author: Orth, C. J.,

text:
    EILEEN WARCHALL, Indiv. etc. et al. v. JAMES PETER MURPHY et al.
    [No. 119,
    September Term, 1974.]

      Decided November 18, 1974.

      The cause was submitted on brief to Orth, C. J., and Moylan and Gilbert, JJ.
    Submitted by Aaron M. Levine for appellants.
    No brief or appearance for appellees.
   Orth, C. J.,

delivered the opinion of the Court.

This appeal is concerned with the absolute right of removal of a civil cause guaranteed by Art. IV, § 8 of the Constitution of Maryland as procedurally regulated by Maryland Rule 542. The only question is whether the party seeking removal made timely suggestion.

I

On 18 January 1973 Eileen Warchall, individually and as mother and next friend of Gregory Warchall, infant, filed an action in tort in the Circuit Court for Montgomery County against eight defendants, including one “Ruth Levy.” All of the defendants except Ruth Levy filed a plea in bar, three of them on 20 February 1973 and four of them on 1 March 1973. The summons as to Ruth Levy was returned non est on 6 February and 6 March. The docket entry as to her on 6 March reads: “Lie Dormant under Rule.” On 16 July, upon petition filed 28 June alleging that the name “Ruth Levy” and the address given for her were erroneous, the court ordered that the declaration be amended by deleting that name and address and inserting instead the name “Patricia Levi” and her correct address. On 26 October a summons for personal service on her was issued. It was reissued on 31 October to the December return day and was returned “summoned” on 2 November. On 15 February 1974 Warchall filed a suggestion of removal, and upon hearing on 19 February it was denied. On 20 February the court ordered a separate trial as to the issues in count four of the declaration and directed that trial first proceed on the other five counts. On 22 February Warchall dismissed the cause against Patricia Levi, and on 18 March she noted an appeal from the order of 19 February denying her suggestion of removal.

Thus, the suggestion of removal was in this factual posture:

it was filed:
a) by the only plaintiff in the action;
b) more than 60 days after 7 of the 8 defendants had pleaded in bar;
c) before the 8th defendant, Patricia Levi, had pleaded in bar (the record does not disclose any plea filed by Patricia Levi), but after she had been summoned;
d) before the action had been dismissed as to Patricia Levi;
e) before a severance had been granted as to the 4th count of the declaration, the only count in which Patricia Levi was a party;
f) before a trial date had been set.

II

The Constitution of Maryland, § 8 of Article IV, provides: . . in all suits or actions, at law issues from the Orphans Court, or from any court sitting in equity and in all cases of Presentments or indictments for offences, which are or may be punishable by death, pending in any of the courts of law in this State having jurisdiction thereof upon suggestion in writing under oath of either of the parties to said proceedings that such party cannot have a fair and impartial trial in the court in which the same may be pending . . the court shall order the record transmitted for trial in some other court having jurisdiction. Maryland Rule 542, which procedurally regulates this constitutional right, after providing in § a 1 for the removal of actions at law upon suggestion in accordance with the constitutional guarantee, provides in § a 3:

“The right of removal provided for in this Rule is waived by a party unless the written suggestion is filed within sixty (60) days after the action is at issue or after an issue from an Orphans’ Court or appeal from a Workmen’s Compensation Commission is filed, or within sixty (60) days of the docketing of any action removed from another county or transferred from the District Court. Thereafter an action may be removed only by order of court for good cause shown.”

The crucial question is when was the action here at issue within the contemplation of the Rule. Appellant simply asserts that the cause was at issue only when it was dismissed as to Patricia Levi. She supports the assertion only by quoting the meaning of “at issue” set out in Black’s Law Dictionary, Fourth Revised Edition, as “whenever the parties come to a point in the pleadings which is affirmed on the one side and denied on the other, they are said to be at an issue. Willard v. Zehr, 215 Ill. 154, 74 N.E. 107, 108.” This leaves much at loose ends.

The Maryland Rules do not spell out when an action is at issue with respect to the right of removal. On the subject of “Joinder of Issue”, however, Rule 312 a provides: “Formal joinder of issue shall not be necessary in any action and the action shall be deemed to be at issue upon the filing of the responsive pleading.” This requires inquiry as to the meaning of “responsive pleading.” Rule 5 v defines “pleading” to mean “. . . any paper filed in an action, setting forth a cause of action or ground of defense, or filed with the object of bringing an action to issue or trial or obtaining any decision or act by the court including, but not limited to a declaration, bill of complaint, petition, motion, demurrer, dilatory plea, plea in bar, answer, demand for particulars, bill of particulars, exception, replication of an order of court requiring a reply . . . ‘Original pleading’ with respect to any defendant means the first pleading filed in an action against such defendant including a third (or subsequent) party claim under Rule 315 (Third Party Practice).” Thus, a “responsive pleading”, without further limitation, could encompass any “pleading” in response to an original pleading. As such it would include, for example, a dilatory plea (Rule 341), a demurrer (Rule 345), and demand for particulars (Rule 346). We think, however, that “responsive pleading”, when applied in the context of bringing an action to issue with respect to the right of removal, must be much more restrictive. We find it necessarily follows to obtain the patent objective of Rule 542 a 3 that a responsive pleading which brings an action to issue is a plea, responding to an original pleading, which is filed with the object of bringing the action to factual issue or to trial, that is, a plea going to the merits — a plea in bar. See Rule 342. It is when a defendant has filed such a plea that the action is at issue as to him within the contemplation of the removal rule.

We believe, however, that there is another circumstance which results in an action being at issue as to a defendant under Rule 542 a 3. It is when the time allowed a defendant for filing his first responsive pleading to the merits, which places the case at issue as to him, has expired. This is so because if a party against whom a claim is asserted in an action at law is in default for failure to comply with the requirements as to time allowed for pleading (unless the time be enlarged by the court, for good cause shown) judgment may be entered against him and thereupon the case proceeds ex parte as against such party. Rule 310 b. It follows that when a case has reached the point at which a judgment may be obtained against a party, the action is at issue as to that party. This view is buttressed by the rule concerning the time for election by a defendant of a jury trial. The Court of Appeals has analogized the right of removal to the right to a trial by jury. Caledonian Fire Ins. Co. of Scotland v. Traub, 86 Md. 86, 93-94. See Shreffler v. Morris, supra, at 167-169. Rule 343 c reads: “A defendant, including a third party, shall make such election [for a jury trial] at or before the time for filing his first responsive pleading to the merits, which places the case at issue as to him.” (emphasis added)

We conclude with respect to Rule 542 a 3 that an action is at issue as to a defendant when he has filed a responsive pleading with the object of bringing the case to factual issue or to trial or when he is in default for failure to comply with the requirements as to time allowed for pleading.

What we have concluded determines only when an action is at issue under the removal rule with respect to an individual defendant. It seems that Rule 542 a 3 does not contemplate more than one defendant. At least it provides no direction when, as here, there are multiple defendants. We think, however, that the period within which the suggestion for removal must be filed does not start to run until the action is at issue as to all defendants. We note that it is firmly established that if there be more than one party on either side of the case, all of the plaintiffs or all of the defendants must join or acquiesce in the application for removal. Elliott v. Larrimore, supra, at 528, citing Taxicab Co. of Balto v. Emanuel, 125 Md. 246, 265 and Baltimore County v. United Railways Co., 99 Md. 82, 87. Further, there can be but one removal a side, regardless of the number of parties on that side. Elliott v. Larrimore, supra, at 528, citing State, Use of Carroll County v. Gore, 32 Md. 498 and State, Use of Harvey v. Baltimore & Ohio R.R. Co., 69 Md. 339, 348. See Shreffler v. Morris, supra, at 167.

Ill

It is clear that the action before us on appeal was at issue as to all eight defendants at the time the suggestion of removal was filed by Warchall on 15 February 1974. As to three of them it was at issue when they filed their pleas in bar on 20 February 1973 and as to four of them, who filed such pleas on 1 March 1973, when the time for filing pleas had expired. It was also at issue as to the eighth defendant, Patricia Levi, because she was in default of pleading. The return day to which she had been summoned was “the first Monday of December next”, namely 3 December 1973. She was required to plead within 15 days after the return day to which she was summoned. Rule 307 a 1. Fifteen days from 3 December was 18 December. Thus, on 19 December she was subject to a default judgment for want of a plea, the time allowed for pleading not having been enlarged by the court. Rule 310 b. It was on 19 December 1973 that the action was at issue as to all the defendants. Warchall had 60 days from 19 December 1973 under Rule 542 a 3 in which to invoke her right of removal. Sixty days from 19 December 1973 was 17 February 1974, a Sunday. The next day was a holiday. So she had until the end of 19 February 1974 to file the suggestion of removal. Rule 8. She filed it on 15 February 1974. Therefore, it was timely filed and should have been granted as a matter of right. We hold that the trial court erred in denying it.

Order of 19 February 1971+ denying suggestion of removal reversed; case remanded for entry of order of removal; costs to be paid by appellees.

      . Code, Art. 75, § 44, virtually identical with the Constitution’s language, implemented the constitutional guarantee. The statute was repealed, effective 1 January 1974, when the Code provisions dealing with the courts and judiciary were revised. Acts 1973, First Extraordinary Session of the General Assembly of Maryland.

      . The defendants were Edward Feroli, M.D., Gordon Mella, M.D., Frank Pedreira, M.D., individually and as partners, James Peter Murphy, P.A., James Peter Murphy, M.D., Barbara Mella, M.D., Suburban Hospital Association, Incorporated, and Ruth Levy.
      James Peter Murphy was sued in the first three counts, for fraud and deceit in counts one and two and for assault and battery in count three. Murphy, Levy and the Hospital were sued in count four for civil conspiracy. Feroli, Gordon Mella, Murphy, Pedreira, Barbara Mella and the Hospital were sued in counts five and six for medical malpractice.

      . The line noted an appeal also from an order of 20 February granting leave to the Hospital to file a motion raising preliminary objections as to charitable immunity nunc pro tunc, and from an order of the same date granting a separate trial on the fourth count. Warchall filed an identical line the next day. By our order of 9 May 1974 we dismissed the appeals from the orders of 20 February as prematurely taken and limited the appeal to the order of 19 February denying the removal. The order denying removal was immediately appealable because it involved the denial of an absolute constitutional right. Smith v. Fredericktown Bank, 258 Md. 141, 142. Ordinarily removal lies within the discretion of the trial court only as regards criminal cases not involving a capital offense. Shreffler v. Morris, 262 Md. 161, 165. See Gibson v. State, 17 Md. App. 246, 251-260.

      . Subsection 3 was added to the Rule on 8 May 1972, effective 1 June 1972. Theretofore no time for the filing of the suggestion was designated in the Rule. Appellant does not question the validity of this additional gloss on the apparently absolute right of removal. See Elliott v. Larrimore, 203 Md. 526, 528. In any event, the rationale employed and the reasons given by the Court of Appeals in Shreffler v. Morris, supra, in upholding the constitutionality of the comparable Rule 542 of the Sixth Judicial Circuit, imposing a limit of 45 days within which a civil case may be removed (now pre-empted by § a 3 of the Maryland Rule), are fully applicable to the State-wide Rule.

      . The record submitted to us does not disclose any reasons advanced by the trial court for denying the suggestion of removal. Appellant states in her brief that it was denied “. .. upon the stated grounds that it was not timely filed.” None of the appellees filed a brief.

      . Appellant states in her brief that the deposition of Patricia Levi was taken on 15 February 1974 and “[a]fter the deposition was completed it was apparent that Mrs. Levi had committed no actionable wrong against Appellants and the cause against her was dismissed on February 22, 1974.” Mrs. Levi’s deposition is not part of the record before us.

      . We observe, that the Rule as to Third Party Practice is no more definitive of the meaning of “at issue” than is Rule 542. Rule 315 b provides: “If more than 30 days have elapsed after the action is at issue such summons on a third party shall be issued only upon the consent of the plaintiff or upon a showing that the delay was excusable or does not prejudice other parties to the action.”

      . For a discussion of a third party as a defendant for the purpose^ of removal see Elliott v. Larrimore, supra. We do not reach questions which may arise in the light of Rule 542 a 3 upon bringing m a third party or upon the joining of a new defendant by amended declaration.

      . The order of 20 February 1974 granting a severance as to count four, and the dismissal of the cause as to Patricia Levi on 22 February 1974, both subsequent to the suggestion of removal and the denial thereof, have no bearing on our holding.


source: Caselaw Access Project

author: Gilbert, J.,

license: Public Domain

text:
    GREGORY BELTON CANNADY v. DIRECTOR, PATUXENT INSTITUTION
    [App. No. 88,
    September Term, 1974.1

      Decided, November 18, 1974

    Before Orth, C. J., and Morton and Gilbert, JJ.
   Gilbert, J.,

delivered the opinion of the Court.

In Bush v. Director, 22 Md. App. 353, 324 A. 2d 162 (1974), cert. denied by the Court of Appeals of Maryland, sub nom., Mazan v. Director, on October 24, 1974; we had the occasion to reverse a finding of defective delinquency because of an Assistant State’s Attorney’s impermissible inquiry relative to the purpose of and the treatment afforded by Patuxent Institution. We said that “questions employed . . . [and] designed ‘to sell’ Patuxent to the jury” were improper. Further, we cautioned against “blind or badly regulated zeal” because it might “encroach upon the rights of others.” We concluded in Bush that “the prosecutor’s zeal did trespass upon Bush’s rights . . . .”

Apparently mindful of our holding in Bush, the State in the instant case set sail on a different course. The course it chose appears to have been charted so as to circumnavigate Bush.

The record reflects that Gregory Belton Cannady pleaded guilty in the Criminal Court of Baltimore to the crime of murder in the second degree, and he was sentenced to imprisonment for a period of twenty years. Subsequently, the Division of Correction requested that Cannady be evaluated by Patuxent Institution. The request was satisfied. The Patuxent staff determined that Cannady was a defective delinquent within the meaning of Md. Ann. Code art. 31B, § 5, and so reported to the court. Cannady then petitioned for the appointment of an independent psychiatrist. Md. Ann. Code art. 31B, § 7b. The psychiatrist, who was appointed by the court, stated that he believed Cannady did not fit within the statutory definition of a defective delinquent. Issue was joined, and the case was tried in the Criminal Court of Baltimore before a jury. The transcript discloses the following rebuttal argument, objection and the hearing judge’s ruling thereon:

Assistant State’s Attorney: “ ... He [applicant] is going to be in confinement for a considerable period of time despite the outcome of this case. The only question is, ‘where’. Now, it is not an issue in this case, where he will be, whether he is at Patuxent and gets treatment or he is back in the penal system, in a metal cage. [(Emphasis supplied).]
[Defense counsel]: Objection.
The Court: What is the ground for your objection?
[Defense counsel]: The ground for the objection is characterizing one place as a cage, the other place as definitely therapy being given. There is no proof introduced that he will get therapy at Patuxent, no proof he will be put in a cage if released to the prison, as [the Assistant State’s Attorney] just suggested.
The Court: It is a matter of argument . . . overruled.”

Thereafter the prosecutor concluded his rebuttal argument as follows:

. . I urge you to very promptly find that he is a defective delinquent so that he can get the therapy he so obviously needs.” (Emphasis supplied).

In our view the comments of the prosecutor are patently contrived to circumvent our holding in Bush, supra, as well as to arouse the passion of the jury. The prosecutor’s argument manifestly demonstrates an attempt to convince the jury of the benefits of Patuxent Institution as the prosecutor sees them. In essence the prosecutor’s argument presents to the jury a choice between the applicant’s receiving treatment at Patuxent or returning to the penal system where he will be subjected to confinement in “a metal cage”.

We believe the prosecutor’s comment in the instant case was more than just “a matter of argument”. We think his remarks violate the spirit of Bush, if not the letter thereof, and we have no hesitancy in striking down the argument. At the expense of repetition, we reiterate that “blind or badly regulated zeal” which encroaches upon the rights of others will not be countenanced.

Once again we remind the Bench and the Bar that the sole issue in a defective delinquency proceeding is whether the person alleged to be a defective delinquent falls within the scope of the statutory definition of a defective delinquent as set forth in Md. Ann. Code art. 31B, § 5. Bush v. Director, supra. See Blizzard v. State, 218 Md. 384, 147 A. 2d 227 (1958); Feldman v. Director, 5 Md. App. 60, 245 A. 2d 830 (1968).

Application for leave to appeal granted.

Case reversed and remanded for further proceedings.


text:
    LEE FRANKLIN DeLAWDER v. WARDEN, MARYLAND HOUSE OF CORRECTION
    [App. No. 92,
    September Term, 1974.[

      Decided November 18, 1974.

    Before Orth, C. J., and Powers and Gilbert, JJ.
   Orth, C. J.,

delivered the opinion of the Court.

On 30 June 1972 Lee Franklin DeLawder was found guilty by a jury in the Circuit Court for Montgomery County of carnal knowledge of a female under the age of 14 years. A15 year sentence was imposed. The judgment was affirmed on direct appeal. DeLawder v. State, No. 663, September Term, 1972, filed 8 June 1973, unreported, 18 Md. App. 740, cert. denied 269 Md. 757. He filed a petition on 19 December 1973 attacking the judgment under post conviction procedures. After a plenary hearing, relief was denied by an order of the Circuit Court for Montgomery County issued 14 October 1974. Maryland Rule BK45 a. He seeks leave to appeal from that order. Code, Art. 27, § 645-1; Rule BK46.

At the hearing below DeLawder presented three allegations of error:

“1. That the trial attorney defended the petitioner inadequately and improperly and thereby violated the petitioner’s rights to a fair trial, due process and equal protection of the law.
2. That the alleged victim perjured herself and that the State was aware of this perjury thereby violating the petitioner’s rights to a fair trial, due process and equal protection of the law.
3. That the trial court’s denial to defense counsel of the right to cross-examine in detail the State’s witnesses for purposes of attacking their credibility and establishing their hostility towards the petitioner has violated the standards as enunciated in Davis v. Alaska, [415 U. S. 308,] concerning the constitutional right to confront the witnesses against the petitioner.”

The hearing judge denied relief under all three. He disposed of the first two by baldly stating: “The court finds no merit in the first two contentions.” With respect to the third allegation, he found it to be essentially the same contention raised by DeLawder on direct appeal and determined by this Court. He was of the opinion “that it would be inappropriate under a petition for post conviction relief to reconsider a point previously raised by the petitioner and ruled on by the Court of Special Appeals of Maryland, or to reverse that Court. The court takes this position even through Article 27, Sec. 645A (d) preserves that right for post conviction consideration thinking it more proper for the Court of Special Appeals to review the petitioner’s third contention on appeal.”

Rule BK45 b provides:

“The order [prescribed by § a of the Rule to be made by the hearing court as justice may require] shall include or be accompanied by a short memorandum of the grounds of the petition, the questions, including specifically the federal and State rights involved, and the reasons for the action taken thereon.”

The memorandum included in the order here is deficient because it does not sufficiently set out the reasons for the action taken by the hearing judge. The conclusion that the first two allegations were without merit must be supported by the reasons for the conclusion, adequately expressed. As to the third allegation, it is correct that on direct appeal we adhered to the rule of law that in rape cases the defense is confined to evidence of the general reputation of the victim and is not permitted to show specific acts of sexual misconduct and that in a case of statutory rape, where there can be no consent, even general reputation as to chastity is not a material issue. We held the trial court did not err in sustaining objections made to questions attempting to show that the victim had sexual intercourse with other men on other occasions. Our holding, however, did not necessarily finally litigate the contention as presented upon collateral attack. Code, Art. 27, § 645A (d) provides:

“For the purposes of this subtitle and notwithstanding any other provision hereof, no allegation of error shall be deemed to have been finally litigated or waived where, subsequent to any decision upon the merits thereof or subsequent to any proceeding in which said allegation otherwise may have been waived, any court whose decisions are binding upon the lower courts of this State holds that the Constitution of the United States or of Maryland imposes upon State criminal proceedings a procedural or substantive standard not theretofore recognized, which such standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner’s conviction or sentence.”

Davis v. Alaska, supra, was decided 27 February 1974, subsequent to our decision on direct appeal. We think the hearing judge should have determined the third contention on the merits and given his reasons for the action he took thereon.

The application for leave to appeal is granted. The case is remanded with direction to the hearing judge to determine whether the action of the trial court in restricting the cross-examination of the victim was proscribed by the holding in Davis v. Alaska, supra, and, if so, whether that holding is to be retroactively applied. He shall then file a memorandum giving his reasons for his conclusion that the first two allegations are without merit and his reasons for the action he takes with respect to the third allegation. See McCready v. Warden, 9 Md. App. 92.

Nothing we have said herein is to be construed as reflecting any opinion as to the applicability vel non of Davis v. Alaska, supra, to the case at hand.

Application granted; case remanded for further proceedings pursuant to this opinion; mandate to issue forthwith.


author: Moylan, J.,

text:
    DRURY R. BASKERVILLE v. STATE OF MARYLAND
    [No. 102,
    September Term, 1974.]

      Decided November 19, 1974.

    The cause was argued before Thompson, Moylan and Davidson, JJ.

      Elsbeth L. Bothe and George E. Burns, Jr., Assistant Public Defenders, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City and Sandra O’Connor, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

As in a “shell game” at a country carnival, a “check kiting” scheme has the elements of the crime of false pretenses moving back and forth from one transaction to the next so rapidly under the hands of a skilled manipulator that the ultimate resting place of a particular element is exceedingly difficult to locate.

Webster’s Third New International Dictionary (Unabridged) gives the following definition of the verb “kite”:

“To get money or credit by a kite: specif: to create a false bank balance by manipulating deposited accounts.”

51 Corpus Juris Secundum, at 532, defines “kiting” as:

“Originally a business term meaning the lending of credit by one commercial firm to another, but it is more commonly employed to denote a species of fraud or fraudulent practice consisting in the exchange of drafts or checks of approximately the same dates and amounts.”

An example may serve better than a formal definition. Assume that a defendant, or his confederate, has an account at Bank A with only a nominal balance. On Monday, a check is written to the defendant in the amount of $100. The defendant immediately walks to Bank B, where he has an account and is known as a reliable customer, and cashes the check for $100. The check now in the hands of Bank B does not, of course, clear on that particular day and the defendant has created for himself $100 out of nothing. To keep the scheme afloat, a second check is drawn on Bank A on Tuesday. It then is cashed at Bank B and the cash is, in turn, redeposited at Bank A. The deposit covers the check written on Monday, which is just now clearing. Tuesday’s check has not yet been covered. The scheme is repeated on Wednesday, Thursday and Friday. At the end of the week, five $100 checks, totaling $500, have been written on Bank A. The five checks have been cashed at Bank B for $500. Four hundred dollars has been redeposited at Bank A to keep the scheme afloat. The remaining $100 is the profit of the “kiting’ operation.

Like a juggler with three balls aloft but only two hands, the “kiting” operation, once begun, cannot stop, lest the uncovered ball “bounce.” Theoretically, the operation could go on indefinitely. In fact, the music always stops for one reason or another: Bank A spots the telltale signs of “kiting” and cancels the account upon which the checks are drawn; Bank B becomes suspicious and withdraws credit, refusing to cash any checks until they are cleared; the “kiter” is hit by a truck or leaves for Brazil. In our simplified model, the “music stops” on Friday. Bank B has already cashed its fifth $100 check. It will learn on Monday or Tuesday that Bank A has returned the check marked “insufficient funds.” Bank B will then be the victim of a false pretense as to that $100.

The crime of False Pretenses is simply stated in Art. 27, § 140:

Any person who shall by any false pretense obtain from any other person any chattel, money or valuable security, with intent to defraud any person of the same, shall be guilty of a misdemeanor

As Chief Judge Orth pointed out for this Court in Polisher v. State, 11 Md. App. 555, 560, 276 A. 2d 102:

“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 existing 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 also Smith v. State, 237 Md. 573, 207 A. 2d 493; Tumminello v. State, 10 Md. App. 612, 272 A. 2d 77; Lockhard v. State, 3 Md. App. 580, 240 A. 2d 312.

In the example given, five false representations are in fact made by the “kiter” to Bank B, one on each day of the week. The false representation is as to an existing fact, to wit, that “there are funds in the account at the drawee bank to cover the check being presented for cashing” (Element 1). In each, case, the “kiter” knows of the falsity of his representation (Element 3). In each case, Bank B relies upon the false representation (Element 5) and thereby parts with $100 (Element 4). These elements of the crime of false pretenses classically present no problem when applied to a “kiting” operation.

The sixth element — detriment to the victim— is more troublesome. In the example given, it is clear that Bank B relied upon Friday’s false representation to its ultimate detriment — the loss of the $100 (which had been paid out in cash) when the check relied upon was returned marked “insufficient funds.” The defendant-“kiter” typically makes the claim — on its surface deceptively attractive — that there was no ultimate detriment on the other four days and, therefore, no crime of false pretenses. His theory is that there was neither financial loss nor mental anguish to Bank B since money was on deposit at Bank A in time for the first four checks to clear. He reasons that Tuesday’s successful false representation erases the detrimental effect of Monday’s false representation, and so on through the weeks and months ad infinitum. The law, however, recognizes “detriment” of a more subtle variety. On each of the days in question, Bank B, by relying upon the false representation, exposed itself to a hazard which it would not have assumed but for that reliance. On each day, it ran the risk that the “kiter’s” scheme would go awry. That, according to the common law of false pretenses, is detriment enough. In 32 Am.Jur.2d, False Pretenses, § 38 “Injury or prejudice resulting from transfer,” it is said, at p. 200:

“[T]he gravamen of the olfense is in the making of the false pretense with intent to defraud and thereby obtaining another’s property. So it is not essential that the victim suffer a permanent loss or that he sustain a pecuniary loss. The offense is complete when money or property has been obtained by false representations, and it cannot be purged by subsequent restoration or repayment. Accordingly, where a person induces another, by means of false pretenses, to part with his property, he cannot defend against a charge of obtaining property by false pretenses by showing that the person who parted with his property had recovered in a civil action the value of the property, or by showing that the victim had recovered by other means or from other sources. Nor will the actual repayment of a loan obtained by false pretenses constitute a defense against a criminal prosecution for obtaining money by false pretenses.”

See People v. Jones, 36 Cal. 2d 373, 224 P. 2d 353; State v. Mills, 96 Ariz. 377, 396 P. 2d 5; Pepper v. People, 75 Colo. 348, 225 P. 846.

Of similar import is Perkins, Criminal Law (2d Edition, 1969), at 313-314:

“[T]here is no requirement of actual pecuniary loss on the part of the intended victim. If the false representation was with reference to the security given for money borrowed, or property purchased on credit, it is no defense to a charge of false pretenses that the debt has since been paid.”

Equally troublesome, at first glance, is the second element — the “intent to defraud.” Two problems here raise their heads. A defendant-“kiter” will typically claim that, although he may have derived $100 in unearned profit from Monday’s false representation, he derived no profit whatsoever from the four succeeding false representations. The $100 in each instance, according to his claim, went for the benevolent purpose of reimbursing his victim (via making a deposit in the drawee bank) for an earlier false representation. That sort of reasoning is specious in two regards. Initially, he does derive a benefit from each of the later false representations. He gets the benefit of Friday’s $100 both when he satisfies Thursday’s debt with that $100 and when he, thereby, covers the tracks of Thursday’s criminality. It is, furthermore, no requirement of the law of false pretenses that the money received from another be applied to the taker’s benefit. Chief Judge Orth made that very clear in Polisher v. State, supra, at 11 Md. App. 580-581:

“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. [2 Wharton’s Criminal Law (Anderson Edition)] § 583, p. 309. ‘[T]he defendant 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. 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.’ ”

The defendant-“kiter” typically attempts to gainsay the “intent to defraud” in a second fashion. He claims (as does the appellant here) that the entire “kiting” scheme was simply a means by which he managed to “borrow” the money. He utterly disavows any intent to steal, that is, to keep the money permanently. He claims self-righteously that he is an honorable man and that he fully intends to pay back every cent, once his fortunes are in better repair. Despite its surface charm, the defense is unavailing. Instructive in this regard is Clark and Marshall’s Law of Crimes (Wingersky Edition, 1958), at 823:

“If a person, however, obtains money or goods by false pretenses, he is none the less guilty because he intends to repay the money or pay for the goods, for ‘an intent to defraud is consistent with an intent to undo the effect of the fraud if the offender should be able to do so.’ That there is ability as well as intent to repay is no defense. Even an offer to repay or actual repayment is no defense.”

See Commonwealth v. Schwartz, 92 Ky. 510, 18 S. W. 775; People v. Oscar, 105 Mich. 704, 63 N. W. 971.

The same point is made in 32 Am.Jur.2d False Pretenses, § 33, “Intent to defraud,” at p. 197:

“If the accused had the requisite intent, he may be guilty of the crime of obtaining money or property by false pretenses even though he may have intended to repay the money or restore the property.”

See also Perkins, Criminal Law (2d Edition, 1969), at 312-313:

“It is now necessary to emphasize that an intent to repay will not necessarily prevent guilt of this crime. . . .
One who is asked to lend money or to sell goods on credit has a right to determine for himself whether he chooses to be a secured creditor or an unsecured creditor, and if he chooses to be the former he has a right to know about the security. One who has extended credit in reliance upon a mortgage on real estate which is falsely represented to be a first mortgage when in fact it is subject to a prior recorded mortgage for more than the land is worth, or is a mortgage upon property which the mortgagor does not own, has been defrauded even if the debtor has an intent to pay the debt. The lender intended to be a secured creditor but by reason of the false representation his position is for all practical purposes that of an unsecured creditor. There is an obvious and unreasonable risk of loss which has been forced upon him, without his knowledge or consent, by reason of the deceit. This risk which the creditor did not intend to assume was imposed upon him by the intentional act of the debtor, and this amounts to an intent to defraud.”
... If by reason of the false representation of the debtor, the creditor has assumed a substantially greater risk then would have been his if the debtor’s statements had been true, this requirement of the crime is satisfied even if the security is not entirely worthless, or even if it may turn out to be adequate.”

In the face of this law, the typical defendant-“kiter’s” claim that his demonstrated pattern of regular repayments evidences his good faith and belies any “intent to defraud” becomes irrelevant. Also irrelevant becomes the claim that he would have “made good” upon the last false representation, if some unforeseen circumstance beyond his control — the closing of an account by one bank or the withdrawal of credit by the other — had not frustrated his efforts to do so. The pattern, indeed, rather than demonstrating good faith is laid bare for what it is: the frantic necessity for the “kiter” to run faster and faster and “kite” larger and larger sums in a desperate effort to keep his artificial financial empire from collapsing and to derive, in the process, some continuing proceeds therefrom. The claim that “some day it will all be made good” is legally meaningless. As well might an embezzler claim that he had “no intent to defraud” the victimized bank, on the theory that the embezzler was only “borrowing” the money and had every honorable intention of returning it just as soon as his ship came in or his horse finished in the money.

The Facts in this Case

Upon this legal framework, the guilt of the appellant, elusive enough while still in the briar patch of tangled and undifferentiated facts, becomes all too clear. The appellant, Drury R. Baskerville, was a 53-year-old teacher in the public schools of Baltimore. He was convicted by Judge Shirley B. Jones, sitting without a jury, in the Criminal Court of Baltimore, upon three indictments, each charging false pretenses generally (as well as a violation of Section 142, the “bad check statute” specifically).

Although the appellant’s house of cards did not crash down until the end of July, 1971, its cornerstone was laid at least as early as a year before. Delores Brenda Miller, a girlfriend of five years’ standing, and Robert Allen Gantt, a substitute teacher at the appellant’s school, were either willing pawns or intellectually inert putty in the hands of the appellant.

Mrs. Miller had a personal checking account at the Maryland National Bank in which she normally kept a small balance in order to pay her household expenses. Mrs. Miller testified that “maybe a year, year and a half” before July, 1971, she began writing checks on this account to the appellant and in excess of the balance maintained by her in the account. She continued to use the account for her own personal purposes and would make deposits to cover such amounts. She relied exclusively on the appellant, however, to make appropriate deposits to cover the checks made payable to him. Incredibly, Mrs. Miller wrote the checks to the appellant because “He asked me to”:

“Q. And would you tell the Court how you came about to write some checks for Mr. Baskerville?
A. He asked me to.
Q. All right. And would you tell us the circumstances under which he would ask you to write the checks? What would he tell you when you were writing the checks as to amount and number and everything of that sort?
A. When he first asked me to write the checks for him there was no specific amount that he would ask for, but gradually as the check amounts increased I was asked to give certain amounts, put certain amounts on the checks.
Q. All right. And did you have any idea what this was for at that time when you were writing it?
A. Not really, no. Not really, no.”

Mrs. Miller was either remarkably ingenuous or cunningly disingenuous:

“Q. Mrs. Miller, did there come a time when you ever had a discussion with Mr. Baskerville about why he was having you write these checks?
A. Several times I attempted to discuss it with him, but I couldn’t quite understand.
Q. Would you explain to the Court what it was Mr. Baskerville told you?
A. I have no idea.
Q. Did Mr. Baskerville attempt to explain to you just why and what he was doing?
A. I think he did, yeah.
Q. So that your testimony that you didn’t know what was going on is simply because you were unable to understand it?
A. That’s right.”

At times, multiple checks would be written at a single writing:

“Q. And at the times he was there do you recall whether or not you would be writing one check or more than one check or on what type of basis it was?
A. When it began it was maybe one or two, but I couldn’t tell you exactly how many I would write at a time.”

According to the records of the Maryland National Bank, over $71,000 passed through Mrs. Miller’s account between April 1, 1971, and August 1, 1971.

In May of 1971, Robert Allen Gantt opened a checking account at Maryland National because the appellant, a fellow teacher, asked him to:

“Q. All right. And why did you open the account at Maryland National?
A. Well, because like — well, at first Mr. Baskerville, you know, had asked me, you know, about opening up a checking account, so, you know, I went on and said okay. And then the first twenty dollars was deposited by him.”

The appellant furnished Gantt with the $20 with which the account was opened. During the ensuing four months, Gantt wrote a number of checks to the appellant and relied upon the appellant exclusively to make all of the deposits into the account. Gantt himself never made a single deposit. The checks made out to the appellant ranged in amount “from about three hundred up to about maybe eight or nine hundred.” When asked how often he wrote such checks, Gantt replied, “If I think correctly, I think it was maybe about two checks a day, you know, over a period of time.” The explanation as to why he participated in such an exotic banking practice was, from the mouth of a college-trained school teacher, incredible:

“A. Well, Mr. Baskerville, you know, had asked me, you know, about writing checks for him. At first I was skeptical about it, but then, you know, I figured by him, you know, being nice enough to just open the account for me, you know, well, you know, the best thing for me to do, you know, was to show him, you know, my appreciation and not thinking, you know, there was anything wrong about it, you know, like knowing, you know, that the checks, you know, were coming back and being paid also, I didn’t have any — you know, I didn’t even bother about questioning him about it because I thought it was perfectly all right.”

The records of the Maryland National Bank revealed that approximately $31,000 passed through Gantt’s account during the months of May, June and July, 1971. Between the two accounts, the cash flow for the several-month period was in the neighborhood of $102,000.

When the appellant took the stand in his own defense (his credibility as a witness, if not as a public school teacher, was eroded by his acknowledgment that he had been convicted in Denver in 1953 of conspiracy, forgery and uttering and had served three years in Leavenworth), he revealed that Mrs. Miller’s and Gantt’s were not the only bank accounts he had operating:

“Q. . . . [F]irst of all, was Miss Miller’s and Mr. Gantt’s the only bank accounts you were running in this operation?
A. No.
Q. There were others, weren’t there? How many others were there?
A. Oh, periodically, I guess, three, four, maybe five other people at times.”

Richard T. Davis, a bank security officer at Maryland National, testified that he was alerted on June 9,1971, to the fact that the appellant, “who was related to many accounts at the Maryland National Bank, was making large unusual cash transactions.” Shortly thereafter, Mr. Davis viewed the appellant “on many occasions making deposits to various accounts within Maryland National Bank,” all but one of which “were those of other persons” including Gantt and Mrs. Miller.

Maryland National closed the accounts of Gantt and Mrs. Miller on August 2,1971, because, according to Mr. Davis:

“A. Between the dates of June 9th, 1971 and August the 2nd of 1971 I personally had been watching these accounts very closely as they had the indications of a kiting operation and I was, therefore, keeping close touch with our bookkeeping department to find out at what point during this kiting operation that Maryland National Bank would be on the black side of the credit line, so to speak, so we would not be injured by any loss. So, as soon as we were on this black side of this line then I cut off the accounts, and that was on August 2nd.”

Mr. Davis explained how this “kiting” operation varied from the more garden variety and was, therefore, more difficult to pin down with reasonable certainty:

“A. The term kiting operation refers to a manipulation of accounts, usually one established or two or more accounts established in different banks. The accounts are usually opened up with a small amount of money at first and they are conducted in a very proper manner for an indefinite period of time or until the customer becomes known to tellers in various offices and obtains a reputation as being a good customer. Even though he may not be known by name, they see him on a daily basis and get to know his presence in the bank. And then after he gains the confidence- of the tellers in various banks he will go to one bank with a check, let’s say in this case — well, let’s use a different case being it’s hypothetical. . . .
A. Mr. Smith opens an account in ‘A’ bank. And then he opens an account also in ‘B’ bank. Well, he would draw a check on ‘A’ bank in the sum of a thousand dollars and deposit it in ‘B’ bank and he would be known to the tellers in ‘B’ bank and would be given immediate credit, cash credit for that check. Then he would have the use of that money for a twenty-four hour period or until such time that he deposits a check drawn on ‘B’ bank into ‘A’ bank in a similar amount. So, therefore, there is very rarely in the average kiting operation any actual cash money being transacted. And in this particular instance, and the reason it took so long for us to determine just exactly what was going on, this was a very unique operation, whereas, the deposits being made into the accounts of Mr. Gantt and Miss Miller at Maryland National Bank were being done so in cash, however, the checks that were being drawn against these accounts were being taken to Equitable where they were being cashed and the person given cash and then right away he would fun the two-block period which came from Equitable Trust to our bank and deposited the cash money back. So, he had a continuous cash flow going through his account and, as I say, very unique. It was a very sophisticated kiting operation and one that has become quite a rarity in banking circles too, I might add. Did I describe adequately —
MRS. O’CONNOR: Yes.
MRS. BOTHE: Not by my standards . . .”

The ax fell on July 27, 1971. On the preceding day, July 26, the appellant cashed three checks at the Equitable Trust Company. All three were drawn on the Maryland National Bank. Delores Miller had made out one of the checks to the appellant in the amount of $998. The check was dated July 22, 1971. Robert A. Gantt had made out a second check to the appellant in the amount of $996. It was dated July 20, 1971. Gantt had also made out another check, dated July 17, 1971, to the appellant in the amount of $978. When the checks were cashed on July 26, there were not sufficient funds in either the Miller or the Gantt account to cover the respective checks. Following his regular modus operandi, the appellant appeared again at the Equitable Trust Company on July 27 to cash additional checks. The cash he anticipated receiving would then have been deposited by him in the Miller and Gantt accounts at the Maryland National Bank to cover the three checks that had been cashed the day before and which had not yet cleared. For some reason not fully explained in the record, the Equitable Trust Company refused to extend further credit, for check cashing purposes, to the appellant on July 27. As the appellant explained it:

“Q. Now, how often would you have to make deposits and cash checks in order to keep this going with the Gantt and Miller accounts?
A. Well, as I explained earlier, this would have to be done daily because if you cash the check today you would have to make the deposit in that account the next day.
Q. So, I take it that every single day you had to cash a check?
A. Yes.
Q. And every single day you had to make a deposit?
A. Yes, that’s right.
Q. Now, what happened that all this came to a halt with three checks that could not be —
A. This was around about the latter part of July 1971. And she told me that they had said they didn’t want to cash any more checks, you know, not to cash — they just wanted to call a halt to cashing any checks that I would bring in from that time, you know, on.
Q. And as a result did they then refuse to cash some checks for you?
A. That day, yes. Yes.
Q. Now, as a result of their having refused to cash the checks for you what happened with the Gantt and Miller accounts?
A. Well, I was unable to make the deposits in their accounts, you know, as explained.”

As a result of the failure of the false representation on July 27, the “worthless checks” cashed on July 26 could not be covered. With respect to all three checks, Equitable had them returned by Maryland National marked “not sufficient funds.” Only then did Equitable realize that it had been “taken” to the tune of $2,972.

The three indictments on which the appellant was convicted relate to the passing of these three checks, respectively. The first count of each indictment charges false pretenses generally under § 140. The second count of each indictment charges a violation of § 142, the bad check statute.

The appellant’s basic contention is that the evidence was not legally sufficient to sustain his convictions. We have no difficulty in holding quite otherwise. In a case tried before the court without a jury, the test as to whether the trial judge was clearly erroneous in reaching a verdict of guilty on the evidence is whether the admissible evidence adduced at the trial either showed directly, or circumstantially, or supported a rational inference of, the facts to be proved, from which she, as the trier of the fact, could fairly be convinced, beyond a reasonable doubt, /of the appellant’s guilt of the offenses charged, and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses. Williams v. State, 5 Md. App. 450, 459, 247 A. 2d 731; Metz v. State, 9 Md. App. 15, 23, 262 A. 2d 331; Maryland Rule 1086.

With respect to each check, the appellant falsely represented to Equitable Trust that there was a sufficient balance in the accounts at Maryland National to cover such check. These misrepresentations were knowingly made by the appellant. Equitable Trust relied upon the representations and parted with $2,972 to its ultimate detriment. For reasons hereinbefore discussed, the appellant’s self-serving declarations that he fully intended to “pay the money back” and that he was “only borrowing it” do not negate the last and critical element of “intent to defraud” on his part. Clark and Marshall, supra, 823; 32 Am.Jur.2d, False Pretenses, § 33, “Intent to defraud,” p. 197; Perkins, supra, 312-313.

The appellant’s “non culpa mea” is, moreover, as factually bizarre as it is legally untenable. The particular “ship” which the appellant claimed to be expecting “to come in” was an anticipated promotion within the school system. The appellant was due to receive his bachelor’s degree from Coppin State College in June, 1971. Once certified as a degree holder, the appellant would be paid for the next school year at the rate of approximately $10,000 per year. As a mere “provisional” teacher without a degree, he was paid $6,100 per year. As he described his anticipated rise in station, “[P]rior to that I had been a provisional teacher which, well, it’s quite a difference between that and a tenure teacher with alleged qualifications.” Having outstanding bills and anticipating a substantial raise, he acknowledged that he may have “jumped the gun in some respects.” The appellant did not seem to understand or was not willing to acknowledge that he would only begin to earn salary at the $10,000-a-year rate in September, 1971, that he would receive some part of his $4,000 raise with each ensuing paycheck over the course of the year, and that various deductions and taxes would be withheld. He insisted that he expected to receive a “lump sum” of $4,000 in September with which he would close down the “kiting” operation so that no one would be harmed. He never did successfully explain how he expected his anticipated salary increase to be paid a year in advance in a lump sum with no deductions. Judge Jones, as fact finder, did not share his uncritical optimism.

With respect to the appellant’s second contention that he should not have been convicted for violations of both § 140 and § 142, he wins at least a moral victory (the sentences were concurrent).

Flannigan v. State, 232 Md. 13, 191 A. 2d 591, made it very clear that where the false pretense is the passing of a worthless check, it is not proper to convict a defendant under both § 140 and § 142 for a single transaction:

“Applying that test to the instant case, it is readily observed that a conviction under § 142 requires ‘proof of a fact’ (a worthless check) that § 140 does not necessarily require. However, a conviction under § 140, when a bad check is involved, does not require ‘proof of a fact’ that is not essential to sustain a conviction under § 142. Hence, we hold that appellant should not have been convicted on the fourth count. A holding to the contrary would mean that, when a worthless check is involved, a defendant could be subjected to a double sentence by the simple expedient of finding him guilty under both sections, even though but a single check was involved.”

Cf. Sutton v. State, 2 Md. App. 639, 236 A. 2d 301.

Judgments as to the first count of indictments 2270, 2271 and 2273 charging false pretenses affirmed; judgments as to the second count ■ of each indictment charging a violation of § H2 reversed.


text:
    LOUIS WILLIAM IRVIN v. STATE OF MARYLAND
    [No. 140,
    September Term, 1974.]

      Decided. November 19, 1974.

      The cause was argued before Thompson, Powers and Gilbert, JJ.

      William F. Mosner for appellant.

      Gary Melick, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and H. Edgar Lentz, Assistant Attorney General, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

This appeal has arisen as a result of a directive dated November 13, 1972 from Governor Marvin Mandel to Attorney General Francis B. Burch in which the Attorney General was directed to conduct an investigation into “the allegations of corruption of public officials in connection with the arrest, pending prosecution and escape of one, John Edward Jones, from the Baltimore County jail, and to pursue any evidence of criminal violations or administrative irregularities resulting from your investigation.”

During the course of the Attorney General’s inquiry the then Deputy State’s Attorney for Baltimore County, Stuart L. Iiirsch, furnished the Attorney General’s representatives and the Maryland State Police with “150 hours of tapes” concerning the operation of the Baltimore County State’s Attorney’s office. As a result of information supplied by Hirsch, an investigation focused upon what became known as “the Harrington case”. That case involved Kneass Harrington’s efforts to have a nol prossed indictment that charged violation of the gambling laws expunged from government records. In order to accomplish his desire, Harrington contacted the appellant, Louis William Irvin, the chief investigator for the State’s Attorney’s office of Baltimore County. Irvin in turn talked to Hirsch, and, as a result of that conversation, Irvin delivered to Harrington a “Petition to Expunge”, which petition was drawn by Hirsch, but signed by another member of the bar, Stephen Luskin Miles, at Llirsch’s request. Irvin collected a “fee” of $750.00 from Harrington, all or part of which was turned over to Hirsch. An order on the petition was signed as a routine matter by a judge of the Circuit Court for Baltimore County on July 13,1972.

A Baltimore County police lieutenant, who was a friend of Harrington, noted that the records of the County police had not been expunged, and the lieutenant made a complaint to Hirsch. Hirsch then wrote a letter to the County police in which he enclosed an attested copy of the order of expungement. In compliance with the order the Baltimore County police and the Maryland State police removed all records pertaining to Harrington’s arrest on the gambling violation. No expungement, however, was effected in the office of the Clerk of the Court of Baltimore County nor, apparently, in the office of the Federal Bureau of Investigation.

Irvin was indicted by the grand jury for Baltimore County in Indictment No. 46738 charging false pretense, bribery, extortion and misconduct in office. He was also indicted in Indictment No. 46739, a five count indictment charging obstruction of justice and misconduct in office, and in Indictment No. 46882 charging conspiracy to obstruct justice. Irvin moved to dismiss the indictments on the ground that they were procedurally defective. After a pretrial hearing Judge Robert E. Clapp, Jr. dismissed counts three and four of Indictment No. 46738, all counts of Indictment No. 46739 and Indictment No. 46882. The State nol grossed counts one and two of Indictment No. 46738.

On October 9, 1973 the State appealed the trial court’s dismissal of Indictments Nos. 46739 and 46882. Thereafter, on October 11,1973, while the appeal was pending, the State sought and obtained a new indictment against Irvin containing twelve counts. The case commenced on October 31 and terminated on November 6, 1973. Irvin was found guilty of false pretense and two counts of conspiracy. Following trial Irvin filed a “Motion for a New Trial” in which, inter alia, he suggested that the trial court lacked jurisdiction because of the pending appeal. His motion was denied and he received concurrent eighteen month sentences. The State then dismissed its appeal dated October 9,1973.

In this Court Irvin contends:

I. “After the State entered an appeal from the dismissal of certain counts in the original indictment[s] and then reindicted appellant on the same charges it could not proceed to trial on the latter indictment while the appeal on the first was still pending.”
II. The evidence was insufficient to sustain a conviction of false pretense.
III. The evidence was insufficient to sustain a conviction of conspiracy.
IV. The trial judge erred in admitting statements of an alleged coconspirator into evidence.

I.

Md. Ann. Code, Cts. & Jud. Proc. Art., § 12-302 c (1974) provides:

“In a criminal case, the state may appeal only from a final judgment granting a motion to dismiss or quashing or dismissing any indictment, information, presentment, or inquisition in a criminal case.”

Even in the absence of legislative authority the Court of Appeals has long held that the State could appeal a dismissal of an indictment. In State v. Buchanan, 5 Harr. & J. 317, 9 Am. Dec. 534 (1821), it is stated:

“ . . . [T]here is no sufficient reason why the state should not be entitled to a writ of error in a criminal case. It is perhaps a right that should be seldom exercised, and never for the purpose of oppression, or without necessity; which can rarely, and it is supposed would never happen, and would not be tolerated by public feeling. But as the state has no interest in the punishment of an offender, except for the purpose of general justice connected with the public welfare, no such abuse is to be apprehended; ...”

The Court, in State v. Wade, 55 Md. 39 (1880), addressed itself to the finality of a dismissal of an indictment. It said:

“ . . . The record shows that the indictment was quashed by the court below upon the motion of the defendant. That was a final termination of the prosecution upon the particular indictment, and the defendant was necessarily discharged from all further proceedings thereon. Whether the State may proceed on another indictment would depend upon the action of a future grand jury.” (Emphasis supplied).

The Court also held in State v. Hodges, 55 Md. 127 (1880) that:

“ . . . [T]he judgment in quashing an indictment is a final judgment. There can be no further proceedings upon the indictment, and although the prisoner may be held to bail to await the further action of the grand jury,' yet so far as the pending indictment is concerned, he is entitled to his discharge.” (Emphasis supplied).

More recently, this Court in Raimondi v. State, 8 Md. App. 468, 261 A. 2d 40 (1970), speaking through Chief Judge Murphy, opined at 475:

“The Court of Appeals has held that the perfecting of an appeal brings the subject matter thereof within the exclusive jurisdiction of the appellate court and suspends the authority of the lower court over it during the pendency of the appeal; that the lower court lacks jurisdiction to take any further action in the case with respect to the subject matter of the appeal until the receipt of the mandate of the appellate court, after the appeal has been heard and decided.” (Emphasis supplied).

Appellant argues that the effect of Raimondi is that “if an appeal is filed from what is considered to be a final order — such as an order dismissing indictments — the lower court does lose jurisdiction to proceed further until the appeal has been heard.”

As we read Raimondi in the light of Wade and Hodges, supra, when the State appeals the dismissal of an indictment, the trial court loses jurisdiction over that particular indictment. It does not, however, lose the jurisdiction to try the accused on a subsequent indictment even though the subsequent indictment arises from the same facts. When Chief Judge Murphy, in Raimondi, referred to the fact that the trial court lacked “jurisdiction to take any further action in the case with respect to the subject matter of the appeal” (Emphasis supplied), he obviously was referring to the particular indictment upon which the appeal was pending.

Although the appellant has referred us to a number of cases arising in other jurisdictions, we do not find them persuasive because the law of Maryland, since Wade and Hodges, supra, is to the contrary. In Maryland the State may either appeal the dismissal of an indictment or seek a new indictment or both so long as the State’s action is not deemed to be oppressive and thus a possible violation of due process of law. In sum, the State must act in good faith.

We hold that the Circuit Court for Baltimore County was not divested of jurisdiction to try the appellant on a new indictment notwithstanding the State’s appeal from a dismissal of prior indictments arising out of the same facts.

II.

We turn now to appellant’s second contention. Md. Ann. Code art. 27, § 140 provides in pertinent part:

“Any person who shall by any false pretense obtain from any other person any chattel, money or valuable security, with intent to defraud any person of the same, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be punished by fine and imprisonment, or by confinement in the penitentiary for not less than two years nor more than ten years, as the court shall award; provided always, that if upon the trial of any person charged with such misdemeanor it shall be proved that 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; and provided also, that a mere promise for future payment, though not intended to be performed, shall not be sufficient to authorize a conviction under this section.”

This Court, in Polisher v. State, 11 Md. App. 555, 276 A. 2d 102 (1971), cert. denied 262 Md. 749 (1971), cert. denied 404 U. S. 984, 92 S. Ct. 449, 30 L.Ed.2d 368 (1971), set forth the elements of the crime of false pretense. We said:

“. . . [T] he crime is committed when a person:
1) by making a false representation of a past or existing 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.”

Harrington testified that the appellant advised him to write a letter to the State’s Attorney requesting expungement of Harrington’s record. He did so and thereafter appellant came to see him. At that time appellant told Harrington that appellant had talked the matter over with the State’s Attorney, and the State’s Attorney had “suggested that it would cost me $750.00 to have an expungement of (sic) legal fees done for this problem and [appellant] suggested that he would stop by and pick up the fee.” Harrington stated that appellant again visited him and gave him three papers to read from Stephen Miles, in State v. Kneass Harrington. Harrington “signed the paper at the bottom”. Harrington related to the court that he had a conversation with Irvin about Miles and that Irvin told him “Miles was at one time a Clerk of the Court and that this is who he had gotten to help my matter — in my matter.” Harrington believed that the money was going to be turned over to Miles as a legal fee for expunging Harrington’s criminal record. After a police lieutenant, who was a friend of Harrington, discovered that the record had not been expunged in the Baltimore County police headquarters, the lieutenant met with Irvin and Stuart Hirsch. The officer complained that Miles had not had the record expunged despite the fact that Miles had been paid $750.00. The lieutenant asked if Miles had in fact been paid the money, and Irvin replied, “Certainly.” The lieutenant then threatened that if the matter were not cleared up within ninety days, he would go to the Bar Association. Hirsch told him to “calm down” and that he, Hirsch, would “take care of it and we will get back to your Mr. Harrington.” Harrington subsequently received a letter, on the stationery of the State’s Attorney’s office, signed by Stuart Hirsch as Deputy State’s Attorney and, it indicated that Harrington’s record had, in fa.ct, been expunged.

The gist of the appellant’s argument, that the testimony does not support a conviction for false pretense, is that there was no intent by Irvin to defraud Harrington, and that Harrington received that for which he paid, videlicet, an expungement of the records. Appellant strenuously argues that this case lacks the “feel” of false pretense, but we do not share that lack of feeling.

Judge Clapp determined from the evidence that Hirsch and Irvin discussed the situation and that Hirsch advised Irvin “that there would be a payment required of $750.00 to get the record expunged.” The judge found:

“ . . . [W]hen Mr. Irvin returned from vacation on July the 17th, 1972, he and Mr. Hirsch discussed this matter and Mr. Hirsch advised Mr. Irvin that it had been signed and everything was taken care of and to go and get [the] money. . . . Mr. Irvin called Mr. Harrington, told him what the fee would be and Mr. Harrington . . . had the money ready when Mr. Irvin arrived. I think Mr. Irvin knew that Stephen Miles had signed this petition, although Mr. Irvin denied that he ever knew about it until much later in 1973, but in any event, I think Mr. Irvin did tell Mr. Harrington at the time that Mr. Miles was the attorney that he had gotten to put this matter through because Mr. Miles had this prior experience of a clerk, whether it was in the State’s Attorney’s office or Clerk of the Court, I can’t really tell from the evidence and it really doesn’t matter.
Now, I find that Mr. Harrington . . . [relied] ... on this representation and on the representation that this paper would accomplish what he desired, the expungement of the records in Baltimore County and with the F.B.I., and he paid the money to Mr. Irvin.
I find further as a fact that Mr. Irvin and Mr. Hirsch each received all or a part of this money; I can’t tell which. I find further as a fact that they each knew that this was not a fee to go to Stephen Miles. I find further as a fact that later on in the summer Detective Scott discussed with Mr. Irvin why nothing had been done although a fee had been paid and Mr. Irvin said, we are working on it.” (Emphasis supplied).

In a non-jury trial the credibility of the witnesses and the weight of the evidence is a matter for the trial judge to determine, and his findings will only be disturbed on appeal where they are found to be clearly erroneous. Md. Rule 1086. Applying the elements of Polisher v. State, supra, to the instant case, we conclude that Judge Clapp was not clearly erroneous, and that the testimony adduced by the State was sufficient to support a finding of guilt of false pretense.

III.

Irvin makes a two-pronged attack on his convictions for conspiracy to obstruct justice. First, he denies that the alleged conspiratorial meetings of January 12, 1973 and January 23, 1973 occurred. Second, he charges that the record is devoid of corroboration of the testimony of the coconspirator, Hirsch. We need not discuss the first prong of appellant’s contention because it involves a question of adjudging the credibility of the witnesses which is a matter for the trial court. Md. Rule 1086. The second prong, however, requires discussion. We said in Price v. State, 4 Md. App. 701, 244 A. 2d 900 (1968):

“In Maryland, as generally, the gist of a conspiracy is the entering into of the illegal scheme or design, and once this occurs, the crime is complete without the doing of an overt act. Greenwald v. State, 221 Md. 235 [155 A. 2d 894 (1959)]. The testimony of an accomplice is clearly admissible to prove a conspiracy, Foster v. State, 230 Md. 256 [186 A. 2d 619 (1962)], and the conspiracy may also be shown by circumstantial evidence from which an inference of common design may be drawn, it not being vital to demonstrate that the conspirators met and agreed in terms to a set design and to pursue it by common means. See Hill v. State, 231 Md. 458 [190 A. 2d 795 (1963)]; Seidman v. State, 230 Md. 305 [187 A. 2d 109 (1962)].”

The testimony of a coconspirator must, of course, be corroborated, but the corroboration need be slight. Mason v. State, 18 Md. App. 130, 305 A. 2d 492 (1973), cert. denied, September 10, 1973. Montgomery v. State, 17 Md. App. 119, 300 A. 2d 218 (1973); Early v. State, 13 Md. App. 182, 282 A. 2d 154 (1971); Foxwell v. State, 13 Md. App. 37, 281 A. 2d 123 (1971); Spies v. State, 8 Md. App. 160, 258 A. 2d 758 (1969); Boone v. State, 3 Md. App. 11, 237 A. 2d 787 (1968), cert. denied 393 U. S. 872, 89 S. Ct. 161, 21 L.Ed.2d 141 (1968); Bright v. State, 1 Md. App. 657, 232 A. 2d 544 (1967). We explained in Early v. State, supra, that corroborative evidence was that evidence that strengthened the “probative, criminating force” of the accomplice’s testimony and “not necessarily the proof of any particular fact.” Such corroborative testimony must, however, “(1) identify the defendant with the perpetrators of the crime, or (2) . . . show the defendant’s participation in the crime itself.” Early v. State, supra. See also Spies v. State, supra; Boone v. State, supra; Bright v. State, supra.

A reading of the record in the instant case discloses that the testimony concerning the appellant’s own acts and admissions furnished both direct and circumstantial evidence of the existence of the conspiracy and thus corroborated Hirsch’s testimony.

We summarize those acts and admissions: Irvin acknowledged that on February 8, 1973, he met with State’s Attorney Samuel Green, Hirsch and Miles. At that time Miles was asked to “open up a file in the Harrington matter”, and Irvin was asked to return the money to Harrington. Irvin did return the $750.00 to Harrington on February 12, 1973. The return of the money was secretly witnessed by the State police. Harrington said that when the money was returned Irvin stated, “We feel that we shouldn’t have charged you for expunging of your record.” (Emphasis supplied). The next day Irvin gave'false and contradictory statements to the State police. He told the police that the $750.00 was a fee for Hirsch’s father who is a member of the bar and who was the person who handled the expungement. He said “I turned it [the $750.00] over to Mr. [Stuart] Hirsch to be given to his father and that’s the extent of it.” Stuart Hirsch had testified, in essence, that the idea of having Hirsch’s father open a file in the Harrington case had arisen after the Attorney General began his inquiry into the operation of the Baltimore County State’s Attorney’s office. Irvin denied that he had ever seen Miles’s name and signature upon the “Petition for Expungement”. Hirsch’s father told the court that he had never opened a file on the Harrington case, and that he knew nothing about it. Without recounting all of the various misrepresentations made by Irvin to the State police, suffice it to say that Irvin’s representations to the State police were to the effect that the attorney who handled the case for Harrington was Hirsch’s father. This misrepresentation bolstered Stuart Hirsch’s testimony concerning the “cover up” scheme that was apparently concocted after Miles refused to open a file and indicate that he had received the fee. At the trial Irvin sought to explain away the false statements on the ground that at the time he made them, he was nervous, upset and could not remember. Mrs. Frances Fuhr, described as a friend of Hirsch, told Judge Clapp that Irvin said to her that he had lied to the State police about the Harrington case.

We think Irvin’s testimony, in and of itself, furnished sufficient corroboration of the evidence presented by Hirsch that at least Hirsch and Irvin conspired to obstruct justice by concealing the “Harrington case” transactions.

IV.

The indictment charged in the sixth count that, between January 11, 1973 and June 15, 1973, Irvin “did unlawfully conspire with Samuel A. Green, Jr. and Stuart Hirsch to violate the obstruction of justice laws of the State of Maryland”, and in the eighth count averred that during the same period of time, Irvin “unlawfully conspired, confederated and agreed with . . . Green and . . . Hirsch to suppress and to conceal information and evidence from and to convey certain misleading and false reports, information and testimony to officers of the Maryland State police and to the Attorney General of Maryland. . . . ”

.At the trial the State introduced three statements in support of its allegations of conspiracy. The first of those statements was the testimony of Hirsch that in July, 1972, he was instructed by Green, after having advised Green that it was improper for a member of the State’s Attorney’s office to draw up a petition to expunge, to “get someone to do it for you”. Hirsch then prevailed upon Miles to sign the petition. Appellant argues that the testimony by Hirsch was inadmissible in that Irvin was not present, it occurred prior to the date of commencement of the conspiracy as charged in the indictment, and that it was hearsay. We think this evidence to have been admissible to show the motive or intent for the subsequent “cover up”. Greenwald v. State, 221 Md. 245, 249, 157 A. 2d 119 (1960).

In Greenwald, supra, Judge Hammond (later Chief Judge) stated at 249 that prior acts and declarations of a coconspirator are admissible in evidence if the prior acts “tend to show motive, intent, a common scheme or design, absence of mistake or accident, or identity,” provided that “such a showing has relevance in establishing a principal fact at issue or matter in dispute.” “ . . . [T]his general rule”, Judge Hammond said, “is applicable in cases of conspiracy.” See also Bloomer v. State, 48 Md. 521 (1878).

The second statement was a police transcription of a telephone call made by Green to Hirsch. The police, by prearrangement with Hirsch, listened to the conversation on an extension phone. The gist of that call was that Green asked Hirsch if his, Hirsch’s, father had opened up a file on the Harrington matter. Appellant argues that, inasmuch as Hirsch was cooperating with the police, the conspiracy was terminated, and hence the statement could not be admitted. We disagree.

In 3 Underhill Criminal Evidence § 861, at 1930-1931 (5th ed. 1957) it is stated:

"... [B]efore the declarations of one conspirator are admissible against a coconspirator the existence of the conspiracy and the connection of the coconspirator therewith must be established. This is true where the declarations of the conspirator are sought to be introduced through a third person; such third person cannot testify against the coconspirator until the latter’s connection with the conspiracy is proved by evidence aliunde. But the proposition is not true when the witness is a conspirator who seeks to testify about declarations made to him by his coconspirator. In such case the witness may testify and the testimony will be received against the coconspirator. The analogy here is to the law of agency: the testimony of a third person as to what an alleged agent told him will not be received against the principal unless the agency is first established, but the agent himself may always testify to relevant statements made to him by the principal.
Further, the declarations of one conspirator are admissible against a coconspirator when forming part of a conversation between them, and the acts of one are admissible against the other when done in the latter’s presence and on the occasion of the alleged offense.” (Footnotes omitted).

See also Mason v. State, supra, where the rule of the admissibility of statements made by a coconspirator is summarized at 136-137:

". . . [T]he rule is that when the State seeks to use statements against a co-conspirator made by another co-conspirator to a third party, it must first demonstrate, through evidence aliunde, the existence of a conspiracy, but the testimony of one conspirator is admissible against a co-conspirator without the necessity of establishing through an independent source the existence of the conspiracy.”

In addition to proof by independent evidence of the existence of the conspiracy, the State must also demonstrate that the declaration or act of the coconspirator was made or done in furtherance of the conspiracy and during its pendency. We observe that the “furtherance” requirement is interpreted broadly. Levie, Hearsay and Conspiracy, 52 Mich. L. Rev. 1159, 1168 (1954) puts it this way:

“If some connection is established between the declaration and the conspiracy then the declaration is taken as in furtherance of the conspiracy.” (Emphasis supplied).

In the instant case Green’s inquiry of Hirsch as to whether Hirsch’s father had opened a file on the Harrington matter, is sufficiently related to the subject matter of the conspiracy to satisfy the “furtherance” prerequisite. Such an inquiry manifests an intent to continue to misrepresent that the “Harrington case” had been handled without the intervention of the State’s Attorney’s office and in a bona fide manner.

The second prerequisite that must be met in order to utilize the coconspirators hearsay exception is that the act or declaration must have been made during the “pendency” of the conspiracy. By “pendency” we mean the duration of the unlawful agreement, but that does not mean that the conspiracy continues ad infinitum. The duration of a conspiracy is restricted to the accomplishment of its “main aim”. Krulewitch v. United States, 336 U. S. 440, 69 S. Ct. 716, 92 L. Ed. 790 (1949). It is patent in the case now before us that the “main aim” of the conspiracy was to cover up the Harrington case transactions by attempting to establish that someone outside the State’s Attorney’s office had handled the expungement petition. Green’s telephone call to Hirsch was during the pendency of the conspiracy and in furtherance thereof. It makes no difference that Hirsch had, unbeknown to Green and Irvin, secretly withdrawn from the conspiracy. Neither Green nor Irvin knew of that withdrawal, and in any event, they continued to act in accordance with the unlawful agreement. The conspiracy did not terminate with Hirsch’s covert abandonment of it. If a coconspirator unilaterally resigns from an illegal pact involving more than two conspirators, the conspiracy is at an end as to him only. See Levie, Hearsay and Conspiracy, supra at 1174.

The third statement was that of Green made to the State police. That occurred after Irvin had previously made his statement to the police. Irvin attacks the admissibility of that statement, but we hold it admissible for the same reasons that we have previously stated relative to the admissibility of the police transcription of the telephone call.

The independent evidence of the existence of the conspiracy was amply provided through the cumulative effect of the testimony of Harrington, Miles, Hirsch’s father and the State police. We think Judge Clapp did not err in receiving into evidence Hirsch’s testimony concerning the July 1972 conversation with Green, the transcription of Green’s telephone conversation with Hirsch, and Green’s statement to the Maryland State police.

Judgments affirmed.

Costs to be paid by appellant.

      . The directive was issued pursuant to Art. 5, § 3 of the Constitution of Maryland. That section provides in pertinent part:
      “It shall be the duty of the Attorney General . . . [to] commence and prosecute or defend any suit or action in any of said Courts, on the part of the State, which . . . the Governor, acting according to law, shall direct to be commenced, prosecuted or defended. ...”

      . The indictment charged false pretense, bribery, four counts of obstruction of justice in violation of M_d. Ann. Code art. 27, § 27, three counts of common law obstruction of justice and three counts of conspiracy.

      . At the time of trial in the instant case, the matter was governed by Md. Ann. Code art. 5, § 14. The changes effected by the adoption of Courts Art. 12-302, effective January 1,1974, are stylistic only.

      . Cf. Blondes v. State, 19 Md. App. 714, 314 A. 2d 746 (1974), cert. granted by the Court of Appeals May 9, 1.974, and not decided as of the date this opinion was filed.

      . People v. Bogart, 7 Cal.App.3d 257, 86 Cal. Rptr. 737 (1970); Anderson v. Superior Court, 66 Cal. 2d 863, 59 Cal. Rptr. 426, 428 P. 2d 290 (1967); People v. Owens, 71 Cal.App.2d 831, 164 P. 2d 28 (1945); State v. Olson, 259 Iowa 756, 145 N.W.2d 645 (1966); State v. Jackson, 228 Or. 371, 365 P. 2d 294 (1961). We note that in the case of People v. Bogart, supra, relied upon by appellant, the California Court of Appeal, Second District, Division 2 stated, “The People have a right to have the sufficiency of the indictment tested in an appellate court by appeal which in no way is in conflict with the trial of other charges contained in the indictment. . . . The trial court was not deprived of jurisdiction to try those counts which were not on appeal.”

      . The Maryland view is supported in other states. See, e.g., State v. Ashworth, 346 Mo. 869, 143 S.W.2d 279 (1940) where the Supreme Court of Missouri declared that the “pendency of the _ case in this court . . . operated to divest the trial court of jurisdiction. . .” but went on to state that “[t]his rule is subject to the qualification that the divesture goes only to matters necessarily involved in the review proceedings.”

      . Whether this count charges a crime is not before us.

      . Because of the broad interpretation applied to the furtherance requirement, at least one writer has referred to conspiracy as the prosecutor’s “darling” and the defendant’s “nightmare”. See Comment: The Conspiracy Hearsay Exception and Its Erratic Application, 76 Dick. L. Rev. 728 (1972); Klein, Conspiracy — The Prosecutor’s Darling, 24 Brooklyn L. Rev. 1 (1957); Note, The Hearsay Exception for Co-Conspirators’ Declarations, 25 U. Chi. L. Rev. 530 (19581; Garland & Snow, The Co-Conspirators Exception to the Hearsay Rule: Procedural Implementation and Confrontation Clause Requirements, 63 J. Crim. Law 1 (1972).

      . We note that the Supreme Court in Dutton v. Evans, 400 U. S. 74, 81, 91 S. Ct. 210, 27 L.Ed.2d 213 (1970) said that “. . . [I]t does not follow that because the federal courts have declined to extend the hearsay exception to include out-of-court statements made during the concealment phase of a conspiracy, such an extension automatically violates the Confrontation Clause.” A recent commentator observed in The Conspiracy Hearsay Exception and Its Erratic Application, supra, that “There is a post-conspiracy concealment phase during which admissions and declarations are often made. The concealment phase idea was soundly rejected in Kruleuritch as it involved federal trials, but clearly given new life in Dutton.” 76 Dick. L. Rev. 728, 740 (1972).