Givens v. State

• Decision Date: 12 January 1893
• Citation: 25 A. 689,76 Md. 485
• Parties: GIVENS v. STATE.
• Court: Maryland Court of Appeals

25 A. 689

76 Md. 485

GIVENS v. STATE.

Court of Appeals of Maryland

January 12, 1893

Appeal as upon writ of error, from circuit court, Anne Arundel county.

Indictment against Thomas Givens for the illegal dredging of oysters. From a conviction, defendant appeals. Reversed.

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

Jas. Revell, for appellant.

J P. Poe, Atty. Gen., and E. C. Gantt, for the State.

BRISCOE J.

The appellant was indicted in the circuit court for Anne Arundel county for illegal dredging for oysters within the prohibited waters of the Chesapeake bay, contrary to the general oyster law of the state, and upon a trial before a jury was found guilty. There was a motion in arrest of judgment, which was overruled, and the appellant was sentenced to the Maryland house of correction for the period of 12 months. The case before us for review as on writ of error.

The plaintiff in error assigns as ground of error that the jury after rendering their verdict of guilty, were discharged and separated without being "called by the clerk to hearken to their verdict as the court had recorded it. Your foreman says, 'Guilty of the matter whereof he stands indicted,' and so you say all." The sole question then, is whether this omission by the clerk in a criminal case is such an error as to entitle a party to a reversal of the judgment and the granting of a new trial. Now, it is admitted that it has been the invariable practice in the court where the appellant was tried, and the uniform practice in the courts of Maryland, for the clerk to call upon the jury to hearken to their verdict when they return to the court to render it; and, while it may be a matter of form and practice, yet it is a juridical form; and matters of form, when they become established, and are supported by reasons of justice and propriety, are regarded as matters of substance. In Ropps v. Barker, 4 Pick. 239, the court held, when the jury have found a verdict substantially, it is read to them in form. If any juror does not agree to it when so read, he may express his dissent, and the jury may retire and revise the verdict. But if, when asked, in the usual manner, whether they agree to the verdict, they all answer in the affirmative, it will be sufficient to authorize it to be recorded. In Com. v. Roby, 12 Pick. 514, the court say that the constant practice of the commonwealth should be observed and followed, unless good reason can be assigned for the change. The forms adopted in a criminal trial are of importance, inasmuch as they have a strong tendency, by their solemnity, to impress upon all who are engaged in it the interesting and highly responsible nature and character of the duties which devolve on them, respectively. This is a good reason for retaining many of those forms, which are observed because they are established. In this respect it is true that forms are substance. And in Com. v. Gibson, 2 Va. Cas. 70, it was held that after the verdict is rendered by the jury, and read in open court, it is the duty of the clerk to direct the jury to "hearken to their verdict as the court hath recorded it, and if none of the...