Greenwald v. State

• Citation: 157 A.2d 119,221 Md. 245
• Decision Date: 12 January 1960
• Docket Number: No. 43,43
• Parties: Jacob J. GREENWALD v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 245

221 Md. 245

157 A.2d 119

Jacob J. GREENWALD v. STATE of Maryland.

No. 43.

Court of Appeals of Maryland.

Jan. 12, 1960.

H. Albert Young and Bruce M. Stargatt, Wilmington (Morford, Young & Conaway, Wilmington, Del., Floyd J. Kintner, and William B. Evans, Elkton, and Zebulon H. Stafford, Easton, on the brief), for appellants.

Stedman Prescott, Jr., Deputy Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., J. Albert Roney, Jr., State's Atty. for Cecil Co., Elkton, Henry P. Turner, State's Atty. for Talbot Co., Easton, on the brief), for appellee.

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

HAMMOND, Judge.

In this case the jury found the appellant Greenwald, a physician of Elkton, guilty of conspiring with Ott, a taxi driver, to violate the marriage laws of Maryland by issuing a false certificate of pregnancy to a female minor so as to permit her to marry without parental consent. Error is claimed in the admission of testimony as to the acts and declarations of the taxi driver in relation to four occurrences similar, but prior in time, to that alleged in the indictment as evidencing the conspiracy.

The indictment charged that on February 6, 1958, the taxi driver and the physician conspired and agreed, each with the other, to violate the marriage laws by knowingly and unlawfully causing to be issued and issuing a certificate of pregnancy to Jacqueline Oster, a female minor who was not pregnant, so as to aid her and her future husband, Donald McFarland, to obtain a marriage license in Cecil County. The appellant was convicted at another trial of the substantive offense of perjury, for the signing and giving out of the false certificate of pregnancy on February 6, 1958, and his conviction was affirmed in Greenwald v. State, Md., 155 A.2d 894.

The record does not disclose it but we are told in the briefs and at argument that on July 14, 1958, the date of the indictment in the case before us, the Grand Jury of Cecil County found 85 indictments against Greenwald, 42 charging perjury and 43 charging conspiracy on the days of the commission of the overt acts alleged in the perjury indictments.

The testimony below was that on February 6, 1958, Donald McFarland and Edward Rutledge came from Baltimore to Elkton to apply for marriage licenses. Ott, the taxi driver, told them that if the clerk of the court asked whether they had their parents' consent they should answer that their girls were pregnant. This they did and were advised by the clerk that in that case the law required a doctor's certificate of pregnancy. They returned to the taxi, and Ott said: 'This will cost you $15.' They paid him. Ott went into Dr. Greenwald's office before the boys. When they entered, the doctor said: 'I understand your girls are pregnant,' asked the names of the girls and how far advanced were the pregnancies and, when he was told, filled out and signed certificates to the effect that he had examined the girls and found them to be three and one-half months pregnant. Jacqueline Oster was not, in fact, pregnant. The doctor did not ask for, and was not paid, any fee. Ott solicited and was paid an additional five dollars after the boys left the office.

On February 10, four days later, McFarland and Miss Oster were issued a license and were married.

It was shown that in 1957 on May 8, July 20, August 31, and November 19, similar certificates were issued by Dr. Greenwald to applicants brought to him by Ott. All of the eight individuals testified as to what occurred and what Ott told them to do, including his ascertainment that the couple were unable to get a license without a certificate, his request for a fee and its payment to him, and the ultimate issuance of the doctor's certificate and the marriage license. In three of the instances he advised telling the doctor the girl was several months pregnant, took the couple, or one of them, to the doctor and went in the office alone ahead of his clients. In the fourth instance neither of the applicants even saw the doctor; Ott got the certificate and brought it to them.

Appellant says both the prior acts and the declarations of Ott improperly were admitted in evidence to his prejudice. His grounds of objection as to the acts differ from those as to the declarations. He acknowledges that to aid in proof of the crime charged the State generally may prove prior acts, even though they constitute a crime, that tend to show motive, intent, a common scheme or design, absence of mistake or accident, or identity, if such a showing has relevance in establishing a principal fact at issue or matter in dispute. Ward v. State, 219 Md. 559, 150 A.2d 257; King v. State, 190 Md. 361, 58 A.2d 663. He concedes that this general rule is applicable in cases of conspiracy. Bloomer v. State, 48 Md. 521; State v. Barnes, 132 Conn. 370, 44 A.2d 708, 709.

His argument on the point is that the details of the prior acts differ from those of the occurrence of February 6 to a degree that keeps them from having common features sufficient to make them properly probative of a common plan or design, citing 2 Wigmore, Evidence, Sec. 304, (3rd Ed.) (He refers to the fact that in two of the earlier instances both boy and girl were seen by the doctor, whereas only the boy was on February 6; in another, neither boy nor girl saw the doctor; in one case the doctor, after asking the girl to stand, felt her abdomen and asked her menstrual history.)

The appellant's contention as to the declarations of Ott during the four earlier occurrences is that they were hearsay and inadmissible against Greenwald because the two defendants were charged in the indictment as having conspired only on February 6, 1958, and (as the law undoubtedly is) the declarations of one conspirator generally are admissible against another only on the theory of agency, which can exist only during the period of the conspiracy, and not before it begins or after it ends.

We think the contentions of appellant are not sound. The prior acts all were shown to have great similarity, if not identity, with those of February 6 on all significant points: the solicitation by Ott, the advice as to claiming pregnancy, the receiving of the fee, Ott's instructions and arrangements, the failure of the doctor to examine the girl at all, or his examining her so cursorily as to amount to no examination at all, the issuance of the pregnancy certificates, and the absence of collection of a fee by the doctor himself. This course of conduct established not only a similarity of result but also (in the words of Wigmore in the section relied on by the appellant): 'Such a concurrence of common features' that the various acts 'are naturally to be explained as caused by a general plan of which they are the individual manifestations.' The prior acts properly were allowed in evidence on the theory of general plan.

Not only were the prior acts admissible as showing a common scheme and design but also as acts occurring during a continuing conspiracy. In conspiracy there may be a design and plan common to a series of separate conspiracies, as in United States v. Johnson, 3 Cir., 165 F.2d 42; State v. Barnes and Bloomer v. State, both supra; State v. Glidden, 55 Conn. 46, 8 A. 890; King v. State, 123 Miss. 532, 86 So. 339; or a common scheme and design which is but one continuing conspiracy evidence by a series of overt acts done in furtherance of it. In Maryland, as generally, the gist of a conspiracy is the entering into of the illegal scheme or design, and once this occurs, the crime is complete without the doing of an overt act (the means of accomplishing the conspiracy need not be alleged in the indictment, Hurwitz v. State, 200 Md. 578, 92 A.2d 575. In proving the conspiracy it is not necessary to demonstrate that the defendants came together and actually agreed in terms to a design and to pursue it by common means. If it be proved that the defendants sought the same objective and that one performed one function and the other another in the attainment of that objective, the inference that they were engaged in a conspiracy will be justified. If the conspiracy contemplated as its purpose the commission of one offense, the continuance of the result of the commission of that offense would not necessarily continue the conspiracy, but if the conspiracy contemplated the continuous cooperation of the conspirators in the perpetration of a series of offenses against the sovereign within its scope and purpose, it was in effect 'a partnership in criminal purposes,' and continued until the time of its abandonment or the final accomplishment of its purposes. Remus v. United States, 6 Cir., 291 F. 501, 504-505.

The record shows that Ott and Greenwald, beginning at least as early as May 8, 1957, conspired to violate the marriage laws of Maryland by bringing about the delivery of marriage licenses issued on the strength of false certificates of pregnancy of female minors. The common plan here is not to be distinguished from that found to constitute a single continuing conspiracy in United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168 (to eliminate free competition in the sugar industry); United States v. Manton, 2 Cir., 107 F.2d 834 (to obstruct justice and defraud the United States by obtaining gratuities from parties to law suits in order to insure them a favorable finding by the judge); Blumenthal v. United States, 332 U.S. 539, 557-558, 68 S.Ct. 248, 92 L.Ed. 154, 168-169 (salesmen who made illegal sales above a ceiling price of a particular brand of whisky obtained from the same wholesaler had a single purpose to raise illegally the price of that whisky); United States v. Rosenberg, 2 Cir., 195 F.2d 583, certiorari denied Sobell v. United States, 344 U.S. 838, 73 S.Ct. 21, 97 L.Ed. 652, rehearing denied 344 U.S. 889, 73 S.Ct. 180, 97 L.Ed. 687 (Sobell, a co-conspirator of the Rosenbergs, contended unsuccessfully that two espionage conspiracies,...