Delcher v. State

• Decision Date: 13 January 1932
• Docket Number: 45.
• Citation: 158 A. 37,161 Md. 475
• Parties: DELCHER v. STATE.
• Court: Maryland Court of Appeals

158 A. 37

161 Md. 475

DELCHER v. STATE.

No. 45.

Court of Appeals of Maryland

January 13, 1932

Appeal from Criminal Court of Baltimore City; Joseph N. Ulman Judge.

Milton B. Delcher was convicted of certain offenses, and he appeals.

Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT PARKE, and SLOAN, JJ.

William Curran and Max Sokol, both of Baltimore (Harry W. Nice and Malcolm J. Coan, both of Baltimore, on the brief), for appellant.

Wm. L Henderson, Asst. Atty. Gen., and Charles C. G. Evans, Asst. State's Atty., of Baltimore (Wm. P. Lane, Jr., Atty. Gen., and Herbert R. O'Connor, State's Atty., and Elmer J. Hammer, Asst. State's Atty., both of Baltimore, on the brief), for the State.

PATTISON J.

Three indictments were returned by the grand jury of Baltimore city against the appellant, Milton B. Delcher, vice president of the Chesapeake Bank of Baltimore City, for certain alleged criminal transactions whereby the accused obtained money from said bank prior to the appointment of the receiver.

In the first of these indictments, No. 173, on the 1931 docket of the Criminal Court of Baltimore City, the accused was charged with larceny and false pretense in respect of certain transactions whereby "Young's System a corporation," obtained certain funds from the bank. The appellant, by the second indictment, No. 174, was charged with said offenses in respect of two transactions whereby he received certain funds of the bank, which were used by him in the purchase, through W. W. Lanahan & Co., brokers, of certain shares of stock for his individual account. The third indictment, No. 175, charged larceny and false pretense in respect of certain transactions whereby "Charles Decorators, Inc., a corporation," in which the accused was financially interested, obtained certain funds from the bank on the strength of an alleged false representation made by the accused to the bank's board of directors. The state and defense agreed that the three indictments should be tried by the same jury at the same time.

The verdict of the jury upon the charges contained in indictment No. 173 was not guilty. The verdict as to the second indictment, No. 174, was guilty on the second and fourth counts, the larceny counts, but not guilty on the first and third, the false pretense counts. As to the third indictment, No. 175, the jury found the accused guilty on the first, third, fifth, seventh, ninth, and eleventh counts of the indictment, the false pretense counts, but not guilty on the others, the larceny counts. The defendant was thereafter sentenced to a term of five years in the Baltimore city jail on the conviction in each of said indictments, the sentences to run concurrently.

From that judgment an appeal was taken to this court. Thereafter, motions to strike out the verdicts, judgments, and sentences upon those counts in the two indictments upon which the appellant had been found guilty were filed and overruled by the court. And from the rulings of the court thereon appeals were taken to this court. The four appeals were subsequently consolidated in one record by order of this court passed on July 2, 1931.

The indictments being filed, bills of particulars were demanded by the defendant, and, upon the filing of the same, exceptions taken thereto were overruled. Whereupon a demurrer was filed to each count of the indictments, and these, too, were overruled. Thereafter the defendant moved to quash the indictments, which motions were also overruled.

The indictment in No. 174 contained four counts. The first and third charged the larceny of the respective sums therein named, alleging the same to be the property of the Chesapeake Bank. The second and fourth counts charged, in the usual form, the obtaining of the sums named therein, by false pretense.

The bill of particulars was furnished the defendant under section 555 of article 27 of the Code, which gave to him a statement of the false pretense intended to be given in evidence, as well as the names of the witnesses, and it is, we think, in full compliance with the statute; but, should it be held otherwise, the defendant was not thereby hurt, inasmuch as he was acquitted upon those counts of the indictment, Burgess v. State (Md.) 155 A. 153, 75 A. L. R. 1471; 31 C.J. § 553, page 880, note 2; and the same may be said as to the action of the court in its ruling upon the motions to quash. With the false pretense counts eliminated from consideration, the demurrer to the remaining larceny counts, which were in the usual form, was properly overruled. In fact, the defendant in his brief is silent upon the action of the court in its rulings upon the bill of particulars, the motion to quash, and the demurrer to the indictment in No. 174. He confines his discussion therein to the action of the court in overruling the bill of particulars, the motion to quash, and the demurrer to the indictment in No. 175.

This last-mentioned indictment contained twelve counts. In the first, third, fifth, seventh, ninth, and eleventh, the traverser was charged with obtaining the respective sums of money therein named by false pretense, and upon these counts he was found guilty. In the other counts he was charged with larceny, and was found not guilty.

The state in its bill of particulars, in answer to the demand of the defendant, as to the first count of the indictment, No. 175 stated that the traverser, Milton B. Delcher, vice president of the Chesapeake Bank, engaged in the banking business in that city, did from on or about the 7th of November, 1928, up to and including the 31st day of December, 1928, obtain from the bank the sum of money therein named upon the representation made by him to the bank and its directors "that one Bruno H. Buckholz, who was then and there the president of the Charles Decorators, Inc. was an antique dealer having a place of business on North Charles Street, in said City, by the name of Buckholz, and that the said Bruno H. Buckholz was a man of substantial means and financial responsibility; whereas, in truth and in fact, as he, the said Milton B. Delcher, then and there well knew, the said Bruno H. Buckholz was not an antique dealed on North Charles Street, and was not a man of substantial means and financial responsibility, and was not the antique dealer named Buckholz on North Charles Street;

"And that the said Milton B. Delcher did, in addition, during the above mentioned period, approve, okay and direct the honoring and payment by the Bank of certain checks of the Charles Decorators, Inc., drawn on the Chesapeake Bank of Baltimore, a corporation, as and when the same were received by or presented at the said Bank for payment, when he, the said Milton B. Delcher, then and there well knew that the said Charles Decorators, Inc., did not (when the said checks were received and presented for payment as aforesaid) have sufficient money on deposit with or at the said Chesapeake Bank of Baltimore, a corporation, to meet and pay the same, and knew that the financial condition, status and circumstances of the said Charles Decorators, Inc., was not such as to warrant said Bank honoring, meeting and paying said checks, as aforesaid."

The other counts of the indictment, wherein the traverser is charged with obtaining money under false pretense, differ from the first only as to the period in which the money was obtained and in the amount so obtained.

Exceptions were filed to the bill of particulars as to the first, third, fifth, seventh, ninth, and eleventh counts of the indictments, whereby the defendant was charged with obtaining money under false pretense, the grounds of the exceptions being:

(1) Because the said alleged bill of particulars does not "sufficiently inform the defendant of the charges in said counts that he has to answer in the trial of said cause."

(2) Because it "does not clearly, properly and sufficiently designate or describe the means, instruments, methods or instrumentalities alleged to have been used in the perpetration of the alleged false pretense so that there can be no mistake as to the identification of the means, instruments, methods, and instrumentalities that may be produced in evidence by the State in support of said" counts of the indictment.

(3) Because the allegations of the bill of particulars contained therein "are insufficient in law to sustain" said counts in the indictment and the offenses charged therein.

(4) Because the allegations in said bill of particulars as to the counts of the indictment "do not constitute a criminal offense under the Laws of the State of Maryland, nor do the allegations * * * constitute the offense of false pretense" under said laws.

There was a further ground contained in the exceptions--that the bill of particulars did not contain a list of the names of the witnesses as required by the statute, but it is admitted by the defendant in his motion in arrest of judgment that the names of such witnesses were furnished him.

In Jules v. State, 85 Md. 312, 36 A. 1027, 1029, where the defendant was charged with obtaining money under false pretenses, this court said: "The office of a bill of particulars like this is--First, to inform the defendant of the names of the witnesses the state expects to call; and secondly, to furnish him with a statement of the false pretenses intended to be relied on, and given in evidence. Code, art. 27, § 288. It was the theory of the state, and during a part of the argument also that of the defense, that a bill of particulars of this kind is no part of the pleading, and therefore not subject to demurrers. And that this view is correct is apparent from the nature of the statement of particulars, which, as we have seen, is intended only to furnish the false...