Allen v. State

• Decision Date: 07 March 1916
• Docket Number: 35.
• Citation: 97 A. 362,128 Md. 265
• Parties: ALLEN v. STATE.
• Court: Maryland Court of Appeals

97 A. 362

128 Md. 265

ALLEN v. STATE.

No. 35.

Court of Appeals of Maryland

March 7, 1916

Appeal from Circuit Court, Prince George's County; Fillmore Beall and B. Harris Camalier, Judges.

"To be officially reported."

John Allen, being indicted for bastardy, moved to quash the indictment. From an order overruling his motion, he appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Wm. J Neale, of Washington, D. C., for appellant.

Albert C. Ritchie, Atty. Gen., for the State.

URNER J.

The appellant moved in the court below that an indictment against him for bastardy be quashed because, after charging that the fornication was committed on the 1st day of December, 1914 it averred that the illegitimate child thus begotten was born alive on the 1st day of December, 1915. The indictment was found on October 14, 1915, and it is said to be fatally defective in alleging that the child was born on the date which had not then arrived, and which would occur 12 months after the time of conception, and beyond the longest possible period of pregnancy.

Upon his appeal the only question presented is whether the objection just mentioned is well founded. This question is entirely free of difficulty. While under the bastardy law of Maryland the offense is not consummated, and the indictment cannot be found, until the birth of the child (Code, art. 12; O'Brien v. State, 126 Md. 277, 94 A. 1034; Sheay v. State, 74 Md. 52, 21 A. 607), yet the time of the birth is not of the essence of the offense and need not be proved as alleged (Neff v State, 57 Md. 385). In the last-cited case the defendant in a bastardy proceeding pleaded that the prosecution was not commenced within a year from the date which the indictment mentioned as the time of the commission of the offense. A demurrer to the plea was sustained, and on appeal this court approved of the ruling and said the plea was insufficient--

"because in cases of this kind time is not of the essence of the offense, and the state was not bound to prove that the child was born on the precise day charged in the indictment. The offense was consummated by the birth of the illegitimate child, and it was only necessary for the state to prove that the prosecution commenced within a year from that time. To constitute a good plea of the statute of limitations, it was necessary, therefore, to allege that the

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