Simond v. State

• Decision Date: 11 November 1915
• Docket Number: 16.
• Citation: 95 A. 1073,127 Md. 29
• Parties: SIMOND v. STATE.
• Court: Maryland Court of Appeals

95 A. 1073

127 Md. 29

SIMOND v. STATE.

No. 16.

Court of Appeals of Maryland

November 11, 1915

Appeal from Criminal Court of Baltimore City; Carroll T. Bond Judge.

Edward J. Simond was convicted of conspiracy, and, from the conviction and orders overruling his demurrers to the indictment, he appeals. Affirmed.

Edward L. Ward, of Baltimore, for appellant.

Roland R. Marchant, Deputy State's Atty., of Baltimore, and Edgar Allan Poe, Atty. Gen. (Wm. F. Broening, State's Atty., of Baltimore, on the brief), for the State.

BOYD C.J.

The appellant was indicted in the criminal court of Baltimore city for conspiracy. There are four counts in the indictment the first of which charges:

"That on the 6th day of October, in the year of our Lord 1914, there was in the First precinct of the Third election district of Anne Arundel county, in the state of Maryland, a general registration of voters by law provided, and that there was then in the said precinct of said election district of said county a meeting of a board of registry, duly appointed, qualified and organized, held for the purpose of said general registration of voters in said precinct of said election district of said county, as by law provided. And that Edward J. Simond, otherwise called Edward J. Simon, late of said city, on the said 6th day of October, in the year of our Lord 1914, at the city aforesaid, unlawfully did conspire, combine, confederate, and agree with Jacob Knight Frank S. Revell, William J. Fitzpatrick, and George L. Noel to procure unlawfully and fraudulently to register in said election precinct, that is to say, in said First precinct of said Third election district of said county, divers persons not then having a legal right to register therein; against the peace, government, and dignity of the state."

The second is the same, except it alleges that the traverser unlawfully did conspire, etc., with said four persons, "and with certain other persons whose names are to the jurors aforesaid unknown, to procure unlawfully and fraudulently to register," etc. The third alleges that the traverser unlawfully did conspire, etc., with the four persons named "to procure divers persons unlawfully to register in and under certain names, not the names of such persons to be procured to register, at the general registration of voters aforesaid, and at the meeting of the said board of registry so held for the purpose of said general registration of voters, in said precinct," etc. The fourth is the same as the third, except it alleges that the traverser unlawfully did conspire, etc., with those four "and with certain other persons whose names are to the jurors aforesaid unknown, to procure divers persons," etc. The defendant made a demand for a bill of particulars, which was refused. He demurred to the indictment, and each count thereof, and the demurrer was overruled. He then entered a plea of not guilty, and upon a trial before a jury was convicted. After motions for a new trial and in arrest of judgment were overruled, judgment was entered, and he was sentenced to confinement in jail for one year. From that judgment this appeal was taken. In addition to the rulings on the demurrer and the demand for a bill of particulars, there are 41 exceptions in the record presenting the rulings of the court in reference to evidence.

1. There can be no difficulty about the demand for a bill of particulars, as that is a matter generally resting within the sound discretion of the trial court (Lanasa v. State, 109 Md. 602, 71 A. 1058), and there is nothing in this case to bring it within any exception to the rule.

2. Section 89 of article 33 of the Code provides:

"If at any general registration of voters or at any meeting of a board of registry held for such purpose or for revision thereof, as provided in this article, any person shall falsely personate a voter or other person, and register or attempt or offer to register in the name of such voter or other person, or if any person shall register or attempt to make application to register in or under the name of any other person, or in or under any false, assumed or fictitious name, or in or under any name not his own; or shall register in two election precincts; or, have registered in one precinct, shall attempt or offer to register in another; or shall fraudulently register or attempt or offer to register in any election precinct, not having a legal right to register therein *** every such person, upon conviction thereof, shall be punished by imprisonment in jail or in the penitentiary for not less than six months nor more than five years."

Objection is made to the first and second counts because:

They, to quote from the brief, "do not sufficiently aver the alleged offense, in that they do not charge: (1) At what registration the traverser procured unlawfully to register divers persons; nor (2) before what board this unlawful registration was had; nor (3) the purpose of said registration."

In the first part of those counts, it is distinctly alleged that there was on the 6th day of October, 1914, in the precinct named, a general registration of voters as by law provided, and that there was then in said precinct a meeting of the board of registry duly appointed, qualified, and organized, held for the purpose of said general registration of voters in said precinct, as by law provided; and it then goes on to allege that the traverser on the said 6th day of October, 1914, unlawfully did conspire, etc., with the four named, "to procure unlawfully and fraudulently to register in said election precinct, that is to say, in said first precinct of said third election district of said county, divers persons not then having a legal right to register therein." It might perhaps have been better to have gone on to state, as was done in the third and fourth counts, "at the general registration of voters aforesaid," etc., but the traverser could not possibly have been left in doubt as to what registration, what board, or what purpose was meant. The prior part of those counts of the indictment had informed him of all that was necessary, and there could have been no possible reason for stating what was alleged in that part of the indictment if the latter part referred to some other registration, board, etc. The state was called upon to prove the facts set out in the first part just as it would have been if they had been repeated in the latter part of the counts. There can be no question about the third and fourth counts, and we will not refer to the demurrer further, except to say that in our judgment the cases of State v. Buchanan, 5 Har. & J. 317, 9 Am. Dec. 534, Lanasa v. State, 109 Md. 602, 71 A. 1058, and Garland v. State, 112 Md. 83, 75 A. 631, 21 Ann. Cas. 28, fully sustain the sufficiency of this indictment.

3. It would prolong this opinion beyond a reasonable length to discuss separately each exception, and, as far as can be conveniently done, we will group them. The first was taken in course of the opening statement of the attorney for the traverser. Without quoting all that was said by him, some statements of the law by him were unquestionably not "entirely accurate in every respect," to use the language of the trial judge. It may be that the attorney intended them to be qualified by what he said at other places-- that the traverser could not be convicted by the uncorroborated or unsupported testimony of the coconspirators--but he had at times omitted that qualification, and had also given as one reason for the rule:

"That a man might come in and say that an innocent man was a party to the conspiracy, and would procure immunity for himself; because, when he takes the witness stand, he is immune."

That is not the law of this state, and such a rule would be a dangerous one to announce, as thus broadly stated. There was nothing in the case to show that there was any understanding or agreement with the prosecuting officer, approved by or known to the court, that either of the alleged coconspirators should be immune if he testified fully and truthfully as to the matter charged, as was spoken of in Lowe v. State, 111 Md. 1, 73 A. 637, 24 L. R. A. (N. S.) 439, 18 Ann. Cas. 744; and there is nothing in that opinion which would justify such a startling and dangerous proposition as that just quoted from the opening statement. That opinion concludes by showing that, even under the circumstances of that case, if the state's attorney declined to discontinue the case, or the Governor declined to grant a pardon, the court would be relieved of further responsibility; but it was not suggested that it could give relief. When then objection was made to the statement, the court might have been even more emphatic than it was in its disapproval. Chief Judge Alvey said, in Garlitz v. State, 71 Md. 293, 18 A. 39, 4 L. R. A. 601, that it was "certainly the right of a judge, and it may often be his imperative duty to exercise" the right, to give his full and emphatic dissent from the unwarrantable contention of counsel, while arguing a question of evidence before the judge, "in a very positive and emphatic manner." That was said by him in reference to a trial for murder. If it can be done during an argument before the judge on a question of evidence, surely it can be during an opening statement, as otherwise a jury may be utterly misinformed as to their duties.

We have thought it proper to say this much, but, if there could have been any possible injury done by the very moderate statement of the judge, immediately following the exception there appear statements of the attorney and of the court which removed all possible danger of the traverser being injured by anything presented in the first bill of exceptions, and hence we need not say more on the...