Whittington v. State

• Decision Date: 12 January 1938
• Docket Number: 73.
• Parties: WHITTINGTON v. STATE.
• Court: Maryland Court of Appeals

196 A. 314

173 Md. 387

WHITTINGTON v. STATE.

No. 73.

Court of Appeals of Maryland

January 12, 1938

Appeal from Circuit Court, Anne Arundel County; Linwood L. Clark Judge.

Henry Whittington was convicted of feloniously stealing tobacco of the value of $10, and he appeals.

Reversed.

BOND C.J., dissenting.

Charles T. LeViness, III, Asst. Atty. Gen. (Herbert R. O'Conor Atty. Gen., Roscoe C. Rowe, State's Atty., and Albert J Goodman, Sp. Asst. State's Atty., both of Annapolis, on the brief), for the State.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

URNER Judge.

The appellant was tried in the lower court on an indictment which charged that during the month of March, 1937, in Anne Arundel county, he 'did then and there feloniously steal, take and carry away' forty pounds of tobacco 'of the value of ten dollars' of the goods and chattels of a designated owner. A demurrer to the indictment was filed on the principal ground that the larceny was alleged to have been 'feloniously' committed. The indictment was sustained as against the demurrer, and the defendant then elected to be tried before the court sitting as a jury. The trial resulted in his conviction and in a sentence that he be confined in the Maryland House of Correction for a period of nine months. From that judgment the defendant has appealed.

By chapter 78 of the Acts of Assembly passed at the Extra Session of 1933 the larceny of goods under the value of $25 is declared to be a misdemeanor. It has been twice decided by this court that an indictment which characterized as felonious the commission of a misdemeanor is invalid. In Black v. State, 2 Md. 376, the indictment alleged that the defendant 'feloniously, unlawfully, wilfully and maliciously' burned a certain stack of hay. After being found guilty by a jury, he moved for an arrest of judgment. One of the grounds of the motion was that the indictment charged as having been done feloniously an act which was not a felony. The motion having been overruled by the trial court, and the defendant sentenced to confinement in the Maryland Penitentiary, the case was brought to this court on writ of error. In the opinion by Chief Judge Le Grand it was said (page 379):

'The jury found the party guilty of having 'feloniously,' as well as unlawfully, wilfully and maliciously, burnt the stack of hay, and the question for the decision of this court is, whether on such an indictment and finding a valid and legal judgment can be pronounced?

'Neither at the common law, nor by the act of 1809, ch. 138, nor by the act of 1845, ch. 381, is the act of burning a stack of hay a felony.

'This is admitted on the part of the State; but, it is contended, that the introduction of the word 'feloniously,' in the indictment and also in the verdict of the jury, is a matter of no importance, and ought, therefore, to be regarded as mere surplusage.

'In support of this view several cases have been relied on. However great our respect may be for the learning of the court which pronounced the decision in the case of Hess v. State, 5 Ohio [5] 13 we cannot adopt that decision, unsupported as it is by a single authority. * * *

'In regard to the other cases cited on the part of the State, it need only to be observed, they were overruled in Rex v. Westbeer, 2 Strange, 1133, in which it was said by the court, that in the cases relied upon by the State, 'the judges appeared to be transported by zeal too far.' The doctrine of the case in Strange, was fully recognized by the supreme court of Massachusetts, in Commonwealth v. Newell, 7 Mass. 245. In that case the prisoners had been indicted for feloniously and burglariously breaking and entering the dwelling house of Edward Dixon of Boston, with intent, unlawfully and feloniously to assault Dixon, and to cut off one of his ears, with an intention the said Dixon to maim and disfigure. To the indictment the prisoners demurred, and on their part it was contended that the crime charged in the indictment did not amount to a felony; that to constitute the crime of burglary, there must be an intent to commit a felony. And the court held, that the cutting off an ear with set purpose and malice aforethought, with the intention to maim and disfigure, is not by the laws of Massachusetts a felony; and having so held, they decided, in opposition to the argument of the attorney general, that the indictment could not be sustained as an indictment for a misdemeanor.

'In principle that case is precisely the one before us, and we adopt it, because it appears to us to be founded in sound reason and to be in strict concurrence with the English authorities.

'By the common law, a person convicted of an infamous crime is disqualified thereby as a witness, and to this disqualification our constitution by the fifth section of its first article superadds another, the deprivation of the elective franchise. The prisoner has been convicted of an infamous crime, to wit, of a felony, when the offense proved against him according to legal definition was not of that character. We are therefore of the opinion, that according to the principles of the law of pleading in criminal cases, no valid judgment can be pronounced on such indictment and verdict as are those in this case, and therefore we reverse the judgment of the county court.'

The principle of that decision was reaffirmed in Barber v State, 50 Md. 161, 167, in an opinion delivered by Judge Alvey, in which it was said: 'If the crime of bigamy be not a felony by our law, then it is clear the present indictment is fatally defective; for it is well settled in this State that it is not allowable to charge a misdemeanor to have been feloniously committed. Black v....