State v. Butler

• Decision Date: 07 February 1890
• Citation: 18 A. 1105,72 Md. 98
• Parties: STATE v. BUTLER.
• Court: Maryland Court of Appeals

18 A. 1105

72 Md. 98

STATE v. BUTLER.

Court of Appeals of Maryland

February 7, 1890

Error to circuit court, Worcester county.

Argued before ROBINSON, IRVING, BRYAN, MCSHERRY, and FOWLER, JJ.

Atty. Gen. Whyte and Wm. S. Wilson, for appellant, cited Cochrane v. State, 6 Md. 400; State v. Reed, 12 Md. 263; Cowman v. State Id. 250; Wedge v. State, Id. 232; Kellenbeck v. State, 10 Md. 439.

George M. Upshur and Clayton J. Purnell, for appellee.

FOWLER J.

It appears, from an examination of the record in this case, that the defendant in error was indicted on the 29th October 1887, for selling liquor to a minor in violation of the local law of Worcester county, and that on the 23d May, 1889, he pleaded not guilty, issue was joined, and the case tried before the court without a jury. On the same day the court found the traverser guilty, and sentenced him to pay a fine and costs, and to stand committed until said fine and costs should be paid. Default having been made in the payment of the fine, the traverser was committed to the custody of the sheriff of Worcester county, where he remained for four days; when, on the 27th May, 1889, during the same term at which he was convicted and sentenced, he was brought into court, and the said judgment and sentence were stricken out by order of the learned judge below. Thereupon, on the same day, a demurrer to the indictment was allowed to be filed, and judgment was given on the demurrer in favor of the traverser, who was then discharged. On the 15th July, 1889, the plaintiff in error filed a motion to set aside the said order of the 27th May, and the subsequent proceedings thereunder, and to leave the case under the judgment of said court passed on the 23d May, by which, as we have seen, the traverser was adjudged guilty, and sentenced to pay a fine. This motion was overruled. The case is before us on writ of error, and the only question presented is whether the court below had authority to strike out its judgment, under the circumstances above set forth. The plaintiff in error contends "(1) that the court had no authority to alter its proceedings in any manner after steps taken under the judgment of May 23d; and (2) that there was no motion filed for a new trial or in arrest of judgment, and, if there had been such motions, the court could not have legally granted either of them." In support of these positions, section 286 of article 27 of the Code of Public General Laws and the cases cited by the attorney general in his brief are relied upon. Ever since the passage of the act of 1852, c. 63, of which the section referred to is a codification, it has been held that "no judgment, upon any indictment for any felony or misdemeanor, shall be stayed or reversed for any matter or cause which might have been a subject of demurrer to the indictment." Cochrane v. State, 6 Md. 405. But we do not think that either this statute or the cases cited in any manner modify or limit the long-established principle that courts have power to set aside or change their judgments during the term at which they are entered. It is not...