Appeal from the Circuit Court for Worcester County; Child, J.
Brune, C. J., and Henderson, Hammond, Marbury and Sybert, JJ. Hammond, J., delivered the opinion of the Court.
Having been convicted by a jury of obtaining goods by the false pretense of a bad check in violation of Code (1957), Art. 27, Sec. 142 (The Worthless Check Act), the appellant seeks a reversal for errors as to particulars, the indictment, the instructions to the jury and the sufficiency of the evidence, alleged to have been made by the trial court.
The appellant, Cropper, had been employed by one Cherrix (called "Chum" in the testimony) to build a chicken house. Cropper ordered certain heating equipment from a Philadelphia firm with which he had done business before. The firm agreed to sell the material only on condition that it be paid for on delivery. When the material was delivered, Cropper gave the truck driver a check for the amount of the invoice, $2,239.39, saying "I know that Marty [the vice president and general manager of the supplier] will be glad to get this" and, according to his own statement and that of one of his workmen, he also said the check should not be taken to the bank immediately because it was not "worth a nickel" until Chum gave him the money to make it good. The truck driver denied that the latter statement was made. The check was returned because funds on deposit were insufficient to pay it and, after being redeposited, was again returned for the same reason.
The indictment listed each item of equipment obtained from the supplier "by a certain false pretense" with a statement of its value in dollars and cents and, as returned by the Grand Jury, contained the statement that the items listed were "all of the total value of two thousand two hundred thirty-nine dollars and thirty-nine cents" and had been obtained "with intent then and there to defraud, in violation of Article 27, Section 142 * * *" (when Cropper moved to dismiss the indictment the words "current money" were added after the statement of the total value quoted above). Cropper, after having
asked for a bill of particulars and having unsuccessfully excepted to that furnished him, moved to dismiss the indictment because it did not contain "the necessary description of 'current money' as required by Rule 710  c." His motions for a judgment of acquittal pursuant to Maryland Rule 755, at the close of the evidence offered by the State and at the close of all the evidence, were denied. His request for an instruction that if the jury found that within ten days from the giving of the check he had deposited in his bank account funds sufficient to pay the check he should be acquitted, was refused in the exact form he requested. After counsel had argued to the jury, the trial court gave advisory instructions. Then, before the jury retired to deliberate, Cropper, out of the jury's presence, excepted to the charge on the sole ground that the court in violation of Maryland Rule 756 d had not advised counsel in advance of their argument on how it proposed to rule on requests for instructions and the substance of the instructions it contemplated giving.
Appellant argues that the failure of the bill of particulars to give the names of the witnesses to be called was prejudicial and should have prompted the court to sustain his exceptions to the bill. He does not spell out or suggest actual prejudice and we see none. Formerly, a statute (last codified as Section 608 of Article 27) provided that in any indictment for false pretenses it was not necessary to state the particular false pretenses to be relied on in proof, but the defendant "on application to the State's Attorney before the trial, shall be entitled to the names of the witnesses and a statement of the false pretenses intended to be given in evidence." Jules v. State, 85 Md. 305, and Schaumloeffel v. The State, 102 Md. 470, said that the statute gave the defendant the right to the names of the witnesses and the details of the false pretenses, and gave indication that essentially the term bill of particulars meant the details of the false pretenses as distinguished from the names of the witnesses. See also Berger v. State, 179 Md. 410, 416. Delcher v. State, 161 Md. 475, 481-482, indicated that if the defendant knew or otherwise obtained the names of the witnesses before trial the fact that the bill of particulars had not furnished them was not prejudicial. Delcher and Berger said
that the bill of particulars gratifies its function if it sufficiently enables the defendant to prepare his defense and so protects him from surprise by limiting the scope of the proof at the trial. Section 608 of Art. 27 of the Code was superseded by Maryland Rules 715 and 728.*fn1 Paragraph a of Rule 715 provides that a motion for a bill of particulars "shall specify the particulars sought by the defendant." Paragraph b says that "where the offense charged is false pretenses, the State's Attorney shall, upon demand of the defendant, file a bill of particulars within a reasonable time." Rule 728 a 3 provides that upon motion of the defendant the court may order the State's Attorney "to furnish the defendant a list of the names and addresses of the witnesses whom the State intends to call to prove its case in chief."
Cropper did not specify in his demand for particulars that the names of the proposed State witnesses be furnished nor did he ask for them under Rule 728. We find nothing to indicate he was either surprised at the trial or hampered in his defense by the failure of the bill of particulars to include them. The indictment carried the names of the three witnesses on whose evidence it was based, as directed by Rule 717, and these were the witnesses called at the trial. Before the case was begun the State's Attorney asked that the clerk call the three State's witnesses. They were not in the court room and a recess was asked for by the State. Cropper objected to the recess being granted.
The appellant's other objection to the bill of particulars -- that attached to the bill were photostatic copies of exhibits, rather than the originals (which were introduced in evidence at the trial) -- is captious and unsubstantial.
We find no error in the court's having permitted the indictment to be amended by the addition of the words "current money" after the allegation that the aggregate value of the items fraudulently obtained was so many dollars and cents. The ...