Newton v. State

Citation127 A. 123
Decision Date04 December 1924
Docket NumberNo. 11.,11.
PartiesNEWTON v. STATE.
CourtCourt of Appeals of Maryland
127 A. 123

NEWTON
v.
STATE.

No. 11.

Court of Appeals of Maryland.

Dec. 4, 1924.


127 A. 124

[Copyrighted material omitted.]

127 A. 125

Appeal from Criminal Court of Baltimore City; Charles P. Stein, Judge.

"To be officially reported."

Emory M. Newton was convicted of criminal conspiracy to defraud the existing and prospective customers of common-law trust operating "blind pools," and he appeals. Reversed and remanded.

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

John D. Nock and Albert S. J. Owens, both of Baltimore, for appellant.

Rowland K. Adams, Deputy State's Atty., and Eugene A. Edgett, Asst. State's Atty., both of Baltimore (Herbert R. O'Conor, State's Atty., of Baltimore, on the brief), for the State.

OFFUTT, J. The appellant in this case was tried and convicted in the criminal court of Baltimore city of a criminal conspiracy for which he had been indicted jointly with William A. Gillespie and Harold R. Dickey, Jr., and from the judgment on the verdict in that case he has taken this appeal.

Demurrers to the indictment filed by each defendant were overruled, and Gillespie and Dickey were tried before the court, and convicted on June 23, 1923. On September 24, 1923, Newton filed a suggestion and affidavit for removal which was also overruled. He then pleaded not guilty, and was tried by a jury with the result stated above.

The record contains 85 exceptions, 84 of which relate to remarks made by the court and by the state's attorney during the progress of the trial, and to rulings of the court upon questions of evidence, and these rulings, together with the action of the court on the demurrer to the indictment and its action upon the suggestion and affidavit for removal, we are now asked to review.

The facts material to a consideration of the questions before us are sufficiently set out in the eases of Gillespie v. State and Dickey v. State (Md.) 127 A. 727, decided at this term, and need not be restated here. Nor in view of what we said in those cases is it necessary to refer further to the court's action on the demurrer to the indictment than to say that in our opinion it was properly overruled.

Of the other questions presented by the appeal the first in natural order is the propriety of the court's action on the suggestion and affidavit for removal. That suggestion was based upon the theory that, since Gillespie and Dickey had been tried and convicted by three judges of the supreme bench of Baltimore city of the same crime with which Newton is charged in this case, any jury in Baltimore city would inevitably be affected by that fact, and that no jury could be impaneled in that circuit "which would have the courage to override the conclusions reached by these judges and determine the law and the fact of this case as by the Constitution of this state they are empowered to do." Evidence taken in connection with the suggestion showed that the opinion of the three judges who sat in the Gillespie and Dickey cases was published in the daily papers of Baltimore city. At the conclusion of that evidence the court overruled the suggestion for removal, and a judge who had not participated

127 A. 126

at the trial of Gillespie and Dickey was assigned to try the case.

That every one charged with a crime against the laws of this state has the absolute and unqualified right to have his case heard by a fair and impartial jury is not to be doubted, and that that right is one of the most valuable privileges guaranteed to the citizen by the Constitution of this state is not to be questioned. That it would be denied by requiring such a person to submit his case to a jury which felt constrained to decide it in accordance with the judgment of some other tribunal or for any reason except what was found in the law and the facts of the case before them is just as clear. Such a procedure would be ghastly mockery of the law, for obviously no jury could be regarded as fair or impartial which, before it had heard the evidence, felt bound by the decision of some other tribunal to convict the defendant.

But we find no such condition in this case. If the traverser's contention is sound, then in nearly every case in which two or more persons are jointly indicted for the same joint offense, and where there is a severance for any reason, and one of the defendants has been tried and convicted, the untried case against the others must be removed as a matter of course, because all the judges and all persons eligible for jury service in that jurisdiction would be so much affected by the conviction in the first case that they would be unable to fairly and impartially try the other cases. Such a contention in our opinion goes too far. We do not think that the fact that two persons jointly indicted with him for the same conspiracy were convicted of that crime by three judges of the supreme bench of Baltimore city compels the conclusion that the traverser in this ease could not secure a fair and impartial jury in that city, and we could not therefore say that the trial court in overruling this suggestion abused the discretion reposed in it, for, aside from the fact that Gillespie and Dickey were so convicted by the three judges of the supreme bench of Baltimore city, and such inference as might be drawn from that fact, there was no testimony relating to the question at all. We cannot assume as a matter of law, as we are asked to do, that either judges or jurors will be influenced by considerations which under their official oaths they are bound to disregard, and the statements made by the jurors in this case tend to confirm that view. Those statements were not, it is true, made in connection with the suggestion, but nevertheless they illustrate the danger of arbitrarily approving such a proposition as that embodied in the defendant's contention. Before he was sworn in this case every juror on the panel expressly denied that he would be influenced in rendering his verdict as to Newton by the verdict of the three judges, and stated affirmatively that his verdict would be based solely upon the law and the evidence uninfluenced by the action of the three judges in the case against Gillespie and Dickey. The suggestion was addressed to the sound judicial discretion of the trial court, and, in the absence of anything in the record showing an abuse of that discretion, we would not be justified in reversing that court's action upon it (Allers v. State, 144 Md. 75, 124 A. 399), and it is therefore affirmed.

This brings us to the questions presented in the exceptions relating to the court's rulings on questions of evidence, and to certain remarks made by the judge who presided at the trial and by the state's attorney in the presence of the jury during the trial.

Before considering these exceptions in detail, we will refer briefly to the issues in the case material to the questions raised by these exceptions. Gillespie and Dickey had audited the books of the Union Finance Company, and as a result of their examination a letter signed "William A. Gillespie & Co." was addressed to the Union Finance Company, in which the writer stated:

"We find your company to be solvent and capable of meeting all obligations and contracts entered into with your clients. We further certify that your company purchases and sells listed securities in large volume, and your inventory of securities at the market at the close of business August 15, 1922, shows a substantial surplus over and above your obligations."

The state charged in the indictment that those statements were false, so that the issues were: (1) Was the Union Finance Company solvent and capable of meeting all obligations and contracts entered into with its clients; (2) did it buy and sell listed securities in large volume; and (3) did its inventory of securities "at the market" at close of business August 15, 1922, show a substantial surplus over and above its obligations. There were, of course, other issues, such as the existence of an intent to cheat and defraud, and whether there was a confederation as charged in the indictment, but those we have named were the controlling controverted issues in the case.

In connection with the first and third issues much of the testimony offered related to the value of the common stock of the California Oil Mining Corporation. It had been bought at 20 cents a share, but Gillespie and Dickey, relying upon a letter from the Prudential Securities Corporation offering 50 cents a share for it, valued it at that price. The state's theory was that that letter was a collusive device written for the purpose of giving a fictitious value to the stock, and that the stock had no such value.

James H. Harrington, an employe of Redmond & Co. brokers, testifying for the state, said that the trust had bought in all through that company listed securities amounting to $318,324.54, and it appeared from other...

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