*1
267
their
adjudicated
valid,
became,
validity
were
of additional
him,
evidence,
settled fact. No offer
evi
dence of
discovered
and no deferred demand for
newly
facts,
secure him
full
could serve to
a second
proof,
adjudication
Hubner,
on new
101
61
652,
v.
Md.
exceptions. Slingluff
Co.,
326; Peacock v.
Min.
A.
Brailer
Receivers
157
376,
There
Order 'with costs affirmed, appellees. VOGEL STATE MARYLAND. ERWIN OF Term, October 1932.]
[No. *2 28th,
Decided October C. The cause was argued J., before Pattison, Bond, JJ. Oeeutt, Sloan, Uknejr, Digges, Pakke, Roche, J appellant. ames M. for the Henderson, General, L. Assistant William Attorney Evans, O. Assistant Charles G. State’s Attorney Baltimore for Lane, Jr., William with whom were Preston City, Attorney O’Conor, General, Herbert State’s Charles R. Attorney, C. Assistant State’s for the Attorney, brief, Dipaula, State. opinion delivered the of the Court. J.,
Urner, It section of article Code of provided Laws that Public General officer of every coiqao- any foreign ration with certain failing comply statutory requisites “and of its business Maryland, agent every conducting business for who corporation, transacts non-complying a and liable shall be of misdemeanor this guilty dollars.” The con- appellant a two hundred fine of as an the General violating provision agent victed of foreign engaged Hews Bureau, Inc., corporation, dissemination which maintained office news, racing com- in this state without having carried on operations law. of the Maryland plied requirements appel- that the It from the evidence at trial appeared of the General had been the service lant, who previously York, news in New Hews Bureau as a reporter racing a few days sent corporation, the Baltimore office for the before the date in the purpose specified indictment, machine. and thereafter use, using, teletype learning This which part corporation apparatus to its news it undertook distributed the to supply on which appellant machine patrons. practiced over which system disconnected the time front the wires His information was transmitted. racing only apparent *3 for employ- himself as a operator was to duty qualify teletype ment in that For week corporation capacity. by refers, sixty his was paid to which the he testimony training he This was rate of had been compensation dollars. men Three from the bureau in New York. other receiving Baltimore were officein the trans- operating engaged from them the received mission and one of system, appellant his in evidence as indication to salary. That in who was of the office. charge
After the in the case was and before concluded, testimony an instruction read advisory argument jury, the court to as follows: by laws of Maryland
“Under the you in a case. the evidence as the law the court there- is, instruction to you by “Any and not on fore, advisory only you. binding above) advises limitation, “Subject (the from the evidence a reasonable beyond believe you that if you, on November 16th, 1931, doubt defendant Vogel, Bureau, of General Hews Incorporated, in the employ under corporation, is, that it is a corporation foreign 1931, and was on November Illinois, the laws of such 16th, if said Hews Incor- further believe General Bureau, you on November in the was, 16tb, business Jorated, 1931, doing State of and that tbe defendant Novem- Maryland Vogel, on ber said Bureau, General News 16th, 1931, working in Baltimore, Incorporated, office, Munsey Building, then the court instructs Maryland, teletype operator, you such work him Vogel, coupled employment if you Vogel so constitutes said teletype operator, find, News agent of the General under the Bureau, Incorporated, article provision 23, 121, section for a providing pecuniary on of a business penalty any foreign corporation ‘agent’ doing in without authorized business Mary- to do Maryland being land so find said General News (if you Bureau, Incorporated, to be such on November do- foreign corporation 16th, 1931, business on said ing Maryland date, said on being date to do so authorized business Maryland).
“I this instruction is you, and not repeat advisory only, on are at binding you you it.” liberty disregard —and The defendant court’s excepted to the instruction, and first be considered is thus appeal presented. As enacted the Acts see. originally ch. 270, statute 1090, the mentioned in instruction pro vided for the imposition of fine upon any or1 “person of a officer” business corporation, Mary foreign transacting land qualification, without who act presume shall proper as its or employee.” act “agent By amendatory see. term chapter (page 69), “employee” n eliminated from and its provision, was con application *4 is fined, as it at to officersof the present, unqualified corpora and “who transacts in tion, “every agent” business for it this State.” In view of that exclusion employees of from the effect of its and restriction to act, officers and we agents, n areof its opinion not amenable to appellant While he was for a penalty. service training essential of the prosecution corporate enterprise, we to re unable that circumstance gard sufficient for reason classifying him as an business for with agent corporation transacting in act. of lie an duties purview employee whose mechanical were and who had none of largely the authority
271 business ordi of would transaction which an for the agent narily possess. State, Md. v. 107 have existed Dick held to agencies v. Eichberg, Central Ry. 68 A. and 286, 576, Georgia
11, of A. cited 389, 14 R. S.) 107 A. L. 363, Md. 68 690, (N. an freight those of attorney were appellee, much than functions was broader solicitor the of whose scope service. the appellant’s conclusion to the meaning of our consequence under the appellant of the Code provision application trial court to hold that the becomesour convicted, duty it instruction. erred in its advisory is raised be considered.
A remains to It further question brief which the exception upon appellant’s other only because refusal taken and which was relies-, to the that his em- his counsel to argue jury court to permit News Bureau did not constitute General by the ployment Code under provision its the intent of the him within agent argument, make such an indicted. The which he was right claimed instruction, the court’s opposition a, are the the law judges that the ground are en- case, Maryland under Constitution, titled have the defendant’s the law theory presented. The trial had undoubted to 'the authority express an his views as to the law applicable his which he was not bind gave, assurance, opinion duly State, A. but Klein 135 advisory. 484, v. 151 Md. ing State, 591; Simond 127 Md. 95 A. v. 29, 1073; v. Luery State, State, 685; 116 Md. 81 A. Dick v. Md. 681, 107 284, an A. 576. But if such instruction erroneous and is made the prejudicial defendant, subject be reviewed and his corrected on exception, may appeal State, from a of conviction. supra; Klein judgment Swann v. in the criminal trial
When a court course exercises to advise the- as to discretionary pro- either for accused the state, to contro- counsel, posal court’s instruction, vert the argument *5 272
raises a
of serious importance. The
of this
question
opinion
State,
in Bell v.
Md.
court
57
the follow
108, 120, included
statement: “The court has an
state
ing
undoubted
right
effect of evidence which has
intro
been
jury,
legal
duced and submitted to their
v.
consideration. McHenry
Marr,
State,
533;
39 Md.
Wheeler v.
42
Mot
Md. 570.
having excepted to the statement made by the court of the
effect of
legal
it became the law
the case.
record,
Patton,
18
v.
Davis
Md.
Hagan
Hendry,
177;
v.
Hancock,
128; Dent v.
Gill,
Being
counsel were not at
it.
case,
argue
Sower
against
liberty
Jones,
wein v.
7 G. & J. 341.
It is true
Article
sec.
5 of
Tn
declares
trial of all crim
Constitution,
inal cases, the
shall be the
of law as well as
judges
fact’; but this court has said that The words in
Constitu
have no
tion,
greater
since their
signification
incorporation
into the organic
than
Franklin
law,
they had previously.’
.
State,
v.
In that case a judicial record had been admitted in evi- dence for a restricted purpose. Counsel for the defendant *6 different had a to the the record to attempted argue jury it that to more the than defense, favorable to effect, was the court’s It ruling. had limited specifically by been language in such a that the quoted reference to question employed. Dick v.
A in the case of of law involved question an attorney whether 289, 576, aof his client within the was an of purview at law “agent” unsuccessful An to embezzlement. Code relating provision evidence the defendant to strike out motion made the by in as an attorney State for the on the theory acting as an agent he was not law for the collection of claim tried. being statute under which he was the (cid:127)contemplated by the jury, In course of the state’s to attorney’s argument the statute, as to whether he the construction the stated that of “was some meaning, the was an within its agent defendant as inasmuch the court with, liad to do thing nothing in the upon had determined that already ruling that state The defendant’s counsel to testimony.” objected judges were ground ment the that the improper, jury of w'ere decide whether the defendant was the law and objection, within terms act. this the upon ruling the trial said: “It true the the judges jury I the facts in this case. have decided, law as well as the my the that in testimony the upon admissibility passing is an but of statute, under the. (cid:127)opinion attorney agent is not course the the compelled my opinion jury accept me.” The have matter, perfect disagree statement and that the defense to the court’s asked objected re but be instructed the jury disregard it, request the were taken defendant both to fused. Exceptions the remarks of the statement of state’s attorney this opinion court disposing objection. mani court as follows: “It is question, part, discussed the cited, seen if, fest that as we have from our own decisions upon court cannot and decide effect pronounce legal and can kind and (cid:127)of evidence conclude jury be to what shall considered the state’s them, evidence declare to the cannot undertake to attorney had in fact, deprived court by admitting testimony, constitutional construe and interpret of its power their statute and own judgments. apply according It when court in anomalous, passing be may apparently has interpreta- testimony given admissibility should still tion that the meaning statute, this is be free to its own but interpretation, adopt precisely from system our of administering anomaly resulting instructs law and which results whenever follows is in a criminal verdict which the jury *7 court; view it not in accord the the and expressed by wifh this of is well state to the require production too settled his views of the law that state own the-judge may authority his utterance he informs that to the also them jury, provided free their is and to own only, they adopt that advisory independent judgment.” State, 71 17 275,
At in Beard v. Md. of the jury request determine their after had to 1045, retired upon of the defendant, gave over the verdict, court, objection a instruction as what constituted dis a written to In thus it house. to regard question orderly presented this “The when instruction, goes said court: given, by and not as as a means of to the simply enlightenment, 'jury does a for their as it and rule positive government, binding instruc The therefore, in civil cases. judge, cannot, by any as the defini in a bind the to tion given as evidence tion of the or to effect of the crime, legal .the as them. He can bind and conclude the to before shall he them, being what evidence be considered by admissible exclusive of what facts circumstances are or judge for consideration.” State, State, v. that
The in Dick v. and Beard statement as of “legal court could not bind the effect evi- of admitted effect, referred to evidence,” same dence the issue of while the innocence, guilt State, said used in Bell v. where the court phrase as effect had reference evidence, could instruct the legal to admission. of its for its to limitation effect purposes State, In 18 A. the defend- Garlitz v. Md. 293, 39, 42, a court from ant to an of dissent expression by objected as to statement counsel for the defense evi- case while a to admissibility question arguing that from the dence. It was said on appeal the opinion made in counsel, “unwarrantable assertion the argument in the court did of the court, presence jury, to declare its hesitate, do, emphatic not it was duty “It be dissent.” would say: opinion proceeded make of reckless if counsel could sort strang'e, indeed, while a assertion as to tho law case on applicable trial, evidence to the latter tlie judge, arguing full em- expression of his without authority give contention of counsel. dissent from the unwarrantable phatic be This and it may certainly judge, right in a right his exercise imperative duty unfrequently manner.” very emphatic positive case Simond 95 A. trial dissent from the defense coun-
sel’s
his
assertion,
statement
opening
witness
state is immune from prosecution,
testifying
*8
but
was
was sustained
exception
appeal.
questioned by
State,
Md. 332,
It
Nolan v.
decided
was
allow
refusing
that the lower court was
to
268, 271,
right
that
jury
counsel for the defendant
to
to the
argue
re
had been
statute which
with
charged
violating
he
demurrer
been raised
to
by
the question having
pealed,
defendant’s conten
indictment and decided
to the
adversely
merit
tion.
the same case was
that there
no
it
held
in an
a
to
counsel
to
refusal
defendant’s
exception
permit
“to
evi
effect the
admissibility
argue
question
warrant.”
dence obtained
without
seizure,
search
against
An
to the
argument
constitutionality
jury
been
arrested
an
was held to have
act of assembly
properly
State,
Judgment filed as follows: J., separate opinion C. Bond, in the reversal of conviction on While concurring was not an mean- within ground appellant agent that I differ in from what ing cited, statute some respects is I said of the time of instruction. am giving the advisory the necessity declaring and wisdom of disagreement such an instruction in a trial to be controlled by place no choice leaves within the rule given of cases. It seems to me in some description that possible one of and varied situations arise in many may more be found convenient and trials, more conducive may to a result advised of the of a just jury be meaning statute earlier than at the end de- trial, whether the defense on it or fendant be and even if it not, pre- making I vents do there contrary. see argument quite in a between court’s substance distinction doing *10 and its of law that, misstatement stopping correcting trial, counsel even which was held opening in Simond v. these considerations proper supra. Upon I think the should further than no to declare go better present adoption, thus avoid practice for all from which in trials, of rule other departure instance within the would consti- description coming given tute reversible error.
It seems to me that it is desirable to shun, when possible, rules promulgation of unyielding procedure. IRVIN ELLINGHAM STATE OF MARYLAND. October Term, [No. 1932.] 28th, Decided October