Mitchell v. State

• Decision Date: 24 March 1896
• Citation: 34 A. 246,82 Md. 527
• Parties: MITCHELL v. STATE.
• Court: Maryland Court of Appeals

34 A. 246

82 Md. 527

MITCHELL v. STATE.

Court of Appeals of Maryland

March 24, 1896

Appeal from the criminal court of Baltimore city.

John Mitchell was convicted of assault with intent to rape, and appeals. Dismissed.

Argued before McSHERRY, BRYAN, FOWLER, BRISCOE, PAGE, ROBERTS, and BOYD, JJ.

Thomas C. Ruddell and Wm. H. Daniels, for appellant.

Atty Gen. Poe and Charles G. Kerr, for the State.

BRYAN J.

John Mitchell was indicted in the criminal court of Baltimore, in three counts. The first charged that he, with force and arms feloniously did carnally know and abuse a certain Elizabeth Roth, who was then and there a woman child under the age of 14 years. The second count charged an unlawful, wicked, and corrupt attempt to commit this offense. The third charged simply an assault and battery. The traverser pleaded not guilty, and the jury convicted him on the second count, but acquitted him on the other two. The court sentenced him to imprisonment in jail for the term of 15 years. He has appealed to this court.

We regret that the record in this case does not present any question which we have the power to review. Except in the comparatively unimportant cases mentioned in the act of 1785 c. 7, § 6, there was no appeal in criminal cases before the act of 1872. This act has been several times amended, but it has received its present shape from the act of 1892, c. 506. It is there enacted, among other things, as follows "Sec. 77. The parties to criminal proceedings shall be entitled to bills of exceptions, in the same manner as in civil proceedings, and appeals from judgments in criminal cases may be taken in the same manner as in civil cases; but no appeal in a criminal case shall stay execution of sentence unless the counsel for the accused shall make oath that the appeal is not taken for delay, and such appeal shall be heard at the earliest convenient day after the same shall have been transmitted to the court of appeals." By this act, when an appeal is taken in a criminal case the proceedings are to be the same as in a civil case By the express provisions of the statute law, this court, in a case on the civil side of the docket, is prevented from deciding any point or question which does not plainly appear by the record to have been tried and decided in the court below. Code, art. 5,§ 9. The point must be made, and, in a case requiring an exception, a bill of exceptions must be taken. In Cushwa v. Cushwa's Lessee, 5 Md. 54; there was a verdict in ejectment for $500 damages, and judgment on the verdict. This court said: "Because the verdict gave five hundred dollars damages, it is contended that, inasmuch as no such damage could be legally given in an action of ejectment, the judgment is erroneous, although in accordance with the verdict, and therefore should be reversed. But no question on this subject was raised below, and, no motion in arrest of judgment having been made, the act of 1825, c. 117, will not allow such a question to be raised in this court." This judgment was rendered on the 26th of September; no exception was taken; and on the second of October an appeal was taken. If the traverser, instead of appealing, had sought to remove the record, as upon writ of error, it would have been necessary for him to address a petition to the court, plainly designating the points or questions of law by the decision of which he felt aggrieved, and no point or question not thus plainly designated could have been heard or determined by this court. Code, art. 5, § 16.

None of the evidence appears in the record. Although we cannot review the judgment, yet, as a matter of justice to the humane and enlightened judge who pronounced the sentence, we think that the facts in the case ought to be known. At the request of one of the judges of this court, he has made a statement of them: "The traverser was indicted upon three counts: (1) For carnal knowledge of a female child under the age of 14 years; (2) an assault with the intent to commit that offense and (3) for a common assault. He was promptly convicted by the jury upon the second count; the evidence failing to show actual penetration, which was necessary for conviction upon the first count. I sentenced him to 15 years in jail. The evidence was that the traverser was a negro about 26 years old, and his victim a delicate white child just 4 years old. He decoyed her...