Hutson v. State

• Decision Date: 13 May 1953
• Docket Number: No. 131,131
• Citation: 96 A.2d 593,202 Md. 333
• Parties: HUTSON et al. v. STATE.
• Court: Maryland Court of Appeals

Page 333

202 Md. 333

96 A.2d 593

HUTSON et al. v. STATE.

No. 131.

Court of Appeals of Maryland.

May 13, 1953.

Rehearing Denied June 9, 1953.

Marshall A. Levin, Baltimore (Harry O. Levin, Baltimore, and C. Maurice Weidemeyer, Annapolis, on the brief), for appellants.

Ambrose T. Hartman, Asst. Atty. Gen., (Edward D. E. Rollins, Atty. Gen., and C. Osborne Duvall, State's Atty., Annapolis, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

The appellants were jointly indicted for the crimes of abortion and conspiracy to perform an abortion, and elected a jury trial. Ruth Hutson was found guilty of both offenses, the other appellants were found guilty of conspiracy. The appeals are from the judgments and sentences.

The principal points urged on appeal are that the court erred in sustaining the State's exceptions to certain demands for particulars filed by the appellants, and in permitting the State, over objection, to amend the indictment at the trial, before the jury was sworn, to alter and correct the name of the prosecuting witness, upon whom the abortion was alleged to have been performed, from Jennie Lee Young to Jennie Lee Giorgio.

Upon demand for particulars, the court required the State to answer as to the type of instrument used, the medicines administered, the place where the crime was committed, the persons present, and the manner in which the conspiracy was formed. The court declined to require the State to answer questions as to when and by whom the prosecuting witness became pregnant; when and to whom she was married, if married; whether she had been previously married and to whom; whether she had children by her present or previous marriages, naming them; whether she and Ishmael Young were employed, and by whom. The Court also declined to require the State to supply particulars as to this inquiry: 'If the State intends to adduce testimony that Jennie Lee Young is the legal wife of Ishmael Young, state when and where they were married and by whom; also state how long they have resided in Maryland and where they resided prior to their present residence.'

It is well settled that in a criminal prosecution a motion for a bill of particulars is addressed to the sound discretion of the court, and the court's action thereon is not the subject of an appeal unless there is some gross abuse of discretion resulting in injury to the accused. Shelton v. State, Md., 84 A.2d 76, 79; Leon v. State, 180 Md. 279, 285, 23 A.2d 706. We find no such abuse here. The inquiries refused were not directly related to the crime charged, if relevant at all. It is clear that the appellants knew that the prosecuting witness, who used the name of Young, was living with Ishmael Young at an address known to them. The State's case was not dependent on proof that she was his legal wife, nor would a failure to prove it afford any defense to the charge. At most, the fact that she was not married to him might reflect upon her character, and, to the extent that she misrepresented the fact in her previous statements, reflect upon her credibility. We cannot accept the argument that the accused were injured by the State's failure to investigate and disclose the fact in advance of the trial. The prosecuting witness testified at the trial that she had been married to Giorgio in 1945, had three children, and was divorced from him in 1949. She was living with Young, whose name she used, at the time of the abortion in July 1952, and had lived with him since August 1951. He was separated from his wife but not divorced. She did not disclose to the State officials that she was not married to Young until the day before the trial.

The appellants contend that the court erred in allowing the amendment to the indictment on the ground that at common law the name of a person in an indictment is a matter of substance which cannot be changed without the consent of the grand jury. 'Neither the state's attorney, nor the court, nor both together, can supply the necessary authority, which can only come from the grand jury, in the absence of some statutory provision.' Watts v. State, 99 Md. 30, 33, 57 A. 542, 544. In the case cited, as in the later case of State v. Barrett, 148 Md. 153, 128 A. 744, it was held that the statute, now codified as Section 689, Article 27, Code of 1951, authorizing the correction of names of persons other than the defendant erroneously set forth in an indictment, by the State's Attorney on application to the Court, applies only to cases where the error appears and the amendment is sought 'after a jury is sworn'. Section 688, Article 27, Code of 1951, applies only to the names of defendants. Watts v. State, supra.

The Attorney General points out that in the Watts case the conviction was sustained under another count and that in the Barrett case the precise holding was that the court properly disallowed the amendment and that the original indictment was bad on demurrer. He does not question, however, the statement of the rule at common law, nor does he rely upon the sections cited as changing the rule. He contends that the case is controlled by Section 692, Article 27, Code of 1951, which provides that no indictment shall be quashed or judgment upon any indictment reversed 'by reason of any mere defect or imperfection in matters of form which shall not tend to the prejudice of the defendant, * * *.'

In the recent case of State v. Wheatley, 192 Md. 44, 49, 51, 63 A.2d 644, 647, we declined to apply this section to a case where the State sought to amend an indictment so as to charge a defendant with violation of his official duties as an examiner, instead of a referee as set out in the indictment, on the ground that this was a matter of substance. It was held that the indictments failed to 'describe how defendant as a referee had the authority to make any determination upon the claims alleged.' Thus the amendment charged an offense not charged in the original indictment. But the principle was relied on in the earlier cases of Hawthorn v. State, 56 Md. 530, 536, and Hammond v. State, 14 Md. 135, where it was held that amendments which eliminated or supplied unnecessary matter could be disregarded. See also United States v. Fawcett, 3 Cir., 115 F.2d 764, 132 A.L.R. 404.

In the instant case we think the amendment was unnecessary and the court's action in allowing it was not reversible error. The person calling herself Jennie...