Busey v. State

• Decision Date: 07 January 1897
• Citation: 36 A. 257,85 Md. 115
• Parties: BUSEY ET AL. v. STATE.
• Court: Maryland Court of Appeals

36 A. 257

85 Md. 115

BUSEY ET AL. v. STATE.

Court of Appeals of Maryland

January 7, 1897

Appeal from criminal court of Baltimore city.

Richard Busey and others were convicted of assault and battery, and appeal from a dismissal of a petition to strike out the verdict. Affirmed.

Argued before McSHERRY, C.J., and BRYAN, BRISCOE, RUSSUM, FOWLER and PAGE, JJ.

Thos C. Ruddell and Wm. F. Campbell, for appellants.

Atty Gen. Clabaugh, for the State.

PAGE J.

The appellants were indicted, with one John Marley, for assault and battery, tried, and convicted. Thereupon, on the 16th June, a motion in arrest of judgment was filed, and on the 18th June a motion for a new trial. On the 19th June, Richard Busey petitioned the court to strike out the verdict, because the sealed verdict brought in by the jury was not signed by William Holland, one of the jurors. On the same day Charles Busey and Michael Murphy petitioned the court to strike out the verdict, because one of the jurors, William Holland, was convicted of larceny, and had not been pardoned by the governor. Both these petitions were dismissed on the 19th June. On the 23d September sentence was imposed, and on the same day the defendants prayed an appeal "from the sentence imposed, because the court erred in overruling the motion to strike out the verdict on account of the incompetency of the juror Holland." It thus appears that the appeal is taken from the action of the court in dismissing, on the 19th of June, the petition of Charles Busey and Michael Murphy to strike out the verdict. What was the state of the proof then before the court, the record does not show. On the 22d June--three days after the ruling--an agreed statement of facts, together with an affidavit of Mr Ruddell, was filed, but we do not know that these facts were offered in support of the petition. Under these circumstances the motion to strike out the verdict is of an anomalous character. It cannot be regarded as a motion in arrest of judgment; because the reason assigned is one that is not apparent on the face of the proceedings. Byers v State, 63 Md. 209. If it be taken as a motion for a new trial, this appeal will not lie, because the granting or refusing such motions is entirely in the discretion of the lower court. Archer v. State, 45 Md. 457. And if it be contended that the case is in this court by petition as upon writ of error, the appeal must be dismissed, because it is based upon extrinsic facts, which the record does not show were before the judges at the time the ruling complained of was made. Green v. State, 59 Md. 126. Nor would the appellants' case be improved, even if it be conceded it is properly before this court. By the agreed statement of facts it is admitted William Holland was convicted of larceny, and has not been pardoned. Mr. Ruddell deposes in the affidavit filed "that after a jury was impaneled to try the said case a member of the police force of ...