Markley v. State

• Decision Date: 11 January 1938
• Docket Number: 42-45.
• Citation: 196 A. 95,173 Md. 309
• Parties: MARKLEY v. STATE, and three other cases.
• Court: Maryland Court of Appeals

196 A. 95

173 Md. 309

MARKLEY v. STATE, and three other cases.

Nos. 42-45.

Court of Appeals of Maryland

January 11, 1938

Appeals from Circuit Court, Howard County; F. Neal Parke and Wm Henry Forsythe, Jr., Judges.

Albert E. Markley and others were jointly indicted and convicted of defrauding owners of motor vehicles using the highway, and they appeal.

Affirmed.

Jerome A. Loughran, of Ellicott City, for appellant Markley.

Jerome A. Loughran, of Ellicott City, and W. Giles Parker, of Baltimore (Paul M. Higinbotham, of Baltimore, on the brief) for appellant Wheeler.

George B. Woelfel, of Annapolis (E. Milton Altfeld and Sigmund Levin, both of Baltimore, on the brief), for appellant Tayler.

Hiram C. Griffin, of Baltimore (Jerome A. Loughran, of Ellicott City, and Stanley R. Bossard, of Baltimore, on the brief) for appellant Herbert.

William L. Henderson, Asst. Atty. Gen., and C. Ferdinand Sybert, State's Atty., for Howard County, of Ellicott City (Herbert R. O'Conor, Atty. Gen., on the brief), for the State.

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

BOND Chief Judge.

The appellants, three members of the state police force formerly stationed on the Washington boulevard in Howard county, and the keeper of a garage and shop there, appeal from convictions and sentences on a joint indictment charging them with conspiracy to defraud operators and owners of motor vehicles using the highway, late in the year 1935 and in 1936. The case was tried by a jury. It was testified that the policemen would stop drivers and find deficiences in the vehicles or their equipment and refer them to the garage kept by Herbert for correction, and there they would be charged excessive prices, and the proceeds would be shared by Herbert and the policemen. There was also testimony of exactions of pay for unnecessary towing.

Herbert Strain, of Indianapolis, Ind., and Leroy Hopkins, testified that while driving two trucks for the same employer near the police barracks on the road, Markley and Wheeler arrested them because of noise from a muffler on Strain's truck, took them before a magistrate, who fined them, and pulled their trucks to Herbert's garage and directed that new mufflers be put on, before the trucks were moved. Thinking the prices charged to be excessive, the drivers procured the mufflers at smaller prices elsewhere, and for the moving of Strain's truck for the purpose a fine of $50.75 was imposed by the magistrate.

Walter H. Pikey, of Howard county, said he was stopped three times, twice by Wheeler and once by Markley, with directions to have his taillight fixed at Herbert's garage. In one instance the bulb had fallen out of the socket and a charge was made for putting it back. M. T. Covington, of Howerton, Va., testified that he was stopped while driving a truck and trailer, and a small hole having been found in his muffler was compelled to have this repaired at Herbert's garage, at a price of $7.50. His license plate, too, was tightened, and a charge made for it. Joe V. Barrett, of Charlotte, N. C., testified that while driving a truck he was stopped by Wheeler and held at Herbert's garage to obtain insurance in Maryland, for adjustment of his taillight so that it would shine better on the license plate, to buy flares and a windshield mirror. There was testimony that he was given an address of an insurance agent in Maryland, but that as he did not have money enough to pay the cost of the insurance here he arranged insurance in North Carolina by telephone. He was released upon buying and paying for the other items.

Evidence was produced tending to show that the prices so collected were higher than was usual, that there was a higher set of prices for vehicles brought or sent to the garage by the policemen, and that for each item of sale or repairs the particular officer who brought or sent the vehicles in was credited, and would receive a share of the proceeds. The sum total of such exactions was stated to have been large; it being declared that when business was good 200 'muffler charges' a month were brought in to the garage. The exactions for towing, it was stated, were largely for towing out of the state, as an indulgence to drivers charged with violations of Maryland laws which might otherwise involve heavier costs. On behalf of the traversers the conspiracy was denied, and the testimony tending to prove any of the ground of indictment was contradicted.

A detective sergeant, Linhart, testified that Officer Tayler, in July of 1936, disclosed to him, Linhart, that the practice described was being followed, and that Herbert subsequently divulged some of the same facts. And on September 9, 1936, a meeting with these men with others was held at the house of Major Enoch B. Garey, the superintendent of state police, and statements of facts, with details of the alleged conspiracy, in writing, were there signed by Tayler and Herbert in the presence of witnesses. Admission in evidence of any of the incriminating statements, oral or written, was resisted.

The principal questions in the case, those mainly argued, are few, although there are eighty-six exceptions noted in the record. Naturally, among so many, some, measured by the practical effect of the rulings on the case, are of small importance.

Exceptions appear to have been noted to the admission of the confessions or statements in the nature of confessions, although the exceptions are not found in the record set out and numbered as if intended to be pressed on appeal. There was no motion to have the confessions restricted to proof against the confessing defendants only, and none to have objectionable parts omitted; the objections were that the whole of the statements should be excluded from the case entirely. This court has considered all the arguments made, however. All defendants object on the ground that the confessions were involuntarily made; Tayler on the separate ground that they were uncorroborated by any evidence tending to prove him a participant in the conspiracy; Herbert on the separate ground of a promise that his confession would be kept secret, and that he would not be prosecuted; and Markley and Wheeler on the additional grounds that the statements were made, not in their presence or by their authority, and not by coconspirators in furtherance of the common design; and that they contained hearsay and opinion evidence. The common design, if there was any, it is contended, had, according to all the evidence, been ended when the statements were made, and they could not therefore have been in furtherance of it for that reason, and for the reason that informing of the design would not be furthering it. Lawrence v. State, 103 Md. 17, 22, 63 A. 96; 2 Wigmore, Evidence, 2d Ed., § 1079; 3 Wharton, Criminal Evidence, 11th Ed.§ 1215.

Linhart's testimony was that in pursuance of an engagement to take dinner at Tayler's house, he met Tayler there on August 5, and Tayler voluntarily disclosed to him the fact of the practice of the extortion on the boulevard, and that of Herbert's part in it. As a consequence, he says, of his, Linhart's, wish to hear Herbert's story of it, Tayler brought Herbert to the house a week later, and then Herbert told of details of the practice. According to the testimony, both men spoke voluntarily, as if taking steps to rid themselves of an imposition; Tayler adding that he had a grievance against Markley. During some weeks afterwards, the testimony continued, Tayler stopped at Linhart's office two or three times to show arrest slips used in the extortion, and told further facts concerning it. Then the meeting at Major Garey's house, and the signing of the written confessions, followed on September 9. There were present, besides Major Garey, Linhart, Tayler, and Herbert, Detective Sergeant Conroy, and Mr. James M. Hepbron, director of the Criminal Justice Commission of Baltimore. A. preliminary hearing by the court, in the absence of the jury, was held on the question of admission of the extrajudicial statements, and all persons except the traversers testified to an absence of any inducement, persuasion, or threat to procure them. Tayler, on the other hand, testified that Linhart promised to get him a job with the Celanese Corporation if he made the statements on his part; other witnesses, however, including one called for the traversers, testified that the conversation about getting Tayler the job took place in October, shortly after Tayler had been suspended from the force. Both Tayler and Herbert testified that they had some drinks at Major Garey's house, before signing the papers, and there was testimony, on the contrary, that the men were not in any way affected by liquor, and that they had no drinks before signing.

The confession of Herbert was prefaced with a statement that it was made upon a condition that his name be kept out of any...