Smith v. State, 52.

• Citation: 182 A. 287
• Decision Date: 15 January 1936
• Docket Number: No. 52.,52.
• Parties: SMITH v. STATE.
• Court: Court of Appeals of Maryland

182 A. 287

SMITH
v.
STATE.

No. 52.

Court of Appeals of Maryland.

Jan. 15, 1936.

Appeal from Circuit Court, Dorchester County; T. Sangston Insley and James M. Crockett, Judges.

Roland Smith was convicted of bastardy, and he appeals. Affirmed.

Argued before BOND, C. J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

James A. McAllister, of Cambridge, for appellant.

William L. Henderson, Asst. Atty. Gen. (Herbert R. O'Conor, Atty. Gen., and J. Gorman Hill, State's Atty., of Cambridge, on the brief), for the State.

182 A. 288

PARKE Judge.

The traverser has appealed from a sentence imposed upon him after conviction of the crime of bastardy. His appeal is based, first, upon a denial of jurisdiction in the nisi prius court; and, secondly, upon alleged error in the refusal to withdraw a juror and declare a mistrial because of the prejudicial effect of a remark in the argument of the case to the jury; and, thirdly, upon the legal sufficiency of the evidence to convict. The third assignment of error cannot be entertained in a criminal case, because the Constitution of Maryland makes the jury the sole judge of the law and the facts. Declaration of Rights, art. 21. Simmons v. State, 165 Md. 155, 176, 167 A. 60, and cases there cited.

The argument is made that, because there was no preliminary proceeding before a justice of the peace as provided by statute since the passage of the Act of 1912, c. 163 (Code, art. 12, §§ 1-5), jurisdiction of the offense could not be obtained by indictment in the circuit court of the county in which the crime alleged was committed. The question raised was decided recently in Kelly v. State, 151 Md. 87, 91, 133 A. 899, where it was held that the requirement of the preliminary proceeding prescribed was directory and not mandatory, and therefore a failure to comply did not deprive the court of jurisdiction. O'Brien v. State, 126 Md. 270, 276-281, 94 A. 1034.

The state's attorney, in the course of his argument to the jury, turned, and, pointing to the traverser, said: "This prosecuting witness has testified that this defendant is the father of her child, and this defendant has sat here all during the trial and has not denied his fatherhood."

There can be no question of the impropriety of this remark, as it was susceptible of the inference by the jury that they were to consider the silence of the traverser in the face of the accusation of the prosecuting witness as an indication of his guilt. The...