State v. Carter

• Citation: 200 Md. 255,89 A.2d 586
• Decision Date: 01 October 1952
• Docket Number: No. 18,18
• Parties: STATE v. CARTER et al. ,
• Court: Court of Appeals of Maryland

Page 255

200 Md. 255

89 A.2d 586

STATE v. CARTER et al.

No. 18, Oct. Term, 1952.

Court of Appeals of Maryland.

June 11, 1952.

Kenneth C. Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., Anselm Sodaro, State's Atty., Wm. H. Maynard, Deputy State's Atty., and Wm. C. Rogers, Jr., Asst. State's Atty., Baltimore, on the brief), for appellant.

G. C. A. Anderson, Baltimore, for appellee Carter.

E. Milton Altfeld, Baltimore, for appellee Brown.

Ellis Levin, Baltimore (Wm. Greenfeld, Baltimore, on the brief), for appellee Scherr.

Alan H. Murrell, Baltimore, on the brief for appellee Martin.

Before MARBURY, C. J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

MARBURY, Chief Judge.

This case, advanced at the request of the Attorney General, is an appeal by the State from an order of the Criminal Court of Baltimore, dismissing an indictment brought by the grand jury of Baltimore City against the Clerk of the Criminal Court of Baltimore, the Chief Deputy Clerk of that court, and two bail clerks of that court, jointly. The indictment is captioned: 'Malfeasance in Office' and reads as follows:

'The Jurors of the State of Maryland, for the body of the City of Baltimore, do on their oath present that on the eleventh day of January, in the year of our Lord nineteen hundred and fifty-one, and thence continually until and including the tenth day of January, in the years of our Lord nineteen hundred and fifty-two, at the City aforesaid, Wilford L. Carter, late of said City, was then and there the Clerk of the Criminal Court of Baltimore, duly and regularly elected, qualified and acting as such, charged with the duties of that office, and that George F. J. Brown, late of said City, was the Chief Deputy Clerk of the Criminal Court of Baltimore, duly and regularly appointed, qualified and acting as such, charged with the duties of that Office; that Alfred Scherr and Carl O. Martin, late of said City, were then and there Bail Clerks of the Criminal Court of Baltimore, duly and regularly appointed, qualified and acting as such, charged with the duties of that office; and it was then and there the duties of the said Wilford L. Carter, George F. J. Brown, Alfred Scherr and Carl O. Martin, to require persons who offered bail and security for other persons charged with violations of the Criminal Law in Baltimore City, to post proper, adequate and sufficient bail and security; that at the time aforesaid and for a long period of time prior thereto Harold Brown, Robert L. Foote, Jean Deck, Earl L. Hornstein, Beatrice S. Hornstein, Esther Hornstein and Meyer Hornstein, and certain other persons whose names are to the Jurors aforesaid unknown, were then and there, in said City and State, engaged in furnishing bail and security for other persons charged with Violation of the Criminal Law in Baltimore City; and the said Wilford L. Carter, George F. J. Brown, Alfred Scherr and Carl O. Martin, well knowing the premises, in wilful disregard and violation of their duties as Clerk, Chief Deputy Clerk, and Bail Clerks of the Criminal Court of Baltimore, as aforesaid, and perverting the trust reposed in them as aforesaid, on the eleventh day of January, in the year of our Lord nineteen hundred and fifty-one, and thence continually until and including the said tenth day of January, in the year of our Lord nineteen hundred and fifty-two, while they, the said Wilford L. Carter, George F. J. Brown, Alfred Scherr and Carl O. Martin, were Clerk, Chief Deputy Clerk, and Bail Clerks of the Criminal Court of Baltimore, as aforesaid, and under color of their said offices, unlawfully, wilfully, corruptly, knowingly and contemptuously did fail, refuse and neglect to perform their said duties as Clerk, Chief Deputy Clerk and Bail Clerks of the Criminal Court of Baltimore, as aforesaid, and they, the said Wilford L. Carter, George F. J. Brown, Alfred Scherr and Carl O. Martin, Chief Clerk, Chief Deputy Clerk and Bail Clerks of the Criminal Court of Baltimore, as aforesaid, permitted, connived at and allowed Harold Brown, Robert L. Foote, Jean Deck, Earl L. Hornstein, Beatrice S. Hornstein, Esther Hornstein and Meyer Hornstein, and other persons whose names are to the Jurors aforesaid unknown, to post improper, inadequate and insufficient bail and security for other persons charged with violation of the Criminal Law in said City and State, to the evil example of all others in like manner offending, and against the peace, government and dignity of the State.'

The court dismissed the indictment for two reasons--first, because it said that it contained in one count three separate and distinct crimes, malfeasance, misfeasance, and nonfeasance in office, and therefore was duplicitous; and second, because it charged a joint crime on the part of all the defendants together, and it seemed to the court that the charge must indicate separate and several crimes which should be charged in separate indictments against each defendant individually.

The contention that the appellees cannot be properly jointly charged in one indictment is based upon the fact that they each have separate duties, and that evidence tending to prove the guilt of one would not necessarily prove, or tend to prove, the guilt of another. The indictment, however, does not allege that separate crimes were committed by each of the defendants, but it alleges that they jointly committed the crimes charged by permitting certain persons to post improper, inadequate and insufficient bail for people charged with crimes. Whatever their respective duties may have been, it is charged that they jointly performed the acts which constitute the crimes charged, and that in the case of each one this was misconduct in office. It is suggested that while the Clerk had the duty of seeing that the entire office force obeyed the law, and while the Deputy Clerk was charged with the same duty under the Clerk, each of the bail clerks had duties which were limited to taking bail. Thus, in case evidence was offered to show that one of these bail clerks took improper bail, it is said that might be shown to be with the connivance of the Clerk and of the Deputy, but it could not bind the other bail clerk, unless he actually participated in the transaction. However, at this state of the case, we are not concerned with the nature of the proof which the State might offer, or what proof might be admissible under the indictment. It is not impossible that the State will attempt to prove that all of the parties charged participated in each taking of improper bail. We must consider the indictment on its face, and whether its charges are sustained by proof cannot be determined until the trial. Difficulty of proof is not a ground for holding that an indictment is bad. It is a mere argument of convenience. Damasiewicz v. Gorsuch, Md., 79 A.2d 550, 559.

In the case of State v. Monfred, 183 Md. 303, 37 A.2d 912, 913, we said: 'Where however, several persons engage in the commission of a criminal act, so that all are guilty of the crime in some degree, all or any of them may be joined in one count or separate counts of the same indictment, or they may be indicted separately.' And it was further stated in that case that where the same evidence as to the act which constitutes the crime applies to two or more persons, they may be indicted jointly. In the indictment in the Monfred case, which was joint, the first six counts charged that each of the defendants did certain things, and we held that the necessary inference from that was that each individually committed the offenses charged without concert of action. These six counts were held to be demurrable because on their faces they showed that no joint offenses were alleged. Two other counts were held good because they alleged that each of the defendants unlawfully combined with each other to do certain things. The count before us in this case, while it does not allege conspiracy, and while there was a companion conspiracy indictment which was held good by the court, does allege joint action, and, therefore, it cannot be held bad on its face. Whether the appellants could have been charged separately, or whether it would be better to have so charged them, are matters not within our province. We have to take the indictment as it was found, and determine whether, as found, it constitutes a valid charge. We hold that it does, and the question of what evidence will be admissible under it is a matter for future determination when the case is tried.

The other objection raised by the appellees and decided in their favor by the court below was that the indictment is duplicitous because it charges two or three separate crimes, these being malfeasance, misfeasance, and nonfeasance in office. The appellees claim that the statement in the indictment that the defendants corruptly, knowingly and contemptuously did fail, neglect, and refuse to perform their duties is malfeasance, and also is nonfeasance, and that the charge that they permitted, connived at and allowed certain persons to post improper, inadequate and insufficient bail is misfeasance. They cite a number of cases for the familiar principle that any count in an indictment which charges two or more separate and distinct offenses is bad for duplicity. See Weinstein v. State, 146 Md. 80, 125 A. 889; Jackson v. State, 176 Md. 399, 5 A.2d 282, 401; Kirsner v. State, 183 Md. 1, 5, 36 A.2d 538. The answer to this objection to the indictment before us does not depend on what are malfeasance and misfeasance, and, possibly, nonfeasance, Wharton's Crim. Law, 12th Ed., Vol. 1, Secs. 30, 167 and 168; Donnelley v. United States, 276 U.S. 505, 516 48 S.Ct. 400, 72 L.Ed. 676; Russell on Crimes, 9th Am.Ed., Vol. 1, Ch. 14, p. 198; People v. Herlihy, 35 Misc. 711, 72 N.Y.S. 389, and authorities cited; same case, 66 App.Div. 534, 73 N.Y.S. 236, and 170 N.Y. 584, 63 N.E. 1120, but whether the count in the indictment before us does actually...