State v. Adams
| Decision Date | 15 November 1950 |
| Docket Number | 27. |
| Citation | 76 A.2d 575,196 Md. 341 |
| Parties | STATE v. ADAMS. |
| Court | Maryland Court of Appeals |
Kenneth C. Proctor, Asst. Atty. Gen. (Hall Hammond Atty. Gen., J. Bernard Wells, State's Atty., and Alan H Murrell, Asst. State's Atty., Baltimore City, on the brief), for appellant.
Joseph H A. Rogan, Baltimore (J. Francis Ford, Baltimore, on the brief), for appellee.
Before MARBURY, C J., and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.
This is an appeal from judgments on verdicts of not guilty under six indictments, against appellee and other defendants, for violations of the gambling laws. The case against appellee was tried separately from the case against the other defendants. Before pleading appellee moved, in each of the six cases, 'to dismiss the indictment' on the grounds that his arrest 'and the subsequent search of his person and seizure of articles in his possession were invalid and unlawful because' (a) at the time of the arrest he 'was not covered by the search warrant issued' since he was taken into custody outside the premises, and (b) no misdemeanor or felony had been committed by him in the presence of the arresting officer prior to or at the time of his arrest; (c) 'by reason of said illegal arrest' he moved 'that all papers obtained by a search and all evidence in relation' to him 'be suppressed and their use on the trial of this case be prohibited'. This 'motion to dismiss' purported to be made pursuant to Rule 3 of the Criminal Rules of Practice and Procedure, which provides, inter alia 'All other pleas [than four specified], and demurrers and motions to quash are abolished, and defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief.' Whether Rule 3 authorizes or covers motions to suppress evidence other than motions to quash a search warrent and restore property under section 306 of Article 27 of the Code, and whether this 'motion to dismiss' is authorized or covered by Rule 3 or section 306 or otherwise, are questions on which we intimate no opinion. For present purposes it is sufficient that this 'motion to dismiss the indictment' is only a motion to suppress evidence and not the equivalent of a demurrer to, or a motion to quash, an indictment under the practice prior to Rule 3. At most this motion presents no question which formerly could have been raised by demurrer or motion to quash the indictment.
Appellee pleaded not guilty and elected trial before the court, without a jury. The court stated, 'all the evidence will be received subject to exception', and the 'motion to dismiss' (on which the court had not yet ruled) was 'overruled at this time'. At the conclusion of the testimony the court held the arrest, search and seizure illegal, granted appellee's 'motion to strike out' all the evidence, and rendered a verdict of not guilty. From judgments on the verdict in the six cases the State has appealed. Appellee has moved to dismiss the appeal.
Whether the State can appeal after a verdict of not guilty involves no constitutional question. The prohibition of double jeopardy ['of life or limb'] in the Fifth Amendment is not a requisite of due process under the Fourteenth. Palko v. State of Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. In Maryland the double jeopardy rule is only part of the common law, which may be changed by statute. Robb v. State, Md., 60 A.2d 211; cf. Johnson v. State, Md., 62 A.2d 249. In the Robb case we sustained a statutory provision, in force since 1914, that 'either party' may appeal from a judgment of a justice of the peace (or Trial Magistrate) in a criminal case, as authorizing an appeal by the State, with a trial de novo, after a judgment of not guilty. In the Palko case the court sustained a Connecticut act of 1886, under which the state appealed from a judgment on a jury's verdict of guilty of murder in the second degree, the judgment was reversed for error (1) in excluding a confession, (2) in excluding cross-examination to impeach defendant's credibility and (3) in instructions to the jury, and on a new trial defendant was convicted of murder in the first degree and sentenced to death.
Though no constitutional question is involved, the Supreme Court has said, 'But whatever may have been, or may be, the law of England upon that question, it is settled by an overwhelming weight of American authority that the state has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon the determination by the court of a question of law.' United States v. Sanges, 144 U.S. 310, 312, 12 S.Ct. 609, 610, 36 L.Ed. 445. This statement, in an unanimous opinion by Mr. Justice Gray, was preceded by a brief discussion of 'the law of England upon that question', and was followed by an exhaustive review of the American authorities. The only point in that case, as stated in the syllabus, was, 'A writ of error does not lie in behalf of the United States in a criminal case.' The court dismissed, for want of jurisdiction, a writ of error under the Circuit Court of Appeals Act of 1891 to review a judgment sustaining a demurrer to an indictment and quashing the indictment. Though this court has held the contrary with respect to review, on writ of error or on appeal in lieu of writ of error, of a judgment sustaining a demurrer to an indictment or quashing an indictment, the statement above quoted is in accord with the decisions of this court construing statutes which give a right of appeal.
Until 1872 there was no right of appeal in criminal cases in Maryland. Section 2 of Article 5 of the Code of 1860 provided that 'writs of error may be sued out in civil or criminal cases as heretofore practised in this State'. Apparently the right to review by writ of error originated in the common law and not in any statute. By the Act of 1872, ch. 316, as amended in 1884 and 1886, Code of 1888, Art. 5, sec. 77, it was provided that in all criminal trials it shall be lawful for the accused, or for the State's Attorney, in behalf of the State, to except to any ruling of the court, and to tender, and have signed and sealed, a bill of exceptions, and the party tendering such exceptions may appeal from such ruling to the Court of Appeals. State v. Shields, 49 Md. 301, 303-304. By the Act of 1892, ch. 506, amending the Act of 1872, Code of 1939, Art. 5, sec. 86, it was provided, 'The parties to criminal proceedings shall be entitled to bills of exception 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.'
In State v. Buchanan, 5 Har. & J. 317, 329-330, 362-363, it was held that a writ of error lies at the instance of the State, in a criminal prosecution--to review a judgment sustaining a demurrer to an indictment and discharging the defendants. This decision was based on a view of the English law different from the later view of the Supreme Court in the Sanges case, and on what was regarded as settled Maryland practice. In the opinion in the Sanges case it was said, 144 U.S. 317, 12 S.Ct. 611, 36 L.Ed. 445. The Shields case was an appeal under the Act of 1872. However, in State v. Strauss, 49 Md. 288, 296, 'brought up by the State, as upon writ of error', decided the same day, in an opinion by the same judge, Judge Miller, the court followed, without mentioning, the decision in the Buchanan case and reversed 'a judgment sustaining a demurrer to an indictment and discharging the accused'. In State v. McNally, 55 Md. 559, 561-562, 'as upon writ of error', a judgment quashing an indictment was reversed and the case remanded for trial.
Under the Act of 1872 an appeal could be taken only before judgment. On appeal questions reviewable on writ of error could not be considered, and vice versa. Under the Act of 1892 an appeal can be taken only after judgment, and presents for review not only questions presented by bills of exceptions but also questions appearing on the face of the record, formerly reviewable only on writ of error. Avirett v. State, 76 Md. 510, 514-517, 25 A. 676, 987. Even when no bill of exceptions is presented, questions that could have been reviewed on writ of error may now be reviewed on appeal. Since 1892 this court has repeatedly followed, usually without mentioning, the Buchanan case--or the early practice followed in that case--in reversing on appeal judgments sustaining a demurrer to an indictment. State v. Floto, 81 Md. 600, 602-603, 32 A. 315; State v. Camper, 91 Md. 672, 47 A. 1027; State v. Blakeney, 96 Md. 711, 54 A. 614; State v. Mercer, 101 Md. 535, 61 A. 220.
We have been referred to no case, and we have found none, in which this court has held (a) that the State has a right to appeal to this court in a criminal case, except cases which were--and still are (see Rule 1, first adopted October 13, 1869; cf. McCaddin v. State, 100 Md. 669, 60 A 474)--reviewable...
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