League v. State

• Citation: 36 Md. 257
• Parties: JOSEPH LEAGUE v. THE STATE OF MARYLAND.
• Decision Date: 18 June 1872
• Court: Court of Appeals of Maryland

36 Md. 257

JOSEPH LEAGUE v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

June 18, 1872

The cause was argued before BARTOL, C.J., STEWART, BOWIE, MILLER and ALVEY, J.

D G. McIntosh and Arthur W. Machen, for the plaintiff in error.

The right of the traverser to have the cause tried by the Court was absolute. Having made his election, and submitted all the issues to the Court, he thereby, under the law, made it incumbent upon the Court to dispose finally of the case. The trial he was entitled to necessarily involved a judgment, of acquittal or conviction. All the constitutional rights provided in the declaration of rights adhered to the traverser, subject only to his waiver of a jury trial. He was entitled to the privilege of counsel, to be confronted with the witnesses against him, to an examination of them on oath, and to a speedy trial. This case was duly submitted, accordingly. No formal issue is necessary in such cases. Rawlings vs. The State, 2 Md., 215. The Court, acting upon the submission assumed to try the cause, and did try it. The evidence having been all heard, the Court who had heard it had nothing left to do but pronounce judgment.

The substitution of the Court for a jury involved a difference proceeding from the essential distinction between the two tribunals. The Court, though the functions of a jury were merged in it, acted as a Court. Unanimity was not requisite, either for conviction or acquittal. The judgment of a majority is equivalent to the judgment of all. State vs. Buchanan, 5 H. & J., 500. A jury may fail to agree, but a Court must arrive at a decision. The judgment is not the judgment of one Judge, or two Judges, or three Judges, but the judgment of the Court.

In the present case, the Court before whom the trial was had, was constituted of two Judges. When these two differed in opinion, the like result followed as in other cases of an equal division of a Court upon a question before it for adjudication; the question was necessarily determined against the party upon whom the burden of the affirmative rested. Gregg vs. Mayor and C. C. of Balto., 14 Md., 479, 503; Hatton vs. Weems, 12 G. & J., 83, 102; Michael vs. Schroeder, 4 H. & J., 227.

A Court may, and in point of fact often does, adjudge and determine a cause when it is equally divided in opinion. It is true that a decision, based on a division of the Court, establishes no principle, and ought not to be made a precedent, but it is none the less a judgment and conclusive of the particular case.

In Etting vs. Bank of the United States, 11 Wheat., 78, a leading case in the Supreme Court Chief Justice MARSHALL, with his customary precision indicated the distinction: "The principles of law," he said, which have been argued, cannot be settled; but the judgment is affirmed; the Court being divided in opinion upon it."

Upon a division of the Appellate Court, the practice is not merely to allow the judgment below to stand, nor to dismiss the appeal for want of ability to act in the premises; but a judgment of affirmance is entered in the Appellate Court. It has been held that such a judgment is entitled to all the consideration due to a judgment of the Appellate Court, even though the question involved be one of jurisdiction, and although an opportunity be afforded to review it upon a second appeal in the same cause. Washington Bridge Co. vs. Stewart, 3 How., 413.

In Holmes vs. Jennison, 14 Pet., 540, the Supreme Court being evenly divided, the opinions of four Judges standing against those of the other four, upon the question of the Court's jurisdiction, the decree took no notice of the circumstance of the division. Its language was: "This cause came on to be heard, &c. on consideration whereof, it is now here ordered and adjudged by this Court, that this writ of error to the said Supreme Court (of Vermont) be, and the same is hereby, dismissed for the want of jurisdiction."

In a case where a Circuit Court was equally divided upon the question of jurisdiction, and the question came up upon a certificate of division, and the Supreme Court also was equally divided, the cause was remitted to the Court below, in order that that Court might enter a decree of dismissal, leaving to the plaintiff the right then to appeal from such decree if he thought proper. Silliman vs. Hudson River Bridge Co., 1 Black, 582.

Attorney General Syester, for the State.

The whole point of the objection to the proceedings in the Circuit Court, seems to be: That upon the submission of the case to the Court, and its inability to agree, the party was entitled to be discharged, because the indictment was not sustained. That the burden of proof was upon the prosecution; the affirmative proposition was on the State. And that when it failed to make out its case, the prosecution was at an end. And, moreover, that the failure to make out the case and sustain the indictment, is to be ascertained in this particular instance, not by a finding of " not guilty," but by the inability of the tribunal selected to find anything at all.

It is submitted, on the other hand, that when a party is put upon his ""deliverance," and submits his case to a Court instead of to a jury, the duties of the Court are precisely those that would have devolved on the jury; that in either case, to entitle a party to be discharged, he must be found " not guilty."

There is no sort of analogy between such a case as this and those cases where propositions are submitted to judicial tribunals and are not sustained. Where a party offers evidence which is objected to--as in Ferrall vs. Kent, 4 Gill, 209--there an equal division of the Court leaves the question and the parties precisely as it found them.

So also in the cases where, on appeals, the Appellate Court is equally divided--the judgment below stands, simply because the Court was unable to agree. Every thing is left precisely as it is found.

The same is true of motions of any kind to dismiss appeals; for illustration: whenever such motions are made, and a Court stands equally divided, the motion fails, and the case must be decided on its merits, simply because the Court came to no conclusion. In all such cases, the cause and the rights of parties before the Court are left precisely as the Court finds them, because the proposition, whether an offer of testimony, a motion or an appeal, has not been sustained.

Now, by the errors assigned in the petition for this writ, we are told that all this doctrine must be reversed; that in cases like this, the division of a Court must not leave the question and parties where the Court found them.

It is said that here the affirmative is on the State, and that when the Court cannot agree, it has actually found that the affirmation charged in the indictment is not true.

But when the party on trial selects the Court, instead of the jury, to pass upon his "deliverance" between him and the State, it is but a mere change in the tribunal to respond to the matter between the people and the party charged. The duties in each case are identical. Before he can be acquitted, the tribunal selected must agree to his acquittal.

The jury proceeds to its duties and obligations according to the laws constituting its existence and regulating its action; and in order to a discharge of the party, the jury must agree, and that agreement requires the concurrence of every member of the jury.

When the Court addresses itself to the discharge of the same duty, it must proceed according to the laws and regulations established and recognized as governing its deliberations and judgments.

If composed of two or more members, the agreement which constitutes the action of the tribunal, requires the concurrence of a majority of the members. But in either case, before any final or conclusive judicial act can be done or made, there must be an agreement according to the laws and rules which enter into and constitute the very right and power of the tribunal to decide anything; and before a party, charged by the grand inquest of the State, can be discharged, it must be by some known, acknowledged and recognized judicial act. An inability to form a conclusion, whether by division in a jury or division in a Court, is no judicial act.

But the...