Herring v. State

• Decision Date: 03 November 1947
• Docket Number: 13.
• Citation: 55 A.2d 332,189 Md. 172
• Parties: HERRING v. STATE.
• Court: Maryland Court of Appeals

55 A.2d 332

189 Md. 172

HERRING v. STATE.

No. 13.

Court of Appeals of Maryland

November 3, 1947

Appeal from Circuit Court, Garrett County; William A. Huster, Chief Judge, and Walter C. Capper, Judge.

Milton Herring was convicted of bastardy, and he appeals.

Affirmed.

Dwight Stover, of Oakland, and Earl Edmund Manges, of Cumberland for appellant.

Hall Hammond, Atty. Gen., and J. Edgar Harvey, Asst. Atty. Gen for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.

MARBURY Chief Judge.

The appellant was indicted in Garrett County for that he 'on or about the twenty ninth day of June, in the year nineteen hundred and forty five, at Garrett County aforesaid, in and upon the body of Sarah J. Shultz unlawfully did beget a certain Male illegitimate child, which said Male illegitimate child was afterwards, towit: on the twenty ninth day of March, in the year nineteen hundred and forty six, at Garrett County aforesaid, born alive of the body of her, the said Sarah J. Shultz, its mother and is still alive with her, the said Sarah J.

Shultz at the time of the taking of this inquisition at Garrett County aforesaid, and that the said Milton Herring is the father of the said illegitimate child.' He was tried before the Court, found guilty, and ordered to give bond to pay the sum of $7 per month until the child should arrive at the age of 16 years, and further pay the sum of $150 expenses incurred by the mother of the child during her confinement. During the course of the testimony of the complaining witness, she testified that she had intercourse with the appellant on the 29th day of June at his home in Marklesburg, Pennsylvania. She also testified that she had frequent intercourse with him and was with him practically every Wednesday and every Saturday in June. On the strength of the specific testimony about the 29th day of June, which is the date of the fornication set out in the indictment, the appellant made a motion to quash the indictment, because the intercourse took place in Pennsylvania. The court overruled that motion, and that ruling is the sole ground for the appeal here.

The appellant's contention is based upon cases holding that the object of the bastardy law is to punish persons guilty of fornication. These cases are Owens v. State, 10 Md 168; Sheay v. State, 74 Md. 52, 21 A. 607, and State v. Hardesty, 132 Md. 172, 103 A. 461. Irrespective of this question, however, it has been decided by this Court in a number of cases, that it cannot pass upon the legal sufficiency of evidence to convict in a criminal case, either where trial is by jury or, as in the case before us, where the trial is by the court sitting without a jury. These cases and their origin are fully discussed by Judge Henderson, speaking for this Court, in the late case of Abbott v. State, 52 A.2d 489. No good purpose will be served by a repetition of the authorities. There was...