Klecka v. State

• Decision Date: 06 November 1925
• Citation: 131 A. 29,149 Md. 128
• Parties: KLECKA v. STATE.
• Court: Maryland Court of Appeals

131 A. 29

149 Md. 128

KLECKA v. STATE.

Court of Appeals of Maryland

November 6, 1925

Appeal from Circuit Court, Baltimore County; T. Scott Offutt, Frank I. Duncan, and Walter W. Preston, Judges.

"To be officially reported."

James F. Klecka was convicted of a conspiracy to obstruct justice and he appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, DIGGES PARKE, and WALSH, JJ.

Daniel S. Sullivan, of Baltimore, for appellant.

John Hubner Rice, Asst. Atty. Gen. (Thomas H. Robinson, Atty Gen., and H. Courtenay Jenifer, State's Atty., of Towson on the brief), for the State.

PARKE J.

James F. Klecka, the appellant, Louis Businsky, and Louise Phillips were indicted for conspiracy to obstruct justice. The charge was that, while the prosecution of Klecka under an indictment for gaming and keeping a disorderly house was pending in the circuit court for Baltimore county, the three traversers unlawfully conspired that Louis Businsky and Louise Phillips should flee the jurisdiction of the trial court and remain out of the state of Maryland in order to prevent their presence at the trial of Klecka as witnesses for the state being enforced by the processes of the court. Businsky and Phillips were convicted by a jury, and afterwards the appellant was tried by the court, convicted, and sentenced.

A demurrer to the indictment is the first point presented on this appeal, and there was no error in overruling this purely formal demurrer. During the trial 18 exceptions were taken to the rulings on questions of evidence; and of these the appellant has advisedly abandoned the second, tenth, eleventh, thirteenth, sixteenth, seventeenth, and eighteenth exceptions.

1. The objection to the testimony admitted by the court in the first exception and in the third to ninth exceptions, inclusive, was that things said, done, or written in execution or furtherance of the common purpose by any one of those charged is not relevant nor material against any or all of the others alleged to have been in the confederation, unless and until sufficient evidence in the opinion of the court has first been introduced, or offered to be introduced, to establish a prima facie case of conspiracy.

While the better practice and the usual course is to require a foundation to be laid, either by proof sufficient in the opinion of the court to establish prima facie a case of conspiracy among the parties accused, or by proof at least proper to be laid before the jury as tending to establish the conspiracy, before the acts and declarations of a coconspirator are admissible against the accused, yet for the sake of convenience such acts or declarations may, in the discretion of the court, be admitted in evidence before sufficient proof is given of conspiracy, if the prosecutor undertake to furnish such proof later on in the trial. While the customary order of proof was reversed in the trial of the traverser without an offer of the necessary complementary proof of conspiracy, yet the requisite prima facie case of conspiracy was later established before the close of the prosecution, and, so, these exceptions present no reversible error, because no injury resulted from what was a mere inversion in the order of proof. Bloomer v. State, 48 Md. 521, 531; Hays v. State, 40 Md. 633, 648, 650; Lawrence v. State, 103 Md. 17, 20, 21, 63 A. 96; Garland v. State, 112 Md. 83, 100, 75 A. 631, 21 Ann. Cas. 28; Underhill on Crim. Ev. (3d Ed.) § 720.

2. The coconspirator, Louis Businsky, was called by the prosecution, and testified at length. Throughout his testimony the witness had referred to an interview between himself and the state's attorney for Baltimore county in connection with the prosecution of the appellant. After Businsky had testified in denial of the conspiracy charged, the state's attorney asked him if his testimony was not inconsistent with what he had stated in his conversation with the state's attorney. An objection was made, and the lower court held that the question was admissible; but the correctness of this ruling was not presented by an exception, as the question was not put, because the witness at once inquired which of the conversations between himself and the state's attorney was referred to. The particular conversation was then designated by the state's attorney, and the witness said he would like to answer the question in his own way; but he was requested to give a direct answer, and thereupon the question, with respect to the indicated conversation, was again put twice consecutively by the court and once by the prosecuting attorney without a renewal of the objection to any of the three inquiries, and every time the same answer admitting the inconsistency was given.

The question to which the objection was made was general in its application, but the question as finally propounded related to a particular conversation, and no objection was made to the question after the interrogatory had assumed this import.

It was after the last of these three answers, and with no further action of the court requested or indicated, that the record merely sets out that, "To which ruling of the court the defendant, having duly objected and excepted," prayed the court to sign an exception, which was done and forms the twelfth bill of exceptions.

An objection to the admissibility of evidence contained in a specific question "must ordinarily be made as soon as the question is...