Beard v. State

• Decision Date: 25 March 1891
• Citation: 21 A. 700,74 Md. 130
• Parties: BEARD v. STATE.
• Court: Maryland Court of Appeals

21 A. 700

74 Md. 130

BEARD v. STATE.

Court of Appeals of Maryland

March 25, 1891

Error to criminal court of Baltimore city.

Argued before MILLER, ROBINSON, BRYAN, IRVING, BRISCOE, and MCSHERRY, JJ.

Tho. C. Ruddell, for appellant.

Atty. Gen. Whyte and Charles G. Kerr, for the State.

MCSHERRY J.

The appellant was indicted for the common-law offense of keeping a disorderly house, and was convicted by the verdict of a jury in the criminal court of Baltimore city. He thereupon appealed to this court upon exceptions reserved during the trial, and pending the appeal was released on bail. In June 1889, the rulings of the court below were affirmed, (71 Md 275, 17 A. 1044,) and Beard disappeared. His recognizance was forfeited, but he was not taken until the 16th day of October, 1890. In the mean time--that is, after his conviction, and before his arrest in October last--an act of assembly was passed, being chapter 523 of the Acts of January session, 1890. That statute enacts that "any person who shall keep a disorderly house shall, on conviction thereof, be subject to a fine of not less that $50 nor more than $300, or by imprisonment in jail for not less than 10 days nor more than 6 months, or by both fine and imprisonment." On the 11th of October a motion in arrest of judgment was filed. It was founded on the change made by this act of assembly in the punishment for keeping a disorderly house. This motion was heard by the supreme bench of Baltimore city, and overruled, whereupon a sentence of 13 months in jail and $1,200 fine was imposed by the criminal court; and from that final judgment Beard has brought the record into this court by petition as upon a writ of error. The question is whether the criminal court had authority to inflict the punishment it did.

The offense of keeping a disorderly house is a common-law misdemeanor. It is not defined in and was not created by any statute of this state. The punishment for it when Beard was convicted was, in the discretion of the court, a fine or imprisonment or both; and the amount of the fine and the length of the imprisonment were likewise in the court's discretion. This was the punishment at common law. The act of 1890, passed after Beard had been convicted and had fled, and before he was sentenced, prescribed for the first time a statutory penalty, which is greater than the minimum and less than the maximum common-law punishment. The common law, and not the statutory penalty, was imposed upon him. He claims that the statute repealed by implication the common-law punishment, even as respects cases previously tried and convictions previously had; and that there was, therefore, no power in the court to impose the penalty it did; and that consequently, the sentence is a nullity. As the act of 1890 makes the minimum penalty for the offense greater than the court limit at common law, it is quite apparent that the statute is, as to Beard, an ex post facto law, and that he cannot be punished under it. A law which punishes that which was innocent when done, or adds to the punishment of that which was criminal, or increases the malignity of a crime, is an ex post facto law. Strong v. State, 1 Blackf. 193; Calder v. Bull, 3 Dall. 386; 1 Kent, Comm. side page 409. But while he cannot be punished under the statute, does it follow that he cannot, though properly convicted, be punished at all? It will be observed that the act of 1890 does not create, define, enlarge, or diminish, or in any way alter or change, the common-law offense. It leaves that offense precisely as it found it, and deals only with the punishment. In dealing with the punishment, it is confined exclusively to the future, and expressly declares that any person who shall keep--that is to say, who shall after the passage of that act keep--a disorderly house shall be liable to the penalty provided by the act. The obvious intention of the legislature in passing it was not to interfere with past offenses, but merely to fix a penalty for future ones. The language employed plainly indicates that the general assembly had reference to prospective, and not to consummated offenses; and it is not to be assumed that the legislature purposely enacted the law with a view to release from all punishment a convicted offender, who was at that very time a fugitive from justice. There is no repealing clause in the act of 1890, and it cannot be doubted that, had the statute contained an express saving or exception of pending cases from its...