World v. State

50 Md. 49 | Md. | 1878

Grason, J.,

delivered the opinion of the Court.

The appellant was indicted in the Criminal Court of Baltimore on the 30th day of November, 1877, and the indictment contained two counts; the first charging that the appellant was a “a common thief” on the 17th day of November, 1877, and the second, that be was a “common thief” at said city on the 17th day of November, 1876, and from that day to the day of finding the indictment.

At the trial, the State offered in evidence a record of the conviction of the appellant in said Court on the 8th day of March, 1877, of the larceny of a silver watch and also the record of his conviction in the same Court on the 20th day of October, 1875, of having jointly with two other parties, won a watch by a fraudulent trick at cards.

The appellant, by his counsel, objected to the admissibility of these two records as evidence, but the Court overruled the objection and admitted the evidence, and the appellant excepted.

The State then proved by a police officer, the only witness who testified in the case, that the appellant had fori merly lived in his police district, and that the witness had known him from 1869 until he left witness’ district about a year or eighteen months before the trial, when witness, had lost sight of him and knew nothing of his reputation since; but that while he knew him his reputation and character was that of a common thief. This evidence was also objected to as inadmissible, but the objection was overruled and the evidence admitted, and an exception thereto was taken by the counsel of the accused.

The Act of Assembly, under which the appellant was indicted, provides that “ any evidence of -facts or reputation, proving that such person is habitually and by practice a thief, shall be sufficient for his conviction, if satisfactorily establishing the fact.” In order to justify a conviction of a party of the offence created by the Act there must be proof of either facts, or reputation, sufficient to satisfy the jury that the party accused is by practice and habit a thief. The offence is hut a misdemeanor, and it must therefore he jjrosecuted within one year from the time of its commission. It is necessary, in order to justify a conviction, that the proof should establish the fact that the accused was a “common thief” within one year before the prosecution was begun, and therefore evidence of acts of larceny, committed more than a year before the indictment was found, would not be admissible. Though the conviction of the accused of the larceny of a watch was within a year before this prosecution was begun, it was contended that standing alone, it was not sufficient to prove that the accused was by habit and practice a thief, and that it was not admissible unless connected with an offer to follow it up with other proof to the same point, and that, as no such offer was made, the Criminal Court erred in admitting it. It did not matter that the record of the conviction of the accused, of larceny in 1817, did not prove the whole issue. The Court had no right to require the State’s Attorney to disclose in advance what other proof he intended to offer.- While the record of conviction was not of itself legally sufficient to convict, it was a link in the chain of evidence admissible per se when offered, as tending to prove the issue. Its legal effect was a question for the jury to determine, they being under our Constitution, the judges of the law and the facts in criminal cases. So also with respect to the objection to the evidence of the reputation of the accused, as given by the police officer. Reputation is but a single fact, and the whole may be given in evidence, commencing at a period more than a year before the indictment was found. The reputation which the accused bore at a time more than a year before the indictment, was admissible though it would not of itself justify a conviction, unless followed up with proof that such reputation continued, and was borne by the accused within a year before the indictment was found.

There was no error in admitting either the record of the conviction of the accused of the crime of larceny in 1877, or the testimony of the police officer as to the reputation and character of the accused during the time the witness knew him. It was further contended that the evidence of the police officer was inadmissible, because it related to the character of the accused, instead of being confined to his reputation. Character and reputation are synonymous terms, and we can see no objection to the evidence introduced, that the character and reputation of the accused was that of a “common thief” during the time the witness knew him.

(Decided 24th July, 1878.)

We are of opinion, however, that there was error in admitting the record of the conviction of the accused for winning a watch by a fraudulent trick at cards in October, 1875. The statute under which the accused was indicted is a criminal law, and like all other criminal laws, must be strictly construed. It authorizes evidence of acts or reputation to be introduced in all prosecutions under it. The acts mentioned in the statute and by it made legal evidence are only such acts as tend to prove the crime created, and must consequently be acts of stealing and thieving. The record referred to was a record of the conviction of the accused of the offence of having won a watch by a fraudulent trick at cards, and not of stealing. It was therefore not legal and admissible evidence on an indictment for being a “ common thief,” even if the conviction had taken place within the year. But besides this, even if otherwise admissible, the record shows that the conviction took place in October, 1875, more than two years before this prosecution was begun, and for this reason also it was inadmissible. The ruling of the Criminal Court in admitting this record in evidence, will be reversed and the cause remanded for a new trial.

Rulings affirmed in part, and reversed in part, and a new trial awarded.