Coblentz v. State

• Decision Date: 20 April 1933
• Docket Number: 21.
• Parties: COBLENTZ v. STATE.
• Court: Maryland Court of Appeals

166 A. 45

164 Md. 558

COBLENTZ v. STATE.

No. 21.

Court of Appeals of Maryland

April 20, 1933

Appeal from Circuit Court, Allegany County; D. Lindley Sloan, Frank G. Wagaman, and Albert A. Doub, Judges.

Emory L. Coblentz was convicted of having accepted, as president of a banking institution, a deposit of money when the institution was, to defendant's knowledge, insolvent, and he appeals.

Reversed and remanded.

Argued before BOND, C.J., and PATTISON, ADKINS, OFFUTT, and DIGGES JJ.

George M. Brady, of Baltimore, and Leo Weinberg, of Frederick (William Curran, of Baltimore, and David A. Robb, of Cumberland, on the brief), for appellant.

James Clark, State's Atty., of Ellicott City, and G. C. A Anderson, Asst. Atty. Gen. (Wm. Preston Lane, Jr., Atty Gen., William A. Huster, State's Atty., of Cumberland, and Jerome A. Loughran, Asst. Counsel, of Ellicott City, on the brief), for the State.

BOND Chief Judge.

The appellant was indicted by a grand jury of Howard county, and tried and convicted in Allegany county, under article 11, section 58, of the Code, on a charge that, as president of a banking institution, the Central Trust Company of Maryland, he had accepted a deposit of money when the institution was, to his knowledge, insolvent. Before any pleading on his behalf the case was, upon his application, removed from Howard county to Allegany county; and all pleadings were filed in the latter jurisdiction. On the appeal, a number of questions have been presented for decision, the most important, as this court views them, being three: That of the effect on an indictment of the presence with the grand jury, during their inquiry prior to taking their vote, of an attorney who represented plaintiffs in civil litigation against the banking institution; that of the effect of membership on the grand jury of persons hostile to the defendant; and, a third, that of the meaning of acceptance of deposits under the statute. These are questions of general bearing, the first two involving the composition and methods of the state's machinery for enforcement of the criminal law, and, the third, the principles which under the statute law of the state must determine the criminal liability of any bank officer in the state whose institution passes into the control of the bank commissioner and fails to pay its depositors in full. Actions taken or methods followed in one bank cannot, of course, be allowed to settle the law for all in order to suit the case of that one bank, and, therefore, the court is first to ascertain the principles as they must be applied for any one who may come before the courts now or hereafter, and then to make application of them to rulings brought up for review in the one case.

The question of the effect of the admission of the attorney into the grand jury proceedings was raised by a plea in abatement to the indictment found, and a demurrer to the sufficiency of it on the grounds that the presence of the attorney under the circumstances described in the plea would not be sufficient to invalidate the indictment, and that the plea was filed too late to present the question whether it would be. The demurrer was sustained. The second ground is considered first, because, if the plea was filed too late for consideration, there is no necessity of discussing the merits of the objection. That it was too late is a conclusion based on the decision in Hooker v. State, 98 Md. 145, 56 A. 390, 392, 1 Ann. Cas. 644, that after removal of a criminal case from the county of indictment to another county, although before any pleas were filed, the court of the second county could not entertain a motion to quash the indictment on the ground that a majority of the grand jury had not concurred in finding it. The opinion and reported arguments in that case disclose that the court was brought to its conclusion upon reasoning that the attack in that instance amounted to a falsification of the record recital that an indictment had been found. The court quoted as the rule of law applicable that "the record of a court as to the impaneling and proceedings of a grand jury and the finding of an indictment, like other records, proves itself, and is of such validity that, as a general rule, no fact can be averred against it." But the court added that thus to impeach the record in the second county, Howard, "would not be in accord with the principle of law that requires one court to respect the records of another, which had acted within its jurisdiction, and if in any instance an indictment is to be impeached by grand jurors, it should at least be done in the court where it was found. The provision in the Constitution that the court to which the record is transmitted shall hear and determine the same in like manner as if such indictment had been originally instituted therein, ought not to be construed to give the court to which the case is removed such power over the record of the other court as is sought in this case, and we are of opinion that even if it could be conceded that the Circuit Court of Frederick County could properly have inquired into the matters attempted to be raised by the motion to quash, the court for Howard County was right in refusing to do so." It is upon the last-quoted statement that the argument in this case is rested.

This court is of opinion, however, that the beneficent purpose of the Constitution (art. 4, § 8) to secure for persons accused of crime fair trials on charges against them so far as removal can accomplish it does not permit a construction that a defendant must file in the court, from which it seems fair to remove his case, any pleas that question the propriety of proceedings in the grand jury room. Such a construction would seem to be opposed to the purpose of the constitutional privilege, and it would be opposed to the practice, for pleas of that kind are commonly withheld until after removal. State v. Scarborough, 55 Md. 345; Cooper v. State, 64 Md. 40, 20 A. 986; Mills v. State, 76 Md. 274; State v. Keating, 85 Md. 188, 36 A. 840. In those cases attacks on indictments because of the constitution of the grand jury, or of defects in its proceedings, were overruled in courts to which the cases had been removed, in most instances because made after pleading to the merits, but it was in each case assumed that the trial court could entertain the plea or motion in the absence of the difficulty pointed out. A distinction between the grounds of attack in those cases, and that in Hooker v. State, would seem difficult to draw, obscure, without practical advantage, and likely to confuse. The statement quoted from Hooker v. State was not necessary to the decision in that case, and in the opinion of this court should not be permitted to control the decision on the demurrer in this case; and, so far as it might tend to do so, it is now overruled. Giving it the effect contended for, it would require that a defendant must, before removing a case, present, and have tried out, all pleas or motions denying the valid finding of the indictment against him, even when the charge is murder and the Constitution gives him an unqualified privilege of removal; and that is a result which we think cannot be sustained. We conclude, therefore, that the court below was required to decide upon the validity of the plea in this case, and that it was error to sustain the demurrer to it.

On the merits of the objection raised in the plea, this court is of opinion that the presence of an attorney as stated must have the consequence of invalidating the indictment upon a plea seasonably filed. The plea alleged these facts. The Central Trust Company had purchased on June 30, 1931, assets of the Washington Trust Company, situated in Ellicott City, and had assumed the liabilities to its depositors. On November 28 1931, after the Central Company had been taken in charge by the bank commissioner as receiver, a proceeding was filed by Jerome A. Loughran and others, as attorneys for the Washington Company and certain of its depositors and stockholders, seeking to have the transaction set aside and annulled upon a charge of fraud; that on March 2, 1932, a bill of complaint in equity was filed by Mr. Loughran and others, making charges substantially the same as those contained in the indictments returned on February 29, 1932, two days earlier; that Mr. Loughran was private attorney of the Washington Company, and not a member of the grand jury, but was permitted to be with the grand jury, while it was conducting its inquiry and investigation, by an illegal order of court appointing him (Mr. Loughran) "special assistant counsel for the State of Maryland," to aid in the inquiry and examination into the subject-matter of the indictments; and, finally, that Mr. Loughran, privately employed as stated, did hear, see, and ascertain the proceedings of the grand jury in connection with the indictments, except at the time of the grand jury's vote, all to the prejudice and detriment of the defendant. The following statutory provisions determine the legality and effect of an order of court such as is outlined in the plea, for except under their authority no attorney other than the state's attorney or his regular official assistants could be permitted to attend in the grand jury room. Under section 27 of article 10 of the Code, a court may appoint an attorney to take the place of a state's attorney when necessary because of absence, sickness, resignation, or death of the state's attorney, the appointee to qualify and be compensated as a regular state's attorney; but this section cannot be involved in the present case, because there was no absence, death, or disability of the state's attorney regularly serving, and it does not fit the description of the order...