Lynn v. State
| Decision Date | 17 June 1896 |
| Parties | LYNN v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Carroll county.
Bastardy proceedings against Daniel H. Lynn. From a judgment of conviction, he appeals. Affirmed.
Argued before McSHERRY, C.J., and BRYAN, FOWLER, BRISCOE, RUSSUM and BOYD, JJ.
Jas A. C. Bond and John M. Roberts, for appellant.
Atty Gen. Clabaugh and C. E. Fink, for the State.
An indictment was found in the circuit court for Carroll county against the appellant, which charged that on the 27th day of January, 1894, he did beget, in and upon the body of Rosa B Haines, a male illegitimate child, which was born on the 27th day of October, 1894. A demurrer was entered to the indictment, which was overruled, and the traverser then filed four pleas, the second of which was withdrawn, and the others demurred to, and the demurrer sustained.
Before considering the demurrer to the indictment and the first bill of exceptions, which practically presents the same question, we will briefly pass upon the action of the court in reference to the pleas. That the first plea was insufficient is clear. It simply states a conclusion of law, without stating the facts out of which the defense arises. The third plea was also defective for the same reason. It is not sufficient to state in a plea of this character that there is "no proper recognizance," etc., without setting it out, or stating sufficient facts to enable the court to determine wherein it was not proper. State v. Scarborough, 55 Md. 349. The fourth plea was not pressed in this court. It shows on its face that there is no issue raised as to the merits of the case under the prior indictment referred to in the plea, but only questions affecting the jurisdiction of the court. The latter having been determined in his favor, and the court, therefore, being without jurisdiction to pass judgment on the merits of the case, it was not a good plea of former acquittal, which it was intended to be.
This brings us to the consideration of the principal and important question in the case, which was very thoroughly and ably argued by the attorneys on both sides. The indictment charges--and the evidence objected to by the traverser, but admitted by the court, tends to sustain it--that the child was begotten in January, 1894, and was born on the 27th day of October of that year. The legislature passed an act which went into effect March 21, 1894 (being chapter 108 of the Laws of 1894), which repealed and re-enacted sections 2 and 5 of article 12 of the Code, without any saving clause for pending cases or past offenses. It was contended on the part of the traverser that the act of 1894 inflicted a greater punishment than did the law in force when the crime was committed, and was therefore an ex post facto law, unconstitutional, and void when attempted to be applied to this case. It must be conceded on the part of the state that, if the premises of the traverser be correct, his conclusions must be admitted to be so; for, without deeming it necessary to discuss at length what is meant by an ex post facto law, it was held in Calder v. Bull, 3 Dall. 386, that "every law that changes a punishment and inflicts a greater punishment than the law annexed to the crime when committed" was within the meaning of that term; and in Fletcher v. Peck, 6 Cranch, 138, Chief Judge Marshall said that "an ex post facto law is one which renders an act punishable in a manner in which it was not punishable when committed." See, also, Anderson v. Baker, 23 Md. 531, and Beard v. State, 74 Md. 132, 21 A. 700.
It is contended on the part of the traverser's counsel that although, under the terms of this statute, a proceeding of this character cannot be instituted before the birth of the child, yet, as the act done by him is when the child is begotten, therefore it must be said that the crime for which he is indicted was committed at that time, and not at the birth of the child. There is certainly great force in their argument in a case involving the question as to whether a law passed after the commission of an act can apply if it increases the punishment. A party is presumed to know what the law is, but not what it will or may be in the future. He is ordinarily liable to punishment according to the law as it is when he does a forbidden act, not "in a manner in which it was not punishable" at the time. But, under our view of this case, it is unnecessary to discuss that question. For the purposes of this case, it may be conceded that the crime was committed when the child was begotten, and we will therefore consider the case with that assumption.
After providing for the arrest of the mother of an illegitimate child, and requiring her to enter into a recognizance on her refusal to disclose the name of the father, article 12 of the Code of Public General Laws, by section 2, provides "But, if the said person shall on oath discover the father of such child, the justice shall discharge her, and shall cause to be arrested, and brought before him, such father, if a resident of the county, and shall cause him to give security in the sum of eighty dollars to indemnify the county from all charges which may arise from the maintenance of such child." The act of 1894 re-enacted that much of section 2, and then added: "And upon failure of such putative father to enter into security the justice shall commit him to the custody of the sheriff of the county for the period of twelve months." It is contended that the act of 1894 thus materially altered and added to the punishment, and that the father, on his failure to enter into security, must be imprisoned for 12 months, although he might be able to furnish bail the next day, week, or month after he was taken before the justice of the peace. If that construction of the law be correct, the penalty has undoubtedly been increased. Prior to the act of 1894, he was committed to the jail in default of security, but, upon it being given, he was discharged. The form of the commitment adopted in this state in such cases directed the sheriff to "him thus...
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