Swift v. State, 135

• Court: Court of Appeals of Maryland
• Citation: 224 Md. 300,167 A.2d 762
• Docket Number: No. 135,135
• Parties: Price SWIFT v. STATE of Maryland.
• Decision Date: 13 February 1961

Page 300

224 Md. 300 167 A.2d 762 Price SWIFT
v.
STATE of Maryland. No. 135. Court of Appeals of Maryland. Feb. 13, 1961.

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James H. Taylor (J. Franklyn Bourne, Washington, D. C., on the brief), for appellant.

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Stedman Prescott, Jr., Deputy Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and William [167 A.2d 763] L. Kahler, State's Atty., Prince Georges County, and Frank P. Flury, Asst. State's Atty., Upper Marlboro, on the brief), for appellee.

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Before HENDERSON, HAMMOND, PRESCOTT, HORNEY, and MARBURY, JJ.

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HORNEY, Judge.

Price ('Redtop') Swift (the defendant) was tried and convicted by the Circuit Court for Prince Georges County sitting without a jury of an assault with intent to have carnal knowledge of a female child under the age of fourteen years. On this appeal from the judgment and sentence entered on the verdict, the defendant alleges that the trial court committed four reversible errors: (i) that he was convicted of a crime which does not exist; (ii) that he was denied a speedy trial; (iii) that a witness was allowed to testify after she had been excluded under the rule; and (iv) that the evidence was legally insufficient to justify the conviction.

In this Court, the State moved to dismiss the appeal pursuant to the provisions of Maryland Rule 830 e on the ground that the brief of the appellant was not filed within the time limited by section a of the rule. Since the power to dismiss is discretionary and the State failed to allege or show prejudice, the motion will be denied. See Foster-Porter Enterprises v. DeMare, 1951, 198 Md. 20, 81 A.2d 325.

(i)

The defendant contends that the first count of the indictment under which he was tried should have been dismissed because it did not state a crime of which he could be convicted in Maryland. The indictment was drawn in the phraseology of Code (1957), Art. 27, § 12, ¹ but the claim is that the statute prescribes only the penalty and does not state

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that the conduct therein condemned is a crime. The contention is based on the theory that since an 'assault with intent' was not a crime at common law, and since the only provision in the criminal code relating to the assault with intent for which the defendant was prosecuted is the penalty section, there is no proscribed conduct to which the prescribed penalty could be applied. The argument is ingenious, but it is clearly without substance.

As we read the statute, originally enacted by the Acts of 1809 (Ch. 138, § 4), we think it is implicit that the very description of the crime for which the penalty was provided is in and of itself a sufficient definition of the felonious conduct that is forbidden by the statute. That this is so was clearly indicated in Cooper v. State, 1954, 205 Md. 162, 106 A.2d 129, 131, where the elements necessary to prove the crime (in the order set forth in the statute) were enumerated as: 'first, the assault, without regard to the degree of violence used; second, the intent to carnally know; and third, that the age of the girl be under fourteen.' This Court also recognized that there is such a crime as is proscribed by § 12 (of Art. 27), supra, in Weinecke v. State, 1947, 188 Md. 172, 52 A.2d 73 and in Rau v. State, 1919, 133 Md. 613, 105 A. 867.

In addition to what this Court has said on other occasions--even though the rule is that criminal statutes should be strictly construed--we think that § 12 (of Art. 27), supra, as enacted is a reasonably clear and valid manifestation of the legislative intent to provide that an assault upon a female child under the age of fourteen with...