Meyerson v. State

• Court: Maryland Supreme Court
• Writing for the Court: COLLINS, Judge.
• Citation: Meyerson v. State, 181 Md. 105, 28 A.2d 833 (Md. 1942)
• Decision Date: 18 November 1942
• Docket Number: 33.
• Parties: MEYERSON v. STATE.

28 A.2d 833

181 Md. 105

MEYERSON v. STATE.

No. 33.

Court of Appeals of Maryland

November 18, 1942

Appeal from Criminal Court of Baltimore City; W. Conwell Smith Judge.

Bernard Meyerson, George Meyerson, and Ruth Hopkins were convicted of causing and conspiring to cause an abortion, and the first named defendant appeals.

Affirmed.

Simon E. Sobeloff, of Baltimore, for appellant.

Robert E. Clapp, Jr., Asst. Atty. Gen. (William C. Walsh, Atty Gen., J. Bernard Wells, State's Atty., Wm. H. Maynard Deputy State's Atty., and Anselm Sodaro, Asst. State's Atty., all of Baltimore, on the brief), for appellee.

Before BOND, C.J., and SLOAN, DELAPLAINE, COLLINS, MARBURY, and GRASON, JJ.

COLLINS Judge.

Bernard Meyerson, appellant, George Meyerson, his father, and Ruth Hopkins were found guilty by the Criminal Court of Baltimore City, sitting as a jury, on the third and seventh count of an indictment charging them with causing the abortion and conspiring to cause an abortion upon a young woman, hereinafter referred to as the prosecuting witness. As a penalty for their offense, George and Bernard Meyerson were each sentenced to six months in the Maryland House of Correction, and Ruth Hopkins was sentenced to six months in the Women's Prison of the State of Maryland. Neither Ruth Hopkins nor George Meyerson took an appeal. All three defendants were tried together. After Ruth Hopkins had served two months of her term, her sentence was suspended and she was released to obtain treatment at the State Hospital at Sabillasville. Three exceptions were taken by the appellant to the ruling of the trial judge on the evidence. The third exception was abandoned on appeal. The fourth exception was taken to the ruling of the trial court on an objection to part of the argument of the attorney for the State. An appeal was also taken from the refusal of the motion in arrest of judgment, motion to strike out the verdict, and motion to strike out the judgment and sentence.

The prosecuting witness, called as a witness by the State, testified on her direct examination that she did not see the appellant, Bernard Meyerson, at Ruth Hopkins' house, where the crime was committed, at any time and that he was not at that house. The State's Attorney thereupon sought to lay a foundation to show that he was taken by surprise and attempted to examine the witness about her testimony before the Grand Jury. An objection was made and the witness' counsel, appointed by the court at that stage of the case, contended that this testimony might incriminate her. The objection was sustained. This witness was cross-examined by appellant's attorney and was later questioned on redirect examination as follows by the State:

'Q. (By Mr. Maynard) You testified in answer to Mr. Ingram's question that Bernard Meyerson had never discussed with you a question of your having an abortion. A. That he did not discuss it with me?

'Q. Yes. A. Yes, I remember.

'Q. That is what you testified to, wasn't it? A. Yes.

'Q. Do you remember talking to Mr. Sodaro and me in the State's Attorney's office on February 21st of this year with regard to that question? A. Yes, I recall that too.

'Q. Do you recall telling us that Bernard suggested 'I have an abortion and that he took me to see several abortionists?''

An objection was made to the last question on the ground that the State's Attorney did not lay a foundation that he was taken by surprise. This objection was overruled by the court and is the subject of the first exception. The witness then testified that she recalled making that statement. The rule in this State is that such a question is admissible to explain why the party called the witness, and not necessarily to impeach her, on the theory that it would be grossly unfair to permit a witness to entrap a party into calling her, having made a statement favorable to that party, and then when called and accredited by that party, makes a statement at variance with the previous statement and against that party's interest, to deny that party the privilege of showing that he was induced to do so by a previous statement of the witness, he having a reasonable belief that this witness, when called to testify, would repeat that statement. This right is limited to the proof of a statement made to a party calling her or his attorney and must be a statement about material facts in the case and not as to trivial circumstances. The Court should be satisfied that the party has been taken by surprise and that the evidence is contrary to what the party calling her had just cause to expect. It should be left to the discretion of the trial judge to allow it to be done. Smith v. Briscoe, 65 Md. 561, 569, 5 A. 334; Murphy v. State, 120 Md. 229, 234, 87 A. 811, Ann.Cas.1914B, 1117; Washington, B. & A. Elec. R. Co. v. Faulkner, 137 Md. 451, 112 A. 820; Travelers' Ins. Co. v. Hermann, 154 Md. 171, 140 A. 64; State v. Baltimore Contracting Co., 177 Md. 1, 6 A.2d 625. There is no evidence in this case that the trial judge abused his discretion in permitting this question to be answered. Franklin Bank v. Steam Navigation Co., 11 Gill. & J. 28, 36, 33 Am.Dec. 687; Baltimore & Ohio R. Co. v. State, Use of Black, 107 Md. 642, 659, 69 A. 439, 72 A. 340; Welch v. Baltimore & O. R. Co., 117 Md. 280, 283, 83 A. 166. The answer of the witness in itself demonstrates that the State's Attorney was taken by surprise.

The second and fourth exception will now be considered. The State offered in evidence a bank statement sheet showing the appellant's deposits and withdrawals 'for such purposes as it may show' from October 3, 1941, to January 21, 1942, during which period the crime was committed. The objection to the admission of this bank statement is that it is irrelevant. The seventh count charges conspiracy. Bloomer v. State, 48 Md. 521. It was said by this court in the case of Bevans v. State, Md., 24 A.2d 792, 794: 'In this case appellants are charged in the indictment with an intent and any fact which supplies a motive for such act or which constitutes a preparation for it is admissible. Brooke v. Winters, 39 Md. 505; Lamb v. State, 66 Md. 285, 7 A. 399; Baltimore Refrigerating Co. v. Kreiner, 109 Md. 361, 368, 71 A. 1066; Huff v. Simmers, 114 Md. 548, 554, 79 A. 1003; Meno v. State, 117 Md. 435, 440, 83 A. 759; Hitzelberger v. State, 174 Md. 152, 161, 197 A. 605.' Also as pointed out in that same case: 'In ruling on collateral matter, it is presumed that the court did its duty and all reasonable presumption necessary to uphold its rulings will be indulged. Brooke v. Winters, supra; Maryland Elec. Ry. Co. v. Beasley, 117 Md. 270, 277, 83 A. 157; Baltimore & Ohio R. Co. v. State, 107 Md. 642, 69 A. 439, 72 A. 340.' Therefore it cannot be concluded that the admission of this bank statement was reversible error. The fourth exception was taken when counsel for the State in his argument to the court referred to this bank statement and called attention to the withdrawals from the bank at about the same time the prosecuting witness bought furniture for an apartment in Washington, and also called attention to withdrawals about the same time that the prosecuting witness went to the home of Mrs. Ruth Hopkins where the crime was committed, and when Mrs. Hopkins admitted she was paid to perform the act, and also called attention to withdrawals one and two weeks, respectively, from the time the prosecuting witness entered the hospital. As the bank statement was admitted, there was no error in this line of argument. It must be further noted that the exception was taken to the argument of the State's Attorney. If the accused was injured by this argument, the complaint should have been made to the trial court and a request made for such relief necessary to insure a fair and impartial trial. If such relief was refused, he should have then excepted to the action of the trial court. As the record now stands, the question raised by the fourth exception is not before us for review. Luray v. State, 157 Md. 635, 638, 147 A. 599; Niemoth v. State, 160 Md. 544, 558, 154 A. 66.

The motion in arrest of judgment, the motion to strike out the verdict, and the motion to strike out judgment and sentence all contained the same reasons which were as follows:

'(1) That the Verdict rests upon the evidence offered by a co-defendant, Ruth Hopkins, after the State had closed its case, and this Defendant had not up to that time taken the stand or offered any other testimony in his behalf; whereby this Defendant's fundamental legal rights were infringed inasmuch as he was entitled to be judged upon the case made out by the State and not to be prosecuted by the said co-defendant, Ruth Hopkins.

'(2) That the Court permitted over objection of this Defendant the cross-examination by the State of Ruth Hopkins on matters tending to incriminate this defendant, after the State's case against him had been closed, and he had not called Ruth Hopkins or offered any other testimony in his defense; whereby this defendant was highly prejudiced.

'(3) And for other reasons to be shown at the hearing of this Motion.'

A motion in arrest of judgment lies only for errors apparent on the face of the record. Byers v. State, 63 Md. 207; White v. State, 143 Md. 535, ...