State v. Elborn

Decision Date17 July 1867
Citation27 Md. 483
CourtMaryland Court of Appeals

Thomas J. Keating and A. Randall, ( Attorney General,) for the State.

The Act of Assembly, on which the indictment in this case was founded, was intended to suppress particular crimes, against which its provisions are specifically directed, and which at that time prevailed to an alarming extent, the ordinary provisions of the criminal law being found inadequate to their suppression, and it should therefore receive a liberal construction to prevent these crimes. Act of 1853, ch. 69; Code of Pub. General Laws, Art. 30, sec. 122; Code of Pub Local Laws, Art. 4, sec. 155. The Act of Assembly in its language is so similar, often identical with the language of the Act of 1 Victoria, ch. 85, sec. 4, that the Court must be satisfied that this latter statute was before the legislature in 1853. If in comparing this statute with our Acts of Assembly, it be clearly seen, that although this statute from the identity of much of its language, was the pattern of our Act, yet in some of its very important provisions obvious and essential changes were made in our Act, we must hence conclude that such changes indicated a different intent, which the Court will do all in their power to effectuate. This is exemplified by the English statute: after enumerating very much in the language of the Act of 1853, ch 99, certain acts to be punished, it annexes to them all these words: " with intent in any of the cases aforesaid, to maim, disfigure or disable, or to do some other grievous bodily harm to such person. " Whereas, the Act of 1853, ch. 99, annexes this intent to only one of the enumerated forbidden acts, " or shall beat, &c., with intent," &c. This restriction of the intent, to this one act forbidden, is further shown from the consideration of the great difficulty Courts of justice have always had in their efforts to punish offences done with a special intent, and the desire manifested to be relieved of the necessity of charging and proving such special intent, by making crimes punishable because of their own enormity and criminality, without regard to any special intent in committing them. Instances of this difficulty of conviction among the thousands are the following: Brigg's Case, 1 Lewin's Crown Cases, 66; Jennings' Case, 2 Lewin's Crown Cases, 130; Rex vs. Cruse & Wife, 34 Eng. Com. Law, 522; Rex vs. McDermot, 1 Russ. & Ryan, (1 Eng. Crown Cases;) State vs. Neal, 37 Maine, 468; State vs. Negro Bill, 3 Harrington, 571.

The great object of this law will be defeated if you require that the intent with which a man unlawfully shoots at another must be alleged, and proved to have been done with a view to maim, disable or disfigure. How can such an intent be proved? The act may kill or maim or disfigure, or do no harm, and the man who shoots may intend all or none of these consequences. He may shoot without any special intent whatever. It does seem that this law, to give it any efficacy, must mean to punish the unlawful shooting at any one, no matter with what intent done, no matter if done without any particular intent. It was intended to punish the unlawful act, though done without any particular intent, and though no specific injury resulted to any one from it. It will be for the Court to make the discrimination in the guilt of the convicted, and punish him by confinement between the limits of the law, six months or ten years, depending upon the decision of the Court as to the character of the crime; construction of penal laws is not to defeat the obvious intent. Keller et al. vs. The State, 11 Md. Rep., 525.

The grammatical construction of this law does not make the intent with which the act is done, an ingredient of the crime, of " unlawfully shooting at any person, or in any manner unlawfully and maliciously attempting to discharge any kind of loaded arms, at any person," or "of unlawfully and maliciously stabbing, cutting or wounding any person;" but that construction does require, that the intent shall constitute an ingredient of the crime "of assaulting, or assaulting and beating any person, with intent to maim, disfigure, or disable such person, or with intent to prevent the unlawful apprehension of any party for any offence," &c.

This law does not require that the intent shall be set forth as an ingredient of the crime in the first three cases provided for, because the acts themselves, and the weapons used, do too plainly manifest the criminal intent, and render unnecessary those averments of the intent--but in the two latter cases, the acts done may be equivocal as to the intent, and require that particular intent be averred as an ingredient to constitute the crime. Roscoe's Criminal Law, 287, note 1, 364.

Henry M. Murray, for the appellee.

The only question for the determination of this Court is, whether by the Act of Assembly of 1853,...

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1 cases
  • Fox v. State
    • United States
    • Maryland Court of Appeals
    • December 5, 1901
    ... ... "knowingly," etc., are used as a part of the ... description of the offense, or as a descriptive element of ... the offense, are they necessary terms in the indictment ... Whart.Cr.Pl. §§ 255, 269; Kearney v. State, 48 Md ... 23; Davis v. State, 39 Md. 355; State v ... Elborn, 27 Md. 483; Cearfoss v. State, 42 Md ... 403; Mincher v. State, 66 Md. 227, 7 A. 451; ... Parkinson v. State, 14 Md. 184, 74 Am.Dec. 522; ... Carroll v. State, 63 Md. 551, A. 29. In the case ... last cited it was held that, when a licensed dealer in ... spirituous liquors was indicted for ... ...

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