Keller v. State

• Decision Date: 20 July 1858
• Parties: JOSEPH KELLER v. THE STATE.
• Court: Maryland Court of Appeals

12 Md. 322

JOSEPH KELLER v. THE STATE.

Court of Appeals of Maryland.

Jul. 20, 1858

A party was indicted and convicted, and appealed from the judgment. After the case was argued in the Court of Appeals, the Legislature passed a law repealing the act under which the indictment was framed, but this law was not brought to the notice of the court until the judgment had been affirmed. Afterwards, but at the same term of the court, a motion was made to strike out the affirmance and enter a judgment of reversal. HELD:

That the question presented by this motion, must be disposed of as if the repealing act had been passed before the judgment was affirmed, and the motion must be granted.

A party cannot be convicted after the law under which he may be prosecuted has been repealed, though the offence may have been committed before the repeal, and the same principle applies where the law is repealed or expires pending an appeal or writ of error from the judgment of an inferior court.

An appellate court in disposing of an appeal or writ of error must decide according to existing laws at the time of the final judgment.

The judgment in a criminal case cannot be considered as final and conclusive to every intent, notwithstanding an appeal or writ of error; execution of the sentence is not stayed if the State chooses to proceed on the judgment, but if the judgment is reversed, such reversal operates to discharge the prisoner from punishment.

In criminal cases where fines or penalties are imposed, an appeal will lie upon questions of law apparent on the record, and such questions sufficiently appear on the record, where the defence is presented in the court below by an agreed statement of facts,

Such agreed statements of facts, serve the same purposes and are governed by the same principles, and, by the practice in this State, have almost entirely taken the place of, special verdicts; like such verdicts their effect is to place the facts on the record as part thereof, and the court decides thereon as on demurrer.

The act of 1825, ch. 117, does not apply to demurrers and motions in arrest of judgment, nor to cases of agreed statements of facts.

APPEAL from the Criminal Court for Baltimore city.

In this case the appellant was indicted and convicted in the court below for a violation of the then existing license laws, and appealed from the judgment against him. After the argument of the case in this court, the act of 1858 ch. 414, was passed, repealing the laws under which the indictment was framed. This act not having been brought to the notice of the court until after the judgment was entered affirmed, which was done at the December term 1857, after the repealing law was passed, (11 Md Rep., 525,) the appellant afterwards but during the same term, made a motion to correct this entry and to have the judgment reversed.

This motion was argued before LE GRAND, C. J., TUCK and BARTOL, J.

Charles F. Mayer for the motion:

The principle is well settled, that if a statute intervenes while a prosecution is pending and repeals the statute under which the prosecution is had, no judgment can be pronounced against the offender. This principle equally applies to a case where there has been a verdict of guilty, and a repeal before judgment as where the proceedings are open before verdict. Some question might arise, whether the judgment should be reversed, rendered on a penal statute where the repeal takes place after judgment, and pending the appeal or writ of error. There would seem to be no reason against the reversal, since the writ of error or appeal keeps the judgment in uncertainty, and prevents its being definitive or a thing consummate, and since punishment is as much a part of the proceedings under a penal statute, as the action on the indictment antecedent even to verdict, and to affirm a judgment is to pronounce a present decision, as to the present and actual law. If the law be repealed the judgment of affirmance falsifies the law, and declares that to be law which is not law any longer.

In 1 Cranch, 104, United States vs. Schooner Peggy, the court's opinion, in the last sentence of it, delivered by C. J. Marshall, concludes the point we are maintaining in declaring: " The court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside. " The judgment there of the circuit court was set aside, and on writ of error, in consequence of an intervening change of law (virtually a repeal) after the decree or judgment of the circuit court had been passed. Subsequent cases in 5th and 6th Cranch, 281, 329, looked, on deciding the same point, to the proceeding being by appeal and in admiralty and as making a new case in the Supreme Court, but, in the Peggy's case, the review was under a writ of error, and the principle settled there covers any case in the appellate tribunal no matter how carried thither. Thus, too, in 14 Eng. Law & Eq. Rep., 124, Regina vs. Denton, the court determines that where a law is repealed, it is, as to any penal procedure, (punishment or proceedings in the prosecution,) to be regarded as if it had never existed, quoad the action of the court adjudging in the case. Besides this, and in confirmation of the reasoning of the position, the benefit of which we claim, a repeal of the penal statute is a renunciation by the State of the penalty. So has the Supreme Court of the United States determined, in the case of The State of Maryland vs. The Balto. & Ohio Rail Road Co., 3 How., 534. Ch. J. Taney there says, that a repeal of an act is a remission of the penalty in the particular case of prosecution. See, too, 13 How., 429, Norris vs. Crocker. In this case all penalty was thus removed by the State as against the appellant.

It is idle to cite authorities to show that a judgment appealed from or carried up under writ of error is not a definitive judgment, and, therefore, practically not a complete judgment, although it be not merely interlocutory in the technical sense. The case of a party is as much sub judice still, and merely, while in the appellate tribunal, as it was while trying or before verdict and judgment in the inferior court. A case too, it may be said, absolutely goes to our Court of Appeals, and is entirely in the possession of that court, since even execution may issue on an affirmed judgment from the Court of Appeals. The cases on this doctrine generally will be found in 1 Brittish Crim Law, sec. 103, and I may on this head cite 1 Binney, 601, Commonwealth vs. Duane; 1 Wm. Bl. Rep., 451, Miller's Case; 3 Burr., 1456, Rex vs. Justices of London; 11 Pick., 350, Commonwealth vs. Marshall; 3 Dallas, 378, Hollingsworth vs. Virginia; 4 Dallas, 372.

No counsel appeared for the State.

OPINION

TUCK, J.

It appears that, on the last day of the session of 1858, the Legislature passed an act, " to regulate the issuing of licenses to ordinary keepers and traders," (ch. 414,) by which the acts under which this indictment was found and the appellant convicted in the court below, were repealed. This law had not been passed when the cause was argued, and was not brought to the notice of the court until after the judgment had been affirmed, when a motion was made, within the term, to correct the ruling of the court, and enter a judgment of reversal. The question, now submitted, must be disposed of as if the act of 1858 had been passed before the judgment was affirmed.

If the record is properly before us the motion must be granted. It is well settled, that a party cannot be convicted, after the law under which he may be prosecuted has been repealed although the offence may have been committed before the repeal. Dwarris, 670. 1 Kent, 465. State use of Wash. Co., vs. Balto. & Ohio Rail Road Co., 12 G. & J., 399. The same principle applies where the law is repealed, or expires pending an appeal on a writ of error from the judgment of an inferior court. It has frequently been recognized in admiralty causes, where property was seized and condemned, on the ground that the repeal of the law before the decision in the court above removed the penalty, and that the court in disposing of the appeal or writ of error, must decide according to existing...