State v. Barrett

• Decision Date: 17 April 1925
• Docket Number: No. 31.,31.
• Citation: 128 A. 744
• Parties: STATE v. BARRETT.
• Court: Maryland Court of Appeals

128 A. 744

STATE

v. BARRETT.

No. 31.

Court of Appeals of Maryland.

April 17, 1925.

Appeal from Circuit Court, Kent County. "To be officially reported."

John Barrett was indicted for larceny. From an order quashing the indictment, the State appeals. Affirmed.

Argued before BOND, C. J., and PATTISON, TJRNER, ADKINS, OFFUTT, DIGGES, PARKE, and WALSH, JJ.

Thomas H. Robinson, Atty. Gen., Willis R. Jones, Asst. Atty. Gen., and S. Scott Beck, State's Atty., of Chestertown, for the State.

John W. Barroll, of Baltimore, for appellee.

ADKINS, J. John Barrett, the appellee, was indicted for larceny. The indictment was as follows:

"State of Maryland, Kent County to wit:

"The jurors of the state of Maryland, for the body of Kent county, do on their oaths present that John Barrett, late of said county, on the 23d day of May in the year of our Lord, 1924, with force and arms, at the county aforesaid, one Victrola of the value of $25, of the goods and chattels of the Parents' & Teachers' Association of the Broad Neck school then and there being found, did then and there feloniously steal, take, and carry away contrary to the form of the act of assembly in such case made and provided, and against the peace, government, and dignity of the state."

Traverser was arraigned, pleaded not guilty, and elected to be tried by a jury. After the jury was selected and sworn, Traverser asked leave, and was permitted, to withdraw his plea and to demur to the indictment. The demurrer was overruled. Whereupon the state asked leave to amend indictment by striking out the name of the Parents' & Teachers' Association of the Broad Neck "school and inserting the name of Mrs. Ruthwin Strong, which motion was refused. Plea of not guilty was again entered, the jury accepted by agreement and resworn.

At the close of state's testimony, Traverser moved to quash the indictment; the motion being as follows:

"The defendant moves that the indictment be quashed, because:

"(1) The indictment is not sufficient in law in that the proof shows that the Parents' & Teachers' Association of Broad Neck school is not a corporation.

"(2) The indictment does not sufficiently describe the article stolen."

The motion was granted, and a juror withdrawn. From the order granting that motion, this appeal was taken.

Section 494 of article 27 of the Code of Public General Laws of Maryland provides:

"Whenever it shall appear after a jury is sworn on any indictment, in any of the courts of this state having criminal jurisdiction, that the name or names of any person or persons other than the defendant and defendants has or have been erroneously set forth in the said indictment, it shall be lawful for the State's Attorney, or other person prosecuting for the state, on application to the court, to amend the said indictment according to the proof in the said cause; and it shall be the duty of the court in which such trial shall be had to proceed with the trial of the said indictment so amended, unless oath shall be made by the party or parties so charged that the said amendment or amendments has or have disclosed a fact or facts to him heretofore unknown, or that the immediate proceeding with the trial of the said indictment would tend to his prejudice; and in such case it shall be the duty of the court to discharge the jury sworn in the said case without a verdict, and to postpone the trial thereof for such reasonable time as the court shall determine; or in case the said indictment is...