Johnson v. State

• Decision Date: 11 November 1948
• Docket Number: 15.
• Citation: 62 A.2d 249,191 Md. 447
• Parties: JOHNSON v. STATE.
• Court: Maryland Court of Appeals

62 A.2d 249

191 Md. 447

JOHNSON v. STATE.

No. 15.

Court of Appeals of Maryland

November 11, 1948

Appeal from Circuit Court, Caroline County; Owen Knotts, Chief Judge, and Wm. R. Horney and Floyd J. Kintner, Judges.

Junior Johnson was convicted of assault and battery, and he appeals.

Appeal dismissed.

W. Hyland Van Sant, of Denton (W. Brewster Deen, of Denton, on the brief), for appellant.

Hall Hammond, Atty. Gen., Harrison L. Winter, Asst. Atty. Gen and James A. Wise, State's Atty., of Denton, on the brief, for appellee.

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

HENDERSON Judge.

Junior Johnson was tried before a trial magistrate in Caroline County, on a charge of assault and battery, found guilty and sentenced to pay a fine of $50 and costs. The State entered an appeal from the judgment and sentence to the Circuit Court for Caroline County, where he was tried by the Court, found guilty and sentenced to four months in the House of Correction. His appeal challenges the action of the Court in sustaining the State's demurrer to his plea to the jurisdiction, his plea of Autre Fois Convict, and his motion to quash the proceedings in the Circuit Court. The appellant contends that the State had no right to appeal from the conviction and sentence of the Magistrate.

We think the case is controlled by our recent decision in Robb v. State, Md., 60 A.2d 211. In that case the appellant was tried before a trial magistrate and found not guilty. The State appealed to the Circuit Court where the accused was found guilty and sentenced to twelve months in the House of Correction, after the court had sustained a demurrer to his plea of double jeopardy. We held that the Circuit Court had jurisdiction, that its judgment and sentence were final, and dismissed the appeal to this court. We pointed out that the question turned upon the language of section 13 of Article 52 of the Code, which provides in part: 'If after a trial before the Trial Magistrate either party shall feel aggrieved by his judgment there shall be a right of appeal within ten days to the Circuit Court for the county in which the alleged offense is charged to have been committed, * * *.' We held that there could be no valid objection, under the Federal or State Constitution, to a statutory change in the common law rules as to double jeopardy.

The appellant attempts to distinguish this case on the ground that a different rule should apply where there is a conviction rather than an acquittal, by the Magistrate. We see no force in the distinction. The plea of Autre Fois Convict in the legal counterpart, at common law, of the plea of Autre Fois Acquit. 'The rule forbids a second trial for the same offense whether the accused at the former trial was acquitted or convicted.' Gilpin v State, 142 Md. 464, 466, 121 A. 354, 355. The language of section 13 allows an appeal from the Magistrate if 'either party shall feel aggrieved by his judgment.' The appeal is from the judgment and sentence, not from the verdict. Dail v. Price, 184 Md. 140, 143, 40 A.2d 334; Kaefer v. State, 143 Md....