Dick v. State

• Decision Date: 03 December 1907
• Parties: DICK v. STATE.
• Court: Maryland Court of Appeals

68 A. 286
107 Md. 11

DICK
v.
STATE.^*

Court of Appeals of Maryland.

Dec. 3, 1907.

68 A. 287

Appeal from Circuit Court, Allegany County; Robert R. Henderson, Judge.

Robert A. L. Dick was convicted of embezzlement, and he appeals. Reversed and remanded.

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

Arch. A. Young, for appellant. Austin A. Wilson, for the State.

PEARCE, J. The traverser in this case was indicted in the circuit court for Allegany county for embezzlement, was tried before a jury, convicted and sentenced to confinement in the Maryland House of Correction for one year.

Section 103, art. 27, Code Pub. Gen. Laws, declares that any "cashier, servant, agent or clerk to any person, or to any body corporate, who shall fraudulently embezzle any money * * * received or taken into possession by him, for or in the name, or on the account of his master or employer, shall be deemed to have feloniously stolen the same from his master or employer."

The indictment contained two counts. The first charged that the traverser "being then and there employed in the capacity of agent for the Weiderman Brewing Company, a corporation under the laws of the state of Kentucky, did by virtue of his said agency, and by virtue of his said employment as agent, and whilst he was the agent of the said Weiderman Brewing Company as aforesaid, and so employed as aforesaid, receive and take into his possession the amount of one hundred and twenty-five dollars current money, and of the value of one hundred and twenty-five dollars current money, for, and in the name of, and on the account of the said Weiderman Brewing Company, his employer and principal, and the said money then and there * * * fraudulently and feloniously did embezzle;" and this count then proceeded to charge that the accused so feloniously did steal, take, and carry away said money, the property of said Weiderman Brewing Company. The second count charged the larceny of said money by the accused. He demurred to the first count, and this demurrer was overruled, when he demurred to the whole indictment, and this demurrer was also overruled. It is not apparent upon what ground these demurrers were interposed. The indictment was in the usual form and as the defendant's counsel did not allude to the demurrers, either in his brief or in his argument, we may conclude they were abandoned.

During the course of the trial three exceptions were taken, as follows: The first witness called by the state, Marshall Windom, testified thus: "Q. Where do you live? A. In Lonaconing. Q. What is your business? A. Manager for the George Weiderman Brewing Company. Q. Who is the George Weiderman Brewing Company? A. A corporation of Newport, Ky. Q. How long has it been in existence? A. I do not know how long. Q. Who is the president? A. Charles Weiderman. Q. Who is the secretary? A. C. J. Wagener. Q. Have they a branch in Lonaconing? A. Yes, sir. Q. Who has charge of that branch? A. I have charge of that branch." The defendant at the close of these questions and answers objected to all the foregoing testimony as tending to show the existence of the corporation as such, and that the witness Windom was its manager, and the objection being overruled, the first exception was taken to that action of the court. The best evidence, doubtless, of the existence of a corporation, would be the production of its charter, or certificate of incorporation, though secondary evidence of general reputation is admissible for that purpose. But the evidence under consideration here was given without any objection, and so went to the jury, and the objection as made came too late. In Dent v. Hancock, 5 Gill, 127, the court said: "Whether the objections taken to the testimony were well founded or not, it is deemed unnecessary to inquire because they were not made in due time. It is the duty of counsel, if aware of the objections to its admissibility, to object to the testimony at the time it is offered to be given, or, if unapprised of such objections at the time the evidence had gone to the jury, he must raise his objections within a reasonable time thereafter." Here the third question put to Mr. Windom was notice to the defendant that the answer would result in the admission of the very character of proof which he claims to be insufficient, and it was his...