STATE OF MARYLAND v. EMORY L. COBLENTZ
No. 42, April Term, 1935.
Court of Appeals of Maryland
July 12th, 1935.
Thе cause was argued before BOND, C. J., OFFUTT, SLOAN, MITCHELL, and JOHNSON, JJ.
Leo Weinberg, for the appellee.
SLOAN, J., delivered the opinion of the Court.
This is the second time this case has been here on demurrer. 167 Md. 523, 175 A. 340. In the former appeal it was held that the indictment was legally sufficient, the judgment on demurrer reversed, and the case remanded for further proceedings. A plea of res judicata had been filed by the defendant, but on appeal it was not considerеd by this court because it was not ruled on by the trial court.
The indictment, found by a grand jury of Howard County, and the case removed for trial to Baltimore City, charged the defendant, Emory L. Coblentz, as an officer and agent of the Central Trust Company of Maryland, with the violation of the provisions of
The plea of res judicata alleges that the defendant, as president of the Central Trust Company, was indicted and
“That the State of Maryland is therefore estopped to again assert in another tribunal as against this defendant either that (1), there was a material depreciation in the value of the assets aforesaid, or, (2) that the defendant had knowledge of such fact.
“That the Circuit Court for Frederick County, sitting as a jury, did determine and adjudicate that the defendant did not know, as contended by the State, that the values of the loans and discounts, stocks and bonds, as carriеd on the books and published statements of the bank were false and erroneous, in that said assets were worth materially less than said values.
“Wherefore the defendant asserts that the State of Maryland is now estopped to again litigate the same
The defendant does not contend that a plea of former jeopardy could be interposed in this case, nor could it be, for the statutory offenses for which the defendant was indicted are so dissimilar as not to justify such a plea. What he does contend is that there was an adjudication of the same issues in Frederick County which the State must sustain by evidence established in the former case in order to demand a conviction in the Howard County case. This is the first time such a plea has ever been before this court, though we have had some cases in which the same contention, in effect, has been made under pleas of former jeopardy. Watson v. State, 105 Md. 650, 66 A. 635; Novak v. State, 139 Md. 538, 115 A. 853; Gilpin v. State, 142 Md. 464, 121 A. 354.
In Freeman on Judgments, (5th Ed.), sec. 648, the rule invoked by the defendant is: “There is no reason why a final judgment in a criminal case or proceeding should not, under proper circumstances, be given conclusive effect as an estoppel or bar. The same policy which dictates the rule in civil cases requires it in criminal cases. The princiрles applicable in judgments in criminal cases are, in general, identical so far as the question of estoppel is involved, with the principles recognized in civil cases.” The author, however, recognizes its limitations, when he says: “But under such circumstances, the previous judgment is conclusive only as to those matters which were in fact in issue and actually or necessarily adjudicated.” “If there is a contest between the State and a defendant over an issue, I knоw of no reason why it is not res judicata in another criminal case,” Van Fleet, Former Adjudication; though the same author says (section 594): “There is little similarity between the rules which govern the doctrine of res judicata in civil and criminal cases.” In criminal cases the difference between a plea of former jeopardy and res judicata are so slight as to
Hochheimer‘s Criminal Law, in general use in this state, sec. 46, says that: “In addition to the doctrine of former jeopardy, in its strict sense, the doctrine of res judicata, is also applicable in criminal cases.”
The defendant in his brief quotes at some length from the opinion in Coffey v. United States, 116 U.S. 436, 6 S. Ct. 437, 29 L. Ed. 684, a civil case. The defendant had been acquitted of a charge of violating the internаl rev-
Mr. Freeman in his wоrk on Judgments (5th Ed.) sec. 648, says: “The previous judgment is conclusive only as to those matters which were in fact in issue and actually or necessarily adjudicated,” and he then cites the case of Jay v. State, 15 Ala. App. 255, 73 So. 137 of which he says: “Thus, an acquittal of the charge of seduction does not adjudicate the question of sexual intercourse, although that was one of the issues in the case, since the acquittal might have been due to the failure to establish other facts essential to a conviction.” The opinion in that case is to the effect that all of the elements necessary to a conviction in one case must be present in the subsequent case where the former adjudication is pleaded, otherwise the plea is not available; in other words, the offenses must agree in all their essential facts, and this agrees with what Mr. Justice Holmes said in United States v. Adams, 281 U.S. 202, 50 S. Ct. 269, 74 L. Ed. 807. See 15 R. C. L., Judgments, p. 977, sec. 452.
Applying this test to the facts stated in the special plea in this case, what do we find? Emory L. Cоblentz was indicted by a grand jury in Frederick County, as president of the Central Trust Company, for accepting a deposit of $125 from John F. Oland, then and there knowing the Central Trust Company to be insolvent, in violation of a provision of
If any one of these elements of proof was absent, then he was entitled to an acquittal. In this state (
When a defendant in a criminal case elects to be tried before the court, in arriving at a conclusion on the faсts the judge simply exercises the same functions as twelve jurors; what he says or does means no more than if said or done by them. His opinion of the case is expressed by and confined by his verdict of “guilty” or “not guilty,” and the mental operations by which he reaches a decision find their legal expression in no other way. “An acquittal of a party does not ascertain or determine any precise facts. It may have resulted from an insufficiency of evidence as to some particular fact, where several facts are necessary ingredients of the crime.” Bell v. State, 57 Md. 108, 116; 15 R. C. L., Judgments, 980, sec. 454.
It may be true, as the plea states, that the affairs of the bank for two years prior to its closing were investigated at the trial, and that the State offered evidence to show a condition of hopeless insolvency for a long period of time before and on the 2nd day of September, 1931,
A comparison of the statutes under which the two indictments were found shows that they are not essentially the same in the facts requirеd to sustain a conviction. The Frederick County indictment required proof of insolvency on the day of the alleged offense; the Howard County indictment does not; it only requires “untruthful representations of its affairs, assets or liabilities.” This may amount to insolvency or it may not. The indictment charged that the statements published and used by the defendant to defraud the Washington Trust Company of Howard County contained statements of the assets of the Central Trust Company which showed amounts materially less than they were actually worth, and that it was done for the criminal purpose set out in the indictment. It is not necessary to prove insolvency, and even though that may be the effect of the evidence, the issue that the statements contained untruthful representations of value is still the same and differs from the requirements of
This is a distinction or difference which brings these cases within the exception to the rule of res judicata mentioned by Mr. Justice Holmes and Mr. Freeman, supra. To bring these cases within the rule, the parties must not only be the same, the evidence required the same, but they must meet at the same time and have to do with the same issue. “The criterion whereby this identity is to be determined is, as in cases of autrefois acquit also, whether the accused, on the former prosecution, stood in peril of being convicted of the very crime or offense which is the subject of the present indictment or complaint, rather than whether the evidence sufficient to support the second charge would have been sufficient to warrant a legal conviction on the first.” Bower on Res Judicata, sec. 333, p. 197; Rex v. Tonks, [1916] 1 K. B. Div. 443, 450, 451; Gilpin v. State, 142 Md. 464, 121 A. 354. In other words, the evidence necessary to produce a conviction in one case must be adequate to support a conviction in the other. Nothing has been determined in the Frederick County case which precludes a prosecution in the case now before us.
Judgment reversed, with costs, and case remanded.
BOND, C. J., filed a dissenting opinion as follows, in which JOHNSON, J., concurred.
The plea alleges that the two prosecutions have been based on the identical contentions of fact that a specified group of the company‘s assets had depreciated greatly in value and that the defendant knew of the depreciation. From that known great loss of values, it is alleged, it resulted thаt the company was known to be insolvent on September 2nd, 1931, and its financial statements of the earlier dates retaining higher valuations were known to
The only grounds suggested for differentiating the facts in the two cases are that in the former prosecution the date of the insolvency, and the knowledge of the great depreciation which resulted in the insolvency, was September 2nd, 1931, two months after the issue of the last financial statement, and that at the beginning and the end of those two months the depreciation may not have been the same. But on the demurrer the plea is being tested at its face value, and it expressly negatives the possibility that there may have been any material differenсe in the loss of values and the condition of the assets during that time; and, of course, if the defendant did not know of the loss in September, he did not know of it in June.
The plea is not one of double jeopardy on the same charge, but one of estoppel by res judicata; and there is a difference between the two. Estoppel on the latter ground may arise from a finding of a single fact in the first prosecution, to be proved by evidence available in the record or out оf it. “We are here concerned, however, with res judicata as distinguished from former jeopardy, which has no necessary connections with judgments though both doctrines may be operative at the same time. Even when the crimes charged are different, and a plea of former jeopardy therefore unavailable, a criminal judgment is res judicata of every matter determined by
As stated in many decisions, the object in applying the estopрel of res judicata is not only to protect a defendant from vexatious litigation, but also for the benefit of the public, in making an end of litigation of a question for which the public tribunals have once furnished an answer. Southern Pac. R. Co. v. United States, 168 U. S. 1, 48, 18 S. Ct. 18, 42 L. Ed. 355. Here the identity of the basic fact in prosecutions appears to be sufficiently pleaded, the State has submitted the case on the question of the sufficiency of the matter alleged, and I think this litigation should end at this point with an affirmanсe of the action in overruling the demurrer.
BOND, C. J., speaking for the Court.
On behalf of the appellee it is moved that the opinion and decision entered in this case be vacated because of disqualification of one of the judges and an equal division of opinion of the remaining, qualified judges, with the result that the judgment below in the appellee‘s favor would stand affirmed.
The motion comes as an afterthought, for at the argument of the case, and up to some time after the decision, no objection to the court as constituted appears to have occurred to the appellee. And that fact alone might render it improper to consider the motion now. But there was clearly no disqualification.
In the first of the appellee‘s cases to be tried and to be brought before this court, (Coblentz v. State, 164 Md. 558, 166 A. 45), Judge Sloan, in the Circuit Court for Allegany County, had sat as one of the triers of fact, without a jury; and he, accordingly, took no part in the hearing and dеcision of the case on appeal. That case was upon an indictment found originally in Howard County, on a charge of accepting a deposit of money in a banking institution when the institution was known by the accused to be insolvent. And the present motion states that on the trial the judges found against the defendant on questions of fact, similar to questions which would hereafter be decided in this case, upon a trial. Although the present case, on the third indictment, was not one with which Judge Sloan had any connection below, and is on a charge of violating a different statute, still his having previously decided against the defendant questions of fact similar to those which would hereafter be decided in this case on a trial, are thought to have disqualified him for taking part now in the review of the decision of the Criminal Court of Baltimore on the question of res judicata raised before it.
The objection is based on the constitutional provision that “the judge who heard the cause bеlow shall not par-
Motion overruled.