Avirett v. State

• Decision Date: 13 January 1893
• Citation: 25 A. 676,76 Md. 510
• Parties: AVIRETT v. STATE. [1]
• Court: Maryland Court of Appeals

25 A. 676

76 Md. 510

AVIRETT v. STATE. ^[1]

Court of Appeals of Maryland

January 13, 1893

Appeal from circuit court, Allegany county.

John W Avirett was indicted for libel. From a judgment of conviction, he appeals. Reversed.

Argued before ALVEY, C.J., and ROBINSON, BRYAN, PAGE, FOWLER, and MCSHERRY, JJ.

Ferd. Williams, R. T. Semmes, A. Hunter Boyd, I. N Willison, and W. C. Devecmon, for appellant.

John P. Poe, Atty. Gen., for the State.

MCSHERRY J.

The appellant was indicted by the grand jury of Allegany county for libel. There are five counts in the indictment. To every count a demurrer was filed. The demurrers were overruled, and thereupon three pleas in abatement were pleaded. To the second and third the state demurred. The first was traversed, and issue was joined upon the traverse. The court below sustained the demurrer of the state, and found against the traverser upon the issue raised by the traverse of the first plea in abatement. The appellant then, under section 7, art. 75, of the Code, entered a plea of not guilty, without waiving his demurrers, and, after some further proceedings had been taken, he submitted the case to the court, under the circumstances set forth in the record, and a verdict of guilty was thereupon entered, and a sentence of fine and imprisonment was shortly thereafter imposed. A motion was immediately made to strike out the judgment and testimony, which is contained in a bill of exceptions found in the record, and was taken in open court. The motion was denied, and on the 17th day of September, 1892, an appeal was taken from the refusal of the court to strike out the judgment. On the 15th day of the preceding July an appeal had been entered from the finding and judgment on the issue made upon the first plea in abatement, and from the judgment on the demurrers to the indictment. The case has been brought into this court by an appeal, and not by petition, as upon a writ of error; and the question which confronts us at the very threshold is whether, upon that appeal, the demurrers to the indictment are open for examination.

When the act of 1872, chapter 316, allowed, for the first time, an appeal in criminal cases, it provided that the appeal should be taken before sentence was imposed, and it has been repeatedly held by this court that upon an appeal under that statute a demurrer to the indictment could not be considered, and that the only questions which could be examined were those presented by bills of exceptions. As a result, it was possible that the same case might be brought here twice,--once on appeal, before sentence, to review the lower court's rulings on questions presented by bills of exception; and once, after sentence, by petition, as upon a writ of error, to review only specifically assigned errors appearing on the face of the record. Under the act of 1872, as amended by the acts of 1884, c. 132, and 1886, c. 169, an appeal in a criminal case did not bring up any judgment upon a demurrer, and upon a writ of error a review of the questions raised by exceptions was not permitted. It followed from this that a judgment on demurrer, and exceptions to rulings made during the progress of the trial, could not possibly be brought into this court at the same time, and upon the same record, in a criminal cause. But this was not so in civil cases. On the contrary, in the latter an appeal was premature until after final judgment. When such a judgment had been entered, the appeal brought up both the exceptions and the demurrer, or the demurrer alone, if there were no exceptions. Tucker v. State, 11 Md. 322. In this condition of the law, with their marked difference existing between the practice in civil and in criminal proceedings on appeal, the act of 1892, c. 506, was passed. It provides that "the parties to criminal proceedings shall be entitled to bills of exception, in the same manner as in civil proceedings, and appeals from judgments in criminal cases may be taken in the same manner as in civil cases; but no appeal in a criminal case shall stay execution of sentence, unless the counsel for the accused shall make oath that the appeal is not taken for delay." This language is very broad and comprehensive, and, if it be given its natural and ordinary meaning, places an appeal in a criminal case upon the same footing as an appeal in a civil case, and therefore obliterates the distinctions which formerly existed between them. The act of 1892, by declaring that no appeal shall stay the execution nor the imposition of a sentence unless the affidavit provided for shall be made, necessarily implies that the appeal shall not be taken until after sentence has been pronounced; and, when it enacted that appeals from judgments in criminal cases may be taken in the same manner as in civil cases, it obviously did not mean to continue in force the method of procedure previously followed, which method was, as already observed, essentially different from that pursued in civil cases. It must follow from this that the legislature intended that the whole record, including the demurrers and the exceptions, should be brought up at one and the same time by an appeal from the judgment in a criminal case, just as was done in a civil case when the act was passed. If this be not the design of the act, it is difficult to assign or suggest a satisfactory reason for its adoption. It is objected, however, that such a construction of the statute will operate as a repeal of rule 1, relating to appeals, (now section 4 of article 5 of the Code,) and will, by dispensing with the formal assignment of errors by petition under that rule, occasion in this court much uncertainty as to the grounds of demurrer relied on and considered in the court below. But rule 1 is not repealed. It remains in force, and is applicable whenever the record is removed to this court by petition, as upon writ of error. In other words, when a petition, as upon writ of error, is appropriately resorted to,--that is, where no exceptions are reserved,--the provisions of rule 1 must be observed; but where an appeal is taken under the act of 1892 the whole record is brought up, just as in a civil case. It is obvious that no greater uncertainty as to the grounds of demurrer will be occasioned by this method than is constantly encountered when demurrers are brought up by an appeal in a civil case. But, be this uncertainty what it may, it will result, if it should arise at all, from the plain language of the statute, and furnishes no reason for denying full effect to the enactment. We hold, then, that when an appeal is taken in a criminal case, under the act of 1892, c. 506, both the exceptions and the judgment upon the demurrers are open for review in this court. Of course, this is a wide departure from the former practice, but the general assembly has seen fit to ordain it; and, without pausing to consider whether the change is a wise, a judicious, or a salutary one, we must conform to the requirement of the legislature, and give to the statute the effect it was designed to have.

The demurrers to the indictment being, then, properly before us on this appeal, the first inquiry involved is as to the legal sufficiency of the indictment. The first count of the indictment alleges that the Honorable HENRY W. HOFFMAN was on November 22, 1892, one of the associate judges of the fourth judicial circuit of the state of Maryland, and that it was his duty to sit in the trial of all criminal cases, for the violation of the liquor and license laws of the state occurring in Allegany county, and "legally brought before him, in said court, by indictment or otherwise, and to impose just sentences upon all offenders against said liquor and license laws, who were convicted before him in said court, and, to that end, that said judge sat upon the bench in the courthouse of said county, and pronounced judgments and sentences therefrom, and as such judge occupied and used a public office in said courthouse, adjoining the court room therein, and as such judge, * * * so performing the duties of the said office, was then and there one of the servants of the public of said county, in said courthouse;" that on the date above named the appellant was "the owner, proprietor, and publisher, at Allegany county, of a certain newspaper, called the 'Cumberland Times,' and that, maliciously and unlawfully contriving to injure the said HENRY W. HOFFMAN as such judge, he did unlawfully and maliciously print and publish in said newspaper, called 'The Times,' a false, scandalous, malicious, and defamatory libel of and concerning the said HENRY W. HOFFMAN, as such judge, and of and concerning his administration of the criminal laws of Allegany county as such judge, as the same related to persons violating the license and liquor laws of said state, * * * in the words following: 'Political pulls as a preventative of the purgation of the city, (meaning the city of Cumberland, in the said Allegany county.) The mighty and sudden zeal of the organ of the courthouse ring (meaning thereby that there was a corrupt combination of persons in and about said courthouse of Allegany county, aforesaid) for the purgation of this city (meaning the city of Cumberland, aforesaid) from the dens of infamy and vice which pollute it (meaning thereby that there were places of infamy and vice in said city, in which the laws of the state of Maryland were habitually violated) is a matter of such surprise to so many that it cannot pass without comment. Cordially as the Times (meaning thereby the newspaper called the "Cumberland Times," aforesaid) welcomes each and every recruit in the cause of law and order, and indisposed as it is to scrutinize the motives of any who are willing to work with it in the cause, it...