga street; that Wm. Harris, brother of Isaac Harris, took out license November 2, 1900, for $1,000, for 428 South Paca street; and that Ida Block, wife of Isaac Block, the bookkeeper of Blum Bros. & Harris, took out license December 1, 1900, for $500, for 815 Ashland avenue; that the assets of Blum Bros. at the time Harris was taken in were $6,000, and their liabilities $2,500; and that Harris put in $2,500 furnished by his wife, making the net assets of Blum Bros. & Harris $6,000. A number of witnesses were examined on each side, and the record embraces a mass of testimony.

A large part of the able brief of the appellants, and of the oral argument of their distinguished senior counsel, was devoted to a criticism of the indictment, which it is contended does not set forth the offense with the clearness and certainty necessary to apprise the accused of the crime with which they stood charged, since the state contented itself with stating the offense in the same generic terms employed in the definition of the offense at common law, and failed to descend to such particulars as are necessary to inform the court of the facts alleged, in order to determine whether they are sufficient in law to support a conviction, and to enable the accused to avail themselves either of an acquittal or a conviction in event of future prosecution upon the same charge. If the indictment was thus insufficient and defective, the only course was to demur, as the learned counsel well knew. Hawthorn v. State, 56 Md. 533. But relying upon their contention that no legal proof of such allegations as were made in that indictment could be furnished, in the language of their brief, "they resorted to the plea of not guilty, depending upon the ruling of the court for its own guidance, sitting as a jury, to save them from conviction upon insufficient and illegal proof." No demurrer having been interposed to the indictment, we would not be warranted in reviewing it here, but we deem it proper to say, in order to avoid the creation of any doubt upon the question, that we regard the sufficiency of this indictment as established by the decision in State v. Buchanan, 5 Har. & J. 317, 9 Am.Dec. 534, where all the authorities were elaborately reviewed. No decisions in this state are more highly regarded than those rendered by Chief Justice Buchanan, and we think his opinion in that case is sustained by the weight of authority. In 6 Am. & Eng.Enc.Law (2d Ed.) note p. 587, it is said that the law there laid down has been doubted in a few isolated instances, but that it has not been successfully assailed. It was denied in State v. Rickey, 9 N.J.Law, 293, but this view was disapproved by Chief Justice Green in State v. Norton, 23 N.J.Law, 44, and by Chief Justice Beasley in State v. Donaldson, 32 N.J.Law, 151, 90 Am.Dec. 649; the former saying that the great weight of authority, the adjudged cases no less than the most approved elementary writers, sustains the law declared in State v. Buchanan; and the same view is held by the courts of Connecticut, Illinois, New York, Pennsylvania, and North Carolina. The case of U.S. v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588, is not, in our opinion, in conflict with this view; the prosecution there being under the statute of the United States known as the "Enforcement Act," and the indictment failing to specify in any of the counts what right or privilege granted or secured by the constitution or laws of the United States the traversers had conspired to defeat.

The first exception was taken to the admission in evidence of the books of account of the traversers, and it should be observed that the offer of these books is the first step of the prosecution. The first witness sworn was G.W.S. Musgrave, a member of the bar, who testified that, as counsel for Harris, on December 3, 1900, he filed a bill against the two Blums for the appointment of a receiver of the firm; that this proceeding was by consent, and that he and Mr. Sonnehill, counsel for the Blums, were appointed receivers: that upon qualifying he went to the store, and took the key from the constable, who was in charge under an attachment which had been issued, and opened the store, and took possession of everything in the store, including the books. Thereupon the state offered in evidence certain books, ledgers, sales books, cash book, and bill files purporting to be the books and files of Blum Bros. & Harris, and also a book purporting to be the ledger of Blum Bros. To this offer the traversers objected, whereupon the state's attorney assured the court that this would be followed up by proof of where the books had been since they came into possession of Musgrave, that no change had been made in them, and that they were the books of Blum Bros. & Harris, though Musgrave admitted he did not know in whose handwriting the books were. The traversers renewed their objection to the introduction of the books in evidence, but the court overruled the objection and admitted the books, which were subsequently made the basis of much of the important testimony for the state.

The principal and most serious ground of this exception is that this ruling virtually compelled the traversers to furnish evidence against themselves, in violation of the twenty-second article of the declaration of rights of this state, and the fourth and fifth amendments to the constitution of the United States. This objection the state seeks to meet by saying that the books had been voluntarily turned over by the traversers to the receivers, and hence, if the books contained admissions, they could be used as any voluntary oral admission by the traversers could be used, and that, as the proceeding for the appointment of receivers was by consent, it could not be likened to one instituted by a hostile party for the express purpose of compelling the traversers to produce their books to be used against them. No authority was produced to sustain this position, though, if correct in itself, it needs none. But it is not correct to say that the books had been voluntarily turned over to the receivers for the purpose for which they are now sought to be used. If we should grant, for the sake of argument, all that may fairly be implied from the fact that the proceeding for receivers was by consent, the fact would remain that the books were surrendered under the order of the court, and what is far more important, and, indeed, vital to the determination of the question, the further fact that it cannot for a moment be contended that the appointment of receivers contemplated any criminal proceeding against the traversers, and that they can therefore be held to have waived any constitutional privilege in their defense. The purpose of a receivership is the preservation and proper disposition of the subject of litigation. The receiver is not the representative of the state, nor even of the creditors, but the hand of the court, whose control is exerted for the benefit of those ultimately found entitled to the subject of litigation, and not to aid the state in making out a case in a criminal prosecution. It cannot, therefore, be claimed that the order appointing receivers could give, or was designed to give, any such power over the books as is here claimed, or that it could operate to change a rule of evidence in the administration of the criminal law. The effect of the order upon the admission of the books in this case can have no other or greater effect than an express order directed to the traversers, if there were no receivership, commanding them to produce these books and papers, to be used in...