Yamin v. State, 109

• Decision Date: 30 April 1954
• Docket Number: No. 109,109
• Citation: 104 A.2d 588,204 Md. 407
• Parties: YAMIN v. STATE.
• Court: Maryland Court of Appeals

Page 407

204 Md. 407

104 A.2d 588

YAMIN v. STATE.

No. 109.

Court of Appeals of Maryland.

April 30, 1954.

Martin J. Yamin, in proper person.

Ambrose T. Hartman, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., Anselm Sodaro, State's Atty., and George D. Solter, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HANDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from a judgment entered on the verdict of a jury.

The appellant, Martin J. Yamin, was tried on an indictment which charged him, Angelo Napoli, Cecil Roil, and Lee Clarence Cohn with unlawfully conspiring, from the first day of December, 1950, and continuing until February 28, 1951, to cheat and defraud Ellis H. Barnes, William C. Robinson & Son Company, and the Globe Indemnity Company, by deliberately causing an automobile accident with an automobile, owned by the said William C. Robinson & Son Company, and operated by the said Ellis H. Barnes and insured by the said Globe Indemnity Company. Appellant was tried separately from his co-conspirators. He pleaded not guilty and requested a jury trial. The jury returned a verdict of guilty and on September 30, 1953, appellant was sentenced to one year in the Maryland Penitentiary from March 30, 1953, sentence to be served concurrently with another sentence he was then serving in that institution. He has served both sentences.

The State contends that the appeal in this case should be dismissed for failure of the appellant to comply with Rule 39, Section 1(e), of the Rules of the Court of Appeals, which requires that the appendix to appellant's brief contain 'such parts of the record as he desires the Court to read'. None of the record was contained in the appendix to appellant's brief other than the indictment and the charge given by the trial judge to the jury. Shortly after the adoption of this Rule, Chief Judge Marbury, in Strohecker v. Schumacher & Seiler, 185 Md 144, 43 A.2d 208, 209, decided June 28, 1945, stated: 'When we passed Rule 36 of this Court, doing away with the necessity of printing the record on appeal, it was done with the intention of decreasing the cost of appellate litigation. For that reason the only things required by that rule to be printed were the judgments, decree or order appealed from, and any opinion or charge of the Court. But by Rule 39, it was stated that the appendix to the appellant's brief, in addition to the above requirements, should contain such part of the record as appellant desired the Court to read. In the case before us, as will subsequently appear, the most important contention of appellant is the lack of adequate evidence to take the case to the jury. Yet he nowhere prints in the appendix to his brief the evidence bearing on the question he raises. This Court would be entirely justified in not deciding this question at all, because the appellant has not indicated by printing it, that he desires us to read this evidence and we could not pass upon the point without examining the testimony. We will not take such a drastic step in this case because the rule is new in this Court, although it has been in effect in the Federal Court for a number of years. However, in the future, we do not intend to pass the one typewritten copy of the record from member to member of this Court so that each oen may hunt up for himself what the appellant is discussing in his brief.' In Platt v. Wilson, 191 Md. 371, 62 A.2d 191, decided November 10, 1948, the appeal was dismissed on account of the failure of the appellant to include an appendix to his brief. In Musser v. Citizens Bank of Takoma Park, 195 Md. 100, 72 A.2d 762, decided April 14, 1950, the appeal was dismissed for the same reason. In Sunshine Laundry Corp. v. White, 197 Md. 582, 80 A.2d 1, 2, decided April 18, 1951, in which the appeal was dismissed for inadequacy of appellant's appendix, Chief Judge Marbury said: 'In the consideration of a motion for a directed verdict by the trial court, it is the well-recognized rule that all material evidence, with all proper inferences to be drawn therefrom, shall be considered by the court in a manner most favorable to the party against whom the motion is made. When such a question comes here on appeal, it is obvious that we cannot determine whether the ruling of the trial court was correct, or whether a verdict should have been directed, unless we also have before us all the material evidence.' See also Condry v. Laurie, 186 Md. 194, 46 A.2d 196; Butler v. Reed-Avery Co., 186 Md. 686, 48 A.2d 436; Foley v. Hoffman, 188 Md. 273, 288, 52 A.2d 476; Grimm v. Virts, 189 Md. 297, 299, 55 A.2d 716; Naughton v. Paul Jones & Co., 190 Md. 599, 604, 59 A.2d 496; Bishop v. Richard, 193 Md. 6, 8, 65 A.2d 334; Seybolt v. Baber, Md., 97 A.2d 907; Schwartzman v. Payne, Md., 100 A.2d 23. In all of those cases the necessity of complying with this Rule was discussed. In Gmurek v. Kajder, Md., 101 A.2d 204, 206, decided December 10, 1953, in which the appeal was dismissed for the breach of Rule 39, Section 1(e), supra, Chief Judge Sobeloff said: 'The rule has been interpreted to mean that the appendix should contain all the material evidence which it is necessary for the Court to consider in deciding whether a directed verdict should have been granted. All the necessary material is not presented when the appellant reproduces in the appendix only the testimony which supports his contentions,...