State v. Lingner

• Decision Date: 24 March 1944
• Docket Number: 33.
• Parties: STATE v. LINGNER.
• Court: Maryland Court of Appeals

36 A.2d 674

183 Md. 158

STATE v. LINGNER.

No. 33.

Court of Appeals of Maryland

March 24, 1944

Appeal from Criminal Court of Baltimore City; Emory H. Niles, Judge.

Leon F Lingner was charged in an indictment of brutally assaulting and beating his wife. The court overruled State's demurrer to plea of former jeopardy interposed by the traverser, and, upon State's not desiring to traverse the plea and submitting thereon, the court found traverser not guilty, and the State appeals.

Appeal dismissed.

J. Edgar Harvey, Asst. Atty. Gen., and John C. Weiss Asst. State's Atty., of Baltimore (William C. Walsh Atty. Gen., and J. Bernard Wells, State's Atty., of Baltimore, on the brief), for appellant.

Ellis Levin, of Baltimore (Joseph M. Wyatt, of Baltimore, on the brief), for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON MELVIN, and BAILEY, JJ.

GRASON Judge.

The traverser was charged, before the presiding magistrate at the Northern Police Station of Baltimore City, with 'assaulting and kicking one Victoria Lingner in Baltimore City, State of Maryland, on November 20, 1943.' He pleaded not guilty thereto, was tried by the magistrate on the charge, convicted and fined $50 and costs, which he paid, and was discharged.

On November 24, 1943, an indictment was returned by the grand jury of the City of Baltimore, which charged that 'Leon F. Lingner, on the 20th day of November, in the year of our Lord, 1943, at the City of Baltimore, aforesaid, in and upon one Victoria U. Lingner, who was then and there his wife, did make a brutal assault, and her, the said Victoria U. Lingner, did then and there brutally beat'. To this indictment the traverser filed the general issue plea and a second plea in which he set up former jeopardy as a bar to the prosecution. This plea set out the following facts: The charge before the magistrate, the plea of not guilty thereto, the conviction of the traverser, and a fine of $50 imposed by the magistrate, the payment of the fine and costs by the traverser and his discharge. The plea further set out that the defendant in this cause and the defendant against whom the aforesaid charge was made at the Northern Police Station is the same person; that Victoria Lingner named in the said charge at the Northern Police Station is the same person described in the indictment in this case as Victoria U. Lingner, wife of the defendant, and that the charge of assault made at the Northern Police Station and that now charged in the indictment in this cause is one and the same offense, and that the determination of said cause at the Northern Police Station was and is absolute and final and is a complete bar to the present indictment and prosecution. To this plea of former jeopardy interposed by the traverser, the State demurred. The Court overruled the demurrer and 'the State not desiring to traverse the plea, and submitting thereon', the Court found the traverser not guilty of the charge whereof he was indicted. Thereupon the State brings this appeal.

It is contended by the State that the facts set up in the plea of former jeopardy should be verified by affidavit, and because it was not sworn to, it is defective. As authority for this proposition we are cited the case of Friend v. State, 175 Md. 352, 2 A.2d 430. In that case the court considered a plea of former jeopardy and stated, 175 Md. at page 354, 2 A.2d at page 431: 'The plea to that effect is defective in that it is not verified by affidavit', quoting Johns v. State, 55 Md. 350 as authority therefor. In the Johns case it is stated: 'After the demurrer to the indictment had been overruled by the Court, the traverser pleaded in abatement, that the grand jury, by whom the indictment was found, had not been legally drawn, and was not, therefore, a lawfully constituted grand jury.' The court stated in its opinion, 55 Md. at side page 354: 'It does not appear that the truth of the matters alleged was verified by affidavit.' It appears that while the plea in Friend v. State, supra, was a plea in bar, the authority for the statement in the opinion in that case that the plea was 'defective in that it was not verified by affidavit', was a case where this court was dealing with a dilatory plea. A plea in abatement and a plea in bar are different; the former does not set up facts going to the real merits of the controversy, or facts which would bar the action, but matters that would postpone or delay the prosecution and are hence looked upon with disfavor by the courts. Therefore, the facts set up in dilatory pleas are required to be verified by affidavit. If such a plea is not so verified it will be rejected by the court as a nullity. Mr. Poe says that after demurrer the defendant may have a choice of pleas--one, dilatory pleas, and two, 'peremptory pleas, or those which bar the action'. Pleading and Practice, Poe, Tiffany's Ed., Vol. 1, § 592.

In the Johns case, supra, the court further states: 'But, according to the statement of the bill of exception, the Court overruled the plea in abatement; and in this the Court was well justified, irrespective of the testimony offered, for the plea, in the manner it was pleaded, was a mere nullity. As we have already stated, the plea was without affidavit; and the Stat. 4 Ann, c. 16, sec. 11, which has been construed to apply to criminal cases, (Rex. v. Grainger, 3 Burr 1617; 1 Whart.Cr.L. sec. 536,) expressly provides, 'that no dilatory plea shall be received in any Court of record, unless the party offering such plea do, by affidavit, prove the truth thereof'. This provision of the Statute of Ann is in force in this State, and must be complied with, or otherwise dilatory pleas may be rejected or treated as nullities. Graham v. Fahnestock, 5 Gill, 215.'

'In the case of Graham v. Fahnestock [supra], the defendant pleaded in bar, without verification under oath, that at the time of the commencement of the action 'the plaintiff who declared by attorney, and not by guardian or next friend, was an infant,' the plaintiff moved that the plea be rejected, which was done. Upon appeal this Court held the plea was properly rejected, the subject of the plea was matter in abatement, and not in bar, and it was not verified by affidavit, without which, it could not have been received.' Wilms v. White, 26 Md. 380, 90 Am.Dec. 113.

Hochheimer, on Crime and Criminal Procedure, 2d Ed., § 114, states that a plea of former jeopardy is a plea in bar.

In Bishop's Directions and Forms, 2d Ed., § 1042, under the heading 'Pleas in Bar', it is stated that a plea of former jeopardy is a favored plea. The same author further says: 'Limiting ourselves to criminal pleading, the meaning is that the middle certainty, and no more, is required in the indictment; the extreme certainty, in dilatory pleas; and the lowest certainty suffices in both general and special pleas in bar, like former jeopardy, pardon, and not guilty, showing that there should be no prosecution for what is alleged against the party pleading.' Bishop's New Criminal Procedure, 2d Ed., Vol. 1, § 323.

It is perfectly clear from the authorities cited that a plea of former jeopardy is a plea in bar and not a dilatory plea and facts stated in such a plea do not have to be verified by affidavit. Therefore, the statement in the case of Friend v. State, that such a plea is defective in that it is not verified by affidavit, is a misstatement of the law and is overruled.

The prosecution in this case is based on the Acts of 1882 Chapter 120 (Section 11 of Article 27 of Flack's Ann. Code of Md. 1939). It provides: 'Any person who shall brutally assault and beat his wife shall be deemed guilty of a misdemeanor, and upon...