Basta v. State

• Decision Date: 15 January 1919
• Docket Number: No. 75.,75.
• Citation: 105 A. 773,133 Md. 568
• Parties: BASTA v. STATE.
• Court: Maryland Court of Appeals

105 A. 773

133 Md. 568

BASTA

v. STATE.

No. 75.

Court of Appeals of Maryland.

Jan. 15, 1919.

Appeal from Circuit Court, Baltimore County; Allan McLane, Judge. "To be officially reported."

Charles Basta was convicted of crime, and he appeals. Reversed and remanded.

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

William H. Lawrence, of Baltimore, and Pasco Schiavo, of Hazelton, Pa., for Appellant.

Albert C. Ritchie, Atty. Gen., Ogle Marbury, Acting Atty. Gen., and Philip B. Perlman, Asst. Atty. Gen., for the State.

BRISCOE, J. It appears from the record in this case that the traverser was tried and convicted in the circuit court for Baltimore county upon a criminal information filed by the state's attorney of that county, under the power vested in him by chapter 77 of the Acts of 1892.

The criminal information contains four counts. The first and fourth counts charge misdemeanors; the second and third counts charge felonies.

The defendant, at the trial, demurred to the whole Information and to each count thereof. The demurrer was overruled, and thereupon a plea of not guilty was interposed, and upon trial before a jury a verdict of guilty was rendered against him. A motion in arrest of judgment was overruled, and he was then sentenced to the Maryland Penitentiary for the period of ten years. From this judgment he has appealed. '

The case has been submitted to us for determination, upon briefs filed on the part of the state and the traverser without oral argument and with consent on the part of the state, for a reversal of the judgment and a remand of the case for a new trial for errors apparent upon the face of the record.

The objections to the validity of the information and the judgment of conviction in this case are very manifest, and the reasons upon which they are based need only be briefly stated.

By chapter 77 of the Acts of 1892 it is provided that all the offenses committted within the limits of Baltimore county, except treason, misprislon of treason, arson, burglary, larceny, manslaughter, mayhem, murder, rape, robbery, sodomy, and all other felonies may be prosecuted upon order of the circuit court for Baltimore county, on information on behalf of the state, filed by the state's attorney in said county. Tills statute, it will be seen, expressly excepts from its operation certain enumerated offenses, and all other felonies.

The offense charged in the second and in the third counts of the Information in the case at bar is a felony, under the statutes creating them, and they were not properly included in the information filed by the state's attorney. The demurrer to these counts should have been sustained and the traverser put upon trial, on the first and fourth counts, each of which charged a misdemeanor. Acts 1892, c. 77, supra; article 27, §§ 381. 383. vol. 3, Code; Acts 1910. c. 25.

While the first and fourth counts of the information charging a misdemeanor in each were good counts, a general verdict of guilty was found against the traverser, and no means exist of determining upon which count it was rendered, or whether it was rendered upon all the counts, including the two bad and defective counts. The traverser in this case demurred to the whole information and to each count thereof, and, us was said by this court in Avirett v. State, 76 Md. 510, 25 Atl. 676:

"It necessarily follows that if the verdict cannot be sustained upon each count it must be set aside."

It was further said in that case:

"If all the counts but one were bad, and each was demurred to, the traverser was, as a matter of strict legal right, entitled by the judgment of the court to have the vicious counts eliminated before being compelled to plead not guilty. Forcing him, despite his demurrer, into a trial upon counts which were bad, and each one of which he had assailed, was a prejudicial error that no general verdict could cure, notwithstanding there was one good count in the indictment. * * * It is the absolute legal right of the accused not to be tried upon defective counts, the sufficiency of which he has separately challenged by demurrers; and it is no answer, after his demurrers have been wrongly overruled and a general verdict of guilty on all the counts has been rendered, to say that he has not been injured by the erroneous judgment entered against him, because there is one good count in the indictment."

In the present case the second and third counts of the information charging a felony in each count were clearly not authorized, but expressly...