Neff v. State

• Decision Date: 13 January 1882
• Citation: 57 Md. 385
• Parties: DAVID A. NEFF v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

57 Md. 385

DAVID A. NEFF v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

January 13, 1882

APPEAL from the Circuit Court for Allegany County.

The case is stated in the opinion of the Court.

The cause was submitted to BARTOL, C.J., MILLER, ALVEY, ROBINSON and IRVING, J.

J N. Willison, and W. M. Price, for the appellant.

The second plea is clearly good. Though stated in different words, it is the same as the third plea, and in fact adopts the very words of Article 70, sec. 10, of the Revised Code. The Court of Appeals has several times decided that the offence is consummated by the birth of the child. In Bake vs. State, 21 Md., 426, the Court says "The prosecution is within the 10th section of the 57th Article of the Code, and must be commenced within one year from the time of the offence committed," which is the language of the plea. To this, the State, by its attorney demurred, thereby admitting the fact as pleaded which, under the 10th section of the 69th Article of the Revised Code, is a bar to the prosecution.

The warrant issued in this case in the justice was clearly imperfect. The Act of 1871, ch. 13, directs that if the woman shall on oath discover the father of a child, the justice shall discharge her, and shall cause to be arrested and brought before him such father, if a resident of the county. The warrant issued in this case by O. J. Moat, a justice of the peace, was, therefore, imperfect and irregular in directing the constable to bring the traverser before him "or some other justice of the peace." The jurisdiction and mode of proceeding being peculiar, must be exactly pursued. Root vs. State, 10 G. & J., 374. As the demurrer to the indictment and record according to the decision in Norwood vs. State, 45 Md., 68, reaches no further than to the indictment, there must be some way of bringing up the proceedings before the justice for review, which is done by the fourth and fifth pleas. The fifth plea is good as a plea to the jurisdiction of the Court.

All the proceedings before the justices in this case, appear to be irregular. It is necessary that the examination of the woman should be taken in writing, and signed by her. ( Latrobe's Justices' Practice, sec. 994.) It would seem that there ought to be a judgment of "guilty," rendered by the justice, before requiring the party to give security. Judgment, that the defendant shall give security to indemnify the county from all charges that may arise for the maintenance "of an illegitimate female child, begotten upon the body of the said Elizabeth Gibson," does not sufficiently identify the child for the maintenance of which, security is to be given. The recognizance entered into by the appellant for his appearance at Court, in the absence of which, the Court has no jurisdiction, is dated the 26th day of December, 1880, which is the day before the one on which the judgment was rendered.

The appellant in this case, having been taken before Jones, a justice of the peace, having denied the charge, and entered into a recognizance for his appearance at Court, and a presentment and indictment having been found thereon, and the indictment quashed, and the case dismissed, could he be legally re-arrested on the same warrant, and be compelled a second time, either to give security to indemnify the county, or to enter into a recognizance for his appearance at Court? All the sections of this Article, it is manifest, contemplate immediate consecutive and continued prosecution of the case. State vs. Trimble, 33 Md., 468. As we understand the opinion of the Court of Appeals, in Root vs. State, a procedendo was not ordered in that case, because no new recognizance could be required by the justice in Carroll County, which would give the Court jurisdiction. Does not the same reasoning apply to this case? The appellant in this case having once entered into a recognizance before the justice, before whom he was first taken for his appearance at Court, and proceedings thereon had, no new proceedings could be instituted before the justice issuing the warrant, which could give the Court jurisdiction. Such experimental proceeding, it seems to us, will not be permitted. For the reason assigned, the Court below erred in ruling good the demurrers to the traverser's pleas, and in admitting the testimony offered by the State, and rejecting that offered by the traverser.

D. W. Sloan, and C.J. M. Gwinn, Attorney-General, for the appellee.

As to the pleas. The second plea is susceptible of two constructions, one relating to the time of the carnal intercourse between the traverser and the prosecuting witness, the other to the birth of the child, and "if the language used be so obscure and uncertain, that the pleading may be equally well understood in two senses, that construction will be given to it, which is most unfavorable to the pleader." Poe's Pl. and Pr., 645.

The third plea explains the pleader's object, and the sense in which he intended the second to be understood, and the time to which they each refer. The indictment alleges that on the 10th day of January, 1879, the traverser did beget, &c., to which he pleads limitations by the second plea, distinguishing that time from the 10th day of October, 1879, when the mother "was then and there delivered," to which a similar plea, (the third,) is filed. Two events were contemplated by the pleader, namely, (first,) the carnal intercourse, not a criminal offence unless followed by (secondly,) the birth of the child, from which latter period limitations to a proceeding under Article 55, Revised Code, begin to run. Bake vs. State, 21 Md., 426.

The fourth and fifth pleas answer nothing in the indictment; neither could they be pleas to the jurisdiction.

Having appeared by attorney, and pleaded "not guilty," &c., the jurisdiction is admitted. 1 Chitty's Pleading, 444; 2 Saunders, 309, B; Bac. Ab., Abatement and Pleas, &c., 2; 8 T. R., 631.

The warrant in this case, although returnable immediately, i. e., as soon as the prisoner could be apprehended, continued in force until it was fully executed and obeyed. Peak's Rep., 234; Archibold's Crim. Pl. and Pr., (1860,) 129, note.

The warrant containing all the requirements of Article 55, sec. 2, of the Revised Code, and the words "or some other justice," were surplusage, if however the warrant had been defective, it was cured by the traverser appearing before the justice, denying the charge, and entering into a recognizance for his appearance at Court. Norwood vs. State, 45 Md., 73.

The proceedings before Justice Jones, were null and void. The statute referred to, requires the father to be brought before the justice issuing the writ, and must be "exactly pursued." Root vs. State, 10 G. & J., 374.

The ruling of the Court below sustaining the demurrers to the appellant's second, fourth and fifth pleas, are not however before this Court for review; no final judgment having been entered in the case.

The proceeding of the lower Court was founded upon the warrant, judgment of the justice and recognizance of the appellant to appear. Cushwa vs. State, 20 Md., 281. The Court below, therefore, properly overruled a general and collective objection to their admissibility in evidence, as shown by the first exception. They were parts of the very case, which it was the business of the Court to review. Cushwa vs. State, 20 Md., 281.

The purpose of the particular evidence in the second...