Marino v. State

• Decision Date: 19 November 1936
• Docket Number: 12.
• Parties: MARINO v. STATE.
• Court: Maryland Court of Appeals

187 A. 858

171 Md. 104

MARINO v. STATE.

No. 12.

Court of Appeals of Maryland

November 19, 1936

Appeal from Criminal Court of Baltimore City, Duke Bond, Judge.

Joseph C. Marino was convicted of forgery and uttering checks with forged indorsement, and he appeals.

Affirmed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Allan Eli Cohan and C. Arthur Eby, both of Baltimore, for appellant.

Hilary W. Gans, Deputy Atty. Gen. (Herbert R. O'Conor, Atty Gen., and Elmer J. Hammer, Asst. State's Atty., of Baltimore, on the brief), for the State.

SHEHAN Judge.

Joseph C. Marino, the appellant, was presented in the Criminal Court of Baltimore City. The indictment under which he was charged contains four counts. The first is for the forgery of the name of Elsie Vogtman as indorser on the back of a check of the New York Life Insurance Company, payable to her, for $700.03. The second is for the uttering of this check with the alleged forged indorsement. The third is for the larceny of this paper writing. The fourth is for obtaining money under false pretenses, through the instrumentality and in consequence of this forgery.

There was a motion to quash this indictment on the ground of misjoinder of the several counts. This motion was denied. A demurrer was then filed to the indictment, and every count thereof, and it was overruled. These rulings constitute the defendant's first and second assignments of error, of which there are 45. Forty-three exceptions were reserved to rulings of the court on the evidence, excepting Nos. 22 and 34, which relate to remarks of the trial judge. The first two rulings present little difficulty. The first raises the misjoinder of the counts, and the second the insufficiency of certain of these counts. It has been the practice in the courts in this State to permit the joinder of counts of this character. The rule is that allied crimes may be variously charged in several counts in the same indictment to meet variation in the proof, and this is all that was done in the indictment. State v. McNally, 55 Md. 559; Green v. State, 170 Md. 134, 183 A. 526, 529.

In this case the forgery count is well stated, as is the uttering of the forged instrument. They are dependent upon the same facts and grow out of the same transaction, and there is no doubt that the lower court, in its rulings on these counts, committed no error.

On the third and fourth counts there was a verdict of not guilty; in fact the verdict of not guilty on the third count was confessed by the State; therefore it cannot be said that there was prejudicial error with regard to these two counts. As to the joinder of these counts, growing out of the same facts and constituting crimes of the same general character, this falls within the rule laid down in numerous cases in this State and by text-writers. The general rule here and in other states is, that felonies and misdemeanors, forming a part of the development of the same transaction, may be joined in one indictment, and this is especially true where the misdemeanor is in the nature of a corollary to the felony, as in forgery and uttering. Wharton's Criminal Practice, (10th Ed.) §§ 335-342. In this State the point has been directly decided in the case of Lyman v. State, 136 Md. 40, 109 A. 548, 9 A.L.R. 401. There the indictment contained three counts, forgery, uttering, and false pretenses. A motion to quash and a demurrer were filed and overruled, and on appeal the conviction was sustained.

The case of Brashears v. State, 58 Md. 563, is directly in point; and in the recent case of Simmons v. State, 165 Md. 155, 167 A. 60, this subject of misjoinder was again reviewed at length, and we need not give it any further consideration, other than to refer to that case and the numerous citations therein given, and also to the cases Curry v. State, 117 Md. 587, 83 A. 1030; Reynolds v. State, 141 Md. 637, 119 A. 457; State v. McNally, 55 Md. 559; Toomer v. State, 112 Md. 285, 76 A. 118; Bowser v. State, 136 Md. 342, 350, 110 A. 854; Weeks v. State, 126 Md. 223, 94 A. 774; 9 Corpus Juris 1056. But the appellant has urged that the person intended to be defrauded by the forged instrument and its uttering are not sufficiently named or described in the indictment.

This contention is made upon authority in State v. Blizzard, 70 Md. 385, 17 A. 270, 14 Am.St.Rep. 366 and Armacost v. State, 133 Md. 289, 105 A. 147; and again it is urged by the appellant that in an indictment for uttering a forged instrument the name of the person to whom the paper was offered or passed must be alleged. 12 R.C.L. 156.

We think that this can be disposed of by reference to the bill of particulars, wherein it is stated:

"That on or about October 11, 1935, the above named defendant received from the New York Life Insurance Company in Baltimore, where he was employed, a check of the New York Life Insurance Company, said check being in the sum of $700.03 payable to Elsie Vogtman, for the purpose of delivering the said check to the said Elsie Vogtman to whom it belonged.

That the said Marino instead of delivering said check to the said Elsie Vogtman, endorsed or caused to be endorsed her name on the back without her knowledge or authority and presented the same to one Nathan Rief, who gave the said sum of $700.03 to the said Marino, which said sum was retained by the defendant and none of which was ever received by Elsie Vogtman."

These particulars were given to the defendant before he went to trial, and a demurrer could have been filed to the indictment, as amplified by the bill of particulars, and thus the question of its sufficiency disposed of before the trial. The defendant, having elected not to pursue this course, cannot now be heard to question the legality of the indictment. The Code provision, art. 27,§ 558, also disposes of these questions. It is there provided that, "It shall be sufficient in any indictment for forging, uttering, disposing of, putting off or passing any instrument whatsoever, or for obtaining any property by false pretenses, to allege that the defendant did the act with the intent to defraud, without alleging the intent of the defendant to be to defraud any particular person."

The twenty-second and thirty-fourth exceptions are to an alleged misconduct of the court in making certain statements in the presence of the jury. A question arose as to whether Mrs. Vogtman had conversed over the telephone with Mrs. Marino, the wife of the accused. A number of general questions, without fixing the time and place, were propounded to Mrs. Vogtman. The defendant's counsel persisted in asking general questions as to such conversation, not had in the presence of the accused, to which there were objections, principally on the grounds that such questions could only be asked for the purpose of impeachment, if at all, and for that purpose were improper, in that no time and place as to the conversation was designated. The court stated, "If you claim this woman had any conversation with Mrs. Marino subject to this transaction in which anything was said which is relevant to the case, of course, it would be proper to ask it, but you cannot ask it by covering the whole earth and the whole calendar for an indefinite period of time." To this statement exception was taken.

In the thirty-fourth exception the court stated: "I cannot see the relevancy of this; objection sustained. I am not going to listen to any argument on that." To these statements the defendant objected and excepted.

If the defendant had desired to reserve these questions, he should have moved the court to withdraw a juror, and declare a mistrial because of the prejudicial effect of the remarks of the court, and, if the court had refused, to reserve an exception to the refusal. However, under the circumstances, there was no ground whatsoever for an exception. The court had the duty to require questions to be properly framed and the right to refuse to have further argument or discussion in the matter and the mere refusal to do so did not constitute reversible error.

Much latitude in the examination was allowed in this case, and much persistency was exercised by the defendant's counsel, and such restrictions must necessarily have been placed thereon as would guarantee a fair and orderly trial. Just what manner, conduct, and persistency were exercised by counsel we cannot say, but the trial court could better determine what was necessary for the...