State v. McNally

• Decision Date: 16 March 1881
• Parties: STATE OF MARYLAND v. PATRICK MCNALLY AND THOMAS MYERS.
• Court: Maryland Court of Appeals

55 Md. 559

STATE OF MARYLAND v. PATRICK MCNALLY AND THOMAS MYERS.

Court of Appeals of Maryland

March 16, 1881

APPEAL from the Circuit Court for Baltimore County.

The case is stated in the opinion of the Court.

The cause was argued for the State before BARTOL, C.J., MILLER ALVEY and ROBINSON, J.

Charles J. M. Gwinn, Attorney-General, for the appellant.

No counsel appeared for the appellees.

BARTOL C.J., delivered the opinion of the Court.

The defendants, McNally and Myers, were indicted in the Circuit Court for Baltimore County for stealing three bushels of wheat. The indictment contained three counts, the first described the wheat as the property of the "Northern Central Railway Company," a corporation of the State of Maryland; the second described the wheat as the property of the "Northern Central Railway Company," a corporation under the laws of the State of Maryland, then being in possession thereof in its capacity as common carrier and bailee of said wheat; and the third described the wheat as the property of certain persons therein named, doing business under the name of Meixsel & Co., the alleged consignees of the said wheat. The defendants, by their attorney, moved the Court to quash the indictment "for defects, which they alleged to be apparent on its face." The supposed defects were not pointed out or designated in the motion. The Circuit Court granted the motion and quashed the indictment.

Thereupon the attorney for the State desiring to have the record removed to this Court as upon writ of error, filed a petition in the name of the State, designating the questions of law by the decision of which the State was aggrieved, namely, the quashing of the indictment. The petition states that the point urged by the defendants in support of their motion, was "that the ownership of the property, alleged in the indictment to have been stolen, could not be properly charged in the same indictment, as being in different persons or individuals, and that it was in effect, holding the defendants to answer upon several and distinct charges, and that it was so held and adjudged by the Court." Thereupon the Circuit Court ordered the record of proceedings in the case to be transmitted to this Court

In our opinion the petition by the State, "plainly designates the points or questions of law by the decision of which the State feels aggrieved," as required by Rule 1st, (29 Md., 1,) and consequently that the decision of the Circuit Court is properly before us for review, as upon writ of error, unless it shall appear that the ruling by the Circuit Court is one from which a writ of error will not lie.

There has been no appearance in this Court for the defendants in error, nor any brief or argument on their behalf.

On the part of the State it has been contended that even if the objection to the indictment was valid, it was error to grant the motion to quash; because since the Act of 1852 ch. 63, sec. 2, (1 Code, Art. 30, sec. 82,) such objection can only be made by a demurrer. That section provides "that no indictment or presentment for felony or misdemeanor shall be quashed, nor shall any judgment upon any indictment for any felony or misdemeanor, &c. * * * * * * be stayed or reversed," for the omission or want of certain averments therein specified "or by reason of any mere defect or imperfection in matters of form which shall not tend to the prejudice of the defendant, nor for any matter or cause which might have been a subject of demurrer to the indictment, inquisition or presentment." It is very clear that if the objection urged against the indictment in this case was one for which a demurrer would have lain previous to the Act of 1852, the objection could not be made since that Act by a motion to quash, nor in any other form except by demurrer. Cowman vs. The State, 12 Md., 253; Maguire vs. The State, 47 Md., 485.

But the ground of the motion, as it appears by the record, was that the indictment was alleged to contain several distinct charges of felony against the defendants; if this were so, it is well settled that it would not be a cause for demurrer, or ground for a motion in arrest after verdict. Young, et al. vs. The King, 3 Term, 106; Burk vs. State, 2 H. & J., 429; 1 Chitty Cr. L., 249 m.; 1 Archbold's Cr. Pr. & Pl., 295, (8 th Ed.;) Wharton Cr. Pl. & Pr., sec. 285, (8 th Ed.;) 1 Bishop Cr. Pro., ch. 29, sec. 449.

Where several distinct felonies are charged in the same indictment, the rule in England is as stated by Chitty (1 Cr. L. 449 m.) "that the only mode of objecting to such a joinder of offences is by an application to the Court to quash the indictment before plea, or to compel the prosecutor to elect which charge he will try in the subsequent stage of the proceedings. But the Court will only listen to such a request, when they see that the charges are actually distinct and may confound the prisoner, or distract the attention of the jury."

This rule of the common law exists in Maryland, and in a case where there are several counts in the indictment, charging the defendant with more than one distinct and separate felonies, it is competent for the Court, in its discretion either to compel the prosecutor to elect upon which he will proceed, or in a clear case to quash the indictment. Such a case does not fall within the provision of Art. 30, sec. 82 of the Code; because it is well settled "that in point of law, it is no objection that two or more offences of the same nature, and upon which the same or a similar judgment may be given, are contained, in different counts of the same indictment. It therefore forms no ground for a motion in arrest, neither can it be objected by way of demurrer." Kane vs. The People, 8 Wend., 211. We refer also to 3 Term R., 106, and...