Henze v. State

• Decision Date: 20 January 1928
• Docket Number: 69.
• Parties: HENZE v. STATE.
• Court: Maryland Court of Appeals

140 A. 218

154 Md. 332

HENZE v. STATE.

No. 69.

Court of Appeals of Maryland

January 20, 1928

Motion for Reargument Overruled February 17, 1928.

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

"To be officially reported."

H Howard Henze was convicted of receiving stolen money, and he appeals. Affirmed.

Parke J., dissenting.

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

Harry W. Nice and Lindsay C. Spencer, both of Baltimore (Max Sokol, of Baltimore, on the brief), for appellant.

John Hubner Rice, Asst. Atty. Gen., and Hilary W. Gans, Deputy State's Atty., of Baltimore (Thomas H. Robinson, Atty. Gen., on the brief), for the State.

PATTISON J.

The appellant, Howard Henze, was convicted in the criminal court of Baltimore city of the crime of receiving stolen money, the property of the Mercantile Bank. The indictment under which he was tried is in these words:

"The jurors of the state of Maryland, for the body of the city of Baltimore, do on their oath present that H. Howard Henze, late of the city of Baltimore aforesaid, on the 15th day of December in the year of our Lord nineteen hundred and twenty four at the city of Baltimore aforesaid, $100,000 current money of the value of $100,000 current money, of the goods and chattels, moneys, and properties of the Mercantile Bank, a corporation, then lately before feloniously stolen, taken, and carried away, unlawfully did then and there have and receive, then and there well knowing the said goods and chattels, moneys, and properties to have been feloniously stolen, taken, and carried away, contrary to the form of the act of assembly in such case made and provided, and against the peace, government, and dignity of the state."

The defendant demurred to the indictment on the ground that it fails to name either the alleged thief or the person from whom the money alleged to have been stolen was received. This form of indictment has been used for many years in this state, and not until now has it ever been assailed, so far as we are informed.

It is contended by the appellant that the necessity for naming, in the indictment, the person from whom the stolen money was received, arises from an amendment to section 423 of article 27 of the Code of 1914, made by the Act of 1918, c. 424, which provides that the receiver mentioned in said section may be prosecuted and punished, "although such receiver shall have received such money, goods or chattels or things from a person other than the person by whom such money, goods or chattels or things shall have been stolen."

It was said in State v. Hodges, 55 Md. 138, that "in this state, the Code merely prescribes the punishment for receiving stolen goods and does not in any manner change the nature or character of the offense itself." It is true that this was said before the passage of the amendment referred to, but the amendment does not, we think, change the nature and character of the offense. There is, in our opinion, no new offense created by the amendment as claimed by the appellant, The offense still remains a common-law offense, and it was only necessary to set out in the indictment the circumstances necessary to constitute the offense at common law. To state such offense it was not necessary to allege in the indictment the name of the thief or the person from whom the property was received.

In the trial of the case, 24 exceptions were taken to the rulings of the court upon the evidence. The defendant in his brief stated that he would discuss the exceptions, in what he deemed the order of their importance, and we will follow the same order in passing upon them.

The ninth exception will be first considered. This exception was taken to the court's refusal to allow the defendant to put in evidence certain facts offered by him while Farrell was upon the stand on cross-examination. Farrell was the person charged and convicted of having stolen the money of which the appellant, Henze, is here charged with having received, knowing it to have been stolen.

Farrell testified that he was at the time serving a 12-year sentence in the Maryland Penitentiary for the larceny of the money of the Mercantile Bank of Baltimore City; that when he stole the money he was employed by that bank, where he had started about the year 1916 as a runner, but during the period in which the money was stolen, commencing in 1921, and ending in 1924, he was a clerk in the savings department of the bank. He first met Henze in the fall of 1921, when he was but 17 years of age, was introduced to him by Kerr, the receiving teller of the bank. Henze at that time was a bookmaker in the city of Baltimore. Shortly after the meeting, Henze gave Farrell his telephone number, also an identification number, which were thereafter used by Farrell in his betting with Henze. The first bet made by Farrell was in 1921. Until that time he had never bet upon the races, except a few times when at the races. His first bets with Henze were $2, probably twice a week, some for himself and some for Kerr. He then increased his bets to $5, $10, $20, and $100. For about a year he kept a record of his winnings and losses.

When he began to bet, the bets were made with his own money, but, after he got up to $20, the money belonged to the bank, and at the end of the first year he had lost $11,000 of the bank's money, which he had paid to Henze from the savings department of the bank. Seven or eight months after starting to bet, he bet $500, which he lost. This bet was for Kerr, but it was not paid by Kerr, and he (Farrell) paid it out of the money of the bank. The money at times was paid to Henze in the bank, and at other times in the cigar store of John Naff, on the northeast corner of Carrollton avenue and Baltimore street. The money was left at the store with Henze, if he was there; if not, with Naff or Naff's father, in accordance with Henze's direction. When the money was paid to Henze in the bank, it was paid to him in the booth used by those having safe deposit boxes in the bank. After the first year of his betting, and after he had learned that he had taken $11,000 of the bank's money, his bets increased to more than $500, some as high as $2,500, and on one race he lost $5,000, and was unable to get this amount together when Henze called at 11 o'clock the next day, the hour at which he usually collected his money, and he told Henze to come back in the afternoon, at which time he paid him $5,000 of the bank's money. After that, in the early part of 1924, Henze required him to make a deposit of $2,000 with Naff at the latter's store. At the time Farrell was taking this money from the bank, he was receiving a salary of only $110.50 a month, which fact was known to Henze, to whom he gave over $100,000 of the bank's money within a period of about three years. In his testimony Farrell stated very fully the methods used by him in taking the money of the bank, without being detected either by the officials of the bank or by the auditor upon his semiannual visits to the bank, but we do not deem it necessary to prolong this opinion by stating the methods employed by him, as it will serve no useful purpose. This closed the examination in chief, and the defendant proceeded with his cross-examination, when the witness was asked if the place of Flynn, a bookmaker of Baltimore city, was not raided in 1923, to which the state by its counsel objected. Whereupon the court and counsel, at the suggestion of the court, withdrew to its chambers, and there the court called upon the counsel for defendant to make an offer of proof, which he did. The offer, in substance, was as follows:

It is the purpose of the defense in further cross-examination of the witness, Farrell, and by other witnesses, to show that all of the bank officials, including the president, vice president, cashier, and board of directors, as well as the employees, knew that Farrell was betting on the races, not only with Henze, but with other bookmakers, and at various race tracks; that he had bet at Flynn's sums of money at various times, on races, in excess of $50, sometimes as much as $100; that Farrell had been arrested at Flynn's place in July, 1923, and that the fact of his arrest was known to the officials and employees of the bank; that Healy, the president of the bank, had questioned witness about the raid and that Farrell admitted to him that he had been betting on the races at Flynn's and other places; that Healy a number of times thereafter called Farrell to account for his betting on horse races; that Healy was told by Burns, the detective, that Farrell was betting on races, and, although the officials of the bank had such information, no investigation of his accounts was ever made; that racing sheets and racing forms and printed information concerning horse racing were at all times found in and around the bank, and this was known to the officials and employees of the bank; that Farrell placed bets for employees of the bank, including Dee, Johnson, and Kerr, and that this fact was known to the officials of the bank, and further that the facts above stated were not only known to the officials of the bank, but Henze knew that such facts were known to them, and, in addition thereto, that Farrell in making his bets on horse races would use the telephone which led through the telephone exchange or switchboard of the bank, and that these telephone conversations were audible to the clerks in the bank; that Farrell received long-distance telephone calls at Naff's store and from out of town, that Naff was ordered by him to pay his telephone and telegraph bill; that he subscribed for, and had, information concerning horse racing from out of town individuals sent to...