Schaumloeffel v. State

• Decision Date: 10 January 1906
• Citation: 62 A. 803,102 Md. 470
• Parties: SCHAUMLOEFFEL v. STATE.
• Court: Maryland Court of Appeals

62 A. 803

102 Md. 470

SCHAUMLOEFFEL v. STATE.

Court of Appeals of Maryland

January 10, 1906

Appeal from Criminal Court of Baltimore City; Pere L. Wickes, Judge.

T Julius Schaumloeffel was convicted of obtaining money by false pretenses, and he appeals. Affirmed.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, SCHMUCKER, JONES and BURKE, JJ.

Thomas C. Weeks, for appellant.

George A. Solter and Attorney General Bryan, for the State.

BRISCOE J.

The appellant was indicted and convicted in the criminal court of Baltimore of obtaining money by false pretenses, and was sentenced to the Maryland penitentiary for the period of five years. From this judgment he has appealed.

The indictment was filed on the 20th of June, 1904, and contains three counts. A motion to quash the first and a demurrer to the second count were sustained at the trial of the case. There is no objection raised to the rulings of the court upon these pleadings, and they will not be considered by us.

The third count of the indictment, and the one upon which the appellant was tried, is as follows: "That T. Julius Schaumloeffel, late of the city of Baltimore, on the 30th day of July, 1901, by a certain false pretense by him then and there made to Otto Bregenzer, with intent then and there to defraud, he, the said T. Julius Schaumloeffel, then and there well knowing the said pretense to be then and there false (which said false pretense was not then and there a mere promise for future payment, and was not then and there a mere promise for future payment not intended to be performed) unlawfully, knowingly, and designedly did then and there obtain from Otto Bregenzer eighteen hundred dollars current money, of the value of eighteen hundred current money, of the goods and chattels, moneys, and property of Otto Bregenzer." To this count the appellant interposed the plea of limitations, that the alleged misdemeanor was not committed within one year next preceding the commencement of the prosecution. The state demurred to the plea, and the demurrer was sustained. There were eight exceptions taken during the trial to the rulings of the court upon the admissibility of evidence. There was no error, we think, in the ruling of the court in sustaining the demurrer of the state to the plea of limitations. The offense of obtaining money by false pretense with intent to defraud is a misdemeanor, to be punished, at the discretion of the court, by fine and imprisonment or by confinement in the penitentiary for not less than two years nor more than ten years, is the court shall award. By article 57, § 11, of the Code of Public General Laws, it is provided that no prosecution or suit shall be commenced for any fine, penalty, or forfeiture, or any misdemeanor, except those punished by confinement in the penitentiary, unless within one year from the time of the offense committed. Misdemeanors punished by confinement in the penitentiary are excluded from the provisions of this section of the statute, and are placed along with felonies. They are not barred by limitations, if not prosecuted within one year from the time of the offense committed. The authorities hold that it is the liability to punishment, and not the punishment actually inflicted, which controls the jurisdiction of the court. In re Mills, 135 U.S. 263, 10 Sup.Ct. 762, 34 L.Ed. 107; People v. Murphy, 185 Ill. 623, 57 N.E. 820.

The questions raised on the exceptions may be considered together and can be disposed of without discussing them seriatim. The fifth and sixth exceptions present the identical question and that is whether the state, on a trial for false pretenses under the statute, can call other witnesses than those furnished in the list by the state's attorney to the defendant. The statute (section 440, art. 27, of the Code of Public General Laws) provides that in any indictment for false pretenses it shall not be necessary to state the particular false pretenses intended to be relied on in proof of same; but the defendant, on application to the state's attorney before the trial, shall be entitled to the names of the witnesses and a statement of the false pretenses to be given in evidence. And in Jules v. State, 85 Md. 305, 36 A....