Margulies v. State

• Decision Date: 08 June 1927
• Docket Number: 9.
• Citation: 137 A. 896,153 Md. 204
• Parties: MARGULIES v. STATE.
• Court: Maryland Court of Appeals

137 A. 896

153 Md. 204

MARGULIES v. STATE.

No. 9.

Court of Appeals of Maryland

June 8, 1927

Appeal from Circuit Court, Howard County; Wm. Henry Forsythe, Jr. and Robert Moss, Judges.

"To be officially reported."

Saul Margulies was convicted of manslaughter, and he appeals. Affirmed.

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

Harry W. Nice and Richard E. Preece, both of Baltimore (Max Sokol of Baltimore, on the brief), for appellant.

John Hubner Rice, Asst. Atty. Gen. (Thomas H. Robinson, Atty Gen., A. T. Brady, State's Atty., of Annapolis, and R. D. Rogers, State's Atty., of Ellicott City, on the brief), for the State.

URNER J.

The indictment in this case alleges, in its first count, that the appellant concocted in the city of Baltimore certain pernicious and deadly liquor, intended to be used and drunk by human beings for beverage purposes, and unlawfully sold the liquor, knowing that it was pernicious and deadly and was to be used for beverage purposes, and that a quantity of the liquor was brought to Anne Arundel county and was drunk by Nelson Owens for a beverage, from the effects of which he was poisoned and died, and that on or about the 9th day of January, 1926, in Anne Arundel county, the appellant, with the aid of three other named persons, willfully, feloniously, and of his malice aforethought, unlawfully gave, sold, administered, supplied, and furnished to Nelson Owens a large quantity of a certain pernicious and deadly poison, commonly known as wood alcohol, with intent that he should drink it as a beverage, and that he in fact drank the liquor so furnished to him by the appellant, in consequence whereof he died in Anne Arundel county on the 11th day of January, 1926, and so the indictment charged that the appellant and the other persons named, in the manner and by the means described, feloniously, willfully, and of their malice aforethought, did kill and murder, 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.

A second count of the indictment charged, in the general statutory form, that the appellant and the designated abettors, feloniously, willfully, and of deliberately premeditated malice aforethought, did kill and murder Nelson Owens on the 9th day of January, 1926, in Anne Arundel county.

The appellant filed a plea alleging that the felony and murder charged in the indictment was committed, if at all within the limits of the city of Baltimore, and not elsewhere, and that the circuit court for Anne Arundel county was therefore without jurisdiction to take cognizance of the indictment. A demurrer by the state to the plea as to jurisdiction was sustained. On the appellant's application the case as to him was thereafter removed to the circuit court for Howard county for trial. In that court a demurrer by the appellant to each count of the indictment was sustained as to the first count, and overruled as to the second. A plea of not guilty was then filed, and the case proceeded to a jury trial which resulted in the appellant's conviction of manslaughter. After a motion for a new trial had been overruled and sentence imposed, the appellant filed another motion on the same grounds, which will be stated presently, to strike out the verdict, judgment, and sentence. The adverse ruling of the court upon that motion and on the demurrer to the special plea are the subjects presented for consideration on this appeal.

While the first count of the indictment stated that the poisonous liquor which caused the death of Owens was concocted by the appellant in Baltimore, it also alleged that the appellant furnished it to the victim in Anne Arundel county, and both counts charge that he committed the homicide in that jurisdiction. In order to secure a conviction it was necessary for the state to prove that allegation. It was competent for the appellant to offer evidence to the contrary under a general issue plea. This court has held in Leister v. State, 136 Md. 518, 111 A. 78, that a plea denying that the charged offense was committed in the county named in the indictment is demurrable as amounting to a plea of "not guilty. " In the opinion delivered by Judge Offutt in that case it was said:

"The indictment in the case charged in the usual form that the appellant had begotten at Carroll county an illegitimate male child, which was afterwards born alive. To this indictment the appellant interposed what is described in the record as a 'plea to the jurisdiction,' in which he stated that the fornication referred to in the indictment did not take place in Carroll county. This pleading was not a plea to the jurisdiction as that term is usually understood, but was a mere traverse of one of the material averments of the indictment, and possessed none of the indicia or elements of a technical plea to the jurisdiction, as that plea is known to the law of this state. A technical plea to the jurisdiction is something more than a mere allegation that the traverser is not guilty of the crime charged in the indictment, and that is all the 'plea to the jurisdiction' in this case amounts to. Unless the state proved that the fornication referred to in the indictment occurred at Carroll county, the traverser would be acquitted, if it did prove it he would be convicted, and whether the state did or did not prove it could only be determined by a jury or the court sitting as a jury. A plea, therefore, that the fornication did not occur at Carroll county, was in effect equivalent to the general issue plea of 'not guilty,' and therefore bad in law. A technical plea to the jurisdiction must allege facts from which it may be inferred that the court has no jurisdiction over the subject-matter, or over the person of some party to the proceeding, as for instance, that the alleged offense was not an offense against the laws of the state of the forum, but against a federal or foreign statute or law, or that some party to the proceeding was for some reason not subject to prosecution in the particular forum.

It cannot be questioned that the circuit court for Carroll county had jurisdiction over the subject-matter of the proceeding, that is of the particular offense charged in the indictment, and it is not suggested that the appellant enjoyed any special privileges or status which prevented his prosecution in that Court. The demurrer to this plea should therefore have been sustained. Bishop's New Cr. Proc. § 736; Trem. P. C. 271; Hochheimer, Cr. Law, par. 119; State v. Mitchell, 83 N.C. 674."

The principle of that decision applies with controlling force to the special plea filed in the present case and justifies the action of the trial court in holding it to be demurrable.

One of the reasons assigned in the motion to strike out the verdict judgment, and sentence was that when the members of the jury were polled, on the prisoner's demand, after the foreman had reported the verdict as "Not guilty of murder, but guilty of manslaughter," each of the other jurors,...