State v. Monfred

• Decision Date: 13 June 1944
• Docket Number: 12.
• Citation: 37 A.2d 912,183 Md. 303
• Parties: STATE v. MONFRED et al.
• Court: Maryland Court of Appeals

37 A.2d 912

183 Md. 303

STATE v. MONFRED et al.

No. 12.

Court of Appeals of Maryland

June 13, 1944

Appeal from Criminal Court of Baltimore City; John T. Tucker, Judge.

Robert Monfred and Bernard Caltrider were indicted for violating statute forbidding the sale and other use of obscene publications. The trial court ordered the indictment quashed and the defendants discharged, and the State appeals.

Reversed and remanded.

J Edgar Harvey, Asst. Atty. Gen., and Bernard G. Peter, Asst State's Atty., of Baltimore (William C. Walsh, Atty Gen., and J. Bernard Wells, State's Atty., of Baltimore, on the brief), for appellant.

H. Mortimer Kremer, of Baltimore, for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRAYSON, MELVIN, and BAILEY, JJ.

DELAPLAINE Judge.

The indictment in this case contains eight counts, each charging Robert Monfred and Bernard Caltrider, of Baltimore, with a violation of the statute forbidding the sale and other use of obscene publications. Code, art. 27, sec. 495.

An indictment for a statutory offense is sufficient if it follows the language of the statute, and is sufficiently specific to inform the accused of the particular charge on which he is to be tried. State v. Coblentz, 167 Md. 523, 529, 175 A. 340; Richardson v. State, 175 Md. 216, 200 A. 362; State v. Petrushansky, Md., 36 A.2d 533, 537. We find no objection to the language of this particular indictment, as each count lays the charge substantially in the language of the statute, and also specifies the alleged obscene publications to be the November and December, 1943, issues of the magazine called 'Sunshine and Health.' The objection made by the defendants is that they should not be indicted jointly for separate offenses. The Criminal Court of Baltimore City sustained the demurrers, and ordered the indictment quashed and the defendants discharged. The State entered an appeal from that judgment.

It is a general rule of pleading that two or more defendants should not be joined in the same indictment where the offenses are separate and distinct and do not arise out of the same transaction. Sampson v. State, 83 Tex.Cr.R. 594, 204 S.W. 324; United States v. McConnell, D. C., 285 F. 164; McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355. This rule cannot be made to yield to any claim of expediency arising from a desire to hasten the progress of criminal cases, however commendable the purpose in view. As Judge James remarked in Culjak v. United States, 9 Cir., 53 F.2d 554, 556, 82 A.L.R. 480: 'It is grounded in the right, always accorded a person accused of crime, to a fair and impartial trial and to be convicted upon proof of his own acts, unaffected by the atmosphere of guilt that may surround another defendant tried before the same jury for a different offense.' 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. State v. Winstandley, 151 Ind. 316, 51 N.E. 92; State v. Lehman, 182 Mo. 424, 81 S.W. 1118, 66 L.R.A. 490, 103 Am.St.Rep. 670; 2 Bishop, New Criminal Procedure, 2d Edition, sec. 467; 1 Wharton, Criminal Procedure, 10th Edition, sec. 351; 27 Am.Jur., Indictments and Informations, sec. 123. We have held, for example, that two persons may be indicted jointly for feloniously and negligently killing a human being, because the indictment charges joint commission of a crime. Neusbaum v. State, 156 Md. 149, 154, 143 A. 872; Story v. United States, 57 App.D.C. 3, 16 F.2d 342, 53 A.L.R. 246, certiorari denied, 274 U.S. 739, 47 S.Ct. 576, 71 L.Ed. 1318. Similarly, two or more members of an official body may be indicted jointly for violating their duty as public officials. State v. Castle, 75 N.J.L. 187, 66 A. 1059; State v. Lehman, 182 Mo. 424, 81 S.W. 1118, 66 L.R.A. 490, 103 Am.St.Rep. 670.

We adopt the criterion, as expressed by Chief Justice Shaw in a Massachusetts 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. Commonwealth v. Elwell, 2 Metc., Mass., 190, 35 Am.Dec. 398. For illustration, perjury cannot be jointly charged against two or more persons where they were separately sworn as witnesses, even though they testified in the same case, because words spoken by one person are different from those spoken by another, and each of the accused ought to answer for himself alone. State v. Roulstone, 3 Sneed, Tenn., 107; State v. Herrera, 28 N.M. 155, 207 P. 1085, 24 A.L.R. 1134. It has been held, however, that two persons may be indicted jointly for perjury if both swore to a false statement at the same time, for then the joint affidavit is a single criminal act. State v. Winstandley, 151 Ind. 316, 51 N.E. 92. It has also been held that the statutory offense of using abusive or obscene language cannot be jointly committed by two persons, even though they should use the same unlawful words in an altercation, because the offenses are necessarily individual acts, except in case of conspiracy. Cox v. State, 76 Ala. 66. Our conclusion is that where two persons jointly sell an obscene publication, they may be charged together in one indictment; but where the sales of such publications by two or more persons are separate and distinct, as where booksellers who are not partners sell the publications at their respective stores, they may be charged only in separate indictments. 1 Wharton, Criminal Procedure, 10th Edition, sec. 352.

If it appears from the face of an...