State v. Bell
| Decision Date | 12 November 1867 |
| Parties | STATE OF MARYLAND v. WILLIAM H. BELL. |
| Court | Maryland Court of Appeals |
WRIT OF ERROR to the Circuit Court for Carroll County.
The appellee was indicted in the Circuit Court for Carroll County, at November Term 1866, on the five following counts viz:
1st. That he did on the 20th October, 1866, &c., make an assault with an intent, John T. Leverall feloniously, wilfully and of his malice aforethought, to kill and murder, contrary, &c.
2d. That he did on that day, &c., with a certain pistol, loaded with gunpowder and ball, unlawfully shoot at John T Leverall, with intent, John T. leverall to maim, contrary &c.
3d. That he did on that day, &c., with a certain other pistol loaded with gunpowder and ball, unlawfully shoot John T Leverall, with intent to disfigure the said John T. Leverall, contrary, &c.
4th. That he did on that day, &c., with a certain other pistol loaded with gunpowder and ball, unlawfully shoot, with intent John T. Leverall to disable, contrary, &c.
5th. That he did make an assault, and the said John T. Leverall beat, bruise, wound and ill-treat, so that his life was greatly despaired of, and other wrongs, &c., against, &c.
To which indictment the traverser pleaded " Not Guilty," and thereupon the issues were joined, and the jury empannelled to try them. The traverser then moved the Court to require the prosecuting attorney for the State to elect, upon which one of the first four counts, in connection with the fifth, he would go to trial. The prosecuting attorney resisted this motion to elect, and assigned the following grounds of objection:
1st. That the said motion was not made until after pleading to the indictment, and swearing the jury in the cause.
2d. That the indictment and the several counts therein, relate to and make but one specific charge against the traverser, and contain therein and charge against him but one distinct and specific offence, being simply a misdemeanor.
3d. That from the nature and circumstances of the case, the attorney for the State cannot make any distinction or discrimination between the several counts in said indictment, so as to select any one or more of them, without endangering or preventing the ends of justice.
But the Court overruled the objections and required the State's attorney, according to the motion of the traverser, to elect; whereupon he elected to proceed upon the first and fifth counts of the indictment. On these the traverser was tried and acquitted. The State thereupon alleged that there was error in this ruling of the Court, compelling the State to go to trial on two counts in the indictment, and moved for and obtained a writ of error, by which the proceedings were brought before this Court.
The cause was argued before BOWIE, C.J., BARTOL, WEISEL and CRAIN, J.
Alexander Randall (Attorney General) for the appellant:
Waived the first objection. On the second, cited the following authorities: Code of Pub. Genl. Laws, Art. 30, sec. 122; Wharton's Precedents of Indictments and Pleas, (2) last of the notes; Wharton's Am. Crim. Law, secs. 414, 425; Rex vs. Jones, 2 Camp., 132; Regina vs. Trueman, 8 Carr. & Payne, 727 (34 Eng. Com. Law, 605); Regina vs. Strange, 8 Carr. & Payne, 172 (34 Eng. Com. Law, 341); United States vs. Dickinson, 2 McLean's Rep., 325; Manly vs. The State, 7 Md. Rep., 148.
And in support of the third objection referred to the following authorities: Burk vs. The State, 2 H. & J., 426; State vs. Sutton, 4 Gill, 494; Manly vs. The State, 7 Md. Rep., 148.
No counsel appeared for the appellee.
The only error assigned in this record is the action of the Circuit Court in requiring the State's Attorney to elect upon which of the first four counts, in connection with the fifth or last count, he would proceed to trial. "The application for a prosecutor to elect, is an application to the discretion of the Judge, founded on the supposition that the case extends to more than one charge, and may, therefore, be likely to embarrass the prisoner in his defence." Regina vs. Trueman, 8 C. & P., 727 (34 Eng. C. L., 605). In this case the application was made after the traverser had pleaded to the indictment, and the jury had been sworn, and...
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