Brown v. State, 296

• Decision Date: 16 June 1961
• Docket Number: No. 296,296
• Citation: 171 A.2d 456,225 Md. 610
• Parties: Rose BROWN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 610

225 Md. 610

171 A.2d 456

Rose BROWN v. STATE of Maryland.

No. 296.

Court of Appeals of Maryland.

June 16, 1961.

Douglas G. Bottom, Towson, for appellant.

Edward S. Digges, Sp. Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Joseph S. Kaufman, Deputy Atty. Gen., Saul A. Harris and John Paul Rogers, State's Atty. and Asst. State's Atty respectively, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, PRESCOTT, HORNEY and MARBURY, JJ.

MARBURY, Judge.

Rose Brown was indicted in the usual form alleging perjury in her testimony in a civil case titled Baltimore Federal Savings and Loan Association, a body corporate, plaintiff, versus Albert R. Brown and Rose Brown, defendants, and tried in the Superior Court of Baltimore City on December 10, 1958. This case was a suit on a confessed judgment note purportedly signed by Rose Brown and Albert R. Brown, payable to the order of Baltimore Standard Heating, Inc., endorsed without recourse to the Baltimore Federal Savings and Loan Association, which claimed to be a holder thereof in due course. At the trial of the case Rose Brown denied that she had signed the note. The indictment was filed on May 6, 1959, the defendant arraigned on May 20, when she pleaded not guilty, and trial had on October 18 and 19, 1960. She was found guilty by the jury and sentenced to not more than six months in the Maryland State Reformatory for Women from October 20, 1960. She appeals from the judgment and sentence in that case.

In the indictment it was alleged that she testified wilfully and falsely under oath 'that she did not sign papers in connection with any transaction with the Baltimore Standard Heating Company, that she did not affix her signature as Mrs. Rose Brown to a certain promissory note marked Account T.1R 76090; that the signature on said promissory note is not her signature; that she did not sign said note; that the name Rose Brown appearing on said note is not her signature; that she did not sign said paper or any other papers in connection with any transaction with the Baltimore Standard Heating Company.'

The State's Attorney, by agreement with defense counsel, read certain portions of the record in the civil trial to prove that the defendant did make the statements attributed to her in the indictment. The State produced as a witness Symone S. Spector, attorney for Baltimore Federal Savings and Loan Association, who identified the pleadings filed in the civil case, which were introduced as State's Exhibits Nos. 1, 3 and 4, and the note purporting to bear the signature of the defendant, Rose Brown, which was admitted in evidence, over objection, as State's Exhibit No. 2. The State then produced William W. McIntyre, Assistant Home Improvement Manager of the Equitable Trust Company, who identified certain papers which were used by Captain Anthony F. Nelligan, commanding officer of the crime laboratory of the Baltimore City Police, in a handwriting analysis, as papers which were regular business records of that company. These records were introduced as State's Exhibits Nos. 6, 7 and 8. The State also introduced as State's Exhibit No. 5 samples of the signature of Rose Brown, taken at the time of the hearing of the civil case. Captain Nelligan then testified for the State that it was his opinion that the signatures appearing on State's Exhibits Nos. 2, 5, 6, 7 and 8 were all by the same author. That was the total evidence presented by the State, which may be briefly stated as follows: (a) that they produced evidence that the statements alleged to have been false were made, and (b) that the signature on the note was compared with three signatures believed to be those of the defendant and three signatures known to be those of the defendant, and that the handwriting expert testified that in his opinion the signatures were written by the same person. At the end of the State's case the defendant's motion for a directed verdict was overruled.

The appellant testified in her own behalf as to her knowledge of the transaction made by her husband, Albert R. Brown, with the Baltimore Standard Heating Company, but denied that she obligated herself in any way for the purchase of anything from that company and again denied signing the note which had been admitted in evidence as State's Exhibit No. 2.

Albert R. Brown testified that he had signed a contract, which bore only his signature, which was admitted in evidence as defendant's Exhibit No. 1, on the promise that he was going to 'get a rebate of $800.00 and $150.00 for my furnace'; and that he also signed the note in question. He also testified that in his presence she was asked to sign the papers but that she refused. Through this witness there was admitted as defendant's Exhibit No. 2 an 'Advance Notice to Applicant for FHA Title I Loan' addressed to Mr. and Mrs. Albert R. Brown; a paper attached to defendant's Exhibit No. 1 which was dated September 28, 1957, signed by William Endicter and Gilbert B. Magaziner, the salesmen for Baltimore Standard Heating Company, showing that 'whatever is done in manner of getting Bank approval places Mr. and Mrs. Brown under no obligation', as defendant's Exhibit No. 3; the credit application for the loan bearing only the signature of Albert R. Brown, as defendant's Exhibit No. 4; the completion slip for the installation of a furnace bearing only the signature of Albert R. Brown, as defendant's Exhibit No. 5; another contract of Baltimore Standard Heating, Inc., which was signed by Albert R. Brown only, as defendant's Exhibit No. 6.

At the end of all of the evidence the appellant renewed her motion for directed verdict, which was denied by the trial court.

On this appeal the appellant presents three assignments of prejudicial error. She claims that the trial court erred (1) in admitting into evidence State's Exhibit No. 2--note purportedly signed by the appellant; (2) in failing to grant appellant's motion for directed verdict; and (3) in its instructions to the jury.

We find no error in the admission into evidence of State's Exhibit No. 2, which was the confessed judgment note that appellant denied signing in the civil case in the Superior Court of Baltimore City. The note in question was the crux of that case and her testimony in that proceeding with reference to the signature thereon, purporting to be hers, was the basis for the charge of perjury laid in the indictment in this case. Its introduction as evidence in this case was not only pertinent and material to the issue, but was admissible as original primary evidence. Cf. Hodel v. State, 112 Md. 115, 121, 75 A. 1056.

The appellant's second and main contention is that the trial court erred in failing to grant her motion for directed verdict. There have been few cases in Maryland dealing with the crime of perjury and, so far as we know, none where the quantum of proof necessary for conviction has been before this Court.

Perjury is generally described as set forth in Wharton, Criminal Law, § 1511 (12th ed. 1932), p. 1782, as follows:

'The offense consists in swearing falsely and corruptly, without probable cause of belief; not in swearing rashly or inconsiderately, according to belief. The false oath, if taken from inadvertence or mistake, cannot amount to voluntary or corrupt perjury. * * * That the oath is wilful and corrupt must not only be charged in the indictment, but must be supported on trial. An oath is wilful when taken with deliberation, and not through surprise or confusion, or a bona fide mistake as to the facts, in which latter cases perjury does not lie.'

The author, further in discussing the proof required in perjury cases, in § 1585, at page 1838 states:

'The rule that testimony of a single witness is not sufficient to negative the alleged false oath is not merely technical, but is founded on substantial justice. There must either be two witnesses to prove such falsity, or one witness with material and independently established corroborative facts. * * *'

At common law it was originally...