Bake v. State

• Decision Date: 27 May 1864
• Citation: 21 Md. 422
• Parties: HENRY O. BAKE v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

21 Md. 422

HENRY O. BAKE v. THE STATE OF MARYLAND.

Court of Appeals of Maryland.

May 27, 1864

APPEAL from the Circuit Court for Allegany County.

On the 6th day of June 1862, the mother of an illegitimate child appeared before a magistrate of Allegany County, and made oath that she was delivered of said child on the 19th day of June 1861, and that the appellant was its father. On the 16th of June 1862, the magistrate issued his warrant against the appellant, who, on the same day, entered into a recognizance before the magistrate to answer the charge at the ensuing term of the Circuit Court for the county. At the ensuing October term of said Court, an indictment was found against the appellant, to which he pleaded:

1st. The general issue.

2nd. That the prosecution and proceedings were not commenced within one year from the time of the begetting of the said child, as alleged in said indictment.

3rd. That the prosecution and proceedings were not commenced within one year from the commission of the offence alleged in the indictment.

4th. That they were not commenced within one year from the birth of the child.

The appellee joined issue on the first plea, and demurred to the second, third and fourth. The Court, (WEISEL, J.,) sustained the demurrer, and the case was tried on the issue joined on the first plea, and a verdict and judgment were rendered against the traverser, from which he has taken this appeal.

The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J Thomas J. McKaig, for the appellant:

1. This is a prosecution under Article 13 of the Code of Public General Laws, and is, to all intents and purposes, a criminal proceeding. The provisions of the Code in reference to the offence charged, are similar to those of the Act of 1781, ch 13, and its supplements. In construing that Act, this Court have said that, " the proceeding is treated by the law as a criminal proceeding," and that although one object of the law is to indemnify the county, another object is to punish the offence of fornication. Oldham vs. State, 5 Gill, 90. Owens vs. State, 10 Md Rep., 164. Root vs. State, 10 G. & J., 374. State vs. Phelps, 9 Md. Rep., 21.

2. The proceeding being of a criminal character, it is within the provisions of Art. 57, sec. 10, of the Code, and must be instituted within one year from the time when the offence was committed, for the punishment of which, provision is made by Art. 13.

Charles B. Thruston, for appellee:

Fornication not publicly committed or accompanied by open lewdness, is not an indictable offence at common law. Wharton's Amer. Criminal Law, 2667. Archbold's Crim. Practice and Pleadings, vol. 2, p. 1040.

In Maryland, it is only punishable under the said 13th Article of the Code of Public General Laws, and (as will be insisted) not at all as a single and independent offence.

That the title of the Act of 1781, ch. 13, directed " proceedings against persons guilty of fornication," would not of itself establish that this was solely the offence to be punished, for the body of that law shows clearly that it only applied to fornication followed by the birth of a child, and although the title of a statute may be referred to for the purpose of explaining its terms, if doubtful or ambiguous; where there is no doubt or ambiguity, no such reference is necessary or proper. No key is needed where there is nothing to be opened.

Conceding, as is said by the Court, in Oldham vs. The State, that proceedings under this Act of 1781, ch. 13, are to be classed as criminal proceedings, and are classed by the law itself among criminal cases, it is submitted, that this refers merely to the character of the case, and to this extent, it is true, because carried on by indictment to Court, and the form of the proceeding determines the character of the case; but the matter about which the proceeding is instituted and carried on, is not, strictly, a crime, because that is determined by the object of the law and the judgment, which is not a punishment, but only an indemnity to the county. Acheson vs. Everett, Cowp. Rep., 382. This construction seems irresistible, when we consider that, if a punishment, it is as justly incurred by the act of fornication without issue as with it, and yet, if not followed by the birth of the child, the act is not denounced or inhibited by the law. The proceeding under this Article " is a peculiar proceeding, and must be exactly pursued," in the language of the Court of Appeals in Root vs. The State, 10 G. & J., 376, and the design of the law, in the punishishment inflicted, " is admitted to be to indemnify the county."

The recognizance is given to the State to...