O'Brien v. State
| Decision Date | 07 May 1915 |
| Docket Number | 22. |
| Citation | 94 A. 1034,126 Md. 270 |
| Parties | O'BRIEN v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Charles County; Fillmore Beall and B Harris Camalier, Judges.
"To be officially reported."
Bastardy proceedings against Ellery O'Brien. From an adverse judgment, he appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.
Frederick Dallam, of Baltimore (Sydney E. Mudd, of Washington, D. C and John F. Mudd, of Bryantown, on the brief), for appellant.
Edgar Allan Poe, Atty. Gen. (Clarence M. Roberts, State's Atty. for Prince Georges County, of Upper Marlboro, on the brief), for the State.
The appellant was indicted in the circuit court for Prince Georges county for bastardy and fornication, and on his application the case was removed to Charles county. He was found guilty, and was sentenced to give bond for the maintenance and support of the child mentioned in the proceedings. From that judgment this appeal was taken. There are nine bills of exception in the record, but the most important questions were raised by a motion to quash the indictment, by rulings on replications to pleas to the jurisdiction of the court filed after the motion to quash was overruled, and by an exception taken to the instruction given the jury as to the form of their verdict.
1. There is no motion to quash, in which the reasons were assigned, set out in the record, but as the docket entries and a bill of exceptions taken to the action of the court in overruling the motion show that such motion was passed on, and as the pleas to the jurisdiction do set forth the grounds relied on (which we understand to be the same as those relied on for the motion), we will not stop to determine whether the motion of itself could properly be considered by us. We pursue this course because the state has raised no question about it, and it is important that some of the questions raised be determined, inasmuch as the act of 1912, c. 163, has not been before this court for construction.
The act of 1912 repealed and re-enacted article 12 of the Code, entitled "Bastardy and Fornication," and made many material changes on the subject. It will be helpful to refer to so much of that act as is involved in this case. Section 1 requires a justice of the peace, upon written information under oath of a woman being pregnant with or delivered of a bastard child, to cause her to be brought before him, and, upon failure to disclose the father, to give bond to indemnify the county, etc. Section 2 provides that:
In the act, as published in the Laws of 1912 and in the third volume of the Code, there is only a comma before the word "In" in each of the two instances above where that word is italicized, but manifestly there should be something more than a comma, and we have substituted a period.
Section 4 provides:
"At the hearing before said justice of the peace, it shall be his duty to take down and reduce to writing the testimony of the woman making complaint, together with the cross-examination of said woman by the accused, or his attorney, which testimony shall be signed and sworn to by said woman, and he shall transmit the same with the original papers in the case to the circuit court of the county or to the criminal court of the city of Baltimore, as the case may be, and such testimony shall be admitted in evidence at the trial of the accused person under section 5 of this act, if said accusing witness should die prior to the time of such trial."
Section 5 is:
"Immediately upon the passage of said order, said justice of the peace shall transmit the original papers and a transcript of the proceedings had before him to said circuit court or the criminal court of the city of Baltimore, as the case may be, and thereupon, but not before said woman shall have been delivered, the same proceedings shall be had as in other criminal cases, and if the accused person shall be found guilty by the verdict of a jury, or by the court, if the case be tried before the court, the court shall immediately order such person to give bond to the state of Maryland in a penalty not exceeding $500, with good and sufficient securities conditioned to pay for the maintenance and support of said child," etc.
Section 6 authorizes the court in its discretion to require the mother to give bond to indemnify the county or city, and section 7 is:
"All bonds or recognizances required under this article to be taken or given before a justice of the peace shall be immediately returned by said justice of the peace (a copy thereof being retained by the said justice of the peace), to the clerk of the circuit court of the county or the criminal court of Baltimore city as the case may be; and the clerk of the court shall record said bonds or recognizances together with any other bonds or recognizances taken or given by the order of the court therein among the proceedings of the court."
The objections to the proceedings, as particularly set out in the pleas to the jurisdiction are: First, that there was no order passed by a justice of the peace requiring the accused to enter into a recognizance or give bond for his appearance at court, and that he never entered into such recognizance or gave such bond, and no copy of any such recognizance or bond was made or retained by the justice; second, that no justice ever took down and reduced to writing the testimony of the woman making the complaint, together with the cross-examination of her by the accused or his attorney, and transmitted the same, together with the original papers, to the circuit court; third, that no justice of the peace, immediately upon the passage of an order in and upon the premises, transmitted the original papers and a transcript of the proceedings had before him to the court; fourth, that no bond or recognizance required under the twelfth article of the Code was so taken or given, or immediately or ever returned (a copy thereof being retained by him) to the clerk of the court; and, fifth, that no recognizance, bond, transcript of any proceedings, original papers, written accusation under oath, or testimony reduced to writing, together with the cross-examination, was ever transmitted or received or filed or docketed among the records of the court.
The evidence shows that such papers as were issued or taken by the justice of the peace (the warrant, bond, testimony, and cross-examination) were mailed by him, addressed to the clerk of the circuit court for Prince Georges county, but were not received by the clerk and have never since been found. The appellant contends that the circuit court had no jurisdiction under article 12 of Code, in the absence of all such papers as are required to be taken by the justice of the peace by the provisions of that article. As the uncontradicted testimony of the justice who acted in this case shows that some of the things directed to be done by him were not done, but that he did place in a mail box in front of the post office at Laurel where he, the woman and the accused lived, such papers as he took, duly addressed to the clerk, using his name and official title, we will consider: (a) The effect of the papers, etc., not being received by the clerk, or court, either before or after the indictment was found; and (b) the effect of the omissions and errors of the justice as to some of the proceedings.
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