Fleet v. State

• Decision Date: 20 February 1891
• Parties: FLEET v. STATE.
• Court: Maryland Court of Appeals

21 A. 367

FLEET v. STATE.

Court of Appeals of Maryland

February 20, 1891

Error to circuit court, Prince George's county.

Argued before ALVEY, C.J., and MILLER, BRYAN, MCSHERRY, BRISCOE, and IRVING, JJ.

George C. Merrick, for appellant.

Atty. Gen. Whyte and R. E. Brandt, for the State.

IRVING J.

The appellant was indicted for voting fraudulently upon the name of another person. The case was tried before the court, on the 14th of October, 1890, without the intervention of a jury, and he was by the court found guilty. The error assigned is that, notwithstanding section 54, art. 33, of the Code of Public General Laws, which was in force when the offense is alleged to have been committed, was repealed by chapter 538 of the Acts of 1890, and was re-enacted before the indictment was found, the court held the traverser could be tried for the offense. This defense was specially pleaded and issue was joined on that plea, without plea of not guilty, so far as the record discloses; and, if that be the true state of the case, it was extremely irregular, but it cannot be corrected on this assignment of error. The state has moved to dismiss the appeal for reasons that must be sustained. First, the state contends there has been no final judgment in the case to sustain the assignment of error; and, second, that if there was a final judgment, which this record does not contain, still, under the twenty-eighth rule of this court, respecting appeals and writs of error, this appeal or assignment of error comes too late, not having been sued out without delay. All that the record shows is that there was a bare finding of the court in the place of a jury that the party was guilty. The entry is "The case was submitted to the court, and by the court adjudged guilty." No sentence was pronounced. In a case like this sentence is not suspended, as in a case of appeal from rulings during the trial. It is therefore apparent that there has been no final judgment. But if there had been a final judgment in the case, the assignment of error must be dismissed, because the same was not brought up in time,-- i. e., "without delay." Forty-nine days elapsed from the conviction to the petition for assignment of error. This is a longer period than existed in any of the cases we now cite wherein the appeal or assignment of error was dismissed. State v. Bowers, 65 Md. 364, 9 A 125; State v. Long, 65 Md. 365, 9 A. 427; Clark v. State...