Kaefer v. State
| Citation | 122 A. 30 |
| Decision Date | 16 March 1923 |
| Docket Number | No. 37.,37. |
| Parties | KAEFER et al. v. STATE. |
| Court | Court of Appeals of Maryland |
Appeal from Circuit Court, Allegany County; Frank G. Wagaman and Albert A. Doub, Judges.
"To be officially reported."
Francis R. Kaefer and others were convicted of unlawfully assembling, and appeal. Affirmed, with costs.
Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and OFFUTT, JJ.
John M. Henry and William C. Walsh, both of Cumberland (Walsh, Hughes, Heskett & Williams, of Cumberland, on the brief), for appellants.
Alexander Armstrong, Atty. Gen. (Lindsay C. Spencer, Asst. Atty. Gen., and Fuller Barnard, Jr., State's Atty., of Cumberland, on the brief), for the State.
The appellants were tried, convicted by a jury, and sentenced by the circuit court for Allegany county under an indictment containing three counts, the first of which charged:
"That Francis R. Kaefer, Steve Adams, Richard Truly, Allen Yates, David M. Murphy, Thomas Neider, Edward S. Neat, Edward Hensel, Douglas Truly, Louis Zavodny, James E. Miller (alias Jake Miller), Edward Truly, Andy Yuhas, late of Allegany county aforesaid, with divers other evil-disposed persons to the number of fifty or more, to the jurors aforesaid as yet unknown, on the eighteenth day of September, in the year of our Lord nineteen hundred and twenty-two, with force and arms, at Allegany county aforesaid, unlawfully, riotously, routously and tumultuously, did assemble and meet together to disturb the peace of the said state, and being so then and there assembled and gathered together, did then and there make great noises, riots, tumults and disturbances, and did then and there unlawfully, riotously, routously and tumultuously remain and continue together, making such noises, tumults and disturbances for a long space of time, to wit, for the space of one hour then next ensuing, to the great terror and disturbance, not only of good subjects of the said state there inhabiting and residing, but of all other citizens of the said state there passing and repassing in and along the public streets and common highways there situate, in contempt of the said state and of its laws and to the evil examples of all others in like case offending and against the peace, government and dignity of the state."
The second count charged:
"That the said Francis R. Kaefer, Steve Adams, Richard Truly, Allen Yates, David M. Murphy, Thomas Neider, Edward S. Neat, Edward Hensel, Douglas Truly, Louis Zavodny, James E. Miller (alias Jake Miller), Edward Truly, Andy Yuhas, late of Allegany county aforesaid, with divers other evil-disposed persons to the number of fifty or more, to the jurors aforesaid as yet unknown, on the eighteenth day of September, in the year of our Lord nineteen hundred and twenty-two, with force and arms at Allegany county aforesaid, unlawfully, riotously, routously and tumultuously, did assemble and gather together to disturb the peace of the said state against the peace, government and dignity of the state."
And the third count contains the charge:
"That the said Francis R. Kaefer, Steve Adams, Richard Truly, Allen Yates, David M. Murphy, Thomas Neider, Edward S. Neat, Edward Hensel, Douglas Truly, Louis Zavodny, James E. Miller (alias Jake Miller), Edward Truly, Andy Yuhas, late of Allegany county aforesaid, with divers other evil-disposed persons to the number of fifty or more, to the jurors aforesaid as yet unknown, being rioters, routers, and disturbers of the peace of the said state heretofore, to wit, on the eighteenth day of September, in the year of our Lord nineteen hundred and twenty-two, with force and arms, at the county of Allegany aforesaid, unlawfully, riotously, routously, and tumultuously, did assemble and gather together to disturb the peace of the said state, and being then and there so assembled and gathered together as aforesaid, did then and there make great noises, riots, tumults and disturbances, and then and there unlawfully, riotously, routously and tumultuously remained and continued together, making such noises, riots, tumults and disturbances as aforesaid, for a long space of time, to wit, for the space of an hour then next following, and then and there while they so remained and continued together, unlawfully, riotously and tumultuously, did make an assault in and upon one Chester Hyde in the peace of God and of the said state then and there being, and him, the said Chester Hyde, then and there unlawfully, riotously, routously and tumultuously did beat, bruise, Wound and ill treat, so that his life was greatly despaired of, and other wrongs to him, the said Chester Hyde, then and there unlawfully, riotously, routously and tumultuously did, to the great damage of him, the said Chester Hyde, and to the great terror and disturbance not only of all the liege inhabitants of the said state there inhabiting, residing and being, but also of all the other liege inhabitants of the said state then passing and repassing in and along the public streets and common highways of the state there, in contempt of the said state and of its laws, to the evil example of all others in like case offending, and against the peace, government and dignity of the state."
The defendants demurred to the Indictment, and the demurrer was overruled, and this appeal brings up for review the rulings of the court below on the demurrer, and on the evidence embraced in three bills of exception.
It is stated in the brief of counsel for the appellants that the grounds of the demurrer are:
(1) "Because the indictment did not sufficiently inform the defendants of the specific offenses with which they were charged, so as to enable them to properly prepare for trial," and (2) "because a plea of former conviction or acquittal could not be pleaded to such an indictment."
In support of these grounds the appellants insist that the indictment does not state the place where the offense was committed, that under it evidence could be offered showing that the defendants on the day mentioned committed the offense charged at Frostburg, Flintstone, Cumberland, or any other place in Allegany county, "that in criminal cases no record is made of the testimony unless a reporter is asked for and provided, and that the record of the case usually consists simply of the indictment and the verdict of the court or jury," and that "if the defendants were again indicted for an unlawful assembly or riot in Allegany county on or about September 18, 1922 * * * they would not know whether they were being indicted for the same offense or not, and if they did conclude that they were being indicted for the same offense and pleaded former conviction, the docket entries in the present case would not indicate for what offense they had been convicted." In answer to this contention it may be said: (1) that, except when the place is essential to the description of the offense, it is only necessary by proper allegations in the indictment to bring the offense charged within the jurisdiction of the court, which, in this state, and ordinarily, is gratified by alleging the county in which it was committed ; and (2) that the defense of former conviction, or plea of autrefois convict, is established by the production of the record of conviction, and parol evidence showing the identity of the parties and the offenses. Hockheimer's Criminal Law, § 280, p. 176; 3 Greenieaf on Evidence (16th Ed.) § 36; 5 Ency. of Evidence, § 5, p. 879. In Greenieaf on Evidence, supra, the learned author says:
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