Polisher v. State

• Court: Maryland Court of Appeals
• Writing for the Court: Argued before MURPHY; ORTH
• Citation: Polisher v. State, 11 Md.App. 555, 276 A.2d 102 (Md. App. 1971)
• Decision Date: 02 April 1971
• Docket Number: No. 431,431
• Parties: Manuel POLISHER and Larry White a/k/a Larry Weiss v. STATE of Maryland.

Page 555

11 Md.App. 555

276 A.2d 102

Manuel POLISHER and Larry White a/k/a Larry Weiss v. STATE of Maryland.

No. 431.

Court of Special Appeals of Maryland.

April 2, 1971.

Certiorari Denied June 24, 1971.

Joseph J. D'Erasmo, and Victor L. Crawford, Rockville, with whom were H. Algire McFaul, Vivian V. Simpson, and Joseph B. Simpson, Jr., Rockville, on brief, for appellants.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Linthicum, Jr., State's Atty., for Montgomery County and Walter H. Madden, Asst. State's Atty., for Montgomery County, on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON and ORTH, JJ.

ORTH, Judge.

The prosecutions in this case arose because money was stolen. It was not taken by violence, but the means used were more effective than if the victims were robbed at gun point, because they were persuaded, in some cases, time and time again, to come back to the thieves so more money could be obtained. Those bilked were induced to part not only with the possession of their money but with the title to it as well. Therefore the crime was what is commonly called 'false pretenses.' ¹

The swindles involved the repair of automobiles. ² In connection therewith Brunswick Exchange, Inc. (Brunswick), which traded under the names of Vanguard Auto Service and Vanguard Foreign Car Service (Vanguard), Manuel Polisher and Larry White, also known as Larry Weiss, were indicted. Brunswick was charged with two cases of obtaining money by a false pretense with intent to defraud-$481.71 from Charles Edward Walsh on 7 July 1969 under indictment 10634 and $302.80 from Lilian Miller on 10 September 1969 under indictment 10633. Polisher and White were jointly indicted, indictment 10681 charging them in the 1st count with the offense charged against Brunswick under indictment 10634 and in the 2nd count with conspiring together to commit that offense, and indictment 10682 charging them in the 1st count with the offense charged against Brunswick under indictment 10633 and in the 2nd count with conspiring together to commit that offense. The indictments were jointly tried at a bench trial in the Circuit Court for Montgomery County. The lower court granted motions for judgment of acquittal as to indictments 10633 and 10634 and as to the 2nd count in each of indictments 10681 and 10682. Polisher and White were each found guilty of the offense charged in the 1st count of indictments 10681 and 10682. Polisher was sentenced to 5 years on each conviction, the sentences to run consecutively. White was sentenced to 6 years on each conviction, the sentences to run concurrently. Each appeals from the judgments against him, and submits his own brief. Each, however, presents the same primary question: whether the evidence was sufficient to sustain his conviction. As argued by them the question goes both to the corpus delicti of the offense and the criminal agency and involves the admissibility of evidence relating to transactions with persons other than Charles Edward Walsh and Lilian Miller. Polisher, in addition, challenges certain rulings of the trial court, claiming prejudicial error.

THE MISDEMEANOR OF FALSE PRETENSES

The crime of 'false pretenses' is simply stated in Code, Art. 27, § 140:

'Any person who shall by any false pretense obtain any other person any chattel, money or valuable security, with intent to defraud any person of the same, shall be guility of a misdemeanor * * *.' ³

The false pretense is the crux of the crime. So the crime is committed when a person:

1) by making a false representation of a past or existing fact;

2) with intent to defraud; and

3) knowledge of its falsity;

4) obtains any chattel, money or valuable security from another;

5) who relies on the false representation;

6) to his detriment.

See Smith v. State, 237 Md. 573, 207 A.2d 493; Tumminello v. State, 10 Md.App. 612, 272 A.2d 77; Lockard v. State, 3 Md.App. 580, 240 A.2d 312; 2 Wharton's Criminal Law (Anderson) §§ 582-607, pp. 305-374; Perkings, Criminal Law (2d Ed.) pp. 296-321; Clark & Marshall, Law of Crimes (7th Ed.) §§ 12.23-12.27, pp. 921-944.

THE INSTANT CASE

The Miller Automobile

Mrs. Lillous Miller ⁴ testified that she owned a 1963 Chevy II which she took to Vanguard in Bethesda ⁵ on 9 September 1969 to have the transmission repaired; there was a noise underneath the car, 'a kind of thud', which on two prior occasions shortly before Chevy Chase Chevrolet had not corrected. She told Chevy Chase Chevrolet: 'If you can't find this and fix it, I will have to take it somewhere else because I can't live with this, there are parts obviously wearing.' She looked in the Yellow Pages because she thought the problem was the transmission and Vanguard advertised that it repaired transmissions. She talked to appellant White. He rode in the car with her, said he would be able to fix it and arrangements were made to leave her car at Vanguard the next day. When she left the car she asked White to call her and let her know what he found. He telephoned and said 'that they had checked out the transmission unit and found a bad crack in it and that the whole thing would have to be replaced.' He estimated that cost as about $220. He said that the car also needed a front wheel alignment 'and I was a little bit surprised about all that because I had just had my car worked on.' White explained that Chevy Chase Chevrolet had not found that crack because 'they probably were not equipped with the necessary things that would enable them to check this out. They are not transmission specialists and they probably could not have found it.' Mrs. Miller said: 'Well, I guess I an at your mercy. If there is a bad crack, I guess the part will have to be replaced.' She picked up the car that afternoon and was tendered a bill for $302.80. Shocked at the amount, she asked White to justify it. He said: 'We have done all these things on the bill and also there was a leak in your oil tank or whatever the container is and we fixed the leak and filled it up with oil and that was not on the bill but that was just extra.' She paid him and drove away. About a third of the way home she heard the thud again. She went back to Vanguard immediately and told White the defect had not been corrected. He said: 'Well, sometime these units come through with flaws. Will you leave your car here and we will replace this unit with another?' He offered to loan her a car to drive home despite a sign proclaiming that they did not give 'loaner cars' and he then offered to get her a rental and pick up the tab. Reluctant to drive an automobile with which she was not familiar she agreed to bring her car back the next day. She asked White to return her check but he said it had already been processed and refused to give it back. She told him she would stop payment on it and did so the next day. She left her car at Vanguard the next morning with the understanding that another new transmission unit would be installed. She picked the car up about 5:30 or 6:00 P.M. The bill was the same as before and she gave him another check payable to Vanguard. The bill was received in evidence. The car did not run properly; when she stopped at a light the motor would die. 'I became rather suspicious that he had been meddling into the motor of the car. I didn't know what the motor had to do with the transmission but it bothered me that I was having a new trouble.' She went back to Vanguard and complained to White. He said he would check it out while she waited. He came back 'with a little metal part and he said, 'You see all this carbon on here? That shouldn't be there. '' He told her that it had not been put in right and that apparently Chevy Chase Chevrolet had done a bad job. She waited so he could 'get this little part back in' and then drove away. She had the same trouble with the car. She had asked White to show her the cracked transmission which he had replaced and he told her he could show it to her the next day but he never did. She had also asked him to put her car on a lift so she could see what he was talking about, but he said there was a car already on the lift. She never saw the badly cracked part. She went back a number of times in an effort to have the problem corrected to no avail and finally went to the Montgomery County Detective Bureau in October.' As a result of that visit she took the car to B.C.C. Transmissions in Rockville where the car was put on a lift and examined.

Vincent Charles Scalamandre testified that he had been the owner of B.C.C. Transmissions in Rockville for 20 years. He specialized in automatic tramsmissions, handling the complete job, everything from removal to actual overhaul. He had personally worked on an average of 8 to 10 transmissions a week for the past 10 years and received training in three different schools. He said he had testified in courts of law as an expert witness with regard to automatic transmissions. He examined Mrs. Miller's car in his shop. The transmission was removed. He 'disassembled' it on the bench and examined each and every part. It was his opinion that 'the transmission wasn't out of the car since its original installation at the factory. * * * I say this because, from my experience, the car itself normally when they come through a factory they are undercoated and this was undercoated on all the bolts and the bolts had never been removed as far as my experience goes. * * * (N)ormally the bolts will get rusted and have sharp edges on them and the undercoating is a soft coating made of fiberous material and when you put a wrench on it, it removes it.' A color photograph of the frame of the car was received in evidence. It showed a bolt that would have to be removed to drop the transmission.

Detective Corporal Duncan R. Jerman of the Montgomery County Police testified that Mrs. Miller's car was examined by Scalamandre on 16 October 1969. William Ballman, a transmission specialist for...