Petition for a Writ of Certiorari — Polisher v. Maryland
Supreme Court brief1971
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IN THE
Supreme Court of the United States
OctToser TERM, 1971
@1-407~
Petitioner,
STATE OF MARYLAND,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF MARYLAND
Leon H. A. Prerson,
Baltimore, Maryland 21202,
10 Light Street — Suite 1015,
Attorney for Petitioner.
The Daily Record Co., Baltimore, Md. 21203
TABLE OF CONTENTS
SRS N SES NEI ae ia a ee erate
JURISDICTION ................. ELIAS TE ATT Ns OE Se
ARGUMENT:
I,
II.
IIT.
The Petitioner was denied effective repre-
sentation at trial to which he was entitled
under the Sixth Amendment of the Consti-
tution of the United States...
The Petitioner was deprived of due process of
law guaranteed him by the Fourteenth
Amendment of the Constitution of the United
States by the refusal of the Maryland Court
of Special Appeals to consider Petitioner’s
contention that he was deprived of effective
DOUVECOR OE COUNT ao coccccccscececccess oF
The Petitioner was deprived of due process
of law guaranteed him by the Fourteenth
Amendment of the Constitution of the United
States by the reliance by the Court of Special
Appeals of Maryland, in affirming his convic-
tion, of matters of proof not contained in the
WII spss sears gsscavodscnstcasalsainss aMibcs dee.
SIE ction liiiaes Saptarecsteneccaceetins. ca
APPENDIX:
Order of Court of Appeals of Maryland ..............
Opinion of Court of Special Appeals of Mary-
RN eriictebierinstnesiss Ribera sieves coco
2
la35a
Docket entries Circuit Court for Montgomery
State v. Zimmerman, 261 Md. 11, 273 A. 2d 156...
PAGE
County, Maryland 0... 36a-40a
Answer to Demand for Particulars... 41a-42a
Answer to Demand for Particulars... 42a-43a
Answer to Demand for Particulars... 43a-44a
Exceptions to Answers to Demand for Particu-
pedyiniay ned enaeenaatcreadeaud cn Se i ee 44a
Proceedings (excerpts from transcript) ............ 4.a-46a
TABLE OF AUTHORITIES
Cases
Bailey v. State, 6 Md. App. 496,252 A.2d85.....__. 12
Brasfield v. United States, 272 U.S. 448, 47 S. Ct. 135 11
Brown v. State, 10 Md. App. 215, 269 A. 2d 96... 7
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 ........ 8
Clyatt v. United States, 197 U.S. 207, 25 S. Ct. 429... 11
Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792... 11
Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457....6, 7,11
Hamilton v. Alabama, 368 U.S. oe, G2 S&S. Ct. 187........ 10
Harris v. State, 2 Md. App. 408, 234 A. 2d 781... 12
Howard v. State, 1 Md. App. 230A.2d115...._. 12
Johnson v. United States, 318 U.S. 302, 63 S. Ct. 1075 10
New York Central R.R. Co. v. Johnson, 279 U.S. 310,
UN I I tT cre cicsrep sesh dcsnsaticledacas nace, 1i
Sherrod v. State, 1 Md. App. 433, 230 A. 2d 679... 12
Silber v. United States, 370 U.S. 717, 82 S. Ct. 1287... 10
United States v. Atkinson, 297 U.S. 157, 56 S. Ct. 391 10
White v. Maryland, 373 U.S. 59, 83S. Ct. 1050. 10
Wiborg v. United States, 163 U.S. 632, 16 S. Ct. 1127 11
iii
Statutes
PAGE
Constitution of the United States:
Sixth Amendment 0. 2, 5, 6, 8
Fourteenth Amendment... 2, 3, 9, 12
Rules
Maryland Rule 20Q5 .00.00.00....oocccsciccccssesccseccoosooeesosss.... 9,11
In THE
Supreme Court of the United States
Octoser TERM, 1971
No. _-____
MANUEL POLISHER,
Petitioner,
v.
STATE OF MARYLAND,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF MARYLAND
PETITION FOR WRIT OF CERTIORARI
Manuel Polisher, Petitioner, prays that a Writ of Cer-
tiorari be issued to review the judgment of the Court of
Appeals of Maryland entered June 24, 1971, refusing to
grant a Writ of Certiorari to the Court of Special Appeals
of Maryland from an affirmance by the Court of Special
Appeals of a conviction under Indictment Nos. 10681 and
10682 of the Criminal Dorket in the Circuit Court for Mont-
gomery County, Maryland, in the case of Manuel Polisher,
Appellant v. State of Maryland, Appellee, No. 431, Sep-
tember Term, 1971.
CITATIONS TO OPINIONS BELOW
Order dated June 24, 1971, of the Court of Appeals of
Maryland denying the Petition for Writ of Certiorari to the
2
Court of Special Appeals of Maryland is numbered Mis-
cellaneous Docket No. 113, September Term, 1971. A copy
of said Order is printed in the Appendix to this Petition
page la. The Order of the Court of Appeals of Maryland is
unreported. The opinion of the Court of Special Appeals of
Maryland appears in 11 Md. App. 555 and 276 A. 2d 162
(App. la-35a).
The Circuit Court for Montgomery County has stayed
the service of sentence of the Petitioner pending the filing
of this Petition in the Supreme Court of the United States.
This action of the Circuit Court for Montgomery Couuty
was taken on June 29, 1971 (App. 39a). A portion of the
opinion of Judge John P. Moore, judge of the Circuit Court
for Montgomery County, Maryland is printed in the Ap-
pendix, page 41a.
JURISDICTION
The judgment of the Court of Special Appeals of Mary-
land songht to be reviewed was filed on April 2, 1971. The
order of the Court of Appeals of Maryland denying the
Petition for a Writ of Certiorari was entered on June 24,
1971. The jurisdiction of this court is invoked under Title
28, Section 1257(3) of the United States Code.
QUESTIONS PRESENTED
I. Was the Petitioner denied effective representation at
trial to which he was entitled under the Sixth Amend-
ment of the Constitution of the United States?
II. Was the Petitioner deprived of due process of law
guaranteed him by the Fourteenth Amendment of the Con-
stitution of the United States by the refusal of the Mary-
land Court of Special Appeals to consider Petitioner’s con-
tention that he was deprived of effective services of coun-
sel?
SOLEIL GEL IMEON LESSON Oy AOR VER RYE AEE PeN es SE Nae, Wess earn
3
III. Was the Petitioner deprived of due process of law
guaranteed him by the Fourteenth Amendment of the
Constitution of the United States by the reliance by the
Court of Special Appeals of Maryland, in affirming his
conviction, of matters of proof not contained in the record?
STATEMENT OF FACTS
Indictments were returned by the Grand Jury for Mont-
gomery County against Larry Weiss (also known as White),
Brunswick Exchange, Inc., and the Petitioner, Manuel
Polisher, for the crime of obtaining money by false pre-
tenses from Lillious (or Lilian) Miller and Edward Walsh.
Weiss <nd Polisher were alsc indicted for conspiring to
obtain money by false pretenses. The Defendants filed
Demands for Particulars. The Particulars furnished by the
State (App. 42a-43a) with reference to the crime allegedly:
committed by way of iisrepresentations to Walsh and
Miller stated that the victims had paid money for auto-
mobile repair work represented to them as having been
done by Vanguard Auto Sales and Service and that this
work was never done. Particularizing this charge of mis-
representation the State stated “That at all times the vic-
tims dealt directly with Larry Weiss, a/k/a White, and
“That Van Guard Auto Sales is the same Van Guard
which is owned and operated by Brunswick Exchange,
Inc., Manuel Polisher, President and sole stockholder”
(App. 42a).
At trial the State’s proof against Polisher included evi-
dence of prior transactions which were not included in the
Bill of Particulars relating to the charges of which he was
convicted.
The evidence as to the transactions with Mr. Walsh and
with Mrs. Miller, from whom Weiss and the Petitioner were
convicted of obtaining money by false pretenses, showed
PRR ty nmr ae ITE Fe RRR ARE ee DREGE emer Ieee.
+
that both Mr. Walsh and Mrs. Miller dealt exclusively with
Weiss.
There were two statements made in the Particulars given
with relation to the conspiracy charge* as follows:
“That Manuel Polisher, at least in one instance, when
a customer demanded to see replaced parts, directed a
mechanic to show the customer some old worn out
parts” (App. 43a).
“That Manuel Polisher initiated, knew of, partici-
pated in and approved of the practice of charging cus-
tomers for work that appeared to be done but in fact
was not” (App. 44a).
Petitioner excepted to these answers saying:
“That answer numbered 5 fails to state the date,
the name of the customer or the name of the mechanic
or what parts were involved” and
“That answer numbered 6 does not state in what
manner Manuel Polisher initiated, knew of, partici-
pated in and approved of the practice of charging cus-
tomers for work that appeared to be done, but in fact
was not and states only conclusions and no particulars”
(App. 44a).
The Court ordered the State to furnish additional infor-
mation as to these matters (App. 37a) and certain informa-
tion amplifying the answers previously given were fur-
nished to defense counsel on an informal basis. No addi-
tional written particulars were filed.
* The trial judge granted a judgment of acquittal on the conspiracy
5
ARGUMENT
I.
THE PETITIONER WAS DENIED EFFECTIVE REPRESENTATION
OF COUNSEL AT TRIAL, AND WAS THUS DENIED HIS RIGHT
TO COUNSEL UNDER THE SIXTH AMENDMENT.
Joint counsel was retained by the two defendants. The
charges were that money had been obtained by false pre-
tenses from one Edward Walsh by representing that cer-
tain automobile repairs had been made, when, in point of
fact they had not been made, and that money had been
obtained from one Lillious Miller (sometimes called Lilian
Miller) in a similar transaction.
Particulars furnished by the State disclosed that Peti-
tioner’s co-defendant, Larry Weiss, also known as Larry
White, and not the Petitioner, had all of the dealings with
both Walsh and Miller which resulted in the prosecution
(App. 42a, 43a). Petitioner was attempted to be brought in
by reason of the allegation that he was president of the cor-
poration that owned the automobile repair shop (App.
43a), that he had misrepresented parts as being new when
in fact they were not (App. 42a, 43a), and that he had
engaged in prior transactions which were to be used to
show that he was aware of the fact that customers of the
repair shop were being cheated (App. 43a, 44a).
Obviously, the first and best defense of the Petitioner
would have been to attempt to place the entire blame on
his co-defendant, Weiss, but the fact that they were repre-
sented by the same attorney made this tactical approach
impossible, even though the great bulk of the evidence,
both as to the Walsh and the Miller transactions and prior ©
transactions were those of Weiss and not of the Petitioner.
Counsel’s realization of the problem was evident through
his continuously maintained objection to the introduction
of past transactions, especially those concerning Polisher,
saying to the judge at one point that “They haven’t proven
one single thing on him; that is, what this particular
scheme, plan and design and intent argument is on Mr.
White, not Mr. Polisher. They have put him on the prem-
ises and we have not been notified in the Bill of Particulars
and object and feel it would be inadmissible” (App. 44a).
Petitioner’s contention is that the judge should have recog-
nized this conflict when it developed and sua sponte
ordered some action to protect Polisher’s Sixth Amend-
ment rights. |
This Court considered the problems presented by the
representation of more than one defendant by the same
counsel in Glasser v. United States, 315 U.S. 60, 62 S. Ct.
457 (1942). This Court there held that the assistance of
counsel contemplates that such assistance be unimpaired
by requiring the lawyer to simultaneously represent con-
flicting interest. (In the Glasser case the trial court ap
pointed Glasser’s attorney to represent the other defen-
dant, Khetske.) Justice Murphy said that this Court would
indulge every presumption against the waiver of funda-
mental constitutional rights. It was further held in the
Glasser case that the fact that the defendant and the at-
torney did not protest at the time the order that the at-
torney represent both defendants was made was said not to
be conclusive; it was only a factor to consider in deciding
whether there had been a waiver. The Court also stated
that upon the trial judge rests the duty of seeing that the
trial is conducted with solicitude for the rights of the
accused. This was said to be a serious and weighty respon-
sibility on the trial court. The Court sustained the defen-
dant’s contention that the position of trial counsel as joint
counsel embarrassed and inhibited the defense of the de-
fendant since counsel couldn’t fully and effectively cross-
7
examine because of the conflict of interest. The Court fur-
ther held that it was unnecessary to examine the facts to
determine prejudice. It said that the right to have counsel
is too fundamental for courts to indulge in nice.calculations
as to how much prejudice results from the denial of the
right. The reasoning in the Glasser case seems applicable
to this case. The judge in this case obviously failed to dis-
charge the heavy responsibility resting upon him to protect
the defendant’s right to counsel. Even if no protest were
made by Polisher or his lawyer the duty was not removed
from the court, according to the Glasser reasoning, which
protects the right to counsel from intrusions. Although it
is true that in Glasser the joint representation was sug-
gested by the court, this does not appear to distinguish the
cases. First, the arrangement was accepted voluntarily by
the parties in that case. Secondly, in Glasser the client
himself was an attorney.
The Glasser case was interpreted and applied by the
Maryland Court of Special Appeals in Brown v. State, 10
Md. App. 215, 269 A. 2d 96 (1970). This was also a case
wherein defense counsel was impaired in cross examina-
tion. The court said that the factual situations which con-
tain imminent or actual conflicts of interest can’t be put
into compartments; however, a situation where cross ex-
amination is made less effective definitely presents a rep-
resentational conflict. The court agreed with the Glasser
court that little prejudice need actually be found, rejecting
a line of cases which held that the court should evaluate
the actual presence of prejudice. The court also held, in
accord with Glasser, that the prejudice might be especially
dangerous or noticeable in a situation where the case
against the defendant wasn’t strong. The court said that it
appeared that defense counsel frequently held back where
an effective advocate would have moved forward force-
fully. Anything that defense counsel could have done to
lessen the credibility of the damaging witnesses would
have helped. It was then stated that since the error was
not harmless beyond a reasonable doubt, under Chapman
». California, 386 U.S. 18 (1967), the conviction must be
set aside. The court agreed with Glasser as to the heavy
responsibility placed upon the trial court.
This reasoning seems applicable to this situation. Effec-
tive counsel for Polisher would have forcefully cross ex-
amined all witnesses to show that it was Weiss alone who
was implicated by the evidence. He would also have cross
examined the witnesses who implicated Polisher to lessen
their credibility and to show that the role played by
Polisher was not sufficient to make him guilty of false
pretenses. Counsel who did not have the burden of joint
representation could have done much to emphasize Weiss’
role in the scheme and exculpate Polisher. This would
equally apply to all arguments and objections made to the
court. Thus there was a sufficient degree of conflict be-
tween the interests of Polisher and the interests of Weiss
that Polisher’s right to effective counsel was invaded by
joint representation.
It is also evident that the heavy responsibility which
devolves upon the trial court was not met in this case. In
order to discharge his duty, the judge should have realized
the prejudice to the rights of Polisher and made an appro-
priate order to protect his interests. His failure to recog-
nize counsel’s dilemma deprived Petitioner of his Sixth
Amendment right to counsel.
TS ES ga ne
II.
THE PETITIONER WAS DEPRIVED OF DUE PROCESS OF LAW
GUARANTEED HIM BY THE FOURTEENTH AMENDMENT OF THE
CONSTITUTION OF THE UNITED STATES BY THE REFUSAL OF
THE MARYLAND COURT OF SPECIAL APPEALS TO CONSIDER
PETITIONER’S CONTENTION THAT HE WAS DEPRIVED OF EF.
FECTIVE SERVICES OF COUNSEL.
The Maryland Court of Special Appeals, upon Petitioner’s
appeal to that court, summarily dismissed his contention
that he was deprived of effective representation of counsel
with the observation that Rule 1085 applied. Rule 1085
provides that “This court wili not ordinarily decide any
point or question which does not plainly appear by the
record to have been tried and decided by the lower court,
but where a point or question of law was presented to the
lower court and a decision of such point or question of
law by the court is necessary or desirable for the guidance
of the lower court or to avoid the expense and delay of
another appeal to this court, such point or question of law
may be decided by this court even though not decided by
the court below.”
It is suggested that the problem raised by the Court of
Special Appeals’ summary dismissal of Petitioner’s con-
tention may be dealt with in one of two ways. First, the
Supreme Court might properly consider the question in
spite of the fact that it was not presented to the trial
court. While the Supreme Court is often properly respect-
ful of rules set up by the State to facilitate the orderly
administration of justice, it has, upon occasion, considered
points not raised below because of its solicitous concern
for the protection of the rights of defendants. In the alter-
native, the Supreme Court might hold the Appellate court’s
action under Rule 1085 improper. This action is warranted
because Rule 1085 as written, and as ‘applied by the Court
10
of Special Appeals, has resulted in the denial of the con-
stitutional rights of Petitioner.
There are many decisions by the Supreme Court which
evince a degree of liberality with respect to whether ques-
tions are properly before the Supreme Court, and a pro-
pensity to consider errors not raised at other points. For
instance, in White v. Maryland, 373 U.S. 59, 83.S. Ct. 1050,
the original guilty plea of a defendant was used in evidence
against him at trial, even though he did not have counsel
at the preliminary hearing. (The pleas were changed be-
fore trial to “not guilty” and “not guilty by reason of
insanity”). This Court held that Hamilton v. Alabama, 368
U.S. 52, 82 S. Ct. 157, applied. This Court said, that “Al-
though the defendant did not object to the introduction of
this evidence at trial, the rationale of Hamilton does not
rest, as we shall see, on a showing of prejudice”. The Court
would not stop to determine whether prejudice resulted.
That reasoning applies equally in the present case, since
the same fundamental right, the right to counsel, is in-
volved. In Silber v. United States, 370 U.S. 717, 82 S. Ct.
1287, the Court considered a point not presented to the
Court of Appeals, nor to the Supreme Court, although the
trial court had considered the question. The Court said
that it had the power to notice plain error. Appellate
courts, it held, may of their own motion notice errors to
which no exception has been taken if the errors are ob-
vious or seriously affect the fairness of the proceedings.
The Court also considered the question in Johnson v. United
States, 318 U.S. 189 (1943) where it said that it might
notice errors if they would seriously affect the fairness,
integrity, or public reputation of judicial proceedings. (In
that case, however, the Court stated that the judge’s error
was induced by counsel’s own action.) In United States
v. Atkinson, 297 U.S. 157, 56 S. Ct. 391, it was said that
oy ee oul remsaearrimenyens yaar iG
=n E . 7. ” ee ai ee ‘
11
although consideration of fairness to the Court, and the
public interest in bringing litigation to an end after fair
opportunity has been had to present all the issues usually
presented review of errors not raised below, appellate
courts may, especially in criminal cases, notice errors to
which no exception was taken if the errors seriously affect
the fairness or integrity of proceedings. This was also the
holding of Clyatt v. United States, 197 U.S. 207, 25 S. Ct.
429, New York Cent. R. Co. v. Johnson, 279 U.S. 310, 49
S. Ct. 300, Brasfield v. United States, 272 U.S. 448, 47 S. Ct.
135, and Wiborg v. United States, 163 U.S. 632, 16 S. Ct.
1127.
It is thus apparent that it is proper for this Court to
consider points not raised at trial, if such action is war-
ranted by the circumstances. Glasser (supra) was a case
in which no objection was raised at the time of trial. Since
the right to counsel is a fundamental right essential to a
fair trial, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct.
792, it is evident that the error made by the trial court
seriously affected the fairness of the proceedings. These
are also exceptional circumstances, since counsel could
not very well argue to the trial court that his dual repre-
sentation adversely affected the Petitioner, Polisher. We
submit, therefore, that this Court should consider the ques-
tion even though it was not specifically raised at trial.
Rule 1085 as applied in the instant case is prejudicial to
the constitutional rights of criminal defendants. Thus ac-
tion taken by the Court under Rule 1085, as was taken in
this case, was improper. Rule 1085 exists to insure orderly
and speedy administration of justice. State v. Zimmerman,
261 Md. 11, 273 A. 2d 156 (1971). While it may be true
that the public is entitled to the speedy administration of
justice, Rule 1085 denies defendants due process of law
and equal protection, which rights are afforded them by
12
the Fourteenth Amendment of the constitution. The Rule
is so worded and has been so applied that it is open to
arbitrary and discriminatory application. The Special
Court of Appeals has been inconsistent in the application
of Rule 1085. At times it has waived the rule and con-
sidered contentions made by appellants on their merits
Bailey v. State, 6 Md. App. 496, 252 A. 2d 85 (1969); Harris
v. State, 2 Md. App. 408, 234 A. 2d 781 (1967); State v.
Zimmerman, rev’d 261 Md. 11, 273 A. 2d 156 (1971). At
other times the Court of Special Appeals has invoked the
rule and refused to consider a point. Howard v. State, 1 Md.
App. 379, 230 A. 2d 115 (1967); Sherrod v. State, 1 Md.
App. 433, 230 A. 2d 679 (1967); Bailey v. State, 6 Md. App.
496, 252 A. 2d 85 (1969). Thus, the rule, both as written
and as applied by the Maryland Court of Special Appeals,
fails to provide a sufficiently definite standard, and allows
the Court of Special Appeals summarily and arbitrarily to
deprive some defendants of a hearing while allowing others
consideration of points made on appeal in analogous
situations.
Ill.
THE PETITIONER WA3 DEPRIVED OF DUE PROCESS OF LAW
GUARANTEED HIM BY THE FOURTEENTH AMENDMENT OF THE
CONSTITUTION OF THE UNITED STATES BY THE RELIANCE BY
THE COURT OF SPECIAL APPEALS OF MARYLAND, IN AFFIRMING
HIS CONVICTION, OF MATTERS OF PROOF NOT CONTAINED IN
THE RECORD.
The Court of Special Appeals in its opinion affirming
Petitioner’s conviction relied upon, as evidence against the
Petitioner, a personal property return of Brunswick Ex-
change, Inc. filed in Ja;nuary, 1970 with the Maryland State
Department of Assessments and Taxation. This return is
specifically referred to in the opinion of the Court of
Special Appeals (App. 3la) although it was not part of the
CPE re) SRT re oe’ it a Da te
VE ae aes ine Core MT ne 1 state a By ee eS ee
13.
record nor was it offered in evidence in the trial court. We
are not able to say how it came to the attention of the
Court of Special Appeals but a reading of the complete
transcript revealed that the only reference to exhibits con-
cerning Brunswick Exchange, Inc. were Exhibit 29, which
was 4 certificate of incorporation of Brunswick Exchange,
Inc., showing that it was duly qualified to do business in
Maryland, and Exhibit 30 which was a certification that
said certificate of incorporation was a true copy. The Court
of Special Appeals in its opinion refers first to the fact that
it had been proven that Brunswick Exchange, Inc. was
qualified to do business in Maryland. This is immediately
followed by a specific reference to the personal property
return as of 1 January 1970 filed with the State Depart-
ment of Assessments and Taxation and to certain informa-
tion contained in that return which is detailed in the Court’s
opinion (App. 31a). The only reference to the exhibits in
the transcript of the testimony at the trial is contained on
pages 274 and 275 as follows: ;
“ (Mr. Madden) Madam Clerk, would you mark these
as State’s Exhibits 29 and 30 for identification, please?
(State’s Exhibits 29 and 30 were marked for
identification. )
(Mr. Madden) I would like to show State’s Exhibits
29 and 30 to the defendant’s attorney and then I would
like to offer them.
(Mr. Miller) I have no objection to this, Your Honor.
- (Mr. Madden) I would then offer State’s Exhibits
29 and 30 [in] evidence at this time, Your Honor.
(The Court) Have they been identified?
(Mr. Miller) We have no objection to them, Your
Honor, I suppose they speak for themselves. It is
basically the certificate of Brunswick Exchange, Inc.
to do business in Maryland and the certification that
that is a correct copy.
14
(Mr. Madden) That is exactly what they are, 29
being the certificate and 30 being the certification that
this is a correct copy. They are qualified to do busi-
ness as a corporation in the State of Maryland.
(The Court) They will be received.”
It is apparent that the Court of Special Appeals in af-
firming Petitioner’s conviction gave weight to the infor-
mation contained in the personal property return as re-
ferred to in the Court’s opinion. The opinion affirmed
the conviction in at least partial reliance on information
not introduced in the Court below. Without the neces-
sity of argument, the mere statement of the situation re-
veals a violation of the constitutional guaranty of due
process.
CONCLUSION
For the reasons above stated Petitioner, Manuel Polisher,
prays that this Petition may be granted.
Respectfully submitted,
LEon H. A. Pierson,
Attorney for Petitioner.
ORDER
In The Court of Appeals of Maryland
Miscellaneous Docket No. 113 (Criiainal)
September Term, 1971
(No. 431, September Term, 1970 Court of Special Appeals)
Manuel Polisher,
V.
State of Maryland.
Upon consideration of t:1e petition for a writ of certiorari
to the Court of Special Appeals in the above entitled case,
it is
ORDERED by the Court of Appeals of Maryland that the
said petition be, and it is hereby, denied.
/s/ Hatt Elammonp,
Date: June 24, 1971. Chief Judge.
eeneeesinmeaameneamel
OPINION OF
COURT OF SPECIAL APPEALS OF MARYLAND
Manuel Polisher and Larry White
a/k/a Larry Weiss,
v.
State of Maryland.
No. 431
April 2, 1971.
Joseph J. D’Erasmo, and Victor L. Crawford, Rockville,
with whom were H. Algire McFaul, Vivian V. Simpson,
2a
and Joseph B. Simpson, Jr., Rickville, on brief, for appel-
lants.
Gilbert Rosenthal, Asst. Atty. Gen., with whom were
Francis B. Burch, Atty. Gen., William A. Linthicum, Jr.,
State’s Atty., for Montgomery County and Walter H.
Madden, Asst. State’s Atty., for Montgomery County, on
brief, for appellee.
Argued before Murpny, C.J., and ANDERSON and Ortu, JJ.
OrtH, Judge.
The prosecutions in this case arose because money was
stolen. It was not taken by violence, but the means used
were more effective than if the victims were robbed at gun
point, because they were persuaded, in some cases, time
and time again, to come back to the thieves so more money
could be obtained. Those bilked were induced to part not
only with the possession of their money but with the title
to it as well. Therefore the crime was what is commonly
called “false pretenses,”’1
The swindles involved the repair of automobiles.2 In
connection therewith Brunswick Exchange, Inc. (Bruns-
wick), which traded under the names of Vanguard Auto
Service and Vanguard Foreign Car Service (Vanguard),
Manuel Polisher and Larry White, also known as Larry
Weiss, were indicted. Brunswick was charged with two
cases of obtaining money by a false pretense with intent
to defraud — $481.71 from Charles Edward Walsh on 7
~ We said in Farlow v. State, 9 Md. App. 515, 519, 265 A. 2d 578,
“Generally speaking therefore, within the frame of reference
of the taking, it is larceny if the taking is trespassory. If the
taking is not trespassory, it is false pretenses when title to the
goods as well as possession is obtained by fraud; it is embezzle-
ment if a servant or employee fraudulently converts to his
own use goods of his master or employer which are in the pos-
session of the servant or employee; it is larceny after trust if a
person entrusted with the possession of goods for the purpose of
applying them for use and benefit of the owner or person who
delivered them fraudulently converts them to his own use.”
? We note that such a business is not subject to licensing, super-
vision or regulation by the State.
3a
July 1969 under indictment 10634 and $302.80 from Lilian
Miller on 10 September 1969 under indictment 10633.
Polisher and White were jointly indicted, indictment 10681
charging them in the 1st count with the offense charged
against Brunswick under indictment 10634 and in the 2nd
count with conspiring together to commit that offense, and
indictment 10682 charging them in the Ist count with the
offense charged against Brunswick under indictment 10633
and in the 2nd count with conspiring together to commit
that offense. The indictments were jointly tried at a bench
trial in the Circuit Court for Montgomery County. - The
lower court granted motions for judgment of acquittal as
to indictments 10633 and 10634 and as to the 2nd count in
each of indictments 10681 and 10682. Polisher and White
were each found guilty of the offense charged in the Ist
count of indictments 10681 and 10682. Polisher was sen-
tenced to 5 years on each conviction, the sentences to run
consecutively. White was sentenced to 6 years on each
conviction, the sentences to run concurrently. Each appeals
from the judgments against him, and submits his own
brief. Each, however, presents the same primary question:
whether the evidence was sufficient to sustain his convic-
tion. As ergued by them the question goes both to the
corpus delicti of the offense and the criminal agency and
involves the admissibility of ‘evidence relating to transac-
tions with persons other than Charles Edward Walsh and
Lilian Miller. Polisher, in addition, challenges certain rul-
ings of the trial court, claiming prejudicial error.
THE MISDEMEANOR oF FALSE PRETENSES
The crime of “false pretenses” is simply stated in Code,
Art. 27, § 140:
“Any person who shall by any false pretense obtain
from any other person any chattel, money or valuable
security, with intent tu defraud any person of the same,
shall be guilty of a misdemeanor * * *,”8
* The statute contains two provisos not applicable in this case:
(a) “* * * provided always, that -if upon the trial of any
person charged with such misdemeanor it shall be proved that
4a
The false pretense is the crux of the crime. So the crime is
' committed when a person:
1) by making a false representation of a past or exist-
ing fact;
2) with intent to defraud; and
3) knowledge of its falsity;
4) obtains any chattel, money or valuable security
from another;
5) who relies on the false representation;
6) to his detriment.
See Smith v. State, 237 Md. 573, 207 A. 2d 493; Tumminello
v. State, 10 Md. App. 612, 272 A. 2d 77; Lockard v. State,
3 Md. App. 580, 240 A. 2d 312; 2 Wharton’s Criminal Law
(Anderson) §§582-607, pp. 305-374; Perkins; Criminal Law
(2d Ed.) pp. 296-321; Clark & Marshall, Law of Crimes
(7th Ed.) §§12.23-12.27, pp. 921-944.
TuHeE INSTANT CASE
The Miller Automobile
Mrs. Lillous Miller* testified that she owned a 1963
Chevy II which she took to Vanguard in Bethesda5 on 9
September 1969 to have the transmission repaired; there
he obtained the property in question in any such manner as to
amount in law to larceny or robbery, he shall not by reason
thereof be entitled to be acquitted of such misdemeanor: and
no person tried upon such misdemeanor shall be afterwards liable
for larceny or robbery upon the same facts; * * *”
(b) “* * * and provided also, that a mere promise to be prose-
cuted for future payment, though not intended to be performed,
shall not be sufficient to authorize a conviction under this sec-
tion. * * *”
* She was designated as “Lillian Miller” in indictment 10682.
5 According to bills of Vanguard admitted in evidence there were
“Van d Auto Service Centers” at 4865 Bethesda Ave., Bethesda,
Md., 3 Georgia Ave., Silver Spg., Md., and 1600 Benning Road,
N.E. Wash., D.C. “Vanguard Foreign Car Service” was at the
Bethesda address.
we ="
5a
was a noise underneath the car, “a kind of thud”, which
on two prior occasions shortly before Chevy Chase Chev-
rolet had not corrected. She told Chevy Chase Chevrolet:
“If you can’t find this and fix it, I will have to take it
somewhere else because J can’t live with this, there are
parts obviously wearing.” She looked in the Yellow Pages
because she thought the problem was the transmission
and Vanguard advertised that it repaired transmissions.
She talked to appellant White. He rode in the car with
her, said he would be able to fix it and arrangements were
made to leave her car at Vanguard the next day. When
she left the car she asked White to call her and let her
know what he found. He telephoned and said “that they
had checked out the transmission unit and found a bad
crack in it and that the whole thing would have to be re-
placed.” He estimated the cost as about $220. He said
that the car also needed a front wheel alignment “and I
was a little bit surprised about all that because I had just
had my car worked on.” White explained that Chevy
Chase Chevrolet had not found the crack because “they
probably were not equipped with the necessary things that
would enable them to check this out. They are not trans-
mission specialists and they probably could not have found
it.” Mrs. Miller said: “Well, I guess I am at your mercy.
If there is a bad crack, I guess the part wiil have to be
replaced.” She picked up the car that afternoon and was
tendered a bill for $302.80. Shocked at the amount, she
asked White to justify it. He said: “We have done all these
things on the bill and also there was a leak in your oil
tank or whatever the container is and we fixed the leak
and filled it up with oil and that was not on the bill but
that was just extra.” She paid him and drove away. About
a third of the way home she heard the thud again. She
went back to Vanguard immediately and told White the
defect had not been corrected. He said: “Well, sometime
these units come through with flaws. Will you leave your -
car here and we will replace this unit with another?” He
offered to loan her a car to drive home despite a sign pro-
claiming that they did not give “loaner cars” and he then
offered to get her a rental and pick up the tab. Reluctant
SAL bOI DS EN RARER BEML SINE LS COPLEY ALLER AM TET SN THCR DY AT STR, PN enn RE PII, OOS IR LTE ETI, NII IIE ee ee
6a
to drive an automobile with which she was not familiar
she agreed to bring her car back the next day. She asked
White to return her check but he said it had already been
processed and refused to give it back. She told him she
would stop payment on it and did so the next day. She
left her car at Vanguard the next morning with the un-
derstanding that another new transmission unit would be
installed. She picked the car up about 5:30 or 6:00 P.M.
The bill was the same as before and she gave him another
check payable to Vanguard. The bill was received in evi-
dence. The car did not run properly; when she stopped
at a light the motor would die. “I became rather suspi-
cious that he had been meddling into the motor of the
car. I didn’t know what the motor had to do with the
transmission but it bothered me that I was having a new
trouble.” She went back to Vanguard and complained to
White. He said he would check it out while she waited.
He came back “with a little metal part and he said, ‘You
see all this carbon on here? That shouldn’t be there.”
He told her that it had not been put in right and that ap-
parently Chevy Chase Chevrolet had done a bad job. She
waited so he could “get this little part back in” and then
drove away. She had the same trouble with the car. She
had asked White to show her the cracked transmission
which he had replaced and he told her he would show it
to her the next day but he never did. She had also asked
him to put her car on a lift so she could see what he was
talking about, but he said there was a car already on the
lift. She never saw the badly cracked part. She went
back a number of times in an effort to have the problem
corrected to no avail and finally went to the Montgomery
County Detective Bureau in October. As a result of that
visit she took the car to B.C.C. Transmissions in Rockville
where the car was put on a lift and examined.
Vincent Charles Scalamandre testified that he had been
the owner of B.C.C. Transmissions in Rockville for 20
years. He specialized in automatic transmissions, handling
the complete job, everything from removal to actual over-
haul. He had personally worked on an average of 8 to 10
transmissions a week for the past 10 years and received
7a
training in three different schools. He said he had testi-
fied in courts of law as an expert witness with regard to
automatic transmissions. He examined Mrs. Miller’s car
in his shop. Tite transmission was removed. He “disas-
sembled” it on the bench and examined each and every
part. It was his opinion that “the transmission wasn’t out
of the car since its original installation at the factory.
* * * I say this because, from my experience, the car it-
self normally when they come through a factory they are
undercoated and this was undercoated on all the bolts
and the bolts had never been removed as far as my ex-
perience goes. * * * [Nlormally the bolts will get rusted
and have sharp edges on them and the undercoating is a
soft coating made of fiberous material and when you put
a wrench on it, it removes it.” A color photograph of the
frame of the car was received in evidence. It showed a
bolt that would have to be removed to drop the transmis-
sion.
Detective Corporal Duncan R. Jerman of the Mont-
gomery County Police testified that Mrs. Miller’s car was
examined by Scalamandre on 16 October 1969. William
Ballman, a transmission specialist for B.C.C. Automatic
Transmissions, qualified as an expert in the field of auto-
matic transmissions. He took the transmission out of Mrs.
Miller’s car wtih Scalamandre and they dismantled it. He
inspected the parts. It was his opinion that the transmis-
sion had been in the car from the time it came from the
factory. His opinion was based on the undercoating that
was on the frame, bolts and from the grease that was on
the front pump bolts. And it seemed to him that all the
parts inside were original equipment. In short he was
checking to see whether the transmission had been over-
hauled and he determined that it had not. He further
testified that an “exchange transmission” was one that
had been overhauled; “exchange transmission” and “over- .
haul transmission” meant the same thing. A “factory re-
built transmission” was one rebuilt at “General Motors’
factory.” A “new factory transmission” was “just what
it states, a new factory transmission.” It would take about
6 months to get a new factory transmission.
8a
The State adduced evidence through an employee of
the bank at which Mrs. Miller had her checking account
that a check made by her on 13 September 1969 in the
amount of $302.80 payable to Vanguard Auto Service
Center had been paid by the bank and debited to her ac-
count on 17 September 1969. The check was endorsed
“For deposit only Vanguard Auto Service’ and was
stamped as received for deposit by American National
Bank of Maryland on 16 September 1969.
The Walsh Automobile
Charles Edward Walsh testified that he owred a 1965
Mercedes-Benz. In January 1969 the car had automatic
transmission trouble and he tcok it to Vanguard in Silver
Spring. The shop foreman drove it and said he thought
the trouble was in the torque converter. He left the car
and the next day was told it had been taken to the Bethesda
shop. The car was returned to him about 10 days later.
The bill was $774.95 as shown by his check dated 31 Janu-
ary 1969 payable to “Vanguard” in that amount, endorsed
“For deposit only Vanguard Auto Service” and stamped
as received for deposit by American National Bank on 3
February 1969 and an invoice on a bill head of Vanguafd
Foreign Car Service, 4865 Bethesda Avenue, Bethesda,
Maryland dated 30 January 1969, each of which was re-
ceived in evidence. The invoice stamped “Paid”, listed
under parts a “Trans. (compl.) w/conv.” in the amount of
$645. The labor to replace it was $48.60 and there were
additional charges for labor in connection with aligning and
tightening the suspension for a total of $110.60. The invoice
indicated that the door latch had been repaired and the car
had been lubricated at no charge. Heavily outlined was
a note headed “Important — bring the car back in 500
miles to have checked.” While the car was in the shop
Walsh had several conversations with White about the
repairs and when the car would be ready. On one occasion
White told Walsh that he was having trouble getting parts
and that a new transmission housing was needed. When
the car was ready, White gave Walsh the bill, and Walsh
paid it. Two or three weeks later the transmission was
9a
leaking fluid and Walsh took the car back and told White -
who asked that the car be left over night. The next day
White said a small seal causing the leak had been replaced.
Within a month the transmission again leaked fluid and
Walsh talked to White who said to bring the car in but
not to add any fiuid. It was left at Vanguard over night.
In March 1969 he took the car to a shop to have body work
done and Vanguard picked it up there to reset the valves
which, it seems, White had indicated should be done. The
bill was for $342.67 and was paid by check to Vanguard on
1 April 1969. In May the car again leaked transmission fluid
and Vanguard “rechecked previous repairs ana adjusted as
required” at no charge as shown by an invoice dated 19
May 1969. There was a charge thereon for parts and labor
with respect to an oil change and blowing out the gas line
in the amount of $30.96. In July the motor was heating
up. Walsh looked under the hood and saw that a blade
of the radiator fan was missing. He called White who
told him not to continue to drive the car that way and
to bring it over. This resulted in a bill dated 7 July 1969
on a Vanguard Auto Service bill head in the amount of
$448.71 — parts $281.44 and labor $156. The parts included
a water pump, a generator, a fan motor mount, “P-call Pis-
tons” and “P-disks.” It was paid by check given to White,
payable to Vanguard, endorsed “For deposit only Vanguard
Auto Service” and received for deposit by American Na-
tional Bank on 9 July 1969. The bill and check were re-
ceived in evidence. Walsh had only taken the car in to
have a fan blade replaced and asked White about the size
of the bill. White told Walsh that “one thing they had to
do was shift the motor forward and put in new motor
mounts.” White told him new motor mounts and a new
generator had been installed. This surprised Walsh be-
cause he had never had generator trouble. In late Septem-
ber or October 1969 Walsh’s wife had trouble while driving
the car. She got it to a filling station. The transmission -
had dropped down from the driveshaft. Walsh called
White and the car was towed to Vanguard. White said he
would get parts for it and have it ready in a few days.
After a few days Walsh called Whité and was told the car
10a
was in their shop at 1600 Benning Road. Ten days later
Walsh went to the Benning Road shop and the foreman said
they were trying to get parts. Ten days later Walsh called
White and again’ was told they were awaiting parts. Walsh
waited 4 weeks and the car was still outside the Benning
Road shop untouched. White said their Mercedes man
was not working for them any more but they were doing
their best io get it repaired. Two days later Walsh asked
White “if he could get his boss * * * to let me take the car
to McNey Motors and have it repaired.” White told him
he was going to get in touch with his boss and see if they
could let him take the car to McN ey for repairs. He finally
took it to McNey Motors. From January 1969 to the time
the car was taken to McNey no one other than Vanguard
had done any mechanical work on the car. During that
time Walsh had been back to Vanguard “a total of nine
times with trouble with the transmission and had paid
Vanguard about $1600 for work allegedly done on the car.
cross-examination of Walsh it was elicited that the
car was satisfactorily repaired by McNey and that the cost
was $699 of which Walsh paid $98 and Vanguard paid
$601. He had gotten in touch with the Montgomery County
Police when his car had been sitting on the Vanguard lot
at Benning Read about three weeks. During Walsh’s con-
versation with White about taking the car to McN ey Mo-
tors, White said Vanguard would take care of the cost of the
repairs by McNey. Apparently the $98 paid by Walsh was
for work in addition to that done on the transmission. There
estimate for the transmission repair was $618. Walsh said:
“T talked to Mr. Polisher by phone and he said he could get
the parts more reasonable than that but he would talk
to someone at McNey and see if they couldn’t come to
an agreement.” That was the first time he had any contact
with Polisher. :
Robert Sterling Mosier testified that he had worked for
Vanguard in Bethesda from the second week in June until
about the third week in August 1969 as an automobile
mechanic. He had answered an advertisement in the paper
for the Benning Road shop. The service manager there
said he did not need anyone but called the Bethesda shop
lla
~ and sent him there to see White who interviewed him and
gave him a job. “Mr. White trained me for whatever I
was trained for. * * * The first day that I went to work
there, at first I wanted to look around the shop and look
at the machines and everything and make sure of their
uses. Mr. White told me I didn’t have to do that because _
they never use any of the machines, the distributor testor
and wheel alignment and so on. Later he gave me a new
paint brush. * * * He said, ‘Keep this, don’t lose this, this is
going to be the most important tool ycu are going to have to
work with here.’ I didn’t know what he meant. -I was
kind of impressed because I thought it was going to be
real good shop work, everything you did was real clean
and.done corectly. It wasn’t long before I found out what
he meant by the brush was going to be the most important
tool I would work here with.” Mosier was working for
Vanguard on 7 July 1969 and had worked on Walsh’s car
on that date. The invoice of 7 July in the amount of $448.71
paid by Walsh was shown to him by the State. He said he
had replaced the broken fan. “Mr. White told me to clean
the water pump to make it look like I had replaved it. He
told me to do the same with the motor mounts and paint
them and make them look like they had been replaced.é
* * * When he looked at them after I had cleaned them,
he told me he wanted me to take a can of black spray
paint and spray them black because the way they were
they didn’t look like new and he wanted them to look
like new.” He did not replace the motor mounts, he did
not replace the generator, he did not replace the water
pump, he did not overhaul the brakes, he did not replace
the front brake pads, he did not overhaul the front cal-
lipers, he did not replace the front disks, although a charge
for all these things, parts and labor, were on the bill pre-
sented to Walsh by White and paid by Walsh. He simply
° The motor mounts were cleaned with varsol and the brush which -
he had been told by White was “the most important tool” he had
to work with. “The reason wes most of the work we were going to
do was going to be just make it look like work had been done. This
was just by cleaning parts instead of actually doing the work of re-
placing them or adjusting them or whatever.”
12a
replaced the fan blade which took about an hour. For
work actually rendered and parts actually supplied the
cost was only $20 of the $448.71 charged.
The Scheme or Plan
The Nesbitt Car
Mosier said he knew Manuel Polisher from his associa-
tion with Vanguard. One day when White was out Polisher
was “in charge of running the [Bethesda] shop.” A spitfire
Mark II was brought in by BarJare Nesbitt about noon.
The complaint was that the muffler was rattling and the
clutch was bad. “Mr. Polisher instructed me to put the
car up on the rack and raise it up and we were going to
go over and take a look at it. While we were underneath
.t he stated * * * that they had put a muffler on it down at
the Benning Road Shop and that the muffler was rattling
and she wanted us to take a look at it. While there he also
said that she needed a clutch on the car and that he had
already gotten her down at Benning Road with another
of their cars and that he wanted to make sure that this
car got worked on here. Barbara’s mother [who apparently
had brought the car in] wasn’t there at the time, so we
let the car down and took it off the rack. Later that day
when she got there Mr. Polisher told me to look at the
clutch and I said from driving it that the clutch was bad
and he said, ‘Can you change the clutch by the time we
close today?’ It was only about an hour and a half left
and 1 said, ‘No, I can’t get the thing changed in an hour
and a hali.’ He said ‘Get the thing torn apart enough that
the car cannot leave here tonight. I want to make sure
that this car stays for Larry [White] to take care of the
ticket.’ I took the transmission out and by that time it was
about time to go home.” Barbara’s mother had asked
Polisher what he was doing at the Bethesda shop. “He
said that he owns and operates all three Vanguard shops;
that he is in charge of all three of them, the running of
them.” She said she had taken another Spitfire to the
Benning Road shop for a clutch and Polisher bad taken
care of it and the bill just for the clutch was around $300.
13a
Earlier that day Polisher was giving Mosier instructions on
a car being worked on and Mosier started to tell Polisher
what White had told him. Polisher said: “I don’t care
what Larry says, Larry doesn’t know anything about cars.
I am the one that knows about cars here. Larry is here
to sell customers and sell them whatever he wants to
and that is all he is here for.” The next day Mosier re- _
ceived instructions from White about the Nesbitt car. “I
put in a rebuilt clutch, clutch plate and a throw out bear-
ing and steam cleaned the transmission like Mr. White
told me to do, painted it black and stuck it back in the car.
Later that day Barbara’s mother came to pick up the car
and Mr. White instructed me to drive the Spitfire and
follow her mother to where Barbara worked to crop off
the car.” Mosier asked Barbara’s mother to let him see
the bill. “It was something like $250 and there were a
number of things on it that I hadn’t done, like $80’s worth
of transmission parts and labor on working on the trans-
mission. I told her that.” No labor had been performed or
parts supplied for the transmission.
The Flumerfelt Car
Shortly, after Mosier started to work at Vanguard White
gave him a repair order on a-1968 Volvo on which was
designated, among other things, that it was to be lubricated.
Mosier went to White and said, “You have got to be kid-
ding. Volvo’s don’t have lubrication joints. How can you
do that?” White said, “They don’t have lubrication joints?”
Mosier replied, “No they don’t. That is one of their biggest
things that you never have to lubricate a Volvo. There is
nothing to lubricate on it.” White left the lubrication on
the bill and charged the customer for lubricating the Volvo.
The invoice for this work on Vanguard Auto Service Cen-
ter bill head, dated 23 June 1969, to M. Flumerfelt, was
in a total amount of $253.17 and was stamped as paid the
same date. The only work performed on the car was a.
minor tune-up and the changing of two inner door handles
on the left side of the car, the one on the back door being
placed on the front door and vice versa. This work repre-
sented about $25 of the total bill: Of a total of $120.97
l4a
charged for parts, only about $9.20 for spark plugs, points
and a condensor were actually placed in the car. The total
charge for labor was $127.90. Charges for labor that was
never performed included lubrication $3.75, time adjust-
ment $14.25, air-conditioning unit $31.90, overhauling the
air-conditioning compressor $48.60, evacuating the air-con-
ditioning system, $18.00.
The owner of the Volvo, Mary Flumerfelt, said she had
paid the bill of 23 June 1969 in the amount of $253.17 and
her check therefor had been paid by the bank. The first
time she took her car to Vanguard was in 1968 when she
asked for a 10,000 mile inspection. She told White she
wanted done the routine work recommended by Volvo at
the mileage. She was presented a bill by White on Van-
guard Foreign Car Service bill head, dated 29 J uly 1968
in the amount of $80.40 and paid it the same date. Her
check cleared the bank. On 29 August 1968 she tock the
car to Vanguard for a 12,000 mile checkup and paid a bill
as presented by White in the amount of $193.92. On 18
December 1968 Vanguard was to give the car a 15,000 mile
check-up. Again she talked to White about what was to
be done. In addition to the check-up she requested a new
window frame to replace one that had been broken. The
bill was $103.46 and was paid by her. In March 1969 she
hit a pothole causing a short in the horn which she had
to disconnect to stop it from blowing. She went to Van-
guard and told White to fix the horn. Then she got calls
telling her the master brake cylinder had cracked and had
to be replaced, that the steering gear box was shattered
and had to be replaced and that the car was unsafe to drive.
This information did not come from White, the person
calling saying that White was not there. The bill, dated
13 March 1969 but stamped as paid on 12 March 1969 was
for $357.07. She next took the car to Vanguard on 23 June
1969 for the 18,000 mile inspection and the bill about which
Mosier testified as summarized supra, was for $253.17.
Two days later she took the car back to Vanguard and
talked to White. She had difficuity starting the car and
taking off in first gear and the motor was very rough and
cut out when she would stop at a stop sign. White told her
_
wer errs sa o-. —— Sl
rr: il a
is yy rae gre ra Se ee ee ee ee
15a
he would take care of it. “During that day he called me
sounding very distressed and sympathetic and said that
the trouble was in the transmission with the gears.” She
questioned that because she thought he had already fixed
the gears. He said that it was the steering gear box they
had fixed before. She was upset at the price he quoted and
he said he would ask the mechanic to give a discount on
the labor. He called back and said the mechanic had agreed
to give a $30 discount. “Mr. White at that time assured me
that when this work was done my car would be in perfect
condition, that there was nothing else that could go wrong
and that he would give his personal guarantee that I should
not have another thing done on this car for at least 10,000
miles. He said to me that he thought the problem was the
Volvo people using cheap Greek labor, too.” The bill pre-
sented to her by White and paid by her by check to the
order of Vanguard was for $385.76. When she got her car
from Vanguard on 25 June 1969 the trouble had not been
corrected. She did not take it back; “I thought I had learned
my lesson.”
The bills of 29 June 1968, 29 August 1968, 18 December
1968, and 13 March 1969 indicated that the work had been
done by “AM.” This was Americo De Les Casas, 28 years
of age, who had started working as a mechanic in Peru
when 13 years old. His first job in the United States was
with Vanguard, he answered an ad. He worked there
18 months, starting the latter part of 1967. He testified
about the bill of 29 July 1968. He said he had worked on
that car. Of the charges on the bill, he changed the oil
and filter, parts $8.20, labor $3.75 tightened the exhaust
system, labor $10.80, and tightened the sun visor at no
charge. There were other charges for labor — tightening
the front suspension, $15.00; adjusting the steering, $13.60;
tightening the rear suspension, $7.80; adjusting and testing
valves $12.00; synchronized the carburetor and adjusting
the points $9.00, — none of this was done. Similarly his
testimony tended to show that only a small fraction of the
charges on the bills of 29 August 1968, 18 December 1968,
13 March 1969 represented parts used and labor performed.
For example-en the bill of 13 March 1969, which amounted
16a
to $357.07, the only work done was on the horn and turn
signal — $30 labor and about $1.20 parts. On cross-exam-
ination he concisely stated White’s attitude, “He don’t have
any consideration at all. * * *. He didn’t give a damn about
all the people.”
The voucher of 25 June 1969 indicated that the work was
done by “Dick.” This was Richard Thomas Wettrich who
had been employed by Vanfuard in Bethesda as a general
mechanic about May 1969 and remained four or five
months. He had worked on Mary Flumerfelt’s Volvo at
White’s direction. White told him to road test the car to
see if there was anything wrong with the clutch or trans-
mission. As a result he told White it was only necessary
to clean and adjust the clutch which is what he did. He
again road tested it and it was all right. The bill presented
to Mary Flumerfelt included labor for overhauling the
transmission, $110 which was not done and labor for re-
placing the clutch, release bearing and flywheel, $24.40,
which was not done. It also charged for parts which were
not put in the car, for example: $61.40 for a clutch assem-
bly; $8.05 for a release bearing; $19.70 for transmission
bearing; $6.40 for a main shaft; $42.21 for a synchro assem-
bly; $33.15 for a first gear. The total bill was $385.76. Wet-
trich said that a true bill would have been for a half hour
labor and no parts.
The Adessa Car
John Louis Adessa owned a 1960 Jaguar Sedan. In July
1969 he took it to Vanguard in Bethesda and spoke to White
who gave him an estimate of $250 on a valve job. It was the
best of three estimates he had received so the car was
taken to the Vanguard shop. A week later he called White
who told him that the head was cracked and would cost
an additional $400. He told White he did not have the
money and White said it was up to him whether he wanted
to see if he could get the money. Adessa tried to get a loan
and could get one for $300. When he called White he was
told that Vanguard accepted Bank Americard and since
his girl had that card they decided to charge the additional
17a
on the credit card. Even though he was not knowledge-
able about cars, when he went to get the car he saw that
they had not replaced the head. White told him they had
been able to repair the head rather than replace it. The bill
dated 8 July 1969 on Vanguard Auto Service Centers bill
head was $754.94, and was paid $300 in cash and $454.94
by the credit card of his girl friend Donna Helms. The car
did not run well. “[TJhey said that when a new valve job
was done that the valves would clack and it would have
problems running for the first few days until it worked
itself in.” Adessa went on a trip, leaving the car with his
father, although it “wasn’t hardly running at all.” It
stopped running and his mother called Vanguard to come
and get it. She was informed it would be ready in two
weeks. At the end of that period Adessa called Vanguard
and was told it would be ready the next week. At the end
of that week he was told it would take another two weeks.
When those two weeks passed he called Vanguard again
and talked to White who said they were having a strike
“up at Rensaleer, the main Jaguar Dealer in New York
and it was impossible to get a cam.” White said if the car
was not ready in another week he would loan him a car.
He picked up a car at Econo-Car the end of August and
drove it until the middle of November as his car was still
in the shop. White telling him from time to time that it
would be ready in a week or two. During that period the
car he was using had a brake failure and “I asked if I hed
the brakes fixed if they would reimburse me for it. They
said, ‘Yes.’” But when he presented the bill Vanguard
would not pay it, saying they would give him the money
back when they gave him his car back. The middle of
November White gave him his car keys and told him to get
his car. The car started but would not move. He asked
White what the problem was. “He said I had a bad clutch
and it must have gone out in the time he told me he had
driven the car himself over the week.” He said: “[T]he -
clutch hadn’t been too good. Evidently from the time he
quit driving the car until I tried to pick it up, which was a
couple days later, it had gone out completely.” Adessa said
that the clutch had not been bad when he brought the car
18a
in. White said they would fix the clutch for $180. Adessa
said he was broke and White said to go home and think
about it. Later White said he would fix the clutch for $80
and throw out the labor. Adessa said he still did not have
the money and White hung up. Adessa called him back
and told him that he had retained an attorney. White said
the car was ready, that he had put a new clutch in free.
“He said he realized I had spent so much on the car that
he decided to give me the clutch.” He got the car the
middle of December. It ran but not good. From the time
he first took it to Vanguard until the middle of December
no one else had worked on it.
Wettrich had worked on the Adessa Jaguar. White told
him to find out what was wrong with the car. “I took a
compression check and I found out that the cylinder next
to the fire wall had less than thirty pounds compression
and I told Mr. White it was either a burned valve or a
piston, or both or a head gasket.” White said he would
get in touch with the customer. Later that day White told
Wettrick to take off the head. When this was done it was
seen that there were some bad valves. Vanguard was not
equipped to grind valves on a Jaguar, so it was taken to
H. & D. Machining. “All I did was to take the cylinder head
off and put the cylinder head back on the car, nothing else.”
When he started the car he noticed a miss. He took the
spark plugs out and ran a wet compression check and got
no compression on the number one cylinder. He put the
spark plugs back and took a compression check and ob-
tained the same result. He told White who said, “Let’s
take a ride around the block.” They rode around the block.
White said, “Fuck the customer, we’ve got his money and
he’s going to New York.” Wettrich asked White what he
was going to do and White said, “He’s going to pick the
car up. Don’t worry about it. I will worry about it.” On
. the bill of 8 July 1969 the charge for parts was $451.39.
Wettrich only put in a gasket set costing $23.77. He did
not know what H. & D. Machining charged for the valve
job but he estimated a fair cost to a customer for parts
and labor would be $125. A few minutes after Adessa paid
the bill an employee of Vanguard who worked in the parts
is
19a
department asked Wettrich if he had just overhauled a
Jaguar. Wettrich said he had not. White came up (it was
hear quitting time) and asked what Wettrich and the parts
man had been talking about. “I told him he asked me if
I just overhauled the engine and put in pistons and all that
and I told him no.” The next morning Wettrich asked
White where the parts man was and White said he had
been fired. Adessa brought the car back. Oil was pouring
out of the front tappet cover. A test showed no compres-
sion in the number one cylinder as before. The car was
still sitting in the shop when Wettrich quit Vanguard in
September 1969.
The Shaffer Car
George W. Shaffer, an attorney, owned a 1966 Volks-
wagen. In March 1969 he was having difficulty with the
car and took it to Vanguard in Bethesda. He talked to
White “who was at the service desk as you walk in.” He
left the car and asked White to call him after he had looked
at it. White called him and said there had been trouble
in that particular model with the “transaxle.” Shaffer
asked what a transaxle was and White said it was “some-
thing in the back part of a Volkswagen.” It would cost
around $200 or $300 to repair because he was not sure
whether they would put in a new or rebuilt one. White
said other things would be needed and the bill would be
about $500. Shaffer said he would have to think it over.
He called his wife and they decided not to have Vanguard
do the work; they had only paid $500 for the car. He called
White ahd told him. White said the bill was already $100.
Shaffer asked what for and White said, “Well, we have
already torn it down to take a look at it, that is $50 and
it will cost another $50 to get it back in.” So Shaffer “re-
luctantly” told him to do the work. The bill was $568.87.
Shaffer was very upset but White assured him that the .
car was in tip-top shape and that there would be no more
trouble with it. When Shaffer drove the car home that
night “the same problem that had occurred the day before
I took the car in was still occurring.” He called White,
took the car in, White came back in a few minutes, said
“ aaa PLES ES OEE ROTC II CIT TOS, Aer a ae gh
20a
it only took a little screwdriver to fix it and Shaffer drove
off. The same trouble persisted until finally the car stopped
completely and Shaffer took it back to Vanguard. White
said, “It just took a little bit more here and there to set
the car right.” But it seemed there were problems not
included in the first job and Shaffer was billed $35 on 11
November 1969. The car broke down on Connecticut Ave-
nue. He took it to Vanguard and this time paid $38.65 after
being presented with a bill of $69.60. Two things resulted
in the reduction, “my protestations and Mr. White’s cross-
ing out” of items listed. Shaffer had no further dealings
with Vanguard.
Lother Schuettler was employed as a mechanic for Van-
guard in the Bethesda shop from August 1968 to March
1969. He had attended a school for mechanics in Germany
for three and a half years and had thirteen years experi-
ence. He had worked on Shaffer’s VW. When the car was
brought in on 14 March 1969 White directed him to “check
the front brakes and put the brake drums down and look
at the brakes, and then I replaced the brake shoes and
make the engine tune-up on the engine, put new sparks
plugs in and set the tuning and later on we put on half
axle what was coming from a junk yard. * * *. I painted
it and we put it in this car.” He did not replace the clutch
as the bill showed. Nor did, he as the bill charged, over-
haul the carburetor. White said, “Just use 2 plus 2 and
clean the carburetor on the outside. We don’t overhaul
carburetors at all.” As to the charge of $24.40 for “de
sludging” the engine, Schuettler did not know what “de-
sludging” an engine was. Whatever was meant by it, such
work was not done. As for parts, White charged $285 for
the junk yard transaxle. The clutch assembly for $25.20
was not put in the car and in fact the only parts used were
the car brake shoes, spark plugs, points, condensor and oil
and valve cover gaskets. Schuettler left Vanguard “[ble-
eause I wouldn’t like to stay anymore there and do that
and every time we have people coming back and compiain-
ing about work that has never ben done. You can’t do
this, you can’t charge customers for work that has never
been done. I had a feeling. I was hoping other places
21a
would be different because it was my first experience here
in the United States.”
The Charen Car
Thelma Charen, a medical librarian, owned a 1963 Lin-
coln convertible. She took it to the Bethesda Vanguard
shop in June 1969 to have the automatically operated
window on the driver’s side repaired; it would go down
but would not go up. She spoke to White and left it for
: repair. When she returned to get it White told her it
j needed a new window motor. The bill he gave her dated
24 June 1969 on Vanguard Auto Service Center bill head
was for $78.68. The parts were listed as a window motor
$44.65 and harness $13.70. The labor for replacing the
motor, repairing the wiring and repairing the regulator was
$18.00.
White had directed Wettrich to find out why the window
would not operate. “I took the door handle off and checked
to see if the motor was working. It was working and I
adjusted the window track and the motor worked and I
put it up to try the window and told him it was an adjust-
ment on the track, no parts were used.” “Approximately
between a half hour and one hour at the most” was re-
quired to fix the window. The motor was not installed
nor was the harness.
Pe eens aN Laine a nck wh LP
The Top Mechanic
The nature of the operation at the Vanguard Bethesda
shop was indicated by the term “top mechanic.” The me-
chanics who werked there understood that it referred to
the steam cleaning apparatus. Mosier said: “The reason
was because the steam cleaner made more money than any-
body else there because we would use — Mr. White would
tell us to use the cleaner to clean transmissions, engines
or front ends, most anything that had anything to be’
cleaned off so he could charge somebody for reb--ilding
or new, whatever it was we steam cleaned. That way the
) steam cleaner made all kinds of money.” Schuettler ex-
plained that it was used to clean’ parts so the customer
a BARES SE en ME MARTE P I Ak i RN a ae
22a
could be charged for a new part. Another mechanic, Elfred
J. Duehr, testified that he used the cleaner “in the begin-
ning, but later on refused to use it, because I thought it
was not right.”7
A product called 2 plus 2 carburetor cleaner was used
‘to like purpose. White told Mosier to use it to clean car-
buretors to make them look like they had been overhauled.
Once Schuettler had rebuilt a carburetor for a VW. “I
removed the carburetor out of the car and picked up a re-
pair kit for the carburetor in parts department, put the
repair kit into the carburetor and put the carburetor back
in the car.” White told him, “Don’t do this anymore. * * *.
We have 2 plus 2. Clean the carburetor from the outside
and that is it. This is all you have to do with the carbure-
tor.” Schuettler never rebuilt a carburetor at Vanguard
after that. When he worked on carburetors he “just cleaned
them with 2 plus 2.” White told Americo De Les Casas how
to use 2 plus 2 to make a carburetor “look like it was a new
one.” Varsol and a paint brush were also extensively used
to give a new appearance to old parts. Wettrich gave an
example of their use. “For cleaning tie rod ends or seals
around axels or around brakes, making them look like the
brakes were overhauled or steering boxes were replaced or
overhauled, which they weren't.”
THE APPLICATION OF THE LAW TO THE FACTS
The Convictions of Larry White
Indictment 10682
We think it clear that the evidence before the court was
sufficient in law to sustain the conviction of White for false
pretenses as to Lilian (or Lillous) Miller.
The rendering by him of a bill which designated labor
as performed when it had not been and parts as supplied
* There was testimony that in March 1969 the steam cleaner broke
down. “Mr. White was really nervous. He called the company that
was fixing the steam cleaner and he brought right away another one
and take the old one and repaired it * * *,”
Lote Soiteatt Gk rae
a tani
23a
when they had not been was itself the making of a false
representation of a material past fact. “The false repre-
sentation or pretense may be made in any form or manner.
It may be made by words, or conduct that has the effect
of misrepresenting existing facts to the victim. * * *. The
false representation may be made in writing, orally or by
telephone. * * *. It is immaterial that the false representa-
tion was ambiguous, when the intent and reasonable effect
of defendant’s conduct was to mislead the victim.” 2 Whar-
ton’s Criminal Law, supra, § 585, pp. 311-315. It is not dis-
puted that money was obtained from Mrs. Miller, and
that she relied on the false representation to her detriment.
However, White claims that (1) the proof failed to show
that he had obtained something of value from Mrs. Miller,
or (2) that he had knowledge that the representation was
false.
(1)
The argument that the evidence did not establish that
White obtained a chattel or money or a valuable security
from Mrs. Miller is predicated upon the fact that the check
given by her in payment of the bill rende:ed was payable
to Vanguard and the proceeds deposited in its account.
White argues that it was not demonstrated that he received
any portion of the proceeds of that check. He urges: “If
anyone can be said to have obtained anything of value
from the alleged victims, it was Brunswick Exchange, Inc.,
tradiug as Vanguard Auto Service Center * * *. Mr. Weiss
[White] was merely an employee of Brunswick Exchange,
Inc. In short there is no evidence to prove that [White]
obtained anything of value by means of any false pretense.”
The argument fails because “[t]here is no doctrine of
lucri causa in the field of false pretenses. It is accordingly
immaterial that the defendant did not gain or intend to
gain any personal benefit or advantage from obtaining the
property from the victim.” Id., § 583, p. 309. “[T]he de- .
fendant is responsible for his false pretense even though
he did not personally gain any benefit from the goods which
had been obtained thereby.” Id., § 585, p. 316. It is stated
in Hochheimer, Criminal Law (2nd Ed. 1904), § 323. p.
SS SS snr
24a
356: “It is sufficient that the thing has been confided to the
offender, it being immaterial that he did not obtain it on
his own account, nor for his own gain or benefit.” 35 C.J.S.
False Pretenses § 25, p. 845, says: “The property need not
be delivered to accused himself; it is sufficient if it is ob-
tained by another on his account.” See Levy v. State, 225
Md. 201, 170 A. 2d 216; Simmons v. State, 165 Md. 155, 167
A. 60. C.J.S. continues: “Further, the property need not
be obtained by accvsed for himself, it being sufficient, if,
as a result of his false representations, it is delivered either
for the benefit of accused or for another’s benefit.”’8
(2)
The argument that White did not know that the trans-
mission had not been replaced is utterly without merit.
The requirement of knowledge is not limited to knowledge
in the true sense. “If the representation is really untrue
this part of the requirement is satisfied if it is made by
one who knows it is untrue, or believes it is untrue, or is
quite aware that he has not the slightest notion whether
it is true or not.” Perkins, Criminal Law, supra, p. 263.
In this context, that White had knowledge that the trans-
mission had not been replaced in the Miller car was a
rational inference. That he did not have such knowl-
edge, in the light of his telephone conversations, his re-
fusal to show her the cracked transmission, her bringing
the car back immediately with the complaint that “thud”
was still present, her subsequent complaints and all the
evidence of the way the shop was operated cempletely
taxes credulity. |
® To like effect see: State of Montana v. Lagerquist, 152 Mont. :
21, 445 P. 2d 910, 916 (1968) ; State of Idaho v. Urie, 92 Idaho 71, “5
437 P. 2d 24, 26 (1968) ; State of Maine v. Deschambault, 159 Me.
223, 191 A. 2d 114, 118 (1963) ; People v. Andrews, 165 Cal. App.
2d 626, 332 P. 2d 408, 415 (1958) ; Ownbey v. State, 194 Tenn. 500,
253 SW. 2d 726, 727 (1952); Kemp v. State, 61 Ga. App. 337,
6 S.E. 2d 196, 197 (1939) ; State v. Reysa, 198 Iowa 496, 199 N.W.
1000, 1004 (1924); People v. Woods, 59 Cal. App. 740, 212 P.
41, 42 (1922).
25a
We hold that the lower court was not clearly errone-
ous in its judgment on the evidence that White obtained
money from Mrs. Miller by a false pretense. Maryland
Rule 1086; Williams v. State, 5 Md. App. ‘450, 247 A. 2d
731.
Indictment 10681
We think it clear: tiiat the evidence before the court was
sufficient in law to Susiain the conviction of White for
false pretenses as to Charles Edward Walsh.
rial that the money obtained from Walsh was not shown
to have been appropriated by White.
White also claims that the only evidence of White's
“guilty knowledge” of the Walsh transaction came vrom
Mosier and Walsh. He asserts that as Mosier was an ac-
Apparently what White is contending is that the only
proof that the representations made by the bills given by
White to Walsh were false was by the uncorroborated
testimony of the accomplice Mosier. If the evidence was
sufficient to establish that the work and parts for which
Walsh was charged by White were not performed and
furnished respectively, then it was sufficient to prove,
in the circumstances, that White had “knowledge” of the
false representations. For, as we above Stated, if the rep-
resentation was untrue White would have “knowledge”
if he actually knew it to be untrue or if he believed it to
26a
work charged Walsh as performed and the parts charged
him as supplied had in fact been performed and sup-
plied; therefore he had knowledge that the bill was un-
true and made a false representation by presenting it for
payment. So the question is whether the evidence was
sufficient to shew that the work was not done and that
the parts were not furnished.
We believe that Mosier was an accomplice. He ad-
mitted that he “actually knew” that he was “helping to
cheat” the ye oy and that he participated in it, at
least to the nt that “I did the work that I was told
to and got paid for working as Mr. White told me to.”
He knew the work he was doing “was being overcharged
to the customers.” It was for that reason he quit his job.
We think he was culpably implicated in or unlawfully
co-operated, aided or abetted in the commission of the
crime charged. Coleman v. State, 209 Md. 379, 385, 121
A. 2d 254; Burley v. State, 5 Md. App. 469, 472, 248 A.
2d 404. See Sutton v. State, 10 Md. App. 353, 270 A. 2d
497.
The only direct evidence that the Walsh car had not
been repaired as represented was by the testimony of
Mosier. But even though he was an accomplice it was
not necessary that every particular of his testimony be
corroborated. Nut much in the way of corroboration is
required; it is not necessary in and of itself for the cor-
roborative evidence to be sufficient to convict. Wright
v. State, 219 Md. 643, 650, 150 A. 2d 733. The rule in this
State is that the accomplice’s testimony must be cor-
roborated as to some of the material facts tending to
show that the accused was either identified with the
perpetrators of the crime or had participated in the com-
mission of the crime itself. Boone v. State, 3 Md. App.
11, 19-20, 237 A. 2d 787, and note 4 thereof. We feel that
White’s entire course of conduct as disclosed by the testi-
mony of Walsh and considered in the light of the testi-
mony of Lillous Miller, Mary Flumerfelt, John Odessa
and George Shaffer tended to show White’s participation
in the offense of false pretenses as charged. And the
al Seen -
27a
history of the trouble with the car after it was supposedly
repaired, as recounted by Walsh, as well as the fact that
Vanguard paid McNey Motors $601 for repairs to the
transmission, tended to corroborate that it had not been
repaired by Vanguard as represented. We find that the
evidence was sufficient in law to establish that White
had “the guilty knowledge with respect to the Walsh
vehicle prerequisite to a finding of an intent to defraud.”
We hold that the court was not clearly erroneous in
its judgment on the evidence that White obtained money
from Walsh by a false pretense.
The Admissibility of Evidence of
Other Transactions
White claims error in the admission of the evidence
with respect to transactions involving cars other than
those of Miller and Walsh. The question basic to this
contention was before us in Gordon v. State, 5 Md. App.
291, 246 A. 2d 623. We Said, at 306, 246 A. 2d at 631-632:
The general rule is that “when a man is put upon
trial for one offense, he is to be convicted, if at all, by
evidence which shows that he is guilty of that offense
alone, and that, under ordinary circumstances, proof
of his guilt of one or a score of other offenses in his
life-time is wholly excluded.” Wentz v. State, 159 Md.
161, 164, 150 A. 278, 279. The rule is not, however,
without exceptions and evidence of other crimes of
the same character is generally allowed when it tends
to show the guilty knowledge of the offense for which
the defendant was indicted, or of other offenses so
connected that they form parts of one entire scheme
or transaction from which may be gathered the pur-
pose or intent with which the act was done for which
the accused was then being tried. Meno vy. State, 117
Md. 435, 83 A. 759. As more particularly crystallized
28a
of mistake or accident, (4) a common scheme or plan
embracing the commission of two or more crimes so
related to each other that proof of one terds to estab-
lish the other, and (5) the identity of the person
charged with the commission of the crime on trial. To
like effect, see Jones v. State, 4 Md. App. 445, 243 A.
2d 44; Thomas v. State, 3 Md. App. 708, 240 A. 2d 646;
Gilchrist v. State, 2 Md. App. 635, 236 A. 2d 299; Loker
v. State, 2 Md. App. 1, 233 A. 2d 34?; Gorski v. State,
1 Md. App. 200, 228 A. 2d 835.”
We see no error in the admission of the challenged evi-
dence. Evidence of other transactions tended to estab-
lish all of the five matters on which the exception to the
general rule is predicated and certainly that of a com-
mon scheme or plan embracing the commission of two
or more crimes so related to each other that proof of one
tends to establish the other. It clearly tended to show
such matters rather than simply to indicate a disposition
on the part of White to commit crime or merely to
signify that he had a “propensity” to commit similar
crimes. See Wethington v. State, 3 Md. App. 237, 240-
241, 238 A. 2d 581.
White urges that before the State can introduce evi-
dence of other transactions it “must first have demon-
strated that there is a prima facie evidence of the de-
fendant’s guilt of the offenses charged in the information
or indictment.” He relies on MacEwen v. State, 194
Md. 492, 71 A. 2d 464. We do not construe MacEwen
quite the way he does. The Court there said, at 502, 71
A. 2d at 468: “The law does not permit the proof of any
such extraneous matter until the State has offered evi-
dence which shows prima facie guilt. If the extraneous
matter explains the action and movements of the pris-
oner both before and after the commission of the crime
charged, it is relevant, even though the extranecus mat-
ter involves the commission of another crime * * *.” This
does not mean that the State must first establish prima
facie every element of the crime charged, for it is the
evidence of other offenses which may prove some of the
=
elements of the crime charged. So in MacEwen where the
charge was false pretenses, the Court made clear that it
was competent for
the State to offer such extraneous
tendered by White, that the car did not operate properly
after the repairs wer
that McNey Motors
tial part of their b
finally had to repair it, the substan-
evidence of the other transactions were offered.10 We
hold that under the
circumstances and proof of this case
the exception to the general rule applies and evidence
regarding the other
transactions was admissible.
We observe that we find no error in the admission of
evidence relating to the “top mechanic,” the 2 plus 2
White and Polisher filed demand for particulars as to
indictment 10681 and 10682. White alleges in his brief
that in the State’s
® However, under the
peg rule and not the
464.
answer thereto there was no refer-
circumstances and proof in MacEwen the
exception thereto applied. At p. 503, 71 A.
30a
ence to any alleged offenses other than those charged
in the indictments. The answers to the demands are not
_ included in the record before us!! but the docket entries
show that answers were filed in criminals 10633 and
10634. The docket entries also disclose that White and
Polisher excepted to the answers, that there was a hear-
ing thereon, and that the State was required tc improve
answers to Nos. 5 and 6, whatever they may have been.
White, adopting the argument set out in Polisher’s brief,
contends that evidence of the collateral offenses was not
admissible because particulars as to them were not given.
Rule 715-b provides: “Where the offense charged is false
pretenses, the State’s Attorney shall, upon demand of
the defendant, file a bill of particulars within a reason-
able time.” See subsection c as to objection to a bill of
particulars and subsection d as to amenment of it. No.
sanction is prescribed by the Rule for failure to comply
with it. Nor do we feel that the Rule contemplates that
the State particularize all the evidence it may offer. See
Cropper v. State, 233 Md. 384, 197 A. 2d 112. In any event
White had recourse to Rule 728, Discovery and Inspec-
tion, had he desired to avail himself of it. We do not be-
lieve that Rule 715 applies here to render the evidence
of the collateral offenses inadmissible. And see Clark &
Richardson v. Sta*e, 6 Md. App. 91, 96, 250 A. 2d 317;
Jones v. State, 5 Md. App. 180, 188, 245 A. 2d 897. We
hold that it was not reversible error in the circumstances
to admit it.!2
We- have held that the tria. court was not clearly er-
roneous in its judgments on the evidence before it. We
now hold that the evidence was properly before it. The
judgments as to White are affirmed.
11 See Maryland Rule 1027.
12 We note that Willis v. State, 205 Md. 118, 106 A. 2d 85, cited by
appellants, was decided in light of the provisions of Code, Art. 27,
§ 608 which was repealed by Acts 1963, ch. 558, § 1 and superseded
by Rules 715 and 728. And it was concerned with an attempt to cor-
rect an indictment by way: of a Bill of Particulars. The indictments
here were sufficient to charge the offense. See Code, Art. 27, § 609.
ad a as
ree
ip Siinbi alan ined
ey aes
3la
The Convictions of Manuel Polisher
Evidence adduced by the State proved that Brunswick
Exchange, Inc. was a District of Columbia corporation,
duly qualified to do business in Maryland. Iis personal
property return as of 1 January 1970 filed with the State
Department of Assessments and Taxation stated that its. .
mailing address was 4865 Bethesda Avenue, Bethesda,
Maryland, that it was incorporated 3 January 1955 in
the District of Columbia, that the nature of its business
conducted in Maryland was “auto repairs”, t'\at it began
to do business in Maryland in 1966, that its principal of-
secretary and treasurer, all with the address 4701 Wil-
lard Avenue, Bethesda, Md., and that its directors were
the same as its officers.
Mosier knew Polisher from Polisher’s association with
Vanguard. He recounted, as set out supra Polisher’s ac-
tivities with regard to the Nesbitt carr on a day when
Polisher was in Physical charge of the Bethesda shop.
Polisher directed Mosier to get the Nesbitt car torn apart
so it could not leave the shop that day, Saying, “I want
to make sure that this car stays for Larry to take care of
the ticket.” Mosier testified that Polisher told Barbara
Nesbitt’s mother, in reply to her inquiry what he was
doing in the Bethesda shop (she had dealt with him in
the Benning Road shop) he said “that he owns and oper-
ates all three Vanguard shops; that he is in charge of all
three of them, the running of them.” And he recalled
what Polisher told him when he started to question
Polisher’s orders by explaining what White had instructed
him to do, “I don’t care what Larry says, Larry doesn’t
Wettrich knew Polisher, identifying him in court; “I
know him by the name of Manny. I don’t know his last
name.” In August 1969 Polisher was in the skop in White’s ©
a a i RD le eR ot a
32a
absence. A woman brought in a car Wettrich had worked
on a week or ten days before at which time White had
made out the bill. Wettrich had taken the cylinder head
off because “it had a couple of bad compressions” and the
radiator off because it was leaking. The radiator had been
répaired by Montgomery Radiator Repairs and Wettrich
personally had ground the valves. He had replaced the
cylinder head and when the radiator was repaired re.
placed it. When the woman brought the car back Polisher
told Wettrich to fix the car. Wettrich said he was on a
coffee break and Polisher said, “You better fix this fucking
car because we charged this lady $800 for an engine over-
haul.” Wettrich told Polisher that he did not overhaul
the car and all Polisher said was “You better get back there
right now.” Wettrich went home. The next day when
Wettrich returned the car was still there. Someone had
installed a fuel pump but the car would not start. White
asked Wettrich to check it and Wettrich found that a part
in the fuel pump was missing. He replaced it and the car
started. In August or September 1969 near quitting time
Polisher came up to Wettrich and told him that a man
had brought his car in regarding transmission trouble but
had decided not to permit Vanguard to work on it. Polisher
asked Wettrich if he had any valve grinding compound.
Wettrich said he did not and asked why Polisher wanted
it. Polisher said he wanted to put it in the transmission of
the man’s car. (It is patent that valve grinding compound
in the transmission would ruin the parts therein). Polisher
then ordered Wettrich to put varsol in the transmission,
‘and Wettrich did so. The car was put on the lot and the
owner picked it up. Wettrich testified that a transmission
filled with varsol would burn up.
Schuettler came from Germany and worked at Vanguard
because Polisher had “paid for my visa * * * and signed me
the papers so I could work for Vanguard when I came over
here to the United States.” He did not speak or understand
English when he arrived. After he ':.d been at Vanguard
about two months he was talking in German to his wife’s
cousin. He told her, “I think they don’t do fair business
over there and they charged customers for things never
33a
done because I see too many customers come into the shop
and complain about work done on the car.” His wife’s
cousin called Polisher about the matter. Polisher told
him that Schuettler did not understand English and that
it was not true “what I telling him about his wrong busi-
ness they do.” |
As false pretenses is a misdemeanor all those participat-
ing in the offense, whether as principal or perpetrator,
accessory before the fact, or aider or abettor are charge-
abie as principals. Coleman v. State, 209 Md. 379, 384, 121
A. 2d 254, citing Seward v. State, 208 Md. 341, 118 A. 2d
505 and Roddy v. Finnegan, 43 Md. 490, 503, 504. “The legal
definition of the word ‘aider’ is not different from its mean-
means in law one who instigates, advises or encourages
the commission of a crime. Thus the word ‘abet’ may im-
Port that one is present at the commission of a crime with-
out giving active assistance. * * * To be an aider or abettor
it is not essential that there be a prearranged concert of
action, although, in the absence of such action, it is essential
that he should in some Way advocate or encourage the
commission of the crime, * * *” Anello v. State, 201 Md.
164, 169, 93 A. 2d 71, 72-73. And while guilty knowledge
on the part of the accessory, aider or abettor that the un-
lawful act is being committed is essential, such knowledge
may be inferred from facts and circumstances such as
would cause a reasonable man of ordinary intelligence,
observation and caution to so believe. Soina misdemeanor
least was sufficient in law to support a rational inference
that Polisher not only knew what White was doing but
34a
president of the company, who by his own words owned
and op¢rated all three Vanguard shops and was in charge
of running them, who said that White was there to sell
customers whatever he wants to, who agreed to pay and
paid $601 to have another shop repair the Walsh car after
Walsh requested White to get permission from White’s
boss, who ordered Varsol put in a transmission of a car to ©
burn it up because the owner would not allow Vanguard
to repair it, who when warned through his mechanic
Schuettler, whom he had brought from Germany, that his
customers were being charged for work not done, dismissed
the matter off-hand to the informant with the assertion
that Schuettler did not understand English, who ordered a
car taken apart to keep it in the shop overnight so White
could “take care of the ticket”, who knew that an $800
charge for an engine overhaul was false because he was
told the work had not been done, who, on occasion, was in
actual physical charge of the shop, and who as a rational
inference from the evidence could only have been White's
immediate and only supervisor, did not with common crim-
inal intent with White, in some way, advocate or encourage
the commission of the offenses. We find that the lower
court could have properly found that Polisher was culpably
implicated in, or unlawfully co-operated, aided or abetted
in obtaining money by a false pretense from Mrs. Miller
and from Walsh. We hold that its judgment on the evi-
dence before it was not clearly erroneous.
We think that the evidence was properiy before the
court. The evidence as to the other transactions was ad-
missible for the reasons set out above in our discussion
of the White convictions. Nor was such evidence precluded
by the failure to state it in the bill of particulars. As before
indicated Rule 715 b provides, upon demand, for particulars
as to the offense charged and not as to all evidence which
the State may adduce to prove it. Even if all the Vanguard
mechanics who testified were accomplices we think their
testimony was corroborated as required by the rule of
law relating thereto. It is clear that there was evidence
apart from the testimony of the mechanics which identified
Polisher with White, the perpetrator of the crimes. This
was sufficient corroboration. Boone v. State, supra. The
court had found in denying a motion for judgment of ac-
doubt”, it found the evidence sufficient. We do not think
this judgment was clearly erroneous.43 Sutton v. State,
supra; Gaskins v. State, 10 Md. App. 666, 272 A. 2d 413.
Polisher also contends that the trial court erred in finding
the State’s witness Wettrich credible and the defense’s wit-
ness James Beattie incredible. It is well settled that the
credibility of the witnesses and the weight to be given
their testimony are matters for the trier of fact. Felder v.
State, 6 Md. App. 212, 215, 250 A. 2d 666.
Polisher filed a “Reply Brief” in this Court. In fact it
presents an entirely new question — whether the joint
representation of both Polisher and White below!4 was a
conflict of interest which arose when evidence of collateral
transactions were admitted. This point was not tried and
decided below and is not properly before us on direct
appeal. Rule 1085. See State v. Zimmerman, Md., 273
A. 2d 156, September Term, 1970, filed 8 February 1971.
Nor, in the circumstances, do we find that the trial court
committed reversible error in not considering the point
sua sponte. Compare Brown v. State, 10 Md. App. 215,
269 A. 2d 96.
Judgments affirmed.
Appellants to pay costs.
1° The lower court found it difficult to accept that all the mechanics
were accomplices and observed that it was defendants’ burden to
show by a preponderance of the evidence who was an accomplice.
We assume, arguendo, that all of them were accomplices,
** Neither counsel on appeal represented appellants below,
36a.
DOCKET ENTRIES
Circuit Court for Montgomery County, Maryland
State of Maryland
Vv.
Larry White a/k/a Larry Weiss and Manuel Polisher
Plaintiff’s Attorney: W. A. Linthicum, Jr.
Defendants’ Attorneys: Miller & Miller, Jacob Shee-
skin (spec. 12/5/69) and Leon H. A. Pierson.
False Pretenses; Conspiracy
December 4, 1969—Presentment; Indictment; True Bill,
filed and Bench Warrant issued. .
December 5, 1969—Bench Warrant as to each defend-
ant returned — Cepi — filed.
December 5, 1969—Copy of Indictment handed each
defendant.
December 5, 1969—Court, Judge Mathias sets Personal
Bond in amount of $1,000.00 as to each defendant, Miss
Plevin reporting.
December 5, 1969—Recognizance No. 5628 — $1,000.00
Personal — as to Larry White a/k/a Larry Weiss — filed.
December 5, 1969—Recognizance No. 5635 — $1,000.00
Personal — as to Manuel Polisher — filed.
December 19, 1969—Demand for Bil) of Particulars as
to each defendant, filed.
December 19, 1969—Arraignment continued as to both
defendants per Judge Mathias, Mrs. Kiebler reporting.
December 19, 1969—Defendants continued on bond.
February 12, 1970—State’s Answer to Demand for Bill
of Particulars, filed in 10633 Criminal.
37a
February 27, 1970—Defendants’ Exceptions to Answer
to Bill of Particulars, filed in 10633 Criminal,
April 28, 1970—Arraigned as to both defendants by
Judge Moore, waived right to Jury Trial, waived reading
of Indictment, entered plea of Not Guiity to each and
every count of Indictment, requested Trial by Court,
Mr. Whitman reporting. |
April 28, 1970—State’s oral motion to consolidate for
trial Criminal No. 10634 and No. 10681 with Criminal
Nos. 10633 and 10682 before Judge Moore, Mr. Whitman
reporting.
April 29, 1970—Trial resumed, Mr. Whitman reporting.
April 30, 1970 as of 9/23/70—Trial resumed, Mr. Whit-
.man reporting.
April 30, 1970—At close of State’s case, defendants’
motion for Judgment of Acquittal as to all defendanis
and ruling reserved.
April 30, 1970—At close of State's case, defendants
motion to strike certain testimony from the record and
ruling reserved.
April 30, 1970—Court grants motion for Judgment of
Acquittal to Count No. 2 of Indictment in Criminal Nos.
April 30, 1970—Court denies motion to strike certain
testimony, Mr. Whitman reporting,
April 30, 1970—At close of State’s Rebuttal, Defend-
ant renews motion for Judgment of Acquittal and mo-
tion denied.
38a
May 1, 1970—Verdict — Guilty under Count No. 1 of
Indictment (False Pretenses) as to both defendants in
Criminal Nos. 10681 and 10682, Mr. Whitman reporting.
May 1, 1970—Court orders Pre-Sentence Investigation.
' May 1, 1970—Defendants continued on Personal Bond
pending Pre-Sentence Investigation.
May 1, 1970—State’s Exhibit No. 1 admitted, but not
filed, State’s exhibits No. 2 thru No. 33 admitted to evi-
dence and filed, Defendant’s exhibits Nos. 1 thru 6 ad-
mitted to evidence, Nos. 1 thru 4 filed in Criminal No.
10681.
May 1, 1970—Exhibit sheet filed.
June 25, 1970—Defendant, Larry White a/k/a Larry
Weiss was asked if he had anything to say before sen-
tencing, Mr. Whitman reporting.
June 25, 1970—Sentence of the Court that Defendant
Larry White a/k/a Larry Weiss be delivered to the cus-
tody of the Director of Department of Correction, to be
imprisoned by him for a period of Six (6) years to run
concurrently with sentence of Six (6) years imposed in
Criminal No. 10681.
June 25, 1970—Defendant, Manuel Polisher was asked if
he had anything to say before sentencing, Mr. Whitman
reporting.
June 25, 1970—Sentence of the Court that Defendant,
Manuel Polisher be delivered to the custody of the Direc-
tor of Department of Correction to be imprisoned by him
for a period of Five (5) years to run consecutively with
sentence of Five (5) years in Criminal No. 10681.
June 25, 1970—Defendants request Consideration of
’ Court to set Appeal Bond and granted.
June 25, 1970—-Court, Judge Moore, sets Appeal Bond
in the amount of $10,000.00 as to each defendant.
June 25, 1970—Line noting an Appeal as to both de-
fendants, filed in Criminal No. 10681.
A aE i:
39a
June 25, 1970—Recognizance No. 6118 — Appeal Bond —
$10,000.00 — White — as to Manuel Polisher, filed in 10681
Criminal.
June 25, 1970—Recognizance No. 6119 — Appeal Bond —
$10,000.00 — White — as to Larry White a/k/a Larry
Weiss, filed in 10681 Criminal.
July 20, 1970—Defendants’ Motion to Extend Time for
the transmittal of the record to the Court of Special Ap-
peals, filed in 10681 Criminal.
July 22, 1970—Order of Court that the Time for Trans-
mission of record to the Court of Special Appeals is ex-
tended to September 23, 1970, filed in 10681 Criminals.
September 22, 1970—IV Volumes of Transcript, filed in
10681 Criminals,
September 23, 1970—Record mailed to the Court of Spe-
cial Appeals. ‘
September 28, 1970—Return Receipt, filed in 10681
Criminals.
May 27, 1971—Original Record and Mandate returned
from the Court of Special Appeals Opinion by Orth, J.
Judgments affirmed, Appellants to pay costs, filed, in
10681 Criminal.
June 8, 1971—Defendant, Manuel Polisher’s Motion to
extend defendant on bond pending Writ of Certiorari filed
in No. 10681 Criminals.
June 8, 1971—Copy of Petition for Writ of Certiorari
filed in No. 10681 Criminals.
June 10, 1971—Order of Court (Moore, J.) that the
bond be continued as to Manuel Polisher pending appli-
cation for Writ of Certiorari in the Court of Special Ap-
peals filed in 10681 Criminals.
June 16, 1971—Commitment issued and delivered to
the Sheriff, as to Larry White a/k/a Larry Weiss.
June 29, 1971—Defendant, Manuel: Polisher, Petition
to continue bond pending a Writ of Certiorari to the Su-
40a
preme Court of the United States filed in No. 10681 Crimi-
nals.
June 30, 1971—Order of Court (Levine, J.) that the
bond be and the same is hereby continued pending the
disposition of the Petition for Writ of Certiorari to the
Supreme Court of the United States as to Manuel Polisher,
filed in 10681 Criminals. (Copies Mailed).
July 1, 1971—Defendant’s Motion for Reduction of Sen-
tence, and Request for Kearing, as to Larry Weiss, a/k/a
Larry White, filed in 10681 Criminals.
Juiy 2, 1971—Order of Court (Hammond, J.) from the
Court of Appeals that the Petition for Writ of Certiorari is
hereby denied, filed in Criminal 10681.
July 14, 1971—State’s Petition for Writ of Habeas Corpus
ad Prosequendum, as to Larry Weiss a/k/a Larry White,
filed in 10681 Crimiazal.
July 15, 1971--Order of Court (DuFour, J.) granting pe-
tition for Writ of Habeas Corpus ad Prosequendum, as to
Larry Weiss a/k/a Larry White, filed in 10681 Criminal.
July 15, 1971—Writ issued returnable: August 17, 1971
at 10:00 A.M.
August 11, 1971—Line to withdraw appearance of Victor
L. Crawford as attorney and to enter the appearance of
Leon H. A. Pierson, as attorney for Defendant Manuel
Polisher, filed.
August 17, 197i—Writ returned as to defendant Larry
Weiss a/k/a Larry White filed in Criminal No. 10681.
August 17, 1971—Hearing on Defendant Larry Weiss
a/k/a Larry White’s Motion for Reduction of Sentence
(Moore, J.) and Motion under advisement, Mrs. Davis re-
porting.
August 17, 1971—Defendant’s exhibits No. 1 thru No. 3
admitted and filed in Criminal No. 10681.
August 17, 1971—Exhibit sheet filed in Criminal 10681.
4la
Comes now the State of Maryland by Walter H. Madden,
Assistant State’s Attorney for Montgomery County, Mary-
1. That on July 3, 1969, the complainant, Charles E.
Walsh, took his 1965 Mercedes to Van Guard Auto Sales
and Services, 4865 Bethesda Avenue, Bethesda, Maryland,
and advised Van Guard he needed a new fan blade.
2. That on July 7, 1969, the complainant paid by check
the amount of $448.71 for the following work alleged to
have been done on his car:
1. replace front motor 1. 2 front motor
mounts $ 37.60 mounts ._____ $ 19.66
2. replace water Pump 10.80 2.1 water pump 37.25
3. replace generator __ 18.00 1 exchanged gener-
4. overhaul brakes mas- ator __. 49.70
ter cylinder ____ — 17.60 - 1 fanblade_ 13,40
5. replace front brake 1 H.O. cleaner __ 2.50
pads and disks and 1 anti-rust 1.25
Overhaul front cal-
ipers 57.60
6. unknown item ____ 14.00
Labor Total ___ $156.00
Grand Total ___ $448.71
1 master cylinder
kit
— Bap
2 unknown parts__ 4.00
4 front call. pistons 54.60
10. 2 front disks ____ 42.68
11. 1 set front caliper 15.90
12. 1 set front pads._. 22.70
Parts total _____ $281.44
plus tax $ 11.27
3. That although the above work was alleged to have
been performed, only the following work was actually
performed:
1. Fan blade replaced
2. Water pump cleaned (not replaced )
oP NAnA w
42a
3. Motor mounts cleaned and painted black (not
replaced)
4. The only parts actually used in the work that was
done are the fan blade — $13.40, the H.O. cleaner — $2.50,
and the anti-rust — $1.25.
5. That the cleaning of the water pump and the cleaning
and painting of the motor mounts was made to make it
appear like all of the work charged for had been done when
in fact it had not.
6. That at all times Mr. Walsh dealt directly with Mr.
Larry Weiss, a/k/a Larry White, Manager of the Van
Guard Auto Sales and Service.
7. That Van Guard Auto Sales and Service is the same
Van Guard which is owned and operated by Brunswick
Exchange, Incorporated, Manuel Polisher, President and
sole stock holder.
Water H. Mappen,
Assistant State’s Attorney for
Montgomery County, Maryland.
ANSWER TO DEMAND FOR BILL OF PARTICULARS
Comes now the State of Maryland by Walter H. Madden,
Assistant State’s Attorney for Montgomery County, Mary-
land, and in answer to the Demand for Bill of Particulars
by the defendants, Larry Weiss, a/k/a Larry White, Manuel
Polisher and Brunswick Exchange Incorporated, states the
following:
1. That on September 9, 1969, Mrs. Miller took her car
to Van Guard Auto Sales and Service for repairs.
2. That on September 11, 1969, she paid Van Guard
$302.80 for an alleged new transmission and a front end
alignment.
43a
3. That a new transmission was never installed nor was
the front’ end ever aligned by Van Guard.
4. That Mrs. Miller at all times dealt directly with Larry
Weiss, a/k/a Larry White, Manager of the Van Guard Auto
Sales and Service.
Exchange Incorporated, Manuel Polisher, President and
Sole stock holder. :
Watrter H. Mappen,
Assistant State’s Attorney for
Montgomery County, Maryland.
ANSWER TO DEMAND FOR BILL OF PARTICULARS
Comes now the State of Maryland by Walter H. Madden,
Assistant State’s Attorney for Montgomery County, Mary-
land, and in answer to the defendant’s Motion for a Bill of
Particulars as regards the charge of Conspiracy states the
1. That Van Guard Auto Sales and Service is owned and
' Operated by Brunswick Exchange, Ine.
2. That defendant Manuel Polisher is the President and
Sole stock holder of Brunswick Exchazige, Inc.
3. That defendant Larry Weiss a/k/a Larry White was
i as a manager by Manuel Polisher to operate the
Bethesda, Maryland, Montgomery County, Shop.
4. That Larry Weiss &/k/a Larry White, after working
under Manuel Polisher, then trained new mechanics how
to fix cars so that they gave the appearance of being re-
Paired when in fact they were not,
& customer demanded to see replaced parts, directed a
mechanic to show the customer some old worn out parts.
44a
6. That Manuel Polisher initiated, knew of, participated
in and approved of the practice of charging customers for
work that appeared to be done but in fact was not.
WattTer H. MApDDEN,
Assistant State’s Attorney for
Montyomery County, Maryland.
EXCEPTIONS TO ANSWERS TO BILL OF
PARTICULARS
Comes now the Defendants, by their attorneys, Miller
& Miller, and except to the answers contained in the gen-
eral Answer to Bill of Particulars which bears all of the
criminal numbers and particularly those answers num-
bered 4, 5, and 6 for the following reasons:
1. That in answer number 4 the Siate does not state
what new mechanics were trained by Larry Weiss or how
he trained them or whether Manuel Polisher participated
or had any knowledge of this training.
2. That answer numbered 5 fails to state the date, the
name of the customer or the name of the mechanic or what
parts were involved.
3. That answer numbered 6 does not state in what man-
ner Manuel Polisher initiated, knew or, participated in and
approved of the practice of charging customers for work
that appeared to be done, but in fact was not and states
only conclusions and no particulars.
PROCEEDINGS
s e e * * ®
(130) (Mr. Miller) * * * They haven’t proven one single
thing on him; that is, what this particular scheme, plan
and design and intent argument is on Mr. White, not Mr.
(The Court) Overruled.
x * ba * * %
(416) (The Court) Call the case, Madam Clerk.
(The Clerk) Criminal Nos. 10681 and 10682, State of
Maryland vs. Larry Weiss also known as Larry White and
Manuel Polisher.
There remains, therefore, for determination by the Court,
* * x x & &
(418) Before Proceeding to this, however, the Court will
point out that over objections continuously Maintained on
the record in these Cases on behalf of both defendants, the
Court permitted to be received in evidence both oral testi-
46a
not for the purposes of proof of the commission of the
crimes charged in these specific indictments but under the
well-recognized exceptions pertaining to the admissibility
of other alleged offenses. As, for example, set forth in the
case of Wethinaton v. State, 3 Md. App. 237, where the
Court of Appeals of Maryland speaking through Chief
Judge Murphy stated:
“It is well-settled that proof which shows or tends
to shov that the accused is guilty of the commission of
other crimes and other offenses at other times even
though they are not of the same nature as the ones
charged, is incompetent and inadmissible for the pur-
pose of showing admission of the particular crime
charged.
“The rule is not without exceptions, however, so that
the prior conviction may be shown when it tends to
establish; one, motive; two, intent; three, absence of
mistake or accident; four, a common scheme or plan
embracing the commissiun and of two or more crimes
so related to each other that proof of one tends to
establish the other; five, the identity of the person
charged with the commission of the crime on trial.”
These person included what we might refer to as other
victims * * °.
& a * * e *
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.