State v. Harman, 76

• Decision Date: 08 February 1952
• Docket Number: No. 76,76
• Citation: 199 Md. 209,86 A.2d 397
• Parties: STATE v. HARMAN.
• Court: Maryland Court of Appeals

Page 209

199 Md. 209

86 A.2d 397

STATE v. HARMAN.

No. 76.

Court of Appeals of Maryland.

Feb. 8, 1952.

Kenneth C. Proctor, Asst. Atty. Gen. (Hall Hammond, Atty. Gen., and John L. Sanford, Jr., State's Atty., Worcester County, Berlin, on the brief), for appellant.

Daniel T. Prettyman, Berlin, for

Before MARBURY, Chief Judge, and DELAPLAINE, COLLINS, HENDERSON and MARKELL, JJ.

DELAPLAINE, Judge.

On May 8, 1951, Jerome Harman was tried before Trial Magistrate James B. Robins, sitting in Ocean City, on a charge of driving a motor vehicle at West Ocean City while under the influence of intoxicating liquor in violation of the Maryland Motor Vehicle Law. Code Supp.1947, art. 66 1/2, sec. 153. The State's Attorney for Worcester County prosecuted the case, and Deniel T. Prettyman acted as the attorney for defendant. The magistrate found defendant guilty and sentenced him to confinement for six months in the Maryland House of Correction.

Immediately upon the imposition of the sentence, defendant's attorney informed the magistrate in the presence of the State's Attorney that he wanted to take an appeal on behalf of defendant. Accordingly the magistrate set the amount of bond at $2,000. A bond was then signed by defendant and two sureties and was presented to the magistrate, who made the following entry on his docket: 'Appeal Date, May 8, 1951. Bondsmen, Gerald H. Tarr, Frances Tarr. Amount of Bond, $2,000.' No written order of appeal, however, was filed at that time by defendant or his attorney.

On May 21, thirteen days after the trial, the State's Attorney notified defendant's attorney that, inasmuch as no written order of appeal had been filed by defendant or his attorney, the State intended to execute the sentence imposed by the magistrate. Later on that day defendant's attorney filed an order of appeal with the magistrate. On May 22 the magistrate filed the papers in the case with the Clerk of the Circuit Court for Worcester County.

On July 2 the State's Attorney filed a motion to quash the proceedings by dismissing the appeal on the ground that the Circuit Court was without jurisdiction to try the case for the reason that defendant had failed to comply with the requirement of the Motor Vehicle Law that a written order of appeal signed by the convicted person or his attorney shall be filed with the committing magistrate within ten days from the date of judgment. Laws 1943, ch. 1007, sec. 265, Code Supp.1947, art. 66 1/2, sec. 265. The Court overruled the motion, holding that, although the statute requires 'a written order of appeal', the entries on the magistrate's docket showed that defendant indicated immediately after his conviction that he wanted to appeal; and furthermore that the appeal bond, which stayed the execution of the sentence, was in the nature of a written order of appeal. From the order overruling the motion to quash the proceedings, the State appealed here.

In Maryland it is an established rule that the decision of the Circuit Court on an appeal from a judgment of a magistrate is generally final and conclusive, but if the Circuit Court is without jurisdiction, an appeal will lie from its judgment to the Court of Appeals. Mears v. Remare, 33 Md. 246, 250; Cole v. Hynes, 46 Md. 181, 184; Rayner v. State, 53 Md. 368, 374, Darrell v. Biscoe, 94 Md. 684, 687, 51 A. 410; Starliper v. State, 126 Md. 295, 298, 94 A. 908.

We are asked to decide whetehr the State can appeal from the order of the Circuit Court overruling the motion to quash the proceedings. Our appeal statute provides: 'From any judgment or determination of any court of law in any civil suit or action or in any prosecution for the recovery of any penalty or fine or damages, any party may appeal to the Court of Appeals * * *.' Code 1939, art. 5, sec. 2. We have interpreted the term 'judgment or determination' to mean final judgment or determination. Thus we have held that an appeal in a criminal case is premature until after final judgment. Dail v. Price, 184 Md. 140, 143, 40 A.2d 334; Harris v. State, Md., 71 A.2d 36; State v. Barshack, Md., 80 A.2d 32; Adams v. State, Md., 84 A.2d 613.

In the instant case the Attorney General, in contending for the right of the State to appeal from the order of the court below, relied upon the following statement which Judge Burke made in his opinion in Josselson v. Sonneborn, 1909, 110 Md. 546, 550, 73 A. 650, 652: 'The defendant had the right to raise the question of the jurisdiction of the Baltimore city court by a motion to quash, and an appeal will lie to this court from the order overruling the motion.'

That case originated before a justice of the peace in Baltimore for repossession of certain premises. The justice entered a judgment in favor of the plaintiffs for repossession and for rent due. From that judgment the defendant appealed to the Baltimore City Court. The plaintiffs moved to quash the proceedings for lack of jurisdiction, and at the hearing on the motion it was agreed that the evidence to be introduced at the trial of the case before the jury should be considered as if it had been introduced on a hearing of the...