Wolf v. State

• Decision Date: 26 June 1923
• Docket Number: 16.
• Citation: 122 A. 641,143 Md. 489
• Parties: WOLF v. STATE.
• Court: Maryland Court of Appeals

122 A. 641

143 Md. 489

WOLF v. STATE.

No. 16.

Court of Appeals of Maryland

June 26, 1923

Appeal from Criminal Court of Baltimore City; James P. Gorter Carroll T. Bond, Henry Duffy, Robert F. Stanton, and Charles F. Stein, Judges.

Harry B. Wolf was convicted of engaging in a conspiracy to obstruct the administration of justice, and he appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER, and OFFUTT, JJ.

Samuel K. Dennis, of Baltimore, and F. Neal Parke, of Westminster (Thomas H. Robinson, of Bel Air, and H. Webster Smith and Gerald W. Hill, both of Baltimore, on the brief), for appellant.

Lindsay C. Spencer, Asst. Atty. Gen., and Alexander Armstrong, Atty Gen. (Robert F. Leach, Jr., of Baltimore, State's Atty on the brief), for the State.

URNER J.

There are 120 exceptions in the record presented on this appeal. They relate to the admissibility of evidence in a trial which resulted in the conviction of the appellant under an indictment charging him and others with having engaged in a conspiracy to obstruct the administration of justice.

The issues of fact and law in the case were tried before Chief Judge Gorter, and Associate Judges Bond, Duffy, Stanton, and Stein, of the Supreme bench of Baltimore City. It is earnestly contended that their decision against the appellant was improperly influenced by the admission of the testimony to which the numerous exceptions refer. In the brief submitted by the appellant's able counsel it is further insisted that, regardless of the exceptions in the record, there was such manifest error in the conviction, in view of all the evidence, as to justify a reversal of the judgment and a remand of the case for a new trial.

This court has no authority to decide as to the appellant's guilt or innocence. That duty and responsibility rested upon the five judges before whom, as a jury, the case was tried in the lower court. Under the Constitution of our state, and in their capacity as a jury, they were "the judges of law, as well as of fact" in the case. It is therefore, not within our jurisdiction, as an appellate tribunal, to determine as to the legal sufficiency of the evidence upon which the verdict was rendered. Weeks v. State, 126 Md. 223, 94 A. 774; Jessup v. State, 117 Md. 119, 83 A. 140. The only judicial concern we can have, with respect to the evidence, is to ascertain whether any ruling of the trial court as to the admissibility of any portion of it was erroneous and tended to prejudice the appellant's interests.

In the indictment under which the appellant was tried, it is charged that he conspired with John Keller and Walter Socolow to convey certain misleading information to police officers and to the state's attorney of Baltimore City for the purpose of obstructing the prosecution of Socolow and others for the murder of William B. Norris, by discrediting a confession obtained from Frank L. Allers, one of the participants in the robbery in the course of which the homicide occurred. Those implicated by the confession, besides Allers himself, were Socolow, John L. Smith, Charles P. Carey, and James Hart. When the confession was made, Socolow and Hart were still at large. Keller had no part in the robbery or murder, but subsequently aided Socolow and Hart while they were evading arrest. The plan of deception, which the appellant was alleged to have agreed to and promoted, was to have Keller first secure the confidence of the prosecuting officers by conducting Police Captain Leverton to the place where the cash box taken in the robbery, and the license tags of the automobile used by the bandits, had been secreted, and then make the statement that he had heard Allers say he was "framing" Socolow. The suggestion of this scheme is said to have been made by Socolow, and to have been accepted by the appellant and Keller, in an interview at the appellant's home on the evening of the day on which the confession of Allers appeared in the newspapers. On the following day Keller met Captain Leverton at the appellant's law office, and went with the officer to a pond from which the cash box and license tags sought for were recovered. Soon afterwards, at the Central Police Station, Keller told Inspector Hurley and Mr. O'Connor, deputy state's attorney, that he heard Allers say: "Now is the time to frame Socolow, Wiggles (meaning Smith), and Carey." This statement is proved to have been false, and Keller testified, in effect, as a witness for the state, that it was planned in the interview with the appellant and Socolow on the occasion we have mentioned. There was a positive contradiction of Keller on this point by the appellant and by Socolow in their testimony.

The admissibility of the evidence with which the exceptions are concerned must, of course, be considered with particular reference to the precise nature of the charge sought to be proved. The specific purpose of the conspiracy into which the appellant is accused of having entered was to obstruct justice by means of a false and misleading statement to be made to the prosecuting officers by one of the conspirators. Any evidence having a legitimate tendency to support that accusation was not subject to a valid exception.

In discussing and disposing of the exceptions we shall follow generally the order and classification adopted in the appellant's brief.

There are 10 exceptions which relate to the admission of evidence that in the interval between the murder of Mr. Norris, on August 18th last, and the time of the interview of Keller and Socolow with the appellant, which occurred on the night of August 23d, the police had been searching for Socolow, Hart, Smith, and Lewis, who were suspected of having participated in the crime; that the automobile used by those who committed it had been located; that Smith and Lewis had been arrested; that Allers had voluntarily surrendered and had confessed; that on the afternoon of August 23d his confession had been published in the Baltimore Evening Sun; and that the appellant had represented Socolow in a criminal case in April, 1921.

In order that the significance of the alleged conspiracy might be understood, it was proper that the state should prove the conditions to which it related. The principal facts to which the evidence just referred to was directed were averred in the indictment. They were proved, as they had been alleged, for the purpose of presenting the case in its proper perspective. To support the theory of the indictment that the appellant conspired to defeat the prosecution of Socolow and his associates in the robbery and murder of Mr, Norris, it was permissible to offer evidence of the fact that such a prosecution was impending. As the appellant was charged with having conspired to discredit a confession upon which the state would rely, it was material to prove that the confession had been made and had been given such publicity as to justify the inference that it had come to the appellant's knowledge before the interview in which the conspiracy is said to have had its inception. The evidence that the appellant had previously acted as Socolow's attorney was unobjectionable.

There are three exceptions in the second group to be considered. They refer to admitted testimony of Keller to the effect that he was with Hart and Socolow on the night of August 20th, and went with them to a garage, where the money box and license tags already mentioned had been concealed, and helped them to take those articles to the pond from which they were afterwards recovered by the police with his aid. This testimony described conditions directly related to the conspiracy charged. The association of Keller with the men who disposed of the cash box and license tags, and his knowledge of the place where they had been deposited, were facts to be used, according to the state's theory, in the promotion of the unlawful project with which it proposed to prove the appellant to have been identified. It was to those facts that the statement made by Keller to the police primarily had reference. He testified that they were narrated to the appellant in the interview at his home. The alleged suggestion by Socolow, in which the conspiracy is said to have originated, was to have Keller tell the police that it was Allers whom he accompanied to the garage and the pond when the cash box and license tags were disposed of, and the declaration to be attributed to Allers as to his intention to "frame" Socolow, was to be reported as having been made on that occasion. It seems clear to us that the evidence on this subject was competent.

Seven exceptions relate to testimony of Police Commissioner Gaither as to offers made by the appellant, on the day of the murder of Mr. Norris, and on the following day, to aid the police department in discovering the perpetrators of the crime, and as to a statement by the appellant of his belief that it was not committed by local men but by certain persons from other cities, whose presence in Baltimore he had heard of, and whose movements he regarded as suspicious. There are two exceptions to testimony of a representative of the Baltimore Sun that, at his request, on the night of August 18th, the appellant promised to give any aid in his power to the efforts being made to locate and arrest the men guilty of the murder. The declarations of the appellant, to which the 9 last noted exceptions relate, were made some days before the occasion for the alleged conspiracy had arisen or could have been anticipated. The effect of the testimony as to those declarations was to prove an interest on the part of the appellant which appears to have been free of any ulterior motive, and which did not tend to support the specific charge with which he was confronted at the...