State v. Coblentz , 169 Md. 159 ( 1935 )

The plea alleges that the two prosecutions have been based on the identical contentions of fact that a specified group of the company's assets had depreciated greatly in value and that the defendant knew of the depreciation. From that known great loss of values, it is alleged, it resulted that the company was known to be insolvent on September 2d 1931, and its financial statements of the earlier dates retaining higher valuations were known to be false; and the two criminal prosecutions have followed separately the two consequences of the same known loss of values. In the first prosecution, on the charge of receiving deposits when the company was thus known to be insolvent, it has been judicially determined that the defendant did not know of the loss of values alleged; yet the second indictment, on the charge of issuing false statements, is brought to establish the same fact of known great loss of values. This seems to be the substance of the plea; and upon that showing one identical basic fact appears to me to have been settled, and the State seems to be estopped from making this second charge on it.

The only grounds suggested for differentiating the facts in the two cases are that in the former prosecution the date of the insolvency, and the knowledge of the great depreciation which resulted in the insolvency, was September 2d 1931, two months after the issue of the last financial statement, and that at the beginning and the end of those two months the depreciation may not have been the same. But on the demurrer the plea is being tested at its face value, and it expressly negatives the possibility that there may have been any material difference in the loss of values and the condition of the assets during that time; and, of course, if the defendant did not know of the loss in September, he did not know of it in June.

The plea is not one of double jeopardy on the same charge, but one of estoppel by res judicata; and there is a difference between the two. Estoppel on the latter ground may arise from a finding of a single fact in the first prosecution, to be proved by evidence available in the record or out of it. "We are here concerned, however, with res judicata as distinguished from former jeopardy, which has no necessary connections with judgments though both doctrines may be operative at the same time. Even when the crimes charged are different, and a plea of former jeopardy therefore unavailable, a criminal judgment isres judicata of every matter determined by it, where the conditions essential to the operation of the doctrine are present. But under such circumstances the previous judgment is conclusive only as to those matters which were in fact in issue and actually or necessarily adjudicated." Freeman,Judgments (5th Ed.) sec. 648; Bigelow, Estoppel (6th Ed.) 100. "But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered." Cromwell v. County of Sac,94 U.S. 351, 352, 353, 24 L.Ed. 195; Russell v. Place, 94 U.S. 606, 24 L.Ed. 214. "What was involved and determined in the former suit is to be tested by an examination of the record and proceedings therein, including the pleadings, the evidence submitted, the respective contentions of the parties, and the findings and opinion of the court; there being no suggestion that this is a proper case for resorting to extrinsic evidence." Oklahoma v.Texas, 256 U.S. 70, 88, 41 S.Ct. 420, 423, 65 L.Ed. 831;National Foundry Works v. Oconto Co., 183 U.S. 216, 234, 22 S.Ct. 111, 46 L.Ed. 157; Whitehurst v. Rogers, 38 Md. 503, 512;Beall v. Pearre, 12 Md. 550, 564; Garrott v. Johnson, 11 Gill J. 173, 192; Freeman, Judgments, secs. 768 and 771.

As stated in many decisions, the object in applying the estoppel of res judicata is not only to protect a defendant from vexatious litigation, but also for the benefit of the public, in making an end of litigation of a question for which the public tribunals have once furnished an answer. SouthernPac. R. Co. v. United States, 168 U.S. 1, 48, 18 S.Ct. 18, 42 L.Ed. 355. Here the identity of the basic fact in prosecutions appears to be sufficiently pleaded, the State has submitted the case on the question of the sufficiency of the matter alleged, and I think this litigation should end at this point with an affirmance of the action in overruling the demurrer. On Motion to Vacate Opinion.

BOND, C.J., speaking for the Court.

On behalf of the appellee it is moved that the opinion and decision entered in this case be vacated because of disqualification of one of the judges and an equal division of opinion of the remaining, qualified judges, with the result that the judgment below in the appellee's favor would stand affirmed.

The motion comes as an afterthought, for at the argument of the case, and up to some time after the decision, no objection to the court as constituted appears to have occurred to the appellee. And that fact alone might render it improper to consider the motion now. But there was clearly no disqualification.

In the first of the appellee's cases to be tried and to be brought before this court, (Coblentz v. State, 164 Md. 558,166 A. 45), Judge Sloan, in the Circuit Court for Allegany County, had sat as one of the triers of fact, without a jury; and he, accordingly, took no part in the hearing and decision of the case on appeal. That case was upon an indictment found originally in Howard County, on a charge of accepting a deposit of money in a banking institution when the institution was known by the accused to be insolvent. And the present motion states that on the trial the judges found against the defendant on questions of fact, similar to questions which would hereafter be decided in this case, upon a trial. Although the present case, on the third indictment, was not one with which Judge Sloan had any connection below, and is on a charge of violating a different statute, still his having previously decided against the defendant questions of fact similar to those which would hereafter be decided in this case on a trial, are thought to have disqualified him for taking part now in the review of the decision of the Criminal Court of Baltimore on the question of res judicata raised before it.

The objection is based on the constitutional provision that "the judge who heard the cause below shall not participate in the decision." Const. Maryland, art. 4, sec. 15. And there is authority for the contention that a case in which one judge participates in disregard of such a requirement would be disposed of by the votes of his associates. United States v. Lancaster, 5 Wheat, 434, 5 L.Ed. 432. But this is not a case in which Judge Sloan sat below, and on this appeal the court has nothing to do with the ultimate finding of facts in the case. We do not mean to decide that there would be a disqualification in this third case even if the same issues of fact could in some way be brought up on appeal. See reviews of decisions, 25 L.R.A. 118; 45 L.R.A.(N.S.) 511, 519, 526; Ann. Cas. 1913-C, 251; Ann. Cas. 1917-A, 843; 96 A.L.R. 546. And see Blackburn v. Crawford,22 Md. 447, 459.

Motion overruled.