*1 by recipient occupied real estate of a while is surviving Appellee recipient’s spouse dependents.” nothing in claims that there is this case show to this property occupied. not In answer so contention, appellee, exceptant, who is the neither anyone proved it was nor else or even claimed that has sustaining exceptions to occupied. so The order directing deposit will be return of the sale and reversed. costs, re- case
Order reversed with proceedings. manded for further HENDRIX v. STATE Term, October [No. 1951.] *4 Decided June J., and argued Marbury, before cause C. JJ. Markell, Collins,
Delaplaine, Henderson Carrico, whom with A. John S. White Rudolf brief, appellant. Ginsberg on for the Ginsberg & General, Attorney with Proctor, Assistant Kenneth C. General, Hammond, Attorney Robert Hall whom were County, Attorney Barbour, Charles State’s T. brief, Attorney, Bowling, Acting on the George State’s W. appellee. for the J., opinion of the Court. delivered
Delaplaine, Spring, con- Hendrix, age 43, of Silver Walter C. County on the for Charles in the Circuit Court victed *5 statutory charge perjury, 1939, 27, 527, of Code art. sec. Maryland and was sentenced the of House Correction for a term of six months. appealed He has here from judgment the of conviction. August defendant,
On manager who the was of place, Pier, an amusement known as the Monte Carlo on Beach, Virginia, the Potomac River at Colonial was by employees, informed one of his Royster, that Willard of the sum been from pier had stolen the and Judson $35 being charge Brown larceny. was held on the Defend- police questioned Brown, ant went the station already guilt who money had admitted his and turned the police over to a officer. Defendant testified that Brown by standing bar, every told him: “I was there the opened register, time man money the the cash the in back, just front me. When he turned his I reached grabbed Defendant, over and handful it.” who deputy sheriff, Plata, county was a took Brown to La the seat, and charging swore out a warrant him with steal- ing $35, property “the C. said W. Hendrix.” August Magistrate
On 10 Trial Crist conducted a preliminary hearing on the warrant whether determine grand Brown jury. should be held for action the hearing money at testified that Harry Hickey, been applied stolen from who had for liquor operated by obtained the license for the bar pier. on by defendant On motion magistrate struck out the name “C. Hendrix” from W. “Harry Hickey.” the warrant and inserted the name magistrate thereupon held Brown for action grand jury. grand jury But before the and at larceny, Brown’s trial defendant swore that money belonged stolen to him. The State maintained perjury swearing that defendant committed in at preliminary hearing magistrate before the money property Harry Hickey. stolen was the up liquor Defendant set the defense that bar was Hickey’s money in licensed name and the cash register technically Hickey’s money; be- he *6 money from the Brown stolen
lieved at first that he register; afterwards that that he learned the cash away, which 15 feet a drawer about had taken it.from using change patrons slot for the used to furnish was machines; in that of the cash the drawer and none cor- register. that he Defendant claimed from the cash jury. grand appeared before the when he rected his error jury,” said, grand “that was a mistake he “I told the from, money money the did not came that the where money register, out the came out of the cash that come end of the bar.” of this at drawer the hand, undertook to show that on the other Hickey ad- in the Defendant had no interest business. applicant for informed that an had been mitted he county in of the. which liquor must be a resident a license sought pecuniary also have a must license is the license; under in be conducted the the business interest Montgomery County, he of was a resident and since he County, if Hickey, who a resident of Charles asked license, Hickey agreed apply to do for he would the that he had never trans- also admitted so. Defendant Hickey concerning mer- with the acted business operation business. He admitted or the chandise register in deposited cash from the cash he all Company,, that he Amusement account General only from persons withdraw who his wife could that account. objected rulings on to ten evidence. We rulings.
find no reversible error these ask to allow the defense to The Court refused Cooksey Brown had testified at whether Judson Sheriff hearing money preliminary whether he had stolen register or the drawer. In order to from from the cash testimony right to introduce a witness establish of. trial, upon pro- given it is incumbent at a former testimony lay predicate proper for ponent of such by showing unavailability introduction its satisfying the court of the valid- burden witness. The . ity nonproduction of the excuse witness lies upon party seeking testimony. to introduce the He dead, insane, beyond must show that the witness is or jurisdiction inquiry diligent court on can- not be or that found some other exists circumstance gave testimony which shows that the witness who at former produced trial cannot be as a witness on proof the second trial. In the absence of some such circumstance, testimony of this character should be re- jected. McMillan, 549, Franklin Coal v. Co. Rep. 280; People Elliott, 33 Am. 172 N. Y. *7 837, 60 318; 64 L. A. N. E. R. New York Central Co. R. V.'Stevens, 395, 542, 126 St. Ohio 185 N. 87 A. L. R. E.
(2) permitted Shymansky The Deputy Court Sheriff Hickey to answer pier whether or not had a Colonial at Beach. The witness answered: “He does not have a pier over there.” an Defendant contended this was opinion question on is, course, a of It of law. an accepted permitted give rule that witness not a is to opinion question his on a of law. Ditch v. Western Baltimore, 192, 72, 209, National Bank 29 A. of 138, 164; Supply 23 L. R. A. Standard Scale & Co. Novelty Co., 285, Baltimore Enamel 278, 136 & Md. 110 Here, however, A. A. R. 1502. L. did witness give opinion question merely not an on a of law. He Hickey stated a fact as he knew it that did not have pier Objections testimony a proposed at beach. that only states pushed a conclusion are sometimes ex Very simplest tremes. often the method is to leave such question practical court, discretion of trial the. permit and the witness to state a fact as it he knows ground developed by leave the of his belief to be cross-examination.
(3) permitted Deputy The Shymansky Court Sheriff charge to answer who was in pier bar on the when September, he was there 1951. He answered: “Mr. Hendrix.” Defendant contended opinion that this was an question on a merely of law. it was But a statement charge by was in as to who of fact witness when he was there. on occasions bar testimony out refused to strike The Court Shymansky Deputy which as to a conversation Sheriff pier. on the The witness had with defendant he had with defend- conversation been asked whether he ownership concerning He of the business. ant business, Hendrix who had “I asked Mr. answered:' why I him was his. asked and he the business said up license on the wall.” Defendant con- was not should stricken state- the Court have out tended that displayed that the license was not ment of the witness wall, re- his statement that defendant on the and also argued license. him see the fused let making prejudiced jury, him the conversation before being only perjury; appear that he was tried not it Alcoholic also for a violation that section but every requires person Beverages re- Act which glass place ceving it license shall frame under easily conspicuous that it at times be so shall all place Supp. 2B, Code in his business. art. read by impressed not that contention. 64. We are sec. question ownership was relevant to the conversation *8 possi- are not convinced that the We the business. may testimony bility indicated that defendant that the perjury guilty other of some offense than also have been jury by making them think that the accused misléd the was plainly charges being on two at once. As the Court tried against jury charge that the the instructed thereupon perjury perjury the read was defendant statute to jury them, known the nature the have should charge. permitted (5) the to ask defendant Court State The profits of bar were what the net he knew whether year had claimed that he 195Ó. Defendant for agreed gross receipts Hickey per pay cent to business, that the sum of which bar $700 from the year operation Hickey paid the first in had to he contrary, Hickey, receipts. on the his share was agreed asserted pay defendant that had to him each $700 year merely obtaining Testimony the license. toas receipts profits from the bar relevant to was agreement. refute defendant’s version of the Defendant complained testimony also permitted jury that speculate to as to whether defendant had violated a provision Beverages of the Alcoholic Act. if Even did, objectionable. it was not
(6) The Court struck out defendant’s statement that “any he knew county number of licenses” in the that operated by an owner in the name another. “Actually you testify Defendant had been asked: didn’t way because, legitimate that business, be a the bar conducted under that Harry Hickey’s license had to be in name?” necessarily He answered: “I say would not legitimate. any I know of number of in licenses this county operated way.” that are this in in- Defendant that, sisted since he testified that he had sworn at the preliminary hearing money Hickey’s prop- erty Hickey’s name, because license inwas should he say permitted have been that he considered that practice customary County. in Charles As the statement was not issue, material properly to the it was stricken unlawfully out. If defendant had employed Hickey apply business, for a license for his the fact liquor other operating way dealers had been in the same any bearing would not have ownership on the property. permitted The Court the State to ask defendant large money
whether a sum of disappeared from place previous his of business summer. question
contended that this was irrelevant because it pertained Pier, not to the Monte Carlo but to Little Pier, operated which Steel defendant in his own name. however, explained, ques- State has that when the asked, apparently tion Court was under the *9 impression money had been stolen from the Pier, Monte Carlo and that as soon as it was learned money had been stolen from pier, another subject no defense made motion was abandoned. -The not to. strike out the answer. do think that testi- We mony money disappeared that a sum of from-another pier prejudicial was to defendant.
(8)
permit Royster,
The Court -refused to
defendant’s
give
money
employee,
understanding
to whose
his
as
register.
kept
It
funda-
it
that was
in the cash
is a
testimony
rule of evidence that
of witnesses
mental
scope
knowledge
upon
matters within the
the common
mankind, given- upon
trial of
experience of
confined
case,
be
to statements
concrete facts
must
a
observation, knowledge
recollection,
own
within their
inferences,
opinions,
distinguished
im-
from their
as
from the facts. Com’rs
pressions,
conclusions drawn
Stansbury,
County
v.
Anne Arundel
Use
of
107 Md.
Hence,
602,14
A.,
S.,
217, 68 A.
L. R.
N.
may
understanding
testify
not
to his
witness
as
knowledge
only
of a
Marvil
fact,
as to
fact.-
but
his
Ginther,
213, 224,
question whether he it “Mr. Beavers said came answer was: from. His gave it change. where he to me from.” That is from properly stricken out because The answer was hearsay. advisory object instructions to the did not a,sked fact, In when the Court below. the Court objections suggestions, coun- there
whether satisfied.” Defend- are defense “We sel for the said:. plain committed two now contends that Court ant rights. materials his errors
391 6(g) Rule of the Criminal Rules of Practice and provides “Upon appeal Procedure party, as follows: assigning instructions, in error in the shall restricted be (1) particular to portion given of the instructions particular or the particular omission therefrom or the distinctly objected failure jury to instruct to before the specific grounds retired objection of distinct- ly stated assignments at that time. No other errors or of in by errors the instructions shall be considered Appeals, the Court of Appeals but the of Court of its may cognizance own motion any take of and correct plain rights error material to the of the accused even though assignment not included in the of errors.” objection
Defendant’s first
to the instructions
is that
they
jury
led the
being
he
believe that
tried for
a violation
Beverages
of the Alcoholic
Act
well
as
as
perjury.
We find no merit
in that contention. The
plainly
Court
jury
“Now,
instructed the
as follows:
charges
the indictment
in
defendant,
this case
Hendrix,
perjury.”
with the
crime
The Court then
Maryland perjury
referred to the
statute
also read
jury.
statute
to the
Defendant also contended
legally
there was no
perjury.
sufficient evidence of
Defendant made no
motion for
below,
directed
verdict
in the Court
ordinarily
circumstances,
in such
in the absence of
process, Apple
State,
lack
due
v.
59 A.
Md.
2d
509, 512,
legal sufficiency
of the evidence cannot be
Appeals.
in
reviewed
the Court of
Auchineloss
As we have found no reversible error rulings in the Court, the trial plain error charge in the rights material accused, judgment of conviction will be affirmed.
Judgment affirmed, with costs. concurring Markell, J., following delivered the opinion. except' opinion,
I
concur in the decision and
provision in
implication
“plain
error”
legally suffi-
6(g)
applicable
is not
absence
Rule
*11
6(g)
provision
to
of Rule
cient evidence
convict. This
similar
of Criminal
(b)
Rules
is
to Rule 52
of the Federal
Circ.,
Norton,
F.
2
179
In
Procedure.
States v.
United
the
527,
2d
was convicted of violation
the defendant
reversing
failing
register.
In
Act in
to
Selective Service
legally
judgment
sufficient
the
for
of evidence
absence
*“*
Judge Swan, said,
*,
convict,
court, by
we
to
indicted was
the crime for which he was
conclude that
argument
proven.
which has
not
It
true
is
in the
brought
first advanced
us to
conclusion was
this
presented
trial. How-
appeal;
on
it
not
at the
brief
ever,
(b) of the Federal Rules of Criminal
Rule 52
provides:
Procedure,
‘Plain errors
C. A.
18 U. S.
may
rights
noticed
affecting
substantial
be
defects
brought
although they
to the attention
not
were
than
error or defect
plainer
can be no
court.’ There
justifying
conviction.”
179
of evidence
the absence
Hemphill
States,
Circ.,
9
112
F. 2d 529.
In
v. United
sufficiency
505,
refused
examine
F. 2d
the court
ground,
support
on the
the verdict
of the evidence to
by
they
precluded
of evidence
the introduction
defense,
by
of a motion
a directed
after
denial
Government’s case and
verdict at the close
motion
the close
all the evidence.
to renew the
at
failure
judgment
in the follow-
was reversed
certiorari
On
judgment
reversed and
ing
opinion, “The
is
per curiam
Appeals
Court of
with
to the Circuit
the cause remanded
sufficiency
evidence
to consider
directions
Hemphill
States, 312
v. United
support
the verdict.
729,
also
657,
KRAPF ADAMS, et al. and as et Executor al. Term,
[No. October 1951.] *12 Decided June