Friend v. State, 21.

• Decision Date: 16 November 1938
• Docket Number: No. 21.,21.
• Citation: 2 A.2d 430
• Parties: FRIEND v. STATE.
• Court: Maryland Court of Appeals

2 A.2d 430

FRIEND

v. STATE.

No. 21.

Court of Appeals of Maryland.

Nov. 16, 1938.

Appeal from Circuit Court, Caroline County; J. Owen Knotts, Judge.

Chester Friend was indicted for receiving stolen goods, and from an adverse judgment, he appeals.

Reversed.

Submitted to BOND, C. J., and URNER, OFFUTT, PARKE, SLOAN. MITCHELL, SHEHAN, and JOHNSON, JJ.

John P. Stafford, Jr., and Z. H. Stafford, both of Easton, for appellant.

Herbert R. O'Conor, Atty. Gen., and Hilary W. Gans, Deputy Atty. Gen., and Layman J. Redden, State's Atty., of Denton, for the State.

SHEHAN, Judge.

The appellant, Chester Friend, was arrested on a warrant issued by a Justice of the Peace for Caroline County charging him with "unlawfully having received certain stolen goods under the value of $25.00 knowing them to have been stolen on or about March 15th, 1938, the property of Perry Thomas." He was tried, convicted and sentenced to nine months in the Maryland House of Correction. From this judgment and sentence the defendant appealed to the Circuit Court for Caroline County. While the appeal was pending, there was an indictment returned against him by the Grand Jury for that County. The offense charged in the indictment was the same as that in the warrant. The indictment states that "Chester Friend and Lester Thomas late of the County aforesaid, on the sixteenth day of March, in the year of our Lord nineteen hundred and thirty-eight at the county aforesaid nine chickens, each chicken of the value of one dollar, current money, of the goods and chattels, moneys and properties of Perry Thomas, then lately before unlawfully stolen, taken and carried away, unlawfully did then and there have and receive * * *" It is admitted in a statement of facts filed in support of a motion to quash the indictment, that the goods received, and described in the indictment, are the same as those in the warrant upon which the accused was tried by the Justice of the Peace and that the crime was the same offense in each of these proceedings. After the indictment was found the States Attorney entered a nolle prosequi of the case pending on the appeal. The appellant then filed the motion to quash the indictment supported by an affidavit and the agreed statement of facts, all of which clearly presented to the Trial Court the question here to be considered. The defendant claimed that for the crime charged under the indictment he was being twice put in jeopardy for the same offense. The plea to that effect is defective in that it is not verified by affidavit. Johns v. State, 55 Md. 350. This question had, however, been previously raised by the motion to quash the indictment. In reply to the contention of the appellant that he had been previously tried, and convicted by a Court of competent jurisdiction, for the same offense, as that presented in the indictment and, therefore, the indictment should have been quashed, the state urges that the Justice of the Peace had no jurisdiction to try the charge made in the warrant, because the offense of receiving stolen goods was punishable by imprisonment in the Penitentiary of Maryland and of such crimes a Justice of the Peace of Caroline County had no jurisdiction under the express provisions of Section 470, Article 27 and Section 12, Article 52 of the Code of Public General Laws; also under Article 6, Section 357 to 359, Code Public Local Laws "Caroline County".

It is apparent that, if the law so stood at the time of the trial of the defendant, the Justice of the Peace would have been without jurisdiction and the conviction would have been unlawful and would not put the defendant in jeopardy. Commonwealth v. Cunningham, 13 Mass. 245; Boswell v. State, 111 Ind. 47, 11 N.E. 788; State v. Reed, 168 Ind. 588, 81 N. E. 571; Bishop on Criminal Law, 3rd Edition, Vol. 1, Chapter 52, Sect. 866, page 481; Gilpin v. State, 142 Md. 464, 121 A. 354; 16 Corpus Juris, Sects. 370, 371, where numerous citations are given. But we have before us, cited on the appellant's brief, the Act of the General Assembly passed at the first special session 1936, Chapter 106, which amended Section 470, Article 27, and added to Article 27 of the Code of Public General Laws a new section to be known as 470A, and which, in substance, provides: That Justices of the Peace shall have jurisdiction, original and concurrent with the Courts of the State having criminal...