Schanker v. State

• Decision Date: 01 October 1954
• Docket Number: No. 164,164
• Citation: 116 A.2d 363,208 Md. 15
• Parties: Samuel SCHANKER v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 15

208 Md. 15

116 A.2d 363

Samuel SCHANKER v. STATE of Maryland.

No. 164, Oct. Term, 1954.

Court of Appeals of Maryland.

July 27, 1955.

Argued by Samuel Gordon and Louis H. Cohen, of Silver Spring, for appellant.

Argued by Stedman Prescott, Jr., Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and Alger Y. Barbee, State's Atty., Montgomery Co., Rockville, on the brief), for appellee.

Argued before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

BRUNE, Chief Judge.

The appellant, Samuel Schanker, was indicted in Montgomery County for having obtained the sum of $600 from one Walter R. Dickson (or Dixon) by false pretenses. He was tried before the Circuit Court of that County and a jury, was found guilty and was sentenced to six months' imprisonment. He appeals from the judgment.

The appellant seeks a reversal upon these grounds: an alleged defect in the indictment; two rulings on evidence; and a query or comment on a question of law addressed by one of the judges to counsel for the appellant during the argument of the case to the jury. We shall take these matters up in the order in which we have stated them.

1. The Indictment.

The indictment is in the statutory form authorized by Code 1951, Article 27, Section 695, for use in false pretense cases. It specifies the section of Article 27 which was violated as Section 167. That is the so-called Worthless Check Act which, among other things, declares it an offense, with intent to cheat and defraud, to obtain money from another by means of a check, drawn on a bank not indebted to the drawer, and makes non-payment of such a check prima facie evidence of an intent to cheat or defraud. The gravamen of the appellant's complaint here is that the indictment did not charge that the means of obtaining the money was the use of a worthless check.

We find the objection not sustainable for several reasons.

First, the indictment was in a form authorized by statute, and if the reference in the body of the indictment to the section alleged to have been violated was not sufficient to inform the accused of the charge against him, he could have obtained a bill of particulars by demanding one in accordance with Section 694 of Article 27, and thus could have escaped any possible element of surprise. He made no such demand.

Second, no objection to the form of the indictment was made in the trial court, and it can hardly be contended that an indictment expressed in the form set out in Section 695 of Article 27 fails to state an offense. See State v. Edwards, 124 Md. 592, 92 A. 1037.

Rule 9 of our Rules and Regulations Respecting Appeals bars us from deciding any point or question not tried and decided by the trial court; and if the indictment had been open to a motion to dismiss in the nature of a demurrer (which we certainly do not imply), such a motion should have been made before trial in accordance with Rule 3(a) and 3(b)(2) of the Criminal Rules of Practice and Procedure.

The case of Willis v. State, 205 Md. 118, 106 A.2d 85, relied upon by the appellant at least inferentially, is authority for the proposition that Section 694 of Article 27, which dispenses with the necessity of stating in the indictment the particular false pretense intended to be relied upon, and provides for furnishing such information through a bill of particulars, is valid. Otherwise, it has no direct application to this case. The primary of proof, not to the sufficiency to the burden of proof, not to the sufficiency of the indictment. It was held that where an indictment purported to be founded upon Section 165 of Article 27, which is the original or general False Pretense Act, the presumption of intent to defraud created under Section 167, the Worthless Check Act, by the non-payment of the check is not available to the State, even though the means used to obtain property by false pretenses was a check which proved to be worthless.

2. Rulings on Evidence.

(a) Cashing of Checks for a Third Party.

The appellant set up as his defense the contention that he had borrowed money from Dixon at a usurious rate for a period of thirty days and that the check was to be held for that time--in substance, that it was a promissory note.

The appellant sought, and was permitted to seek, by cross-examination of Dixon to show that Dixon was in the loan shark business. The question to which the State's objection was sustained related to the number of checks which Dixon had cashed for a man named Forte, who was the person who had introduced Schanker to Dixon on the occasion which gave rise to this prosecution. The trial court held evidence with regard to the number of checks cashed by Dixon for Forte to be immaterial on the question at issue. We agree.

(b) Hearsay Evidence Elicited on Cross-Examination.

The appellant undertook to cross-examine Dixon as to why he had held the appellant's check for thirty days before presenting it to the bank on which it was drawn. Dixon had testified that he had been advised the 'very next day,' evidently the day after the transaction with Schanker, to hold it. He was then asked 'By whom?' His answer was 'By Mr. Forte.' At this point the appellant objected. In a colloquy between court and counsel, the appellant's counsel stated that he had not anticipated that the answer would be hearsay, but also said that he wanted his question answered. This was not a case such as MacEwen v. State, 194 Md. 492, 71 A.2d 464, where cross-examination not only brought out a hearsay response but also that the evidence in chief upon which the cross-examination was based had also been hearsay--a fact not developed until cross-examination. It was there held that all of the hearsay testimony should have been stricken out.

We think the court's ruling was clearly correct. See United Railways & Electric Co. v. Corbin, 109 Md. 442, 455, 72 A. 606.

3. Comment on Counsel's Closing Argument on the Law.

An addition to the record, inserted with the approval of the trial court, shows that one of appellant's trial counsel, in making his argument to the jury, stated that 'if the jury believed the defendant's testimony that the check was not to be cashed for thirty days, and that the defendant gave a $600 check for $500 cash, that no crime had been committed.' Trial counsel stated that at this point one of the judges interrupted his argument to ask 'Do you believe that is a defense to this cause?' Counsel answered 'Yes' and explained why. The trial judge does not recall exactly the point at which this interruption took place, but there is no reason to doubt the accuracy of the recollection of counsel. It also appears from the addition to the record, the inclusion of which was approved by the judge who asked the question, that after this question and answer, counsel for the appellant completed his argument to the jury without further comment by the court. The appellant asserts that the court invaded the province of the jury, which under Article XV, Section 5, of the Constitution of Maryland (with one exception not here involved) is the judge of the law as well as of the facts in criminal cases, and that this comment or query prejudiced the jury.

There is nothing in the record to show what, if any, instructions were given to the jury in this case, and it follows, of course, that there is no exception before us to any views of the law which the court may have expressed in any instructions which may have been given. Under our almost unique constitutional provision any instructions on the law which the court may give (subject to the one exception already mentioned) are purely advisory and the court must so inform the jury. Criminal Rules of Practice and Procedure, rule 6.

There is likewise nothing in the record to indicate that during the trial any objection was made to the inquiry or comment of the court which is...