Solomon Luery, and showed him the piece of | ed and answered formed the ground for the solder he had found on Barrett. He said he second exception. had not bought anything of that kind. The [1] There can be no doubt that it is perpiece which Mrs. Luery got from under the missible in a case of this character to prove counter was marked "Superior Extra Fine more than one act as reflecting upon the Wiping Solder," and on the piece found on guilty knowledge of the accused. It might Barrett was marked "Extra Wiping Solder." very well happen that one would innocently The testimony of the witness Fox was that purchase a cake of solder or other article the company used both kinds. The one has without having any reason to suspect it had more tin in it, and is brighter than the other. been stolen, but a number of such sales at Capt. Gilbert who was connected with the about one-half of the value of the article, United Railways, said complaint was made especially if made by an employé of a comto him on February 19, 1910, that wiping sol- pany which used it, ought to suggest to any der was being stolen from the East Baltimore one that there was something wrong. In this trouble station. He went to the junk dealers state there have been many decisions authoralong certain streets, and the first place he izing admission of evidence of other crimes visited was Luery's on Lexington street. He when guilty knowledge or a similar question saw Mrs. Luery, and asked if she bought any is involved. In Bloomer v. State, 48 Md. 521, of that kind of material, and she said no. where a conspiracy was charged with referHe told her, if any of it came in, to notify ence to passes on the Chicago, Burlington & the police, that they had been losing some of Quincy Railroad, some of the same character it. Barrett testified that he had been em- of passes on the Burlington & Missouri River ployed at the East Baltimore street trouble Railroad were admitted. In Bishop v. State, station, and said the first tin or solder he 55 Md. 138, in which the defendants were intook from the company was about seven or dicted for uttering as well as forging a bond, eight months before he was arrested, that it it was held to be competent for the state to was the kind of material Mr. Bradley found show that on or about the time of the charge on him, and that the company handles solder in the indictment the accused held and utlike the samples shown him. He said he sold tered similarly forged instruments. In Bell the solder taken by him on Lexington street v. State, 57 Md. 108, evidence of uttering a to Solomon Luery; that he received 40 cents check on the day after uttering the one charga cake for it, and a cake contained five ed in the indictment was held admissible alpounds; that it was worth about 16 cents a though the traverser had been acquitted of pound. He also said that Solomon Luery ad- that. In Lamb v. State, 66 Md. 285, 7 Atl. vised him to continue it. He was asked 399, evidence was admitted that the traverser whether, after the first time, he sold any made a subsequent attempt to accomplish an more solder to Solomon Luery or wife, and abortion by different means, to show with replied that he had, and was asked about what purpose and intent he made the attempt how long it was after the first time, and re- charged in the indictment, as well as to corplied, "On various occasions, well, averaging roborate the evidence of the first attempt. maybe about a week, five or six days be- The case of Rex v. Ellis, 6 B. & C. 145, was tween, and maybe two weeks between." In referred to, in which a shopman was indicted answer to how much he took there at that for robbing his employer's money drawer of time he said, "Mostly one cake, forty cents a particular sum of money on a named day; worth." He said he carried the cake in his evidence was admitted that the prisoner had hip pocket, and sometimes he would get 45 robbed the drawer at other times. Bayley, cents from the Luerys, but very seldom, and J., delivering the opinion said: "Generally never did get more than 45 cents for a five- speaking, it is not competent for a prosecutor pound cake from them. He said sometimes to prove a man guilty of one felony by provMrs. Luery was there and paid him. He was ing him guilty of another unconnected felony; then asked, "How many times, if you can but where several felonies are connected toestimate, between February, 1910, and the gether, and form part of one entire trans20th of July, 1910, did you take solder and action, then the one is evidence to show the sell it down there, either to Luery or his character of the other." In Carnell v. State, wife, Leah?" and answered, "I should judge 85 Md. 1,1 traverser was indicted for obtainabout half a dozen times." The first excep- ing goods under false pretenses on January tion was taken to that question and answer. 30, 1896. A letter found in his possession adHe then said he would sell it to whichever dressed to the president of a bank dated was there. If both were there, he would sell February 22, 1896, asked him to certify to it to either-one would take it and the other the fact that he had $100 on interest in the pay him. He was then asked, "Did either bank, that he wanted to give a check dated Solomon Luery or his wife, or both, say any- July 2, 1896. Below was written, "Hagersthing to you in reference to coming back," town, Md., 2-27, '95. To whom it may conand replied, "Yes, sir. They told me to come cern: The above is all right. The money is back, and, if they saw me on the street, they here, payable July 2, 1896"-and purported to wanted to know why I didn't bring more be signed by the president. The court said: solder." Permitting that question to be ask-"The representation made in the latter being, 136 Atl. 117. Md.) LUERY v. STATE 683 jection that he had taken solder at different times, and sold it to the Luerys. The dates named in the question in the first bill of exceptions (February, 1910, and July, 1910) were apparently used by reason of the testimony already given. Capt. Gilbert had said, it will be remembered, that he was informed in February, 1910, that wiping solder was being stolen from the company, and he notified the junk dealers, including Mrs. Luery, and then the "lookout sheet" was read to her by Officer Cooper on or about July 20th according to its purport, subsequent in date | done. He had already testified without obto a similar statement set forth in the bill of particulars, may not prove that the latter was in fact made, yet the letter was admissible for the purpose of showing guilty knowledge. The fact that he had on his person a paper in his own handwriting which contained the same false statement he was charged with in the indictment tends to prove guilty knowledge as to both." And the court also said that the letter was admissible for the purpose of showing that the defendant had devised a scheme to obtain goods wherever he could by falsely representing that he had money on deposit in that bank. In the case of Beuchert v. State, 165 Ind. 523, 76 N. E. 111, as annotated in 6 Am. & Eng. Ann. Cas. 914, many cases are cited to show that in a prosecution for receiving stolen goods evidence of the defendant's possession of other stolen goods prior to or at the time of the commission of the offense is admissible as testimony to establish that the defendant received with guilty knowledge the goods specified in the indictment. Many other cases might be referred to, but we do not understand the general proposition to be ques tioned. [2] It is contended, however, that inasmuch as the state failed to prove that the goods alleged to have been received were received at the time named in the indictment, to wit, August 10, 1910, it was required to select some definite time on which the state relied for conviction, and that evidence of other receipts of stolen goods in so far as admissible at all could only be admitted for the purpose of reflecting upon the guilty knowledge of the defendants at such particular time. Of course, the mere fact that the state proved the receipt at a different date from that named in the indictment could make no difference, but, as the record shows, there was a failure to prove the charge, on the date named in the indictment, as the solder stolen that day was still in the possession of Barrett when he was arrested, and hence had not been received by either defendant. If application had been made to the court, it might have determined whether it would be proper to require the state to elect some time in each case, as the one relied on for conviction for each particular traverser, if that could be done, but there was no such motion, and the four cases were tried together. It was perhaps impossible to name any particular day, and, if that be so, it would practically have furnished immunity to a receiver of stolen goods if the state had to elect some one definite time and rely on that alone. Suppose the witness had been asked to state whether or not he had sold to Luery, or his wife, any of the solder stolen by him, and if so when, and he had replied, "Yes, half a dozen times, but I do not remember the dates." The state could certainly have followed that up by endeavoring to show, as nearly as possible, when it was the date of that sheet. The record shows that, after the second exception was taken, the state followed the testimony up by asking if Barrett had sold any of the solder taken by him from that company between the 20th of July and the 20th of August; the 20th of August being a mistake either in the record or in the question, as the arrest was made on the 10th. That question was not objected to. Inasmuch as it would be extremely difficult to establish any definite day, and the proof showed that the thefts covered the periods included in the question, the state had the right to take the dates between which notices were shown to have been given Mrs. Luery, and find out, if possible, how often, if at all, she or her husband or both had bought solder within those dates. The question might have been followed up in chief or on cross-examination to ascertain the dates more definitely than had yet been done, and, if they could have been fixed accurately, the traversers, if they were in danger of being injured, could have asked the court to require the state to elect some date for each one, but, as we have seen, that was not asked. If any evidence objected to related to receipts subsequent to the time elected by the state, whether or not it should have been excluded we need not do more than say that to exclude it in a case like this, where there was the same thief, same article, same owner, and same receivers would have been of very doubtful propriety, as they were practically one entire transaction. The fact that the four cases were heard together and receipts at different times might have been relied on would have made it more difficult than in ordinary cases to confine the testimony of other acts to those prior to the date relied on for conviction. So, without further discussion of the question, we are of the opinion that the evidence in the first and second exceptions was admissible. The third we do not understand to be pressed. It apparently had nothing to do with the Luerys. [3] It only remains to consider the motion presented by the fourth bill of exceptions. It is as follows: "The testimony being concluded, each of the defendants by their counsel moved that they, and each of them, be discharged on the ground that, upon the uncorroborated evidence of accomplices connecting the defendants with a crime, the law does not permit a conviction to stand." The ing. If then such a prayer is granted, it case of Lanasa v. State, 109 Md. 602, 71 Atl. | the court must be careful to so word it that 1058, was not reversed on the ground that the jury will understand that it is not bindhe was convicted upon uncorroborated evidence of accomplices. In speaking of their evidence we said: "Both were under indictment, and upon the uncorroborated evidence of accomplices connecting Lanasa with the crime the law does not permit a conviction to stand. Wharton's Crim. Evidence (Sth Ed.) §§ 441, 442." It is true that at common law a verdict of the jury would not be set aside merely because founded on the evidence of an accomplice which was not corroborated, but by legislation in many states of this country and by the practice of most of the courts, where there is no such statute, such a verdict is regarded as an exceedingly dangerous one, and is not approved by the courts. In those jurisdictions where it is not positively prohibited unless corroborated, the evidence of an accomplice is universally received with caution and weighed and scrutinized with great care. "The suspicion with which the testimony of an accomplice is received by the courts, and their unwillingness to sustain convictions resting wholly upon the uncorroborated evidence of such a person, have led to the very general and proper practice of advising or cautioning juries against convicting upon the uncorroborated testimony of an accomplice." Note to Rex v. Tate (1908) 2 K. B. 680, annotated in 15 Am. & Eng. Ann. Cas. 698, where numerous cases are cited. In the note just referred to many cases are collected on the question whether it is reversible error not to so instruct the jury, some courts taking one, and others the In Dick v. State, 107 Md. 11, 68 Atl. 286, other, position on that subject. But the un- 576, the traverser was charged with embezdoubted fact is that the experience of the zlement. At the close of the evidence of the courts, which is certainly much greater than prosecution, which showed that the defendthat of juries, is that it is unsafe, at least in ant had failed to account for the money colthe great majority of cases, to rest a convic- lected by him for his client, the defendant tion upon the uncorroborated evidence of an moved to strike out the testimony as being accomplice. Any one who has had experience insufficient to prove that he was the agent of at nisi prius trials knows how captivating is his client within the meaning of the word the story of one relating the circumstances agent as used in the statute. This court connected with some mysterious crime. When said: "The motion to strike out the testisuch a one has as a motive the prospect of mony of the state was in legal effect a defreedom, a milder sentence, or the favor of murrer to the evidence, and an attempt to the officers who have him in charge, an in- obtain an instruction from the court to the nocent one may undoubtedly be made to suf- jury to render a verdict for the defendant, fer, if great caution is not used. Hence it and it is well settled that this cannot be done would seem to be safer to require some cor- in Maryland, where the jury in criminal roboration, and inasmuch as under our sys- cases are the judges of the law, and of the tem the courts do not charge the juries in legal effect and legal sufficiency of the evicriminal cases, and the juries are made judg-dence, and the court only determines the ades of the law and of the facts, one effective missibility of the evidence." The cases of way of affording relief is for the trial court not to permit a conviction to stand if based exclusively on such testimony, if a motion for a new trial is seasonably made, or the trial courts might well adopt the practice of granting prayers advising or cautioning juries against conviction without corroboration. Under our system prayers are advisory, and not binding on juries in criminal cases, and, of course, as has been distinctly decided in Franklin v. State, 12 Md. 246, Broll v. State, 45 Md. 360, Bloomer v. State, 48 Md. 538, Beard v. State, 71 Md. 280, 17 Atl. 1044, 4 L. R. A. 675, 17 Am. St. Rep. 536, and Ridgely v. State, 75 Md. 512, 23 Atl. 1099, were then cited. In Garland v. State, 112 Md. 83, 75 Atl. 631, the defendant objected in advance to the testimony of each witness, and then made a motion at the conclusion of the state's testimony to strike out the evidence. Md.) WILMER v. MAYOR, ETC., OF CITY OF BALTIMORE idence produced by the state was not admissible because it did not tend to prove the commission of the offense charged in the indictment. The evidence of W. Wallace Elliott was corroborated by the evidence of the admissions or statements of, the appellant, and was admissible for the purpose of showing the alleged conspiracy. With the sufficiency of the evidence we have nothing to do. The jury in this state are the judges of both the law and the facts, and, where there is no reversible error in the rulings of the court, their finding must stand." [4] There is no practice in this state which would have authorized the court to discharge 685 [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3126; Dec. Dig. § 627.*] 3. APPEAL and Error (§ 371*)-RECORD-PAYMENT OF COSTS. equity need not forward the record to the Court of Appeals until it is paid for, and the clerk need not demand payment from appellant. The clerk of the trial court in a suit in [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2000; Dec. Dig. § 371.*] Appeal from Circuit Court of Baltimore City; Alfred S. Niles, Judge. Suit between Edwin M. Wilmer, trustee, the defendants as requested by the motion, and the Mayor and City Council of Balti - and it was properly overruled. We do not want to be understood as assuming that one guilty of larceny is an accomplice, within the meaning of the law, of one charged with receiving stolen goods. In this state larceny and receiving stolen goods are very distinct crimes, but it is not necessary for the purposes of this case, and hence we have expressed no opinion on that subject. It follows from what we have said the judgment in each case must be affirmed. Judgment affirmed, the appellant to pay the costs. LUERY v. STATE. (Court of Appeals of Maryland. 1911.) June 24, Appeal from Criminal Court of Baltimore City; John J. Dobler, Judge. Leah Luery was convicted of receiving stolen goods, and appeals. Affirmed. Argued before BOYD, C. J., and PEARCE, BURKE, URNER, and STOCKBRIDGE, JJ. Thomas J. Mason, for appellant. Raymond S. Williams, for the State. BOYD, C. J. For reasons given in the opinion in case of Solomon Luery v. State, 81 Atl. 681, the judgment in this case will be affirmed. Judgment affirmed, the appellant to pay the costs. (116 Md. 338) WILMER v. MAYOR AND CITY COUNCIL OF CITY OF BALTIMORE. (Court of Appeals of Maryland. June 24, 1911.) 1. APPEAL AND ERROR (§ 607*)-RECORD ON EQUITY APPEAL. Where counsel in a suit in equity fail to agree on what shall be inserted in the record on appeal, the record must be made up as provided by Code Pub. Gen. Laws 1904, art. 5, § 34, and the trial judge may direct appellant's solicitor to submit a statement to him, and, where he fails to do so, there is a default, as the right of appellant to control the record is not without limitation. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2665-2672; Dec. Dig. § 607.*] more. From a decree for the latter, the former appeals. Dismissed. Argued before BOYD, C. J., and PEARCE, BURKE, URNER, and STOCKBRIDGE, JJ. David Ash and D. Eldridge Monroe, for appellant. Joseph S. Goldsmith and Charles F. Stein, for appellee. STOCKBRIDGE, J. The appeal in this case was dismissed upon the day following the argument upon the motion to dismiss, at which time it was announced that the reasons for such action would be given later. On June 6, 1910, a decree was entered by the circuit court of Baltimore City in this case, and on August 4th, two days before the expiration of the time limited for an appeal, the Under secorder for an appeal was filed. tion 33 of article 4, Code Public General Laws, the record should have been transmitted to this court so as to reach here at the latest by November 3, 1910. It was in fact transmitted on March 31, 1911, reaching this court on April 1st. It is this delay and noncompliance with the statute which forms the ground for the motion to dismiss. As is usual, affidavits and counter affidavits have been filed as to the cause of the delay. From these it appears that, no agreement having been reached between counsel, the solicitors of the appellant gave an order to the clerk to insert certain enumerated papers as constituting the record, while the clerk suggested that these would not constitute a complete record. The appellant's solicitors then brought the situation to the attention of the judge before whom the case had been heard, who informed them that if they would prepare a statement of what should, in their judgment, be included in the record and submit it to him, he would order the clerk to prepare the record in such manner as might appear proper to him. This the appellant's solicitors said they would do, but in fact never did. In argument the appellant asserts that he 2. APPEAL AND ERROR (§ 627*)—RECORD-DE- has the right to control the record, and reLAY IN FILING. Where appellant, for more than four months lies on the decisions in Ewell v. Taylor, 45 after the expiration of the time for the trans- Md. 573, and Estep v. Tuck, 109 Md. 531, 72 *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes Atl. 459, to support this contention. It is true that for many purposes the appellant is entitled to control the record, for example, the time of its transmission (Carroll v. Hutton, 90 Md. 636, 45 Atl. 886); but this right is not without limitation. If it were it would be within the power of an appellant to bring here a record containing only such of the pleadings and evidence as were, in his judgment, favorable to his case, and omit the rest entirely. of the clerk or appellee. Ewell v. Taylor, 45 Md. 573; Parsons v. Padgett, 65 Md. 356, 4 Atl. 410; Estep v. Tuck, 109 Md. 528, 72 Atl. 459; Warburton v. Robinson, 113 Md. 24, 77 Atl. 127; Horpel v. Hawkins, 80 Atl. 842, decided at January term, 1911. The burden which the law imposes has not been met by the appellant in this case, and the appeal is, accordingly, dismissed, with costs. Appeal dismissed, with costs. OF GARRETT COUNTY. (116 Md. 380) (Court of Appeals of Maryland. June 24, 1911.) [1] Undoubtedly the counsel in a case may agree as to what shall be inserted and what STATE v. POTOMAC VALLEY COAL CO. omitted; but, where no such agreement is reached, section 34 of article 5, Code Public General Laws, explicitly provides how the record for appeals in equity cases shall be made up. In the case of appeals in cases at law it is the long-settled practice in this state, in the event of a disagreement between counsel, for the trial judge to determine what shall constitute the record, and the judge who heard this case below was but acting in analogy to this practice when he directed the appellant's solicitors to submit a statement This they should have done, and their failure to do so was a default on their part. to him. [2] The time for the transmission of the record expired on November 4, 1910. More than four months were then allowed to elapse during which nothing appears to have been done to give vitality to the appeal prayed in August, and during which time one of the counsel of the appellant had the matter brought directly home to him, by the non pros. of an ejectment suit connected with a portion of the same property here involved. The inaction during this interval of more than four months remains entirely unexplained, and is additional evidence of default on the part of the appellant. Acts 1910, c. 211, amending Acts 1904, c. 37, by prescribing a penalty against corporations engaged in mining coal or fire clay in Garrett county, for failure to pay wages semimonthly, violates Const. U. S. Amend. 14, by discriminating unreasonably against particular classes of employers. Servant, Cent. Dig. 88 78-81; Dec. Dig. 8 69;* Appeal from Circuit Court, Garrett County; Robert R. Henderson, Judge. The Potomac Valley Coal Company of Garrett County was indicted for an offense, and the State appeals from a judgment sustaining a demurrer to the indictment. Affirmed. The following is the opinion delivered by the circuit judge, referred to in the opinion of the court: "The indictments in these three cases are are as follows: precisely similar and charge the defendants with violating chapter 211 of the Acts of 1910. This act is entitled 'An act to repeal chapter 37 of the Acts of 1904 entitled an act to require all corporations engaged in [3] The order for the appeal was filed on mining coal or fire clay in Garrett county the 4th of August, 1910, the list of the se- to pay their employés wages due semimonthlected papers for the record was handed to ly and to re-enact the same with amendthe clerk on or about the 21st day of Octo-ments.'. The material parts of the statute ber, 1910, but the cost of the record of these was not paid for until the 31st of March, 1911, and the clerk is under no obligation to forward the record until it is paid for. Steiner v. Harding, 88 Md. 343, 41 Atl. 799. Nor is it his duty to look up the appellant and demand payment therefor. Parsons v. Padgett, 65 Md. 356, 4 Atl. 410; M. D. & V. Ry. Co. v. Hammond, 110 Md. 126, 72 Atl. 650. The requirement is not met by the ap-ual mine owners now or hereafter engaged in pellant saying to the clerk, "I will pay you what I (the appellant) regard as the proper cost of the record." It has been held, in a long line of decisions in this state, that the burden is upon an appellant of showing that the failure to forward the record within three months after the entry of the appeal was not the result of his own neglect, but was due to the default ""Section 1. Be it enacted, etc., that chapter 37 of the Acts of 1904, entitled an act to require all corporations engaged in mining coal or fire clay in Garrett county, to pay their employés wages due semimonthly, be and the same is hereby repealed and re-enacted with amendments to read as follows: "Sec. 2. That all corporations or individ mining coal or fire clay in Garrett county, be and the same are hereby required to pay each and all their employés their wages earned in said employment semimonthly: That is to say; all wages earned on or before the 15th day of each month shall be paid not later than the 25th day of each month, and all wages earned from 16th day to the last day of the month, both inclusive, |