State v. Coblentz

• Decision Date: 21 November 1934
• Docket Number: 25.
• Citation: 175 A. 340,167 Md. 523
• Parties: STATE v. COBLENTZ.
• Court: Maryland Court of Appeals

175 A. 340

167 Md. 523

STATE v. COBLENTZ.

No. 25.

Court of Appeals of Maryland

November 21, 1934

Appeal from Criminal Court of Baltimore City; George A. Solter and Eli Frank, Judges.

Emory L. Coblentz was indicted for fraudulently signing or assenting to a public statement containing untruthful representations of the affairs, assets, or liabilities of a trust company with view to enhancing the market value of its shares, or otherwise to accomplish fraud thereby. From an order sustaining a demurrer to the whole indictment and an order quashing the indictment, the State appeals.

Reversed and remanded.

ADKINS J., dissenting.

Argued before BOND, C.J., and ADKINS, OFFUTT, and SLOAN, JJ.

James Clark, State's Atty., of Ellicott City, and G. C. A Anderson, Asst. Atty. Gen. (Wm. Preston Lane, Jr., Atty Gen., and Herbert R. O'Conor, State's Atty., of Baltimore, on the brief), for the State.

Leo Weinberg, of Frederick, for appellee.

BOND Chief Judge.

After an acquittal in the circuit court of Frederick county, on a charge of violation of the statute, Code, art. 11, § 58, similar to that considered by this court in the opinion reported in 164 Md. 558, 166 A. 45, 88 A. L. R. 886, Emory L. Coblentz was indicted by a grand jury of Howard county on another charge, that of having fraudulently signed or assented to a public statement containing untruthful representations of the affairs, assets, or liabilities of the Central Trust Company, with a view to enhance the market value of its shares, or otherwise to accomplish a fraud thereby, an act made a misdemeanor by the Acts of 1878, ch. 170, now Code art. 27, § 170. The defendant filed a plea in abatement to the indictment on the ground that the grand jury which returned it was unlawfully convened, a demurrer, and a plea of res judicata in bar. The demurrer was sustained to the whole indictment, and consequently the indictment quashed and the defendant discharged; and the appeal is from that judgment.

There are twenty counts in the indictment, each charging that the defendant, an officer of the company, a banking corporation, in violation of the law signed or assented to false public statements of the company's business; and these twenty counts may be grouped into four classes. Five of them charge that the defendant fraudulently signed or assented to the statements with a view to enhancing the market value of the stock and corporate obligations of the bank, all as stated in section 170 of article 27; a second five make the same charge with specification of items falsely stated; a third five charge that the fraudulent signing or assent was for the ulterior purpose of procuring a transfer and assignment of property of another trust company when the defendant knew that the Central Trust Company could not pay in full for it; and a fourth five are the same as the third except that specifications of false items are added. Some of the counts charge that the statements were signed, some that they were assented to, and some of the latter specify the manner of assenting; but no question has arisen from this distinction.

In argument the appellee assumes that the statements referred to were those condensed from reports of items on the books of the corporation made to the Bank Commissioner and published in compliance with the provisions of the Code, art. 11, §§ 56 to 58, and the fact that the counts specifying the false items charged contain what are headed, "Condensed Statements," lends color to that assumption, but the source of the figures is not so alleged in the indictment and is not now before the court.

The counts are framed exactly in the language of the statute, but in sustaining the demurrer the trial court concluded that this was one of the instances in which the words of the statute did not suffice for an indictment. 1 Wharton, Criminal Procedure (10th Ed.) §§ 269, 270; State v. Lassotovitch, 162 Md. 147, 159 A. 362, 81 A. L. R. 69. The statute in full, Code, art. 27,§ 170, is: "Any officer or agent whatsoever of any corporation who shall fraudulently sign, or in any other manner assent to any statement or publication, either for the public or the shareholders thereof, containing untruthful representations of its affairs, assets or liabilities with a view either to enhance or depress the market value of the shares therein, or the value of its corporate obligations, or in any other manner to accomplish any fraud thereby, shall be deemed guilty of a misdemeanor, and upon conviction thereof, by indictment in any court of law, shall be fined not less than one thousand dollars nor more than ten thousand dollars, and be imprisoned in jail or penitentiary, or either fined or imprisoned, at the discretion of the court, for not less than six months nor more than three years."

The word "fraudulently," in the statute and in the indictment, was in the view of the trial court susceptible of two meanings, and lacking in the certainty and definiteness requisite in an indictment. Specification of the character of the fraudulent action was considered to be required.

In this court the defendant, appellee, presents further grounds of attack urged in the trial court which should be considered first. The constitutionality of the statute is questioned because its title on enactment in 1878 failed to meet the requirements of section 29 of article 3 of the Constitution. But the statute has been embodied in all of the codes since its original enactment, and the Code of 1888 was a new enactment, sufficient in itself, and without dependence for its validity upon the previous enactment. Reese v. Starner, 106 Md. 50, 53, 66 A. 443. No section in that Code is open to objection because of any defect in its previous enactment.

The defendant has also questioned the applicability of the particular statute to banking institutions because its provisions never did fittingly apply to statements issued by such institutions, and if they ever did apply, have in that application been superseded by the state banking act, Code, art. 11. A bank has no bonds or any other securities of the description of "obligations," on the market. But it is conceivable that in some situations, and for some purposes, officers and agents of a bank or trust company might find an advantage in manipulating the market values of its stock, and be guilty of the misdemeanor here defined, and this court therefore, agreeing with the trial court, finds it not permissible to restrict the scope of the statute as contended.

A subsequent statute taking over the regulation by law of a given subject, and intended as the complete regulation of it must have the effect of withdrawing that subject from the application of a former statute, by implication if not by express repeal to that extent. The Public Service Commission Law, Code, art. 23, §§ 346 to 418, superseded previous statutes on the licensing of ferries in counties. Bay Ridge Ferry Corporation v. County Com'rs of Queen Anne's County, 160 Md. 398, 405, 153 A. 441. And the Uniform Warehouse Receipts Act of 1910, c. 406, with its section 52, making a criminal offense of the issuance of duplicate warehouse receipts, superseded a section on that subject in the general criminal article of the Code 1904, art. 27, § 194. State v. Gambrill, 115 Md. 506, 81 A. 10. And see State v. Amer. Bonding Co., 128 Md. 268, 272, 97 A. 529. The general banking act of 1910, chapter 219, with its amendments, all now included in the Code, article 11, expressly as well as by necessary implication, superseded all previous acts and parts of acts inconsistent with the new provisions; but this court does not find in the mere fact of general regulation a ground for holding the existing section 170 of article 27 repealed. The difficulty on this point if the indictment be taken as referring to statements on the books of the corporation and in the reports made up from them for the Bank Commissioner, and for publication under the act, would arise from the fact that section 58 of the act, article 11, under another part of...