Mitchell v. State

Decision Date13 November 1940
Docket Number32,33.
Citation16 A.2d 161,178 Md. 579
PartiesMITCHELL v. STATE (two cases).
CourtMaryland Court of Appeals

Appeals from Circuit Court, Dorchester County; James M. Crockett Judge.

Elwood Mitchell was convicted of selling alcoholic beverage without a license, and from the judgment of conviction and an order overruling a motion to strike out the judgment, he appeals.

Judgment and order affirmed.

James A. McAllister, of Cambridge (J. Gorman Hill and Leroy L. Wallace, both of Cambridge, on the brief), for appellant.

Robert E. Clapp, Jr., Asst. Atty. Gen. (William C. Walsh, Atty Gen., and Calvin Harrington, Jr., State's Atty. for Dorchester County, of Cambridge, on the brief), for appellee.

Argued before BOND, C.J., and PARKE, SLOAN, MITCHELL, JOHNSON, and DELAPLAINE, JJ.

MITCHELL Judge.

There are two appeals in the record before us; the first being from a judgment of the Circuit Court for Dorchester County entered upon a verdict of a jury finding the appellant guilty of selling an alcoholic beverage in said county, in violation of section 2 of article 2B, of the Annotated Code (1939 Ed.); and the second being from the action of the trial court in overruling the motion of the appellant to strike out the judgment.

There is but one count in the indictment and by it the appellant is charged with having on or about the 25th day of March, in the year 1939, unlawfully sold an alcoholic beverage, to wit one-half pint of whiskey unto Frederick Bibbens for the price of twenty-five cents, without a license as provided by law. No legal license for such sale is obtainable in Dorchester County, and therefore it is not contended that the appellant held a license to sell alcoholic beverages on the date alleged in the indictment.

During the course of the trial twelve exceptions as to rulings upon evidence were reserved by the appellant and of these the first, second, third, fourth, eighth, eighth, eleventh and twelfth were abandoned in this court. first, second, third, fourth, eighth, eleventh were taken to the court's rulings in permitting witnesses for the State to testify as to a purchase of whiskey from the appellant other than that set forth in the indictment.

Briefly these rulings arose as follows: On re-direct examination, the prosecuting witness testified that one Thomas Ross was with him at the time of the alleged illegal sale, and he was then asked by the State's Attorney, 'Did you or not see anything take place between him and Elwood Mitchell?'--Elwood Mitchell being the traverser. Bibbens, over objection, was permitted to testify that he did, and that ruling is the basis for the fifth exception. He was then asked, 'What?' And over objection permitted to answer, 'Why he bought half pint himself.' A motion to strike out the answer to the preceding question was overruled, and these rulings are the grounds upon which the sixth and seventh exceptions are based.

Upon examination, the witness Ross testified that he accompanied the prosecuting witness to the place of business of the appellant, and saw the alleged illegal sale consummated. He was then asked, 'What, if anything, did you do after that?' And over objection was permitted to answer, 'I made a buy. We put it in our pockets and away we went.'

Thereupon the trial judge asked, 'Buy of what?' The witness over objection answered, 'Whiskey', and these two rulings give rise to the ninth and tenth exceptions.

It is urged by the appellant that the admission of the above evidence was prejudicial and constitutes reversible error, upon the well-recognized principle that when one charged with crime is put upon trial for one offense, he is to be convicted, if at all, by evidence showing that he is guilty of the particular offense charged; and that, under ordinary circumstances, proof of guilt of one or more other offenses should be excluded. People v. Sharp, 107 N.Y. 427, 14 N.E. 319, 1 Am.St.Rep. 851; Callahan v. State, 174 Md. 47, 197 A. 589. But we do not understand the above principle to limit the admissibility of evidence tending to prove facts closely related to the crime charged in the indictment; or that the circumstance that the proof of such facts tends to establish an independent offense renders such evidence inadmissible.

As stated in Wharton's Crim.Evid., 11th Ed., vol. 1, § 345: 'The general rule of exclusion of evidence of other crimes does not deprive the state of its right to make out its case. If evidence of another crime tends directly to prove the defendant guilty of the crime for which he is being tried, or if the other crime and the crime charged are so linked together in point of time or circumstances that one cannot be fully shown without proving the other, regardless of whether the crime incidentally shown is of the same or a different character from the one on trial, the general rule of exclusion does not apply. * * * Such evidence is not admitted because it is proof of the other crime, but because of its relevancy to the charge on trial.'

In the instant case the record shows that the prosecuting witness and his companion Ross were on the premises of the appellant for a period of but twenty minutes. That circumstance indicates that the alleged sales represented closely connected, if not contemporaneous, transactions of similar character; and in our opinion the the collateral offense is no nearly connected with the charge on trial as to establish the relevancy of the evidence and its consequent admissibility. State v. Donaluzzi, 1920, 94 Vt. 142, 109 A. 57; Wharton's Crim.Evid., 11th Ed., vol. 1, § 352; Jones on Evidence, 3d Ed., § 145; Lamb v. State, 66 Md. 285, 7 A. 399; Curry v. State, 117 Md. 587, 83 A. 1030.

Subsequent to the trial and conviction of the appellant, a motion to strike out the judgment and sentence was filed, and the action of the court in overruling that motion is presented by the thirteenth exception. The motion was based upon the allegation that 5 jurors were excused and absent from the original panel of 25 petit jurors, and that at the time the lists from which to strike were handed counsel for the purposes of the trial of the appellant, talesmen had not been drawn to replace the absentees. It is therefore submitted that the 20 names appearing upon the lists did not comprise names drawn by the clerk, by ballot, and that the failure to draw them from a full list of 25 petit jurors was prejudicial to the appellant and deprived him of a fair and impartial trial. Testimony on the motion was taken and it was shown that 25 petit jurors were originally drawn for service at the then current term of the court as prescribed by the statute; that 5 names were struck prior to the trial of the case, these being jurors who were absent or excused at that time, and it being admitted that there was no form of ballot used in selecting the names furnished counsel, for the obvious reason that under such circumstances a ballot would have been meaningless.

Except for slight modifications prescribed by the local law of Dorchester County (sections 342 and 343 of the local code, Flack's Ed. 1935), which modifications need not be considered in the solution of the question before us; the method of selecting the names of 48 persons, constituting the respective grand and petit juries for that county, is prescribed by article 51 of the Annotated Code of P.G.L. (Flack's Ed.1939).

Section 10 of that article first directs the manner in which the foreman and 22 other grand jurors shall be chosen from the above list, and specifically provides that the remaining 25 names shall constitute the petit jury for the current term of the court....

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4 cases
  • Jones v. State
    • United States
    • Maryland Court of Appeals
    • February 10, 1944
    ...the fact at issue. Callahan v. State, 174 Md. 47, 54, 197 A. 589; Hitzelberger v. State, 174 Md. 152, 161, 197 A. 605; Mitchell v. State, 178 Md. 579, 582, 16 A.2d 161. Evidence which is relevant is not made inadmissible by of the fact that it tends to prove the defendant guilty of a crime ......
  • MacEwen v. State
    • United States
    • Maryland Court of Appeals
    • February 10, 1950
    ...173 Md. 216, 195 A. 532, 196 A. 819; Callahan v. State, 174 Md. 47, 197 A. 589; Wilson v. State, 181 Md. 1, 26 A.2d 770; Mitchell v. State, 178 Md. 579, 16 A.2d 161; McClelland v. State, 138 Md. 533, 114 A. Hitzelberger v. State, 174 Md. 152, 197 A. 605; Young v. State, 152 Md. 89, 136 A. 4......
  • Wood v. State
    • United States
    • Maryland Court of Appeals
    • December 9, 1948
    ... ... fully recognize these principles. Purviance v ... State, 185 Md. 189, 196, 44 A.2d 474; Perrera v ... State, 184 Md. 51, 40 A.2d 53; Jones v. State, ... 182 Md. 653, 35 A.2d 916; Wilson v. State, 181 Md ... 1, 26 A.2d 770; Berger v. State, 179 Md. 410, 20 ... A.2d 146; Mitchell v. State, 178 Md. 579, 16 A.2d ... 161; Callahan v. State, 174 Md. 47, 197 A. 589. In ... Kernan v ...           [191 ... Md. 665] State, 65 Md. 253, 259, 4 A. 124, evidence was ... admitted to show an assault with a pistol upon another ... person, in a saloon a half square away ... ...
  • Perrera v. State
    • United States
    • Maryland Court of Appeals
    • December 8, 1944
    ... ... Under these ... circumstances, proof of the fact of the robbery was ... admissible and necessary to understand the events leading up ... to and occurring at this meeting. Callahan v. State, ... 174 Md. 47, 197 A. 589; Hitzelberger v. State, 174 ... Md. 152, 197 A. 605; Mitchell v. State, 178 Md. 579, ... 16 A.2d 161; Jones v. State, Md. 35 A.2d 916, 918 ...          It is ... said in Jones v. State, supra, that: 'Evidence which is ... relevant is not made inadmissible by reason of the fact that ... it tends to prove the defendant guilty of a crime other ... ...

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