Kisner v. State

• Citation: 209 Md. 524,122 A.2d 102
• Decision Date: 09 April 1956
• Docket Number: No. 139,139
• Parties: Joseph KISNER v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 524

209 Md. 524

122 A.2d 102

Joseph KISNER v. STATE of Maryland.

No. 139.

Court of Appeals of Maryland.

April 9, 1956.

I. Sewell Lamdin, Baltimore (Thomas L. Sampson, Essex, Md. and Lewis R. Jones, Oakland, on the brief), for appellant.

David Kauffman, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and Stephen R. Pagenhardt, State's Atty., Garrett Co., Oakland, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The appellant, a resident of Baltimore County, was indicted by the Grand Jury of Garrett County on September 15, 1954 for fathering twin illegitimate children, born in that County on August 1, 1954. He was arraigned on September 27, 1954 and pleaded not guilty, and at that time filed a petition in which he denied paternity and asked the court to require a blood test of him, the mother and the twins, as provided by Code 1951, Art. 12, Sec. 17. The court ordered the tests, which were made and proved inconclusive. In March, 1955, appellant asked for and was granted a continuance. When the case came to trial on September 26, 1955, the appellant filed a motion to dismiss on the ground that he was a resident of Baltimore County and the prosecutrix a resident of West Virginia, so that the court lacked jurisdiction. The motion to dismiss was overruled. The defendant went to trial, and in spite of an active defense, was convicted by the jury. He appeals from the judgment and sentence which followed.

The appellant says that the Circuit Court for Garrett County was without jurisdiction to try him because a prosecution for bastardy must be brought either at the residence of the alleged father or at the domicile of the child, which, it is argued, is that of the mother, if it lives with her. The State contends that the mother and the twins were residents of Garrett County when the indictment was found and, if they were not, that County had jurisdiction because the consummation of the offense, the birth of the children, occurred there, and finally that, in any event, the court had jurisdiction of the subject matter, the crime of bastardy, and the right of the appellant to be tried elsewhere (if he had that right) was a matter of venue, or jurisdiction of the person, which could be waived by him and which was in fact waived by his general appearance and submission to the jurisdiction before he raised the right of the court to try him. We think the State is right in its last contention.

Bastardy is treated as a civil proceeding in some States and as criminal or quasi-criminal in others. In Maryland it has been held to be criminal, although acknowledged to be civil in purpose. In Kennard v. State, 177 Md. 549, 10 A.2d 710, it was said that technically bastardy is not a criminal proceeding but one that had many of the elements and incidents of such a proceeding, and should be treated as a misdemeanor. We treat it as criminal in considering the problems in the appeal before us.

There is nothing new or startling in the proposition that although jurisdiction of the subject matter cannot be conferred by consent, venue or jurisdiction of the person may be waived in a criminal case. The Sixth Amendment of the Constitution of the United States provides, as to offenses against the United States: 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * *.' The constitutions of many of the states or their statutes, or both, contain similar provisions. The great weight of authority is that these constitutional and statutory provisions afford a personal privilege to an accused that he may, and does waive, by a general appearance or failure to make timely objections to the court's jurisdiction of his person. An annotation in 137 A.L.R 687, on the question of whether an accused may waive his right to have his trial take place in the county or district in which the offense was or is alleged to have been committed, concludes: 'The courts have uniformly taken the view that an accused's right as to place of trial, arising under a constitutional provision expressly granting or guaranteeing to persons accused of crime the right to be tried in, or by a jury of, the county or district in which the offense was committed or is alleged to have been committed, may be waived.' The cases support this conclusion. 34 Cornell Law Quarterly 129, 139. See also 14 Am.Jur., Criminal Law, Sec. 233, p. 930 and same section in the 1955 Supp.; 22 C.J.S., Criminal Law, § 176, pp. 266-267 and § 161, pp. 257-259. In Brown v. State, 219 Ind. 251, 37 N.E.2d 73, 78, 137 A.L.R. 679, the Court held that the constitutional right to be tried in the county in which the offense was committed is a personal privilege which may be waived, reasoning that if this were not so, there could be no change in venue at the instance of the accused, no waiver of a jury trial or of the right to counsel or other constitutional guarantees or, indeed, the right to plead guilty and so waive trial. In the Brown case, the charge was rape, said by the State to have been committed in one county and by the accused in another. The Court said: 'Appellant's only question is as to which of two courts of general jurisdiction should try the case. This question does not involve the jurisdiction of the subject matter, but only the place of the trial, a question of venue. The right to have the case tried in a certain county, as guaranteed by the constitution and statute, was a right personal to the appellant, which he could waive and which * * * he is deemed to have waived by not having made an appropriate objection in the trial court.' Other late State cases, which have agreed, include: Lockhart v. Smith, 241 Iowa 970, 43 N.W.2d 541; State v. Langford, 223 S.C. 20, 73 S.E.2d 854; State v. Page, Mo.App., 186 S.W.2d 503, 507; Application of Poston, Okl.Cr., 281 P.2d 776; State ex rel. Raydel v. Raible, Ohio App., 117 N.E.2d 480, 40 A.L.R.2d 950; State v. Hardamon, 29 Wash.2d 182, 186 P.2d 634. It has been held by the Courts of several Federal circuits that the constitutional right to trial at the place of the commission of the crime granted by the Sixth Amendment to the Federal Constitution may be waived. Hagner v. United States, 60 App.D.C. 335, 54 F.2d 446; Mahaffey v. Hudspeth, 10 Cir., 128 F.2d 940; United States v. Jones, 2 Cir., 162 F.2d 72, 73; United States v. Bushwick Mills, 2 Cir., 165 F.2d 198. Rule 20 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. provides that if an accused so elects, he may plead guilty or nolo contendere in the district in which he is arrested, although the crime was committed in another district. The validity of the rule has been upheld. United States v. Gullagher, 3 Cir., 183 F.2d 342, certiorari denied 340 U.S. 913, 71 S.Ct. 283, 95 L.Ed. 659; Levine v. United States, 8 Cir., 182 F.2d 556, certiorari denied 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665.

At common law criminal offenses were tried by a jury of the county where the offense was committed. 4 Blackstone's Commentaries 303. When an accused chose not to be tried by ordeal or by battle, but by his country, he chose to be tried by a jury of the county in which the offense with which he was charged had been committed. Nevertheless, the Court of King's Bench had the power of directing that the trial was to take place before a jury from an adjoining county when justice required it. Price v. State, 8 Gill 295, 296, 306-311. The practice of trying those accused of crime in the county of the commission of the offense was not general in Maryland in early times. At first the Provincial Court tried many criminal cases, no matter where the crime was committed. After the adoption of the Constitution of 1776, the General Court, one branch sitting in Annapolis, the other on the Eastern Shore, tried crimes wherever occurring. By various statutory enactments criminal jurisdiction was transferred to the County Courts. For example, by the Acts of 1785, Chap. 87, Sec. 7, it was provided that except in cases particularly directed to be tried in the General Court, the justices of the respective County Courts should have full power and authority: 'to try, according to law, all and every person and persons who have committed or shall commit any offense or crime whatsoever * * *' and upon conviction, '* * * in due course of law, in the county court of the county in which the crime or offense shall be committed, give judgment according to the nature and quality of the crime or offense.' By the Act of 1790, Chap. 50, the jurisdiction of the General Court in criminal cases was limited and the judges of that court for the Western or Eastern Shore were made incapable of taking cognizance of, and jurisdiction over, 'any offenses, crimes or misdemeanors whatsoever, except treasons, misprisions of treason, murders, felonies and insurrections;' and all other offenses, crimes and misdemeanors were to be heard and determined by the County Court 'of the county wherein the said offenses, crimes and misdemeanors, shall be committed, and not elsewhere, except in the cases herein before excepted.' In 1805, by constitutional amendment, the General Court was abolished and its appellate jurisdiction transferred to the Court of Appeals and its original jurisdiction to the respective County Courts which were grouped into districts. See the Acts of 1805, Chap. 65, for the legislation carrying into effect this change. The County Courts thus became courts of general jurisdiction exercising all of the powers of the Court of King's Bench. In the Constitution of 1851, art. 4, § 8, there was conferred on the circuit court of each county all of the jurisdiction then had or exercised by the County Courts 'or which may hereafter be prescribed by law'. The Constitutions of 1864 and 1867 contained similar language. See Price v. State, ...