Seidman v. State

• Citation: 187 A.2d 109,230 Md. 305
• Decision Date: 28 December 1962
• Docket Number: No. 40,40
• Parties: George SEIDMAN v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 305

230 Md. 305

187 A.2d 109

George SEIDMAN v. STATE of Maryland.

No. 40.

Court of Appeals of Maryland.

Dec. 28, 1962.

Frank B. Cahn, II, Baltimore (Paul A. Dorf and Dorf & Pollack, Baltimore, on the brief), for appellant.

Harrison M. Robertson, Jr., Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., William J. O'Donnell, State's Atty., and John Paul Rogers, Asst. State's Atty. for Baltimore City, Baltimore, on the brief), for appellee.

Argued before BRUNE, C. J., and HENDERSON, PRESCOTT, MARBURY and SYBERT, JJ.

BRUNE, Chief Judge.

The defendant-appellant, George Seidman, was convicted under each of seven separate indictments charging him with the statutory offense of pandering and under another indictment charging him with conspiracy 'with one Earl Fifer, and certain other persons whose names are to the [Grand] Jurors * unknown, to violate the Pandering Laws of the State of Maryland.' All eight cases were tried together in the Criminal Court of Baltimore before a jury. The defendant's motion for a new trial, applicable to all eight cases, was denied and he was sentenced to six years' imprisonment on each case, all of the sentences to run concurrently. He appeals.

The defendant contends: first, that each of the pandering indictments was defective and should have been dismissed; second, that he was convicted on the uncorroborated testimony of accomplices; third, that the trial court abused its discretion in denying the defendant's motion to remove the case, or in the alternative to grant a postponement because of publicity; and fourth, that the evidence was insufficient to sustain his conviction for conspiracy.

The chief basis for the appellant's contention that each of the pandering indictments is insufficient is that none of them states the name of the woman from whose illicit earnings the defendant is alleged to have received money. Each of these indictments is based upon § 430 of Art. 27 of the Code (1957) which reads as follows:

'Any person or persons who knowingly receive any money or other valuable thing 'without lawful, actual bona fide consideration' from the earnings of any woman or girl engaged in prostitution shall be guilty of a felony, and upon conviction thereof shall be sentenced to the penitentiary for not less than three nor more than ten years.'

Each of the seven indictments for pandering under which the defendant went on trial (Nos. 3334-3336 and 3339-3342) contained one count based upon § 430 above quoted. ¹ All of these were in the same form, except that each alleged a different date of the offense charged (which varied from March 18, 1960 to May 10, 1961) and charged that Seidman, on a date specified, at Baltimore, 'feloniously did knowingly receive a certain sum of money, to wit, the amount whereof is to the Jurors aforesaid unknown and a certain other valuable thing a further description whereof is to the Jurors aforesaid unknown, without lawful, actual and bona fide consideration, from the earnings of a certain woman whose name is to the Jurors aforesaid unknown, who was then and there engaged in prostitution; * * *.'

Presentments were filed in the conspiracy and pandering cases on September 1, 1961, the defendant was released on bail on September 5, the indictments were returned on September 8, copies thereof were served on the defendant on September 28, 1961, and on that date he was arraigned and pleaded not guilty in all of the cases. A week later, on October 5, he filed a demand for particulars under each of the ten indictments (including the two mentioned in footnote 1). This demand was a single document which referred to all ten cases. Item 4 of this demand sought 'the name of the person 'who was then and there engaged in prostitution" as set forth in Indictments Nos. 3334-3342. On October 6 the State answered the demand for particulars, stating as to two items that it had no such written statements, papers, documents, etc. as were sought, and excepting to the other five demands, including Item 4. There was a hearing on the demand and answer on October 6th. It is somewhat difficult to ascertain from the record precisely what the court's ruling was, but it seems clear that at that time the defendant did not get the information sought by Item 4. ² On October 13 the defendant moved to dismiss the indictments in the pandering cases (but not in the conspiracy case) because of the indefiniteness of the indictments. On October 17 the State filed an answer to Item 4 of the demand for particulars in which it listed the names of nine women alleged to have been engaged in prostitution and identified them separately, one with each of the nine indictments Nos. 3334-3342. The defendant's brief states (and the State does not challenge the statement) that at the hearing on October 6, the court upheld the State's exception to Item 4 and that the trial judge later reversed his decision and required the State to furnish the names. Documents in the record show that orders to summon all nine of the named women to testify for the State in the conspiracy case (no reference being made to the other cases) were received by the Sheriff's office on October 11.

A hearing was held on October 17 on the defendant's motion to dismiss and the motion was denied. Subsequently, on October 23, just before the cases went to trial, the defendant asked for a list of witnesses who had appeared before the Grand Jury in order to determine whether the nine women named in the response to Item 4 filed on October 17 had appeared before that body and hence whether their names were necessarily known to it. The State objected to furnishing the information and the court denied the request, stating that it came too late and also noting the absence of precedent for it.

We do not have the benefit of anything in the record to show the basis for the court's denial of the defendant's motion to dismiss the indictment. It is inferable from the dates above stated that it was due at least in part to the fact that the names of the women involved had actually been furnished to the defendant by the time of the argument. The ruling might also have been based upon the fact that the motion had not been filed until after the defendant had pleaded and under Md. Rule 725 b 3, as then in force, the motion came too late, unless the court should 'permit it to be made within a reasonable time thereafter.' See Mazer v. State, 212 Md. 60, 127 A.2d 630. (This particular provision as to time has not been included in Md.Rules 725 as revised, effective on January 1, 1962.) This possible ground to support the order has not been suggested by the State, and it seems at least fairly inferable that it could not have been successfully asserted, since it seems that the court did entertain and rule upon the motion after the defendant had pleaded, pursuant to the discretionary power contained in former Rule 725 b 3 above set forth.

Several general rules, we think, are clearly established: that an indictment must be so framed as to inform the defendant of the charge against him in order that he may prepare his defense and may also protect himself against a subsequent prosecution for the same offense; that an indictment in the language of the statute upon which it is based is generally good; that if the identity of a person referred to in an indictment which would ordinarily have to be stated, is unknown to the Grand Jury, the fact that it is unknown may be stated and the indictment will be sufficient; and that a bill of particulars forms no part of an indictment and hence cannot make an otherwise defective indictment good. No lengthy citation of authorities to support these statements of the law of this State seems necessary. See such cases as Mincher v. State, 66 Md. 227, 7 A. 451; Delcher v. State, 161 Md. 475, 158 A. 37; State v. Lassotovitch, 162 Md. 147, 159 A. 362, 81 A.L.R. 69 (containing an extensive review of cases); Adams v. State, 202 Md. 455, 97 A.2d 281, reversed on another ground 347 U.S. 179, 74 S.Ct. 442, 98 L.Ed. 608, each of which cases supports one or more of the propositions above stated. Cf. Dize v. State, 212 Md. 1, 128 A.2d 427, involving an arrest warrant and decided under rules applicable to indictments.

The rights of a defendant in a criminal case to be informed of the accusation against him and to have a copy of the indictment or charge in due time (if required) to prepare for his defense are protected by Art. 21 of the Maryland Declaration of Rights, and all other rules respecting indictments must, of course, accord protection to those rights. ³ A problem sometimes arises as to whether or not an indictment in the words of the statute (such as we have here) is sufficiently informative and if not, whether such defect is fatal or can be met by furnishing a bill of particulars. Bills of particulars have long been recognized in Maryland criminal practice (see Neusbaum v. State, 156 Md. 149, 143 A. 872; Lanasa v. State, 109 Md. 602, 71 A. 1058), and have been provided for as a matter of right in the instances mentioned in note 3 to this opinion. In other instances, their grant or refusal has been (and under our present Rule 715 a continues to be) ordinarily within the discretion of the trial court. The difficulty of problems of the kind stated was recognized by Judge Offutt in the Neusbaum case; and the two different types of situation have also been pointed out in a number of other cases. Neusbaum itself upheld a short, statutory form of indictment. Larmore v. State, 180 Md. 347, 24 A.2d 284, upheld an indictment in the words of the statute, pointing out that any generality in it could have been corrected by a bill of particulars. Richardson v. State, 175 Md. 216, 218, 200 A. 362, also upheld an indictment in the words of the statute as being sufficiently informative. It said nothing about a bill of particulars.

On the other hand, lack of a full allegation of an essential matter where known, even though the...