Wimpling v. State

• Decision Date: 14 January 1937
• Docket Number: 51-54.
• Citation: 189 A. 248,171 Md. 362
• Parties: WIMPLING v. STATE (FOUR CASES).
• Court: Maryland Court of Appeals

189 A. 248

171 Md. 362

WIMPLING v. STATE (FOUR CASES).

Nos. 51-54.

Court of Appeals of Maryland

January 14, 1937

Appeals from Circuit Court, Anne Arundel County; Linwood L. Clark Judge.

Thomas Wimpling was convicted of statutory arson, and from a judgment on the verdict and orders overruling demurrers to the indictment and a motion in arrest of judgment, he appeals.

Judgment reversed, case remanded for a new trial, and other appeals dismissed.

Maurice T. Siegel and Isidore Ginsberg, both of Baltimore (Ginsberg & Ginsberg, of Baltimore, on the brief), for appellant.

Hilary W. Gans, Deputy Atty. Gen. (Herbert R. O'Conor, Atty Gen., and Roscoe C. Rowe, State's Atty., of Annapolis, on the brief), for the State.

OFFUTT Judge.

The appellant in these cases, was indicted, tried, and convicted before the court, sitting as a jury, in the circuit court for Anne Arundel county, of the crime of statutory arson, and from the judgment entered on the verdict in the case has appealed to this court.

The indictment contained two counts. In the first, the grand jury presented that he "feloniously did wilfully and maliciously set fire to and burn, and cause to be burned a certain dwelling house, the property of Charles Heintzman the said dwelling house then situate at Cottage Beach Grove, in the said Anne Arundel County," and in the second, that he "feloniously did wilfully and maliciously aid, counsel and procure the burning of a certain dwelling house of the said Charles Heintzman, the said dwelling house being then situate at Cottage Beach Grove, in said Anne Arundel County," and both concluded against the form of the statute and as at common law. A demurrer to the indictment and each count thereof was overruled. The appellant then entered a general plea of not guilty, and the case proceeded on those pleadings until "just before the verdict" when the state "abandoned" the second count. After the verdict he filed a motion in arrest of judgment on the grounds (1) that the indictment and each count thereof were "bad on their face"; (2) that there was a variance between the evidence and the indictment and each count thereof; and (3) that the verdict was improperly entered. That motion was also overruled and he then filed (1) an appeal from the judgment; (2) an appeal from an order overruling the demurrer; (3) an appeal from the order overruling the motion in arrest of judgment; and (4) on July 8, 1936, a second appeal from the judgment.

Since the first appeal raised all questions intended to be presented by the second, third, and fourth appeals (being Nos. 52, 53, and 54 on this docket), they were unnecessary, improvidently entered, and must be dismissed.

In the course of the trial the appellant reserved eight exceptions to rulings of the court on the admissibility of evidence. The appeal in No. 51 of this docket requires a review of those rulings as well as the court's action in overruling his demurrer to the indictment and his motion in arrest of judgment.

The demurrer to the whole indictment was based upon the contention that the first count charged appellant as a principal, and the second as an accessory to the same offense, and that the two counts could not be combined in the same indictment.

The objection urged to the second count of the indictment was that it failed to designate the agency through which the actual burning was done with sufficient particularity to inform the defendant of his identity. It is axiomatic that an indictment must describe the offense with which it charges the defendant with sufficient particularity to inform him of its nature, and to permit him to plead any judgment that may be entered in the case in bar of any future prosecution for the same offense. It is also settled that in the case of a statutory offense it is sufficient to charge the offense in the words of the statute but with such other particulars as may be necessary to identify that particular offense and distinguish it from all others in order that the defendant may be sufficiently apprised of the charge against him to prepare his defense.

The second count of the indictment fails to meet that test, since it neither states the name of the person who did the actual burning, nor that such name was not known to the grand jury. In 31 C.J. 739, it is said: "All the material averments of an indictment against the principal must be embodied in the indictment of an accessory before the fact, and the same particularity is required. The commission of the offence by the principal must be alleged, unless, in case of a felony the principal has been convicted, in which case it is sufficient, at common law, to recite the record of the conviction, and his name must be stated where known, but if unknown it is sufficient that such fact be alleged."

In United States v. Simmons, 96 U.S. 360, 362, 24 L.Ed. 819, in considering the following count in an indictment, "Did knowingly and unlawfully cause and procure to be used a still, boiler, and other vessel, for the purpose of distilling, within the intent and meaning of the internal revenue laws of the United States, in a certain building and on certain premises where vinegar was manufactured and produced, against the peace of the United States and their dignity, and against the form of the statute of the said United States in such case made and provided," the court said: "Where the offence is purely statutory, having no relation to the common law, it is, 'as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.' 1 Bishop, Crim.Proc., § 611, and authorities there cited. But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defence, and plead the judgment as a bar to any subsequent prosecution for the same offence. An indictment not so framed is defective although it may follow the language of the statute. "Tested by these rules, the second count is insufficient. Since the defendant was not charged with using the still, boiler, and other vessels himself, but only with causing and procuring some one else to use them, the name of that person should have been given. It was neither impracticable nor unreasonably difficult to have done so. If the name of such person was unknown to the grand jurors, that fact should have been stated in the indictment."

The demurrer to that count should therefore have been sustained.

The objection to the first count that it did not sufficiently allege the ownership of the house that was burned is obviously without force, and the demurrer to that count was properly overruled.

But while there was error in overruling the demurrer to the second count of the indictment, the error was not reversible, because "just before verdict," the State abandoned the second count, and the verdict was guilty "on first count." The appellant was not therefore injured by the error. 17 C.J. 285, 283.

In view of these conclusions, it would not be necessary to consider the action of the court in overruling the demurrer to the whole indictment but for the fact that the appellant contends that the "abandonment" of the second count was without his consent, and that he was prejudiced thereby, because he contends he could not be legally tried under an indictment which charged him both as an accessory and as a principal.

One fallacy of that contention is its essential premise that the second count charges the defendant as an accessory. It is true that at common law "an accessory before the fact is one who, though absent at the time of the felony committed, doth yet procure, counsel, command or abet another to commit a felony. 1 Hale, P.C. 615; R. V. Macdaniel, 19 St. Tr. 745; Fost. 121; 1 East, P.C. 352; 1 Chit.Cr.L. 262; and see Steph.Dig.Cr.L. (6th Ed.) 33." Archbold's Cr.Ev.Pl. and Pr.1417. Arson is a felony, 2 Wharton Cr.Proc. § 1052, 2 Bishop Cr.Law § 18, and if the burning alleged in the count constituted arson as defined by the common law, the language used might at common law well be held to charge the defendant as an accessory rather than as a principal. But the indictment and each count thereof are under the statute and not at common law, and under the statute one who aids, counsels, or procures the burning of a dwelling house is guilty of arson as a principal and is subject to the same punishment as though he had himself actually burned it, Code, art. 27 § 6, 1935 Suppl. Arson as defined in that section includes not only the physical act of setting fire to the dwelling, but also the act of aiding, counseling, or procuring another to do so.

The statute provides in part "Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto whether the property of himself or of another, shall be guilty of arson, and upon conviction thereof, be sentenced to the pententiary for not less than two nor more than twenty years." Code 1935 Suppl. art. 27, § 6. It is consistent with that language that one may be guilty of arson if he has counseled the burning of a house even though there has been no actual burning, since the mere willful and malicious counseling of a burning, under the language of the statute read literally, without more, constitutes arson. That definition is, however, not only contrary to the common-law definition of the...