# Gillespie v. State

> Court of Appeals of Maryland · December 4, 1924 · 147 Md. 45

URL: https://www.frixlaw.com/law-library/cases/3482844

## Case

- **Full name:** William A. Gillespie v. . State of Maryland. Harold R. Dickey, Jr. v. . State of Maryland.
- **Court:** Court of Appeals of Maryland
- **Decided:** December 4, 1924
- **Citations:** 147 Md. 45; 127 A. 727; 1924 Md. LEXIS 2
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Offutt
- **Judges:** Adkins, Boyd, Didoes, Offtttt, Offutt, Parke, Pattison, Urner
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3482844

## Opinion text

*48
Offutt, J.,
delivered the opinion of' the 'Court.
! The appellants in these oases were tided and convicted by three judges in the Criminal Court of Baltimore City of a conspiracy to defraud existing and prospective customers of the Union Finance 'Company, “a common law trust,” hereinafter called the trust. Judgment and sentence followed the verdict in each case, and from these judgments these appeals t^ere - taken.
. Demurrers interposed to the indictment by each -defendant were, overruled by the court, and in the course .of the trial eight exceptions were noted to the court’s ruling's on questions of evidence. Those rulings we are now asked to review.
Before considering the questions thus presented, we will fefet to such of the facts of the case as are undisputed and to such facts as may for the purposes o-f this opinion -be assumed, which we consider essential to an adequate 'understanding of the legal propositions we are called upon to consider.
For some years prior to the alleged conspiracy in this case public attention had been attracted to the activities of certain speculative investors in stocks- and bonds throughout the country who operated wha-t popularly came to be known -as “blind pools.” The plan under which these pools operated appeared to be tbis: Investors- or depositors deposited with the operator o-f the pool money to be used 'by him in gambling on tbe stock market either on margin or by purchase outright of securities, and the profits or losses resulting from his op the life of it.’
R. v. Ford,
Yelv. 99. And the bill as found must be delivered in open court
(R. v. Thompson,
1 Cox, 268), and it should be signed by the foreman; but absence of the signature is not fatal if the bill was delivered by the foreman in open court and read in his presence
(R. v. Sidoli,
1 Lewin, 55).’ 4
Bd. Com.
305. The action of the grand jury was indicated by the indorsement ‘a true bill,’ or ‘ignoramus,’ or,, at a later date, instead of the latter, ‘not found,’ and all the bills so acted on were returned by the grand jury to the court. In this way the indorsement became the evidence of their action. * * * In
Frisbie v. United States,
157 U. S. 163 , it is said: ‘But in this country the common practice is for the grand jury to investigate any al
*67
leged crime, no matter how or by whom suggested to them, and, after determining that the evidence is sufficient to justify putting the party suspected on trial, to direct the preparation of the formal charge or indictment. Thus they 1'etum into court only those accusations which they have approved, and the fact that they thus return them into court is evidence of such approval, and the formal endorsement loses its essential character.’ Accordingly it was held in that case that ‘the omission of the formal endorsement of an indictment as “a true bill,” signed by the foreman of the grand jury, is not necessarily, and under all circumstances, fatal, although it is advisable that the indictment should be endorsed.’ See also
State v. Magrath,
44 N. J. Law, 227, 228;
Price v. Commonwealth,
21 Grat. (Va.) 846, 856;
Commonwealth v. Smyth,
11 Cush. (Mass,) 473, 474.
“In
Bishop's Criminal Procedure
(4th Ed.), par. 700, it. is said: ‘In the absence of a mandatory statute the doctrine best sustained by reason and authority is that the words “a time hill” and the signature of the foreman may be dispensed with if the fact of the jury’s finding appears in any other form in the record.’ ”
See also
State v.
Mace, 86 N. C. 668 ;
McAllister v. State,
2 Ga. App, 656, 58 S. E. 1110 ;
State v. Bill,
48 W. Va. 132 ;
Pnce v. Commonwealth,
21 Grat. (Va.) 846.
In this State the usual and proper practice is‘for grand, juries to present their indictments in open court, and we will, in the absence of any showing to .the contrary, assume that that was done in this case. And from the record it affirmatively appears that upon the back of 'the indictment the. words “true hill” were written, and that under those .words appeared the name of J. Triplett Haxall, “Assistant Foreman” ; that it was signed' 'by the State’s Attorney for the City of Baltimore, and that it was filed with the clerk of .the .Criminal Court of Baltimore City. These facts1 were in our opinion sufficient to identify the indictment as the act of the grand jury, and the fact that it was not signed by the foreman does not under such circumstances destroy its validity. In passing upon this question we have assumed that Mr.
*68
Haxall signed, merely as a member of the grand jury, for our attention Iras been called to no statute or .authority' permitting an “assistant foreman” to exercise the functions of a foreman of
the grand
jury of Baltimore 'City, although.under the Baltimore City Charter a member of the grand jury inay be appointed to act in certain emergencies1 in the place of one originally designated, but who is for 'some reason ’unable to act. "
.■"'For the reasons stated the demurrers to the indictment were in our opinion properly overruled.
’ The first exception found in the record relates to'the action of the
court in
refusing to- permit the defendants to cross-examine Mr. George Moore Brady on the nature and character of the business of the California Oil and Mining Corporation. The witness had not been examined upon that subject in chief, and we find no error in that ruling.
' The second exception is more substantial. Mr. Brady had testified at length to the financial obligations- of the Prudential Securities Corporation, which had offered to buy the oil company’s stock from the trust at fifty cents a share, of its relations with Hewton and the oil company; for the apparent purpose of showing -that the securities company was
not in
a position
to
make good its offer of fifty cents a share for the oil stock, and so to- reflect upon the -good faith of that offer. 'Upon cross-examination 'he was asked1: “How, are they facts that you told Mr. Leach yesterday about it or -are they only some things that you learned from others about the corporation ?” and upon objection the court refused to allow the question. The form of that question was bad. It ■assumed that because the witness had learned from' others' certain things .about the corporation that such -things could' not for that reason be facts. 'But while hearsay may ‘have been inadmissible to prove -such facts it did not, because it was hearsay, destroy their existence. The same witness Was asked further on cross-examination about matters not re^ ferred to in the examination in- chief as to 'which he could have had no actual knowledge, and we find no -error- in' the
*69
ruling of the court sustaining an objection to that question, which ruling is the subject of the third exception.
Kiram L. Weiskopf testified that he had been appointed a trustee for Emory J. Newton, a, voluntary bankrupt, on June 23rd, 1922, and he then produced a schedule prepared by Newton and filed in the bankruptcy proceeding, iii WMon Newton was listed as a debtor of Gillespie for about $8,000, and that schedule was offered in evidence and admitted over the objection of both of 'the appellants, and that ruling is the subject of the fourth exception. At the’time the schedule was filed the alleged conspiracy had not been conceived, and it is not contended that it was in furtherance of it.' It amounted, therefore, at most to a statement by Newton that he owed Gillespie money, and its only relevancy was to show the relations between Newton' and Gillespie, and to show Newton’s financial condition prior to the publication, of the letter referred to above, and was clearly admissible against Newton, hut as against the appellants in this case it was hearsay and inadmissible, but 'the appellants were not injured by the ruling, because substantially tbe same .testimony came in later without objection.
After the schedule had been filed the witness was asked: “What assets' did you collect when representing this estate?” and he was permitted over objection to answer that question, and that ruling is the subject of the fifth exception. No- reason for the admission of this testimony is suggested by the appellee, and none has occurred to us, and in our -opinion the -objection to it should have been sustained. Whilst the fact that Newton was a bankrupt was relevant, tbe acts of his trustee in dealing with the bankrupt estate certainly were ■not, when they were in no wise connected with the alleged conspiracy, but we cannot see how the ruling injured the defendants.
The sixth exception relates to the action of the court in permitting the introduction in evidence of a newspaper clipping containing the so-called Griswo-ld challenge. Since it appeared from evidence in the case that both the appellants
*70
and Newton knew of this article, and that Newton had employed them to’ make the audit after it appeared, we finid no error in this ruling. The seventh exception relates to the action of the court in admitting in evidence a booklet issued by the trust after the audit, stating that its hooks had been audited by Gillespie & Co. We find no error in this ruling. Nor can we find any reversible error in the ruling involved in the eighth exception. The court, it is true, permitted a witness to continue narrating what was apparently hearsay, but what he said could not have possibly injured the traversers.
Por the reasons stated, the judgment appealed from will be affirmed, hut we feel that in thus1 disposing of this ease some reference should be made to the case- of
Newton v. State,
which has also been decided a.t the present term of this Court. We are compelled, for the reasons stated in the opinion filed therein, to reverse the judgment in that case and to remand it for a new trial. As a result of our action in these cases, Gillespie and Dickey, who were mere employees of Newton, stand convicted of a criminal conspiracy of which Newton may possibly be acquitted, although the crime charged in the indictment in these cases could not have been committed unless Newton participated in it. Unfortunate as such a result may he, it is unavoidable. Such injustice, if any, as may result from it must he prevented or corrected by some other tribunal than this or by some other branch of the State government, since our sole function in criminal cases is to deal in each case with such matters of law as are presented by the record in such case, and to dispose of each case in accordance with our views of the law involved in the rulings of the lower court made in it, wholly uninfluenced by the facts or the disposition of any other case.
For the reasons stated the judgments appealed from will be affirmed.
Judgments
affirmed,
with costs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3482844. Public record. Not legal advice.