; a CO. INC. SIEW BOOKS JSED MN STREET ALO. N. Y. r , UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A MANUAL OF CRIMINAL LAW AS ESTABLISHED IN THE State of AIaryland. B Y LEAVTS HOCHHEIMER OF THE HAI.TIMORK IIAK. H A I. r I M O R E : HAROLD B . S C R I M G E R Law Bookseller and Publisher, 126 E. Fayette street. 1889. COPYKK^HTEI^ 1889, rsv HAROLD B. SCRI.MGEK. PRESS OF WM. K. BOYLK & SON, BALTIMORE. V« • -!.*.' ' PREFACE. TiTE primary design of tlie tbllowiug pages is, to present, in a succinct and systematic mode, the common-law i)rin- ciples and statutory provisions constituting tlie criminal law as established in Maryland. It has, however, been deemed expedient, in various portions of the work, to sup- jdemeut the statements of law drawn from the sources re- ferred to by references to and citations of well-settled principles and established doctrines found in the works of standard text-writers, well-considered decisions in other courts than our own and instructive discussions in leading law periodicals. To have given the whole body of the statute law would have swelled the work to such undesir- able proportions, that it was deemed well to give the full text of only such statutory provisions, as, it is believed, will be found most useful in criminal trials and references to the others. It is earnestly hoped by the author, that he has succeeded in thus furnishing a useful guide and help to practitioners and others interested in the adminis- tration and study of the criminal law in this State. LEWIS IIOCIIHELAIKK. Baltimore, February 15th, 1889. 7&ta£4 TAISLK OK CONTENTS. CHAPTER I. Crime and its Divisions. PAGE. § 1. Definition 1 § 2. What l*i()eoo(liiif>s are Classed as Criminal 1-2 § 3. l*()li(;e Powers of Munieipal C()r|)oratious 3 § 4. Classification of Crimes — Treason 3-4 § 5. Same Subject — Felony 4 § C. Same Subject — Misdemeanor 4 § 7. Infamous Crimes 4-5 § 8. Attemi)ts 5 § 9. Degrees of Particii)ation ."> § 10. Same Subject — Principal and Accessory 5-0 § 11. Keceiving 0-7 § 12. Compounding" 7-8 § ^:\. Misjuision 8 § 14. Merger 8-0 CHAPTER II. Criminal Capapity and Responsibility. § 15. Corporations 10 § IG. Infants 10-11 § 17. Coverture 11-13 § 18. The Doctrine of Evil Intent 13-14 § 10. Ignorance of Law 14 § 20. Ignorance of Fact 14-18 § 21. Mental Incapacity 18-20 § 22. Same Subject— floral Insanity 20-21 § 23. Drunkenness 21-22 VI CONTENTS. CHAPTEK III. Constitutional Guakantees. PAGE. § 24. Scope of Cbaptor 23 § 25. Coiistniction CoiKstitiition — Geiioial Rule 28-24 § 26. Criminal Prosecutions — FiuulanKnital Pigbts 24 § 27. Summary Proceedings.. .24-26 § 28. "Confronted with Witnesses" 26 § 29. Compelling Accused to Give Evidence 26-27 § 30. Change of Name 28 § 31. Imprisonment for Debt 28-29 § 32. Jury Judges of Law 29-31 § 33. "Cruel or Unusual Punishment" 31-32 § 34. Internal Police. — Liquor Selling 32-33 § 35. Delegation of Powers 33 § 36. Same Subject — Local Option Laws .33-34 § 37. Tobacco lnsi)ections — Powers of State Legisla- ture 34-35 § .38. Comnjou Eight of Fishery 35 § 39. Non-resident Traders 36-37 § 40. Equal Rights. — Negro Apprentices. — Bastardy Laws. 37 § 41. Ex Post Facto Laws 37 CHAPTER IV. Statutory Construction. § 42. Statutes Relating to Crime and Criminal Pro- cedure 38 § 43. General Rules of Construction 38-39 § 44. General Terms Following Specific Terms 39 § 45. Legislative Grants of Authority. — Municipal Ordinances and B3 -Laws 39-40 § 46. Repeal of Statutes 40-41 CONTENTS. VII CHAPTER V. Preliminary Puoceedings. PAGE. § 47. The Arrest. — Conservators of the Peace 42-43 § 48. Causes and ^Manner of the Arrest 4;J-44 § 4!). Pursuit of Offenders. — r>reakin4 § 70. Commitment of Mendicant and Vagrant Chil- dren 04-05 § 71. Commitment of Vagrant Childreu in Baltimore, 0.5-00 Viii CONTENTS. VAGE. § 72. Destitute and Suffering- Minors— ConiniitmeDt... 66-67 § 73. Juvenile Institutions 67-68 § 74. Search Warrants , 6S-70 § 75. Peace Warrants 70-71 CHAPTEE VII. The Indictment. § 76. Prosecution By 72 § 77. Formal Allegations 72-74 § 78. Certainty of Allegation 75 § 79. Names ot- Third Persons 75 § 80. Allegation of Circumstances Constituting Ille- gality 75-76 § 81. Time and Place 76-77 § 82. Matters Unknown to Grand Jury 77 § 8.3. Technical Words 77-78 § 84. Suri)lusage 78 § 85. Indictments upon Statutes 78-79 § 86. The Conclusion 79 § 87. Joinder of Counts and Election 79-80 § 88. Statement of Ownership or Possession 80 § 89. A raendment 80-85 § 90. Specific Offenses 85 CHAPTEE VIII. The Trial and Its Incidents. § 91. Jurisdiction 86-87 § 92. Proceedings between Indictment and Trial — 87-89 § 93. Change of Venue 89-93 § 94. Mode of Trial. — Traverse before Court 93-94 § 95. Same Subject — Traverse before Jury 94-97 § 96. Oath of Jurors 97-98 § 97. Other Matters in Eelation to Jury 98 § 98. The Trial— When Said to Commence 98 § 99. Prayers and Instructions 98-99 § 100. Argument before the Jury 99 CONTENTS. IX CHAPTER IX. The Evidence. PAGE. § 101. Competency of Witnesses 1()0-10L> § lOL*. Number of Witne.sses 102 § 103. Accompliecs lOL'-lO.'j § 101. Admissions and Confessions 10;;-10r> § 105. ])eei;u:it ions— lies Gestae 10o-10(! § lOG. Dying Declarations KXJ § 107. Expert Testimony 100-107 § 108. Almanacs 107 § 100. Kelevancy 107-100 § 110. Alle-^ations and Proof. — Snrpliisage 10I> § 111. Proof of Time.— Statute of Limitations 100-110 § 112. Sutliciency of Evidence 1 10-111 i^ 113. Prosecution for Second Oflense Ill CHAPTER X. The Verdict and Subsequent Proceedings. § 111. The Verdict.— General Doctrine 112 § ll.~>. Verdicts in Cases of Homicide 112-113 § 11(5. Verdicts in Second-Offense Cases 113 § 117. Rendition of the Verdict 113-114 § 118. Verdicts Where Defense is Insanity 114-115 § 110. Effect of Verdict 115-110 § 120. Mistrial 110 § 121. Arrest of Judgment llG-117 § 122. Judgment.— Sentence 117-118 § 123. Same Subject— Statutory Provisions 118-120 § 124. Convict Infants 120-122 § 125. Sentence to .Maryland House of Correction . .122-123 CHAPTER XI. Fines, Costs and Miscellaneous Matters. § 126. Fines — Mode of Recovering 121-125 § 127. Same Subject— To Wliom Paid 125 X CONTENTS. PAGE. § 128. Same Subject — Discharge from Jail 125 § 129. Costs. 125-126 § 130. Commitmeuts 126 § 131. Custody of Prisoners 126-127 § 132. Sret.—^'olle Prosequi : .127-128 § 133. Pardou and otlier Matters Pertaining to (3CQce of Governor 128-129 CHAPTER XII. Writs of Error and Appeals. § 134. Writs of Error 130-131 § 135. Xo Formal Writs of Error 131 § 136. Appeals upon Prosecutions for Fines or Penal- ties 131 § 137. Appeals from Eulings at the Trial. 131 133 § 138. Reversal anil its Consequences 133-134 § 139. § 140. § 141. § 142. § 143. § 144. § 145. § 146. § 147. § 148. § 149. § 150. § 151. § 152. § 153. § 154. § 155. § 156. CHAPTER XIII. Specific Offenses. Abduction 135-136 Abortion , 136-137 Adultery 137-138 Arson and Burning 138-139 Assault and Battery 139-141 Bastardy 141-143 Bigamy 143-144 Blasphemy and Profanity 144 Boundaries 144 Briber^' and Impeding Justice 144 Burglary and Kindred Offenses 144-146 Concealed Weapons 146-147 Conspiracy 147-148 Counterfeiting and Forgery 148 Cruelty to Animals 148 Defaulters 149 Destroying Property Maliciously 149 Disturbance of Public Peace 149 CONTENTS. XI I'AGE. § 157. Drmikpiiiiess aud Disorderly CoiHluct MK-MO § ins. Dueling- I.")() CPIAPTKK XIV. SPKCIFK" Ol'I'ENt^ES-CoNTINrElJ. § 150. Elections 151 § 100. Embezzlement 151-1.52 § lOl. Es('a]>ing fVom Penitentiary 1,52 § 102. False Pretenses 152 § 103. Female Sitters 152 § 164. Female Waiters 152 § 105 Frand 153 § 100. Fugitive Convicts 153 § 107. Funerals — Collection of Tolls Irom 153 § 108. Gam i n g 15;;-154 § 109. Graveyard Desecration 154 ^ 170. Gunning 154 § 171. Health 1.54-155 § 172. Heating Steam Passenger Cars 15,")-150 § 173. Importing Convicts 150 § 174. Incest 150 § 175. Kidnapping. 156 § 17(). Larceny 150-1.'59 § 177. Letters — Wrongfully Oijening 15!) § 178. Libel 150-100 § 170. License Laws lOO § 180. Lotteries ICl CHAPTEK XV. SPEriFif Offenses, Continued. § 181. Maiming 102 § 182. IMalfeasanee in OHice 102-1(53 § 183. :\hnislaugliter 1 (13-104 § 184. ^larrying Tidawfully 1(;4 § 185. Mineral Waters, Porter and Other I(i4 § 180. Minors — Care and Protection of. 104-105 Xll CONTENTS. PAGE. 4 187. Murder 1615-108 § 188. Negroes— Fornication Witli 108 § 180. Nuisance 108-109 ^ VM). Obscene Publications 100 § 101. Opium Joints 100-170 § 102. Oysters 170 § 193. Perjury 170-171 ^ 104. Poison— Attempting to 171-172 § 105. Kaihoads — Obstructing 172 § 100. Kape 172-173 § 107. Receiving Stolen Goods, Money or Securities. . .173 § 108. Keligious Meetings 174 § 100. liivers 174 § 200. Kobbery 174-175 § 201. Rogues and Vagabonds 175 § 202. Sabbatb-Breaking 175-170 § 203. Sodomy 176-177 § 204. Telegraphs.. 177 § 205. Theatrical P^xhibitions 177-178 § 200. Thieves and Pickpockets 178 § 207. Toy Pistols 178 § 208. Traction Engines 178 § 200. Water Supply— Pollution of Sources of 178-170 A AlAXUAL OR CRIMINAL LAW, AS ESTABLISHED IN THE S T A T ]•: ( ) V M A R Y L A N D . CHAPTEK I. Ckime and its Divisions. § 1. — Definition. — Criiiiiiial law treats of tliose cases wliicli the j;()voiiiiiient iioticos as injurious to the i»ul)lic, and ])nnishes, in wliat is called a ciiniinal i)ioceeding,, iu its own name/ A crime may be delined to be a i)iiblic wrong, or one that atlects, in its immediate oi)eration or its consequences, the interests, peace, dignity or security of the public. Hence, it is required by the Constitutiou of this State, that all indictments shall conclude, "against the i)(';ic(\ government and dignity of tlie State. "- § 1'. — What Proceedings are Classed as CriminaL — The line of distinction between the criminal and civil de- pjirtmentsof the law is one not at all points clearly defined, and there is a contlict of rulings in this regard.^ (Ques- tions bearing on this distinction have arisen in this State on a number of occasions. A i»roceeding by indictment against the father of an illegitimate child, nnder the bastardy acts,* in which, if found guilty, the court adjudges him to give security to indemnify the county from any charges that may accrue '1 Bish. Cr. L. ?. 32. ^ Const, art. 4, sec. 13. "1 Bish. Cr. L. U 32,33. ^Code, art. 12. 1 2 CRIMINAL LAW. for the maintenance of the child, and, if he neglect or refuse to comply, to stand committed until he shall com])ly, is a criminal proceeding". It is so treated and classed by the statute, and the fact that the design of the law, in the punishment inflicted, is to indemnify the county does not at all change the character of the proceeding.^ Proceedings of inquisition, by one or more justices, with an award of restitution, in cases of forcible entry and de- tainer, under Stat. 8 II. (), cli. 9, form a part of our criminal, not civil jurisprudence." Actions of debt, instituted in the uanie of the State to recover tines imposed for misdemeanors, are held to be but civil actions i7iter X)artes. " Although the object of their institution is the recovery of tines and penalties, yet, in con- templation of law, they are as much regarded as civil actions as if, instead of actions of debt, they had been actions for money had and received."' It was, therefore,^ ruled, that a constitutional provision, that no person shall be compelled, in any criminal case, to be a witness against himself, has no application to such proceedings.^ Yet, it has been further held, that, as the debt or obligation was imposed by way of punishment for crime, the proceeding, although civil in form, was not entirely governed by rules applicable to civil proceedings, and that the defendant might be imprisoned for non-payment of the fine without violating the constitutional prohibition of imprisonment for debt.-- ' Oldham v. State, 5 G. 90; State v. Phelps, 9 Md. 21; Bake t;. State, 21 lb. 422 * Isaac V. Clarke, 9 G. & J. 107. •''Day V. State, 7 G. 321. ■•Day V. State, supra. '" State V. Mace, 5 Md. 337. So in England, upon an indictment for a nuisance for obstructing the navigation of a river in connection with some works whicii the defendant carried on near the banks, it was held, that, as the object of the indictment is not to punish the defendant, but really to pre- vent the nuisance from being continued, the evidence that would support a civil action would be sufficient to support an indictment. Reg. V. Stephens. L. R. 1 Q. B. 702; S. C, 35 L. J. M. C. 251; S. C, 12 Jur. N. S. 961; S. C, 14 L. T. 59.S: S. C, 14 W. R. 859; S. C, 7 B. & S. 710. See 1 Bish. Cr. L. ^ 1076. CRIME AND ITS DIVISIONS. .> § 3. — Police Powers of Municipal Corporations. — Pro- ceediug-.s to punish certain classes of otteiiders aj4ainst the ^ood onlor of nituiicipal towjisliips are likewise to ])e dis- tiny:iiislicd from the ordinary classes of crinjinal actions. " It would be next to, if not quite impossible, for a lajge city like Baltimore to preserve order within its limits, pre- serve the streets free from interruption, indeed do most of the thousand things necessary to be done to carry out its various and indispensable operations, if in every case it were anecessary i)reliminary that tlie olifeuder should be reguhirly prosecuted, by presentment, indictment and trial. Jt has always been understood that, under the police power, per- sons disturbing the public peace, persons guilty of a nui- sance, or obstructing the public highways, and the like offenses, may be summarily arrested and fined, without any infraction of that part of the Constitution whicli ajtportions the administration of the judicial power, strictly as such. The punishment is for an offense against the decency and morals of the municipality and does not wipe out all respon- sibility for the offense to the dignity and sovereig:uty of the State.''' § 4. — Classification of Crimes — Treason. — Crimes, ac- cording to their degree of turpitude, are divided into trea- sons, felonies and misdemeanors. These divisions are technical, but most important.- Treason, the most heinous of these classes, was divided into petit and high treason. But now, what is meant by treason is high treason. By the ancient cojnmon law, tlierewere several I'orms of petit trea- son, which, by !'."> ImIw. Ill, Stat. 5, ch. 1*, were reduced to three. They were the killing, by a servant, of his master; the killing, by a wife, of her husband ; tiie killing of a pre- late by an ecclesiastic owing- obedience to him. In 18l'8, these petit treasons were abolished by 9 Geo. IV, ch. .tl, § 2, providing, "that every offense which, before the com- mencement of this act, would ha^'e amounted to petit treason, shall be deemed to be murder only."^ In this ' Shafer v. Mumina, 17 Md. 331. See Cooley Const. Liru., 5 ed., 242, n. 1. M Bish. Cr. L. iJ 'Cm. 'This provisiou is continued by 24 & 25 Vict, c, 100, i 8. 4 CRIMINAL LAW. State it Avas provided by the Act of 1809, ch. 138, § 3, " that every person liable to be prosecuted for petit treason shall ill future be indicted, i)ro(;eeded against and ])unished as is directed in other kinds of murder, according to the degree."^ The various acts constituting treason in this State are defined by statute.^ § 5. — Same Subject — Felony. — Felony, the next in grade of turpitude, is defined to be ajUy offense which, by tbe statutes or the common law, is ])unishable with death, or to M'hich the old English law attaclied total forfeiture of lands or goods, or both.^ Even where a statute is not ex- press, a felony may be created by necessary implication ; but an offense can never be made a felony by any doubtful or ambiguous words.* If, by the terms of a statute, the infliction of the i)unishment of death is discretionary, the offense is not felony but niisdenieaiior.-^ § 6. — Same Subject — Misdemeanor. — All crime less than felony is misdemeanor. The term is generally used in contradistinction to felony, and comprehends all indictable offenses which do not amount to felony. The term may be considered as and, in fact, is a ;jenus, which contains under it a great number of .species almost as various in their nature as human actions.*^ § 7. — Infamous Crimes. — Any person convicted of an infamous crime, unless pardoned by the Governor, thereby becomes disqualified as a voter," and such a conviction may be given in evidence in any case to affect the credi- bility of a witness.* It is, therefore, deemed well to note here the meaning of this term. An infamous crime is such a crime as involved moral turpitude, or such as rendered the offender incompetent as a witness in court, ui)on the theory that a person would not conunit so heinous a crime, unless he were so depraved as to be nnworthy of credit. It ' Code, art. 27, sec. 215. nb., art. 27, sees. 264-272. n Bish. Cr. L. 'i 615. * lb., 'i 622. 'Gibson v. State, 54 Md. 447, 453. ''Stater. Phelps, 9 Md. 21. ■'Const, art. 1, sec. 2. *Code, art. 35, sec. 5. CRIME AND ITS DIVISIONS. 5 may, in ^ciu'ral, be said to iiicliidc treason, I'cloiiy and all otlenses of tlio jjiadoof niisdiMncanor founded in fraud and coniinji;: within the f>eneial notit)n iA' thQ crimen J'dlsi of tlio Konian hiw." Offenses punishable by imprisonment in the Penitentiary do not necessarily come within this class. - § S. — Attempts. — An act towards an indictable wrong, if i>rom])ted by an intent to do it, partakes of the culpa- liility of the doinj;. Therefore an attempt, or an intent to do a particular criminal thing- with an act tcjward it, falling; short of the thing intended, is classed as a crime. Every attempt to commit any crime, whether treason, felony or misdemeanor, existing either at the common law or under a statute, is indictable as a misdemeanor. Any iorm of act a])parehtly adapted for the puri)ose is sufficient, but such, act should be sufficient, both in magnitude and prox- imity to the fact intended, to be taken cognixance of by the law.^ § 1). — Degrees of Participation. — In treason as well as misdemeanor all participants are principals. There are misdemeanors of such a nature and so small in turpitude that even a person ])resent and lending the supjiort of his will to the commission of the act is, nevertheless, not pun- ishable ; ^ but the general rule is, that a participation in the act committed, m any way, makes the party liable as prin- cipal, and the act, though only commanded to be done, may be charged as done by the principal, without reference to the agent. ^ § 10. — Same Subject — Principal and Accessory. — In felony there are four different methotls of participation in the crime which make the i)articii»ant a felon. He may be a princii)al of the first degree, a principal of the second degree, an accessory before the fact, or an accessory after the fact. rrinci[)al of the lirst degi"ee is one who docs the act, either by himself directly or by means of an innocent agent. ' 1 (^reenl. Ev. U ^72, 373; Black v. State, 2 Md. -376, 380: State r Bixler, G2 lb. 3r)4. * State I'. Bixler, siijjnt. M Bish. Or. L. 'i 728: Lamb r. State, 6T Md. .124. ^ 1 Bish. Cr. L. i(if(5r)7, ()".S. * Roddy r. Finuegaa, 43 :Md. 490: Carroll r. State. 63 lb. r,:,\. 6 CRIMINAL LAW. Persons wlio are either actually or constructively present at the commissiou of an offense, aiding and abetting, or counseling and procuring the same to be done, are princi- pals in the second degree. The aider and abettor must participate in the felony, in the sense of acting in concert with those committing it, for, although he is present, yet, if he does not participate, but remains passive, he is not an abettor. Moreover, the par- ticipation must be with a felonious intent, and not in igno- rance of the nature of the act. The distinction between Ijrincipal in the first and in the second degree is a purely technical one and is without practical effect.^ An accessory before the fact is one who, directly or indi- rectly, counsels, procures or commands any person to com- mit a crime which is committed in consequence of such counseling, procuring or commandment. An accessory before the fact can only be tried jointly with the principal, or after the conviction of the principal, whose acquittal also acquits him.- Every one is an accessory after the fact who, knowing the crime to have been committed by another, receives, com- forts or assists him, in order to enable him to escape from punishment, or rescues him from an arrest for crime, or, having him in custody for the crime, intentionally and vol- untarily suffers him to escape, or opposes his apprehension. The priuci])al must be tried and convicted first ; but, in various circumstances, an accessor}^ after the fact maj' be held guilty of a substantive crime, for which he may be tried and convicted independently of the principal. Thus, one mode of helping a felon is to rescue him from lawful confinement, either before or after his conviction ; and the rescuer may be indicted for the substantive offense of rescue or for being an accessory after the fact in the other's felou}-, at the election of the prosecutor.^ § 11. — Receiving. — A receiver of stolen goods, knowing them to be stolen, is not within the definition of an acces- sory, because he renders no personal help to the thief. At ' 1 Bish. Cr. L. ? 648. nb., \ 667. nb., I 697. CRI"ME AND ITS DIVISIONS. i coinmoii law the receiver is guilty of a luisdeiiieanoi'. In Kiiyland, by Stat. .{ W. ..^' M., eh. 9, § 4, the receiver was made an accessory after the fact and, hence, could not be convicted, unless the princijjal felon was. If the i)rincipal felon escaped or was kept out of the way, the receiver went unpunished. Stat. 5 Anne, ch. 31, § 5, confirmed the former statute, and § 0, as also 1 Anne, Stat. L', ch. !>, § 2, provided, that where the princii)al felon could not be taken, the receiver of the stolen goods might be prose- cuted separately for the misdemeanor. These statutes extended to Maryland, and, in addition!, it was provided by the Act of 180!), ch. 13S, § 6,' that the receiver may be prosecuted and i)unished, altliongh the i)iincipal otteurosecute.' Where a party is robbed, and he knows the felon and takes his goods again or other amends, upon agreement not to prosecute, such compound- ing was an(;iently called the/t-hotr, and a party so com- pounding the felony was considered an accessory after the fact,' contrary to the later and present law.** The otfense ordinarily ai)plies to felonies, but, strictly speaking, to agree for a valuable consideration to forbear or to stiHe any criminal prosecution, whether treason, felony ' Code, art. 27, sec. 234. M Leacli. 107. •'State c. Hodges, 55 Md. 127. Cf. 1 Bisli. Cr. L., 'i 699. ■■State r. Duhammel, 2 Hair. (Del.) 532; Bothwell r. Browu. .51 III. 234; Chandler v. Johuson. 39 Ga. 85. M Bl. Comm. 133. «1 Bish. Cr. L. 'i 710. 8 CRIMINAL LAW. or iiiisdeineanor, is a niisdeineaiior/ and luuler Stat. 18 Eliz., ch. 5, which is in force in this as in most other States,^ it is made an offense lor any person informing; nnder a penal statute to compound with the offender without leave of Court. A misdemeanor, however, may be so small or bear so much of the nature of a private injury as will render the compounding- of it not indictable.^ In the language of Blackstone,* "It is not uncommon, when a person is con- victed of a misdemeanor which principally and more imme- diately affects some individual, as a battery, imprisonment or the like, for the court to permit the defendant to aiieah icith the prosecutor before any judgment is announced, and, if the prosecutor declare himself satisfied, to intlict but a trivial punishment." In this State such cases are provided for by statute:" In cases where recognizances to prosecute have been entered into, and before presentment or indict- ment found, the several courts of this State, having jurisdiction of crimes and offenses, upon motion of the State's attorney, with the consent of the parties injured and accused, may compromise any as- sault and battery, the party accused paying the same costs as would have been incurred by the find- ing a true bill and plea of guilty, provided, such courts shall consider it proper in reference to the peace of the State so to do. § 13. — Misprision. — Misprision of treason or felony is a criminal neglect, either to prevent the treason or felony from being committed or to bring to justice the offender after its commission. The grade of this offense is misde- meanor. Misjjrision, as a substantive offense, is said to be practically obsolete.*^ § 14. — Merger. — Merger occurs in criminal law, where the same act of crime is within the definition of a misde- ' 1 Bish. Cr. L. ? 711; 1 Whart. Cr. L., 8 ed., 'i 1559. -Alex. Br. Slat. 406. M Bish. Cr. L. ^^711. MComm. 363. "Code. art. 10, sec 19. H Whart. Cr. L., 8 ed., 'i 249. Cf. 1 Bish. Cr. L. H 716 721. CRIME AND DIVISIONS. 9 nieaiior and likewise of a ft'loii.v, or of a felony and likewise of treason, and the rnle is, that the lowei- giadt* of olfense merges in the higher, so that the act can be punished only as felony in the one instance or treason in the other. Hence, under the common law doctrine, if a statute creates a felony of wh.at was before a misdemeanor, or a niisde- meanor of what was before a I'elony, there can be no sub- sequent prosecution of the act for what it was before the statute.' The law in this respect has been changed by the following statute i)rovision:- All indictments for offenses forbidden by any statute or statutes or for ofleuses the punishment of wliich is contained in the same clause of any statute witli the prohibition of the ott'ense may conclude as for offenses at common law ; and, where any offense which is a misdemeanor at common law may have been made a felony by statute, the misdemeanor shall not be merged in the felony, but the indictment may contain counts lor the said felony and also for the misdemeanor. ' 1 Bish. Cr. L. U 786-790. ''Code, ait. 27, sec. 287- CHAPTEE II. Criminal Capacity and Eesponsibility. § 15. — Corporations. — A cori)oratioii may be indicted for neglect or nou-feasance, as for not repairing a road or bridge or a wharf, where the duty to do so is cast upon it by law; also for an act of malfeasance coming within the scope of the corporate duty, as for a nuisance in obstruct- ing a highway or river; but a corporation cannot be guilty of treason or felony, or crimes involving violence or immo- rality, or otfences which derive their character from a cor- rui)t mind. The limits of the liability to indictment de- pend chieiiy on the nature and duties of the particular corporation and the extent of its powers in the special matter.^ Though a cori)oration is indictable for a particular wrong, still the individual members and officers who par- ticipate in it may be also for the same act.- § IG. — Infants. — Every person is, at the common law, considered an infant until he has attained the age of twenty- one years, and this period is adopted in this State and the United States generally, the full age of twenty-one years being computed to be completed on the first instant of the day preceding the twenty-first anniversary of his birth. ^ The word minor bears the same meaning as infant' and is used interchangeably with the latter expression in our statute law. Although in the case of female infants an enlarged capacity to act in certain matters is conferred by statute, tliey are not, upon such account, considered as being of fnll age before twenty-one." Under seven years. ' 1 Bish. Cr. L. ii^. 417-424: 1 Whart. Or. L., 8 ed., U 91-93; Germania V. State, 7 Md. 1: P. W. & B. R. R. v. State, 20 lb. 157: Mayor v. State, 30 lb. 112-, Che.sapeake Club v. State, 63 lb. 446. '' I Bish. Cr. L. ?. 424; Seim v. State, 55 Md. 566. ^Co. Litt. 79: State v. Clarke, 3 Harr. Del. 557. "* Bouv. Law D. and Abbott Law D., title ''Minor. "' ■' Waring v. Waring, 2 Bl. 673: Greenwood v. Greenwood, 28 Md. 3G9. CRIMINAL CAPACITY AND RKSPONSIllILITY. 11 an infant is deeniod conclusively incapahh; of coinnmiiu^i' any crime.' Between the aj^cs of seven and fonitct-n, an infant is ]M'esnnie(l tol)e doli incapax; but the presumption may be overcome by proof of j;uilty knowledge of wronj;- doing.- Such proof, however, ought to be ''strong and clear, beyond all doubt and contradiction."'' fn cases of rajje the law conclusively presumes a boy under fourteen years of age impotent as well as wanting discretion, so that evidence is not admissible to show that in fact \nt had arrived at the full state of puberty and could commit the offense.^ The same rule, applies to the ofleuse of assault with intent to rape.' Above the age of fourteen criminal responsibility attaches to infants as in the case of adults. § 17. — Coverture. — The doctrine in relation to the crim- inal resi)onsibility oi femcH vorcri has been explained in this State as follows : ^ "The common law, assuming that the free agency of a mariied woman is merged in the dominion of her husband, presumes that, if a wife act in company with her husband in the commission of a felony, other than treason or honji- ' 1 lust. 2; 1 Hale, 19, 20; 4 Bl. Coram. 23: Marsh v. Loader, 14 C. B. N. S. 535; R. v. Giles, 1 Moody 0. C 166; R. v. luhabilants of King's Langley, 1 cJtr. 6:Jr. People v. Townsend, 3 Hill N. Y. 479. ' 1 Hawk. c. 1, s. H; 4 Bl. Coram. 23; R. v. Owen. 4 C & P. 236; R. V. Groombridge, 7 lb. 5b2; R. v. Vanplew, 3 F. & F. 020; R. v. Smith, 1 Cox C. C. 260; R. v. Manley, lb. 104: State v. Goiu,9 Humph. 175: State c. Pugh, 7 Jones N. C. 61: State v. Guild, 10 N. J. L 163: God- frey f. State, 31 Ala. 323; State r. Doherty, 2 Teun. bO; Coram, v. Mead, 10 Allen, 398; State f. Learuard, 41 Vt. 585; Willet i'. Coram-, 13 Bush, 230; State v. Fowler, 52 Iowa, 103. The onus of proof as to his age has been held to lie on tlie pi isomer, as the reputed age of every one is peculiarly within his knowledge. State V. Arnold, 13 Ired. 184. ^4 Bl. Comm. 24. M Hale. 030; R. r. Eldershaw, 6 C. & P. 396; R. c Groombridge. supra: R. v. Phillips, 8 C. & P. 736; R. v. Jordan, 9 lb. 118; R. v. Bnmilow, lb. 366; S. C, 2 Moody, 122; Coram, c. Green. 2 Pick. 380; State c. Handy, 4 Harr. Del. 506. Contra. People r. Randolph, 2 Park. C. C. 174; VViUiaras r. State, 14 Ohio, 222; OMeara r. State. 17 O. St 515: Moore r. State, lb. 521. *R. V. Phillips, supra; R. i\ Groombridge, supra: R. c. Eldershaw. supra. Contra. Coram. /•. Green, su2>ra. '^ Nolan V. Traber, 49 Md- 460. 12 CEI3IINAL LAW. cide, slie acts luider liis coercion and, consequently, with- out any guilty intent. Sir William Blackstone said, this doctrine was at least a thousand years old in England, being found among the laws of King Ina, the West Saxon. An eminent jurist, in a recent work, says, this presumption may now be rebutted ))y positive proof that the woman acted as a free agent, and, in one case that was much dis- cussed, the Irish judges appear to have consider(?d that such positive proof was not required, but that the question was always one to be determined by the jury on the evidence submitted to them.^ The relation of husband and wife, however absolute in the past, no longer implies such sub- serviency of the latter as to make her the slave of her hus- band. By gradual modifications of the common law, the wife has become, in a great measure, the peer of her hus- band in the control of her property and person, enjoying exemptions and privileges which raise her above all suspi- cion of moral constraint, except in rare instances. The legal status of the wife, although legally inferior in respect of the jus disponendi of some species of pro[)erty and sub- jection to marital rights, is yet so elevated as to protect her from all necessity of compliance with the husband's will in matters mala in se. The better opinion would seem to be, that the presumption of coercion by the husband in cases of indictments or prosecutions against husband and wife jointly is only prima facie, subject to be controlled by evi- dence that the wife intervened voluntarily and not by compulsion." - The general rule as given by a leading American text- writer may be thus stated:^ — Actual constraint inijiosed by a husband on his wife will relieve her from the legal guilt of any crime whatever, when the act is done in his i)res- ence, i. e., within the range of his personal and present influence. Exceptions are offenses wliich show so much malignity as to render it improbable that a Avife would be constrained by her husband without the separate opera- ' R. V. Stapletoii, 1 Jebb C. C. 93: Taylor Ev., 6 ed., 191. -R. V. Hughes, I Lewiii C. C 329: R. v. Pollard, S C & P. 053: R. V. Stapleton, svpra; 1 Greenl. Ev. ? 28, n. 5; 3 lb , 'i 7. ^ I Bish. Cr. L. i 24 Wis. 60. 5 6 Bush, Ky. 400. «M. & M. 433. 'L. R. 5 Q. B. D. 259: 14 Cox C. C. 404: 49 L. J. M. C 45: 28 W. R. 475; 42 L. T. 240; 44 J. P. 330. CRIMINAL CAPACITY AND RESPONSIBILITY. 17 served, was heard Ixdore ("oleridjie, JJeimian, Steplieii, Pollock and Field, all of whom allinned the conviction, holdin;4 that such heliel was iiniiiatciial. The Coiiit held, that, to hold otherwise, would IVustrate the ohjeet ol" the statute. In Unhjate r. IJai/ncs' the apiiellant was art of the hotel remote from the guests, and did not see the gaming. It was held that the landlady was answerable The same principle was maintained in Miillinfi r. Collins," where a servant of a licensed victualer supplied liquor to a constable on duty without authority Jrom his .superior officer. The Court held, that thi^ licensed victualer was answerable, though he liad no knowledge of tlie act of his servant. So, also, in a more recent case in the Queen's Bench, Cundyv. Le Coeq,^ wliere a person was convicted under the Licensing Act of 1872 of liaving sold liquor to a drunken peison, the question was reserved, whether, as it was i)roved that neither the defen See also Bond v. Evans, L. R. 21 Q. B. D. 249. 2 Ruth. Inst. c. 18, 'i 9; 1 Bish. Cr. L. i 346. CRIMINAL CAPACITY AND KESPONSIIJILITY. 19 overwlieliniii^" violence of mental disease, bis intellectual power is, loi- the time, obliterated, lie is not a responsible moral ajjjent and is not [)nnis]iable for criminal acts.' The party need not be an idiot or maniac, ravin<^ mad or sunk in mental stupor, in order to be exempt from res[)onsibility or to come within the legal definition of insanity. In tlie criminal law, insanity, according to a leading text-writer, is any defect, weakness or disease of mind rendering it inca[)able of entertaining the criminal intent which consti- tutes one of the elements in every crime.- According to another exposition, entirely in accord with this detinitiou and the views above set forth, the true test lies in the word power: has the defendant in a criminal case the power to distinguish right from wrong, and the power to adhere to the right and avoid the wrong — has the defendant, in addition to the capacities mentioned, the power to govern his mind, his body and his estate.' The law can go no farther than to establish such general tests of criminal responsibility. The multiform shapes whicli mental disease assumes preclude the i)0ssibility of anything like an approximately accurate definition or satisfactory enumeration of the symptoms and appearances that betoken an unsound mind. The disorder which we call insanity is a mystery not yet unraveled.* In principle, the law is and must be, that whether, in a particular instance, the act alleged to be a crime proceeded from a sane or insane mind, is a question of fact, while still, in l)ractice, the directions to jurors shouhl extend to various explanations ditl'ering with the particular cases." The question of fact in such cases is among" the most abstruse and delicate in the range of legal investigation, and the utmost care and painstaking judgment shonid be brought to bear upon its determination. On the one hand, the chiims of Justice must not be allowed to sutler defeat through a false plea, and, on the other hand, the danger which we underlie of rejecting, in our imperfect knowledge ' Comm. c. Rogers, 7 Mete oOO. -l Bish. Cr. L. i! 3S1. U Am. L. Rev. 240. 'Bland lord, Insanity and Its Treatment, p. 1. M Bish. Cr. L. g 383. I'O CRIMINAL LAW. and through more want of understanding, a valid defense, shouki not be lost sight of. "The memorials of our juris- prudeuce, " says Mr. Bishop, "are written all over with cases in which those who are now understood to have been insane were executed as criminals."' § 22. — Same Subject — Moral Insanity. — This subject was considered in the case of tSpencer v. ^tate,^ and it was there held, that what is known as moral insanity, or lesiou of the will, as an independent state or condition, must be declared to have no place in the law. Moral insanity is not admitted as a' bar to responsibility, for civil or criminal acts, except in so far as it may be accompariied by intel- lectual disturbance. If the party accused be competent to form and execute a criminal design, or, in other words, if, at the time of the commission of the alleged ottense, he had capacity and reason suflicient to enable him to distinguish between right and wrong, and understand the nature and consequences of his act, as applied to himself, he is a responsible agent and amenable to the criminal law of the land for the consequences of his act. Spencer was indicted for murder. The homicide was fully proven and was admitted bj- him. His offer of proof was as follows : "To prove by himself that, in July, 1884, his wife died, and that, previous to her death, she had frequently com- plained to him of illness, the cause of which she attributed to a felonious assault made upon her by the deceased; that the traverser believed, the said assault was the immediate cause of her death, and that this fact fastened itself upon his mind to the exclusion of all other thoughts; that, from the death of his wife to the date of the homicide, he was nervous and restless, and that it was impossible for him to remain long at one employment, by reason of this condition; that the dead body of his wife, with the scars inflicted by the deceased, would appear to him in his dreams, and he was constantly followed and haunted by the idea, that, so long as the deceased lived, he the traverser, would have no peace or rest of mind, and that he could exercise no power > 1 Bish. Cr. L. ? 390. 2 69Md. fIv'niI.N.M- (■ArA( ITV AM) R KSPONSIlilUTV. L'l of will or self-control over his idea; and tliat, since tlie death of Dawson, the traverser has found rest and peace and quiet." This evidence was held, by both the lower and the ap[)el- late courts, to be inadmissible, for the reasons j,nven, unless it w«'re to be followed uj) by proof tending;- to show that, at the time of the shooting, the prisoner was insane or deranged and thereby irresponsible for his acts. The evidence was hehl to I)e inadmissible both as tending' to show insaiiity of the prisoner and as affecting the degree of the crime.' § 2A. — Drunkenness. — \'oluntary intoxication furnishes no excuse for crinu' committed under its influence; but insanity, whether permanent or intermittent, when pro- duceil by drunkenness, is regarded in the same light as mental incapacity from any other cause. In cases, how- ever, where any particular intent is a necessary element of the offense charged, the fact of intoxication becomes material in ascertaining the state of mind of the accused. Thus, when a statute establishing different degrees of nnirder requires deliberate premeditation in order to con- stitute murder in the first degree, the question whether the accused is in such a condition of mind, by reason of drunkenness or otherwise, as to be capable of deliberate premeditation, necessarily becomes a material subject of consideration by the jury.- So, the state of mind produced by intoxication may be considered by the jury in determin- ing whether there was malice or not, and whether the killing was manslaughter or murder; whether, in cases of larceny, the taking was animo fnrandi : whether, in cases of forgery, the scienter is proven; a^d, generally, as to ' Uiyau, J., delivered u disseutiug opinion, holding that, as the entire question of guilt or innocence is, in this State, committed to the finding of the jury, and as malice is an indispensable element of the crime of murder, the facts offered in proof, while not show- ing that the prisoner was lunatic or insane, and not making out a case of irresjwnsibility for crime, were pertinent to the inquiry whether he had that "sedate, deliberate mind and formed design "' which are essential to express malice, and should, therefore, have been admitted. -Hopt r. People. 104 U. S. 631. 22 CRIMINAL LAW. questions of inteut, purpose or motive.' Intoxicatiou, per sc, can be said neither to aggravate nor to palliate crime; but the condition of mind produced by intoxication often beconies material in determining the existence of a criminal intent, and, hence, the criminality of an act. • 1 Bish. Cr. L. U 408-416; Hopt v. People, siqjra; 23 Am. L. Reg N S. 217; 21 Centr. L. J. 191; Reg. v. Doherty, 16 Cox C. C. 306. CHAPTER III. Constitutional Guarantees. § li 4.— Scope of Chapter. — Tlic ^safognards thrown around the lives and liberties of the citizen by tlie organic laws of the various states constitute an important part of criminal Jurispi'udence in the Tnited States. Xo such dis- cussion as the one undertaken in this work would be ade- fpiate without some notice of the bearing of these i)rovi- sions upon the rights of persons accused of crime. The subject is well and fully discussed in various text-books, and it is pur|)osed in the following sections of this chapter merely to give the law embt)died in constructions placed u[)on the State constitution or upon statutes of this State in regard to their validity under the State or Federal con- stitution. § 25. — Construction of Constitution. — General Rule. — The practice in this State has been for the Court of Appeals not to pass judgment ui)on the constitutionality of an act of the Legislature, unless such judgment is necessary for the decision of the case before it.' The Constitution should have a common sense interpre- pretation, by which is meant the sense understood by those ■who adopted it. Although it is a well recognized law of construction, that, where legal terms are used in a stdtuie, they are to receive their technical meaning, unless the contrary plainly ajjpears to have been the intention of the ' State c'. Insley, 64 Md. 28. Every intendmeut should be made in support of a legislative en- actment, and it should not be declared invalid except for the plainest and most conclusive reasons. Fell r. State, 42 Md. 71. When, how- ever, an act contravenes the Constitution, it is simply null and void. An unconstitutional act is not a law; it confers no riglit; it imposes no duties; it affords no protection; it creates no otiice: it is, in legal contemplation, as inoperative as though it had never been passed. Norton v. Shelby County, 118 U. S. 425, 442. 24 CRIMINAL LAW. legiislature, this principle does not apply to the interpre- tation ot the ort/auic law, which is to be construed accord- ing to the acceptation of those who adopted it.' § 2G. — Criminal Prosecutions — Fundamental Rights. — The Declaration of Eights of this State contains the follow- ing provisions: That, in all criminal prosecutions, every man hath a right tobe informed of the accusation against him ; to have a coi)y of the indictment, or charge, in due time (if required) to prepare for his defense ; to be allowed counsel ; to be confronted with the witnesses against him ; to have process for his witnesses ; to examine the witnesses for and against him on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.'" That no man ought to be compelled to give evi- dence against himself in a criminal case.' That no man ought to be taken or imprisoned or disseised of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or by the law of the land.* That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punish- ment inflicted by the courts of law.^ § 27. — Summary Proceedings. — The meaning of several of the provisions above cited was explained by the Court of Appeals in the case of tState v. Glenn,^ which arose upon the construction of the Act of 1878, ch. 41.5, s. 10, confer- ' State V. Mace, 5 Md. 337, 330; Foote v. State, 59 lb. 264. 2 Art. 21. =» Art. 22. * Art. 23. The words " by the judgment of his peers " mean a trial by jury, and the words " by the law of the land," which are copied from Magna Charta, are understood to mean due process of law, according to the course and usage of the common law. Wright v. Wright's Lessee, 2 Md. 429, 452. *Art. 25. 6 54Md. 572. C()^'ST^i'UTI(>NAL (aiAKANTKES. 2.j rin<;" jniisdictioii upon Justices ol' the peace to try, conviet and eoiiiinit to the House of Collection vajiiant and lialtitii- ally disoiolice power in the hamls of the various municijja] cor- l)orations to be enforced * If the State has no power to pro- vide by law for the summary trial and conviction of vagrant and disorderly persons by justices of the peace, it would clearly follow, that no such power could be granted to be exercised under charters or ordinances of municipal corpo- rations, and the conse<|uence w»)ubl be, that, for the viola- tion of all mere ixtjice ordinances jucscribiiiLi" penalties for 2(> CRIMINAL LAW. their intrac^tion, it would be the right of the party accused to insist ui)oii iudictment and trial by jury. Such a mode of proceeding-, if it were practicable, has never been con- tended for, nor could such a contention be maintained for a moment." § 28. — "Confronted with \Vitnesses." — In declaring that the i)arty accused shall liave the right to be con- fronted with the witnesses against him, that provision of the Declaration of Eights is not to be understood as exclud- ing all other evidence except oral evidence of the witnesses produced in court. Such has never been its interpretation, nor does the language warrant it. It is only where the prosecution is to be maintained by the testimony of living witnesses that they are required to be produced in court, confronted with the accused and to deliver their testimony under the sanction of an oath, and be subject to cross-ex- amination. In other words, no witness shall give his testi- mony in secret, or out of the presence of the accused ; and no party shall be i)ut upon his trial upon mere hearsay evidence, but the witness sliall be ])roduced and be subject to all the tests that the law has devised for the full disclosure of the truth. In all this, however, there is nothing to ex- clude other evidence recognized and sanctioned by the law as fit and appropriate means of establishing the truth of the charge against the accused. Isor can there be any question of the power of the Legislature to change the com- moulaw rules of evidence or to ])rescribe new rules, alto- gether ditterent from those known to the common law ; and it may declare what proof shall be deemed or taken as prima facie sufficient to establish any particular fact, even in criminal cases. ^ § 20. — Compelling Accused to Give Evidence. — Upon an indictment against a cor[)oration for a violation of the license laws relating to the sale of intoxicating liquors, it was held, that a member, being liable to indict- ment for any participation in the violation of the statute, is entitled, when called as a witness, to insist upon his privi- lege of being exempt from making any disclosure that ' Johns V. State, 55 Md. 350. Cf. People r. Jones, 24 Mich. 314, 225: Tucker v. People, 122 111. 583. CONSTITUTIONAL (iUARANTEKS. L'7 nii^iit be used lor liis eriiiiiiiation.' " This, "said the Court of Ai)i)eals, '' is a iiersonal privilege of the witness and must be claijiied by him upon oath, and, eonsequently, neither the party to the cause nor tlie counsel engaged will be permitted to make the objection." The mere statement of the witness on oath, that he believes that the answer to the question asked will tend to criminate him. will not suf- fice to i)rotect him from answering, if, from all the circum- stances surrounding the case, the court is satisfied that the answer will have no such effect as that claimed by the wit- ness. It is for the court to decide, whether the privilege is well and bona fide claimed or not, and, therefore, it must be able to see, from the surrounding circumstances and the nature of the evidence sought to be elicite 451: 2 Tayl. Ev. 1319: 2 Phill. Ev. 9 ed. 418: Reg. V. Kinglake, 11 Cox C. C 499. ^2 Tayl. Ev. 'i 1311; 2 Phill. Ev. 9 ed. 417, 418; Reg. c. Boyes. 1 Best & Sm. 311; S. C, 9 Cox C C. 82; S. C, 2 F. & F. 157. M Greenl. Ev. 9. 451; 2 Tayl. Ev. 1319; 1 Wharton Cr- L. 7 ed. I'i 805, 806; Reg. v. Garbett, 1 Den. C C. 236; S. C, 2 C. & K. 474. The Constitution foiineily confided to the Legislature the power to compel a party to give evidence against himself ['/. 20. Dec. of Rights, in Const. 1776 and Const. 1851); but this power was very strictly interpreted. Broadbent v. State, 7 Md. 416; Day v. State, 7G. 321. 28 CRIMINAL LAW. § 30. — Change of Venue. — The power to remove causes from oue county to anotlier was au acknowledged [)art of the ordinary jurisdiction of tlie Court of King's Bench in Enghind, but in this State it has been regulated by legis- lative and constitutional provisions.^ x\fter it became a constitutional right, it was held that the Legislature, by ordinary legislation, could not restrict but might enlarge it. Yet it has always been subject to be modified by con- stitutional amendment.^ A right conferred in regard to the removal of causes does not fall within the class of vested rights. It is but a remedy, given to secure an impartial trial, which, at any time, may be altered or modified by the proper authority.' § ol. Imprisonment for Debt. — The Constitution of this State contains this provision : No person shall be imprisoned for debt.* A tine imposed by a justice of peace for a misdemeanor is held not to be a debt within the meaning of the consti- tutional term, for the reason that the evident intention of the Constitution was to relieve those who could not pay their debts, not to shield from punishment those persons who had violated the criminal law — to provide a protection for the unfortunate, not an immunity for the criminal.^ There is a broad distinction between imprisonment for debt, within the meaning of the Constitution, and imprisonment for a breach of duty on the part of a public otiicer, although such breach may be the neglect or refusal on his part to pay over money received by him for the use of the State, as in the case of a tax collector. It is no objection to a statute that it provides that, upon the payment of the money for which he is in default, either before or after conviction, such collector shall be discharged from prose- cution, for the reason that the Legislature has the right to prescribe tlio terms and conditions upon which punish- ' Const, art. 4, sec. 8 (amended by Act 1874 ch. 364) ; Price v. State, 8 G. 295. 2 Smith /;. State, 44 M<1. 530. ^ Dulany v Stale, 45 Md. 09. "Art. 3, sec. 38. •'State V. Mace, 5 Md. 337. CONSTITUTIONAL (JUAKANTKKS. 20 iiient sliall Ix- imposed/ A statute,- however, wliicli aii- thoiized the eonmiitinent of the sureties in eases wliere bail had l)eeii forfeited was hehl to be uneonstitntioiial, upon (lie f^rouiid that a recogiiizanee is, in languaije and snl)stanee, a debt.^ Whetlier a statute iui])osinf? inii)rison- jM<'Mt for non-itaynient of the coats in a eriniiiial case is in eonllict with this provision, lias not been settled in this State. In some states, under constitutional provisions similar to our own, such legislation has been upheld/ while, on the other hand, there is authority for the o[)])osite doc- trine/' § 32. — Jury Judges of Law. — Tiie piovision in the State Constitution upon this subject reads as follows: In the trial of all criminal cases the Jury shall be the Judges of law as well as of fact." This i)rovision has been held to be merely declaratory; it has not altered the preexisting law regulating the i)owers of the court and Jury in criminal cases/ The jury in a criminal ease, where a greater significance since their incorporation into the or- ganic law than they had i)reviously.''- This Court lias also decided, that the court has a right to instruct the jury in a criminal case as to the legal effect of evidence,^ and, haviiig such right, it follows, of course, that it also has the right to prevent counsel ironi arguing against such an instruction. If a jury shoidd disregard an instruction m a criminal case and convict, the evil can he remedied by granting a new trial. But if they should acfpiit in disre- gard of it, there seenis to be no remedy." § 33. — "Cruel or Unusual Punishment." — This subject was discussed in the case of Foote r. iStatc,* in which the constitutionality of the statute'' imposing the punishment of whii)ping for wife-beating was maintained. The reason- ing of the Court is as follows: •'The terms 'cruel and unusual pains and penalties' and 'cruel or unusual punishment- have been incorporated into each successive Constitution of this State from 177(5 to the present time. That the i)unishment of whipping was not considered a 'cruel or unusual jjunishment' and, therelore, coming within the prohibition of the Constitution, is most conclusivelv shown bv the fact that the i)unishment 1)V whipping was recognized by the statute law of the State under all these Constitutions, certainly down to the Consti- tution of ISiU, and then only obliterated from the statute l)ook, not by y force of the consti- tutional amendment abolishing slavery." '•It is true, that, uiuler some of the later Constitutions, the punishment by the laws was conlined to negroes and slaves, but the words 'cruel or unusual' covered all cases of punishment and were as applicable to slaves as to whites. ' Sowerwein i\ Jones. 7 G. «& J. ;i3o, 341. *Frauklin c State, siqirn. ^Wheeler c State, sujn-d. *od Md. 2(54. Cf. Garcia c Territory. 1 N. Mex. 4l.-i. "Act 1882. ch. 127: Code. art. 27, sees. 14, 15. oL' CKi.MlNAL LAW. At the time ot the adoption of the Bill of Eights in 177G, aud for a long time before and for a long time thereafter, the punishment of whipping for certain offenses was imposed upon whites and blacks alike. We are not dealing with the exj)ediency, justice or efficacy of this punishment, but only with the true interpretation of the terms of the Consti- tution uuder which we live. When, therefore, we find that the people who made this Constitution, and who must be presumed to understand the meaning of the terms they use, have, from the time these words were first incorporated in 1776 down to 1882, a period of more than a hundred years, through several successive legislatures, uniformly held that the ])unishmeiit of whii)])iug was not included in that class which the Constitution forbids, we should violate the plainest principles of the construction of statutes now to decide otherwise. We have not only the contemporaneous but the continued exposition of the meaning of the words in this long course of legislative construction, upheld and continually enforced by the courts in the imposition of the punislnnent." § 34. — Internal Police, — Liquor Selling. — The State has a right to regulate its internal police and everything that relates to the morals and health of the community. Statutes regulating the sale of li(juors, or restraining, or even alto- gether prohibiting the traffic therein, fall within this power and do not contravene any provision of the Federal Consti- tution.^ There can be no question that the Legislature has the power to prohibit the sale of liquor, notwithstanding a party to be affected by the law may have procured a license under the laws of the State which has not yet exi)ired. Such a license is in no sense a contract made by the State with the party holding it. It is a mere permit, subject to be modified or annulled at the pleasure of the Legislature, 'Keller v. State, 11 Md. 525. Cf. Thurlow v. Massachusetts, 5 How. 504; McGuire v. Massachusetts. 3 Wall. 387; U. S. v. Vassar, 5 lb. 4G2-. Carney v. Iowa, lb. 480; Hinson v. Lott, 8 lb. 148; Down- ham V. Alexandria, 10 lb. 173; Bartemeyer v. Iowa, 18 lb. 129; Beer Co. V. Massachusetts, 97 U. S. 25; U. S. v. 43 Gallons of Whiskey, 108 lb. 491; Foster v. Kansas, 112 lb. '.^01; Mugler v. Kansas, 123 lb. 623; Kidd r. Pearson, 128 lb. 1. CONSTITUTIONAL GUAKANTEES. 3.'i Avlio liiive the power to cliimj^e oi- repeal the law niider wliicli rlic license has been fiianted.' § .").">. — Delegation of Powers. — Ir is a well-settled priii- ciple. that the power (H)nterred upon a legislature to enact laws cannot be delej^ated hy that department to any other ])ody or authority. Di'lcfidtiis nniv (h'lofiare potrst." But a statMt<'' by whicli the IJoard of Poli(!e Coniinissionei.s oi" r.altiniore City are authorized and empowered, whenever, in their Jud^inent, the jiublic peace and tranrpiility may reipiire it, to order the closin<;' temi)orarily of all places wlu're lifpior is usually sold in the City o\' Baltimore, was held not to exceed the legislative authority or to violate any ])rovision of the Constitution.' § .')(». — Same Subject — Local Option Laws. — A statute providing that the citizens of the several election irituous or fermented liijuor shall be permitted in such districts, and, if it should be found by the returns of the iudji'es of election and proclamation of the judges of the Circuit Court that the majoiity of the votes in a district had been cast against the sale, then it should not be lawful to sell liquors m such district, is constitutional and valid. Its going into eti'ect and becoming operative being made to depend upon the result of a popular vote is not a delegation of legislative power to the i>eo]»le. What has been delegated to the voters in such a case is not the power to make the •law (»r to repeal existing laws. They are called upon simply to express, by their ballots their oi)inion or sentiment as to the subject-matter to which the law relates. They declare no conse(|uences, i)rescribe no i)enalties an«I exercise uo legislative functions. The consecpiences are declared in the law and are exclusively the result of the legislative will. The act, in such cases, is "a perfect and complete law as it left the halls of legislation and w^as approved by the (xoveruor, '' but, by its terms, it was made to go into operation in any district upon tiie contingency that the ' Parkiusou c State. 14 Md. 184; Fell v. State, 42 lb. 71. 89. -Fell r. State, 42 Mil. 71, 84. ^Code P. L. L., art. 4, sec. 734. ' State c. Strauss, 49 Md. 28s. ;U . CRIMINAL LAW. legal voters within tlie district be ascertained to be in favor of the prohibition contained in the act. A valid law may be passed to take effect upon the happening of a future contingent event, even where that event involves the assent to it by other parties. It is for the Legislature to judge in what contingency or upon what condition the act shall rake effect; they have the ])ower to prescribe any they may think proper. A condition that a vote of approval shall first be given by the people affected by the proposed measure is as good and valid as any other. There can be no inherent vice in the nature of such a condition that shall serve to defeat the act, when it would be legal and eifectual if made to depend upon any other event.' § 37. — Tobacco Inspections — Powers of State Legis- lature. — Section 41 of chapter .'>4fi of the Laws of 1804, as amended and re-enacted by chapter 291 of the laws of 1870, now repealed and re-enacted,- provided that it should not be lawful to carry out of this State in hogsheads any tobacco raised in this State, except in hogsheads which shall have been inspected, passed and marked agreeably to the provisions of the Act, provided that the Act should not be construed to prohibit auj' grower of tobacco or any purchaser thereof, who might pack the same in the county or neighborhood where grown, from exporting or carrying out of this State any such tobacco, without having the same opened for inspection ; but such tobacco so exi)orted or carried out of this State without inspection was required to be marked with the name in full of the owner and his place of residence and was liable to the same charge of outage and storage as in other cases. This legislation, it was held, was not, in its provisions as to charges for outage and storage, in violation of clause 2 of section 10 of article 1 of the Constitution of the United States as respects any impost duty imposed by it on exports, or of the clause of section 8 of article 1, which gives power to Congress " to regulate commerce with foreign nations and among the several States j" nor could it be regarded as a regulation of commerce or unconstitutional as discriminating between ' Fell V. State, 42 Md. 71 : Slynier v. State, 63 lb. 237. Cf. Grouse r. State, 57 lb. •^21l\ Jones f. State, G7 lb. 2.i6. -Code, art. 48, sec. 48. CONSTl'iTTIONAL (UTARANTEES. 35 tliestatebiiyoiaudniamifactiiierofleat'tobaccoaiMl t lie pin- chaser who biiy.s for the i)uipose of transporting the tobacco to another state or to a fon-ign country, or discriminating between difierent chisses of exporters of tobacco. It was furtiier held, that the charge for outage is an inspection duty witliin the meaning of the Constitution, and it is not foreign to the character of an inspection hiw to reurpose of navigation and commerce has never been questioned, notwithstanding the effect has been to confer privileges and advantages wholly private and exclusive in their character. And there appears to be no substantial reason why it may not, in like manner, grant privileges affording particular and ex- clusive benefits, for the purpose of increasing generally the pi'oduct an0'Stfacto]A\vs relate to penal and criminal proceedings, which imi>ose punishment or forfeit- ures, and not to civil i)roceedings which atfect private rights retrospect! vely.*"' An ex post facto law is one which ren«lers an act punishable in a manner in which it was not punishable when committed. Any law passed after the coniuiissiou of an ott'ense, which, in relation to that offense or its consequences, alters the situation of a party to his disadvantage is an ex post facto law.' ' C()rst)ri ; . Slate. oT Md. lo\ . ■ Blown r. State. 23 Md. r,03. •'Plunkaid r. State, 67 Md. 364. ' Art. 6. ' Art. 1','. '• Watsou r. Mercer. 8 Pet. 88; Calder r. Bull. 3 Dall. 386; Baltimore «& S. R. R. /•. 'Nesbitt, 10 How. 39"»: Carpenter v. Pennsylvania, 17 lb. 4."".6: Locke r. New Orleans. 4 Wall. 172. " Anderson c. Baker, 23 Md. r)31 , 582: Fletcher r. Peck. Cninch. 37, 138; Cumraings i'. Missouri. 4 Wall. 277: Gut v. Minnesota, 9 lb. 35; Pierce v. Carskadon, 16 lb. 234: U. S. r. Fox, 9.') U. S. 670: Burgess V. Salmon, 97 lb. 3^1; Hopt /•. LTtah. 110 lb. 574: Kring r. Missouri. 107 lb. 221. Jaehne r. New York, 128 lb. 189. CHAPTEK IV. STATin'ORY Construction. § 42. — Statutes Relating to Crime and Criminal Pro- cedure. — A ven' considerable proportion of the body of our criminal jurisprudence is composed of statute law. This law either creates new offenses, unknown to the common law, or enlarges the definition of common-law offenses, or defines their penalty merely, or relates to matters of trial and procedure. In every aspect, the statutory portion of our criminal law forms an important feature, and questions of statutory interpretation and construction are among the' most frequent and interesting ones that demand the atten- tion of the practitioner. § 43. — General Rules of Construction. — The cardinal purpose of all interpretation, to which all rules and canons must yield, is to ascertain the true legislative intent, and, where the legislative meaning is plain, the courts have simi)ly to enforce a statute according to its obvious terms. Where clear words are used to indicate the purpose of the lawgiver, there is no necessity to resort to other aids. It is only in cases where the meaning of a statute is doubtful, that the courts are authorized to indulge in conjecture as to the intention of the Legislature or to look to conse- quences in the construction of the law.^ Statutes should be interpreted according to the most natural and obvious import of their language, without re- sorting to subtle or forced construction for the purpose of either limiting or extending their operation. iSTo man in- curs a penalty, unless the act which subjects him to it is clearly both within the spirit and letter of the statute. Things which do not come within the words are not to be brought within them by construction. The law does not allow of constructive offenses or arbitrary punishnjent." ' Cearfoss v. State, 42 Md. 403. 2 lb. STAiriORY CoN.STin'CTlON. IV.) Penal statutes are not to he exteiHled ])v eoiistinctiou, yet sliouhl receive a nitioiial interpretation. They are to be construed strictly, yet the courts are bound to j^ive eti'ect to their plain and obvious nieanin;;^", and not narrow the constiuction. They niust search out and lollow the true intent of the lawgiver/ All the parts of a statute and all acts, tliouj^h made at ditierent times, or even expired or rei)ealed, and the entire systeni of laws and the common law touching: the same matter must be taken toj;ether, and, if one i)ait standing by itself is obscure, it may be aides'/(/»m. ' Miuturn r. Larue. 23 How. 435. •10 CRIMINAL LA.W. The Board of Police Commissioners of Baltimore City are authorized,' whenever, in their judgment, the public place and tranquility shall require it, to order all bar-rooms and drinking; saloons to be closed temporarily, and it is made a misdemeanor to disobey such order ''during such period as the said Board shall so forbid." This statute is con- strued to mean, that these orders shall operate not only for a short, but for a definite interval or portion of time, to be specified on their face, and that an order which, by its terms, is to operate "until further notice" is unauthorized and void.- Under its charter the corporation of the Mayor and City Council of Baltimore has power ''to pass ordinances to pre- serve the health of the City, to prevent and remove nuisances, and to prevent the introduction of contagions diseases within the City and within three miles of the same, and may regulate the places for manufacturing soap and candles and the erecting of slaughter-honses and distilleries and where every other offensive trade is carried on." An ordi- nance was passed, under the supposed sanction of the au- thority thus conferred, forbidding the erection or operation within the corporate limits of any kiln for tlie purpose of burning oyster shells or stone lime, but was held void be- cause the power conferred by the statute could not be taken to authorize the extra-judicial condemnation and destruc- tion of that as a nuisance which, in its nature, situation or use, was not or might not be such. The burning" of lime is not a nuisance per se, irrespective of local surroundings, and the corporation can not make lime-kilns nuisances by simply declaring them so.' § 40. — Repeal of Statutes. — Eepeals of statutes are either express or bj' implication. The law does not favor repeals by implication, and the intention to repeal must be plainly deducible from the language of the Legislature or follow from the provision of the later statute as an iuevit- ' Code P. L. L., art. 4. sec. 734. 2 State V. Strauss, 49 Md. 2^8. 'Code P. L. L., ait. 4. sec. 378. ■'State r. Mott, 61 Md. 297. STATITOKY CONS'l'IflM "II<»N. 41 able coiisefiiu'iice.* No statute, exeejit l>.v exiness words or aftinnative iinplicatioii, operates as a i<*iieal of tlie prior law, wlietlier statutory' or ooinnioii.' TIk* coiitlict should be irreconcilable' Wliere there are two acts on the same subject, the rule is, to give effect to both, if i)ossible. But, if the two are re[>ug- uaut in any of their i)rovisions, the latter act, without any express repealinji' clause, operates, to the extent of such repugnancy, as a repeal, or an abroj^ation, of the i'ornier.' Where the Legislature makes a revision of paiticular statutes and passes a general statute upon the subject, anlain inconsistency and repugnancy among them, so that the legislative intent can not be ascertained, all must be held invalid '■ In cases of irreconcilable conliict between i)rovisions of the local laws and general laws enacted at the same time, by their simultaneous adoption as ])art of the Code of Public Laws, the local law prevails.' ' Bishop Stat. (Jr., '-i ed.. i \')'>. -lb., 'i 107. ■'lb.. ^ 1(50; State r. N. C. R. R., 44 Md. 131. UiT: Willing r. Boz- niau, i)2 lb. 44,(51: Mayor c Magiuder, 34 lb. 3S1; Suowden r. State, ()U lb. ' Bishup Stat. Or.. 2 ed.. iJ Ki."")-. Davis r. Slate. 7 Md. I.'):: State r. Yewell. b^ lb. I'JO. 'Turner r. State, o") Md. '.240, 2C0: U. S. c Tyuen. 11 Wall. .ss. 9'.?. "Pierce c. State. (53 :Md. ay-2. ■Code. art. 1, sec. 11; Alexander v. Mavor. .03 Md. 1(J0, 104. CHAPTEli Y. PRELTMINAEY PllOCEEDINaS. § 47. — The Arrest — Conservators of the Peace. — The duty aucl power to make arrest, while not, as will be seen in the next followino- section, absolutely confinerl to offi- cial persons, are ordinarily vested in certain officials of various grades and designations, collectively known as peace officers, or conservators of the peace.^ The officers ordinarily charged with the arrest of offenders in this State are sheriffs, constables, policemen and town bailiffs. The duty and authority of conservators of the peace vest in all sheriffs and constables at common law and are expressly declared in the State Constitution.- There is also to be found in the Code of Public General Laws a special enumeration of certain police duties of consta- bles.' Policemen and town bailiffs possess such of the police powers of constables as are vested in them by vari- ous local statutes. For the City of Baltimoie a police force, under the government of the Board of Police Com- missioners for Baltimore City, is provided, clothed with extensive powers.* Provision is also made for the appoint- ment by the Grovernor of policemen for the protection of the property of corporations owning or using any railroad, steamboat, canal, furnace, colliery or rolling mill in this State aud for the preservation of peace and good order on their respective premises, railroad trains or steamboats;^ and agents, officers and representatives of incorporated institutions, societies or bodies for the care, custody or protection of children or minors having in their custody. ' Stephen Hiiit. Crini. L. Ibo. ■^ Art. 4. sees. 42, 44. •'' Art. 20. sees. 25-30. 'Code P. L.I... art. 4, sees. 728-756: Mitchell v. Lemon, 34 Md. 176: Roddy V. Finnegan, 43 lb. 490. •' Code. art. 23, sees. 2S8-2i)3. PRELIMINARY I'KOCKEDlNCrS. 43 care or peisonal cliar^iic aiiv iiiiiior, (M' person mider tweuts- one yeais of a^c, are by statute vesteil with all tlie privi- leges and authority of conservators of the peace, and i)er- sons interfering witli or ol)structing them aie guilty of a misdemeanor.' Conductors of railroad trains may arrest tliieves and pickpockets. - § 48. — Causes and Manner of the Arrest. — All persons who are present when a felony is committed, or a dangerous wound given, which, if the wounded person dies, will amount to felony, are authorized, and even obliged, to arrest the ortVnder.^ It is the duty of private persons as well as otiicers to supi)ress, by force, if necessary, riots, affrays and breaches of the peace. Any one may lawfully lay hold of any other person wliom he shall see on the i)oint of committing a Treason or felony, or doing an act that will manifestly endanger the life or person of anotlier, and may detain him nntil it may reasonably be presumed that he has changed his purpose. Thus, any one may justify breaking and entering a party's house and imprisoning liim, to prevent him from murdering his wife, who cries out for assistance.' Where a felony has been actually committed, a [irivate person, acting in good faith and ujjon reasonable and probable ground of suspicion is justified in apprehending, without a warrant, the suspected person, in order to carry hiuj before a magistrate."' An officer is authorized and in duty bound to arrest any one without a warrant who commits an offense, of what- ever grade, in his presence,"^ and he may arrest any one whom he reasoiuibly susi)ects of having committed a felony, whether a felony lias actually been committed or not, and whether acting on his own knowledge or facts connnuni- cated by others; but, if the offense does not amount to felony, he is not justified in making the arrest without a warrant, when such otfense has not been committed in his presence, or view. When, however, a warrant has been ' Code. art. 27, sec. 208. -Code, art. 27, sec. 2.J6. ^ 1 Bish. Cr. Pioc. ?. 165. •* Handcock r. Baker, 2 Bos. & P. 260. •Ledwith r. Catchpole, Cald. 291: Mure r. Kaye, 4 Taunt. 'S-i. "Mitchell r. Lemou. 34 Md. 176: Roddy r. Finuegan, 43 lb. 490. 44 CKTMINAL LAAV. regularly issued, an officer to whom it is directed or cou- tided is free from all liability iu making the arrest, even thoiigli the prosecution be a malicious one; but it is other- wise when the warrant is glaringly and palpably defec- tive.^ A warrant may be directed to a private person, but he is not comi)ellable to execute it.- Private persons must assist an ofBcer in making an arrest when called upon.^ § 41). — Pursuit of Offenders. — Breaking Doors. — Where a felony has been actually committed, or a danger- ous wound given, a peace officer may justify breaking an entrance door to apprehend the ofi'ender, without a war- rant ; but in cases of misdemeanors and breach of the peace a warrant is required. It is likewise said, that mere sus- picion of felony will not justify him in proceeding to this extremity, unless he be armed with a warrant.^ If there be an affray in a house, and manslaughter or bloodshed is likely to ensue, a peace officer, having notice of it and demanding entrance and being refused, and the affray continuing, jnay break open the doors to keep the peace. ■■ If the officer has once entered by the outer door, being oi)en, he may break open the inner doors." But he should first demand admittance, making known his}Hnpose.' Yet when, as in cases of fresh pursuit, the inmates are aware of his object, demand is not necessary.* A private person 'Lewin r. Uzuber, 6~> Md. 341. "1 Hale, 581. ■'State V. Mayhew, 2 G. 487, 501; McMahan v. Greeu, ;54 Vt. 69; Coleman v. State, 63 Ala. 93; Coyles r. Hurtin, 10 Johns. 85; Com- fort r. Comm., 5 Whart. 437; State r. Shaw, 3 Ired. 20; State r. Halley, 2 Strobh. S. C. 73; State /•. Deniston, 6 Biackf. 277; Mitchell V. State, 12 Ark. 50; S. C, 54 Am. Dec. 253. ^Fost. 320, 321; Hawk. P. C. b. 2, c. 14, s. 7. Cunlni, 1 Bish. Cr. Proc. ii 196. n. 6. "2 Hale, 95; Hawk. P. C. b. 2, c. 14. s. 5; 1 Chitty Cr. L. 52. 3; 1 Bish. Cr. Proc. H97. '' 1 Hale, 458. ' Lannock r. Brown. 2 B. & Aid. 592; Ratcliffe /•. Burton, 3 B. & P. 223. " Allen r. Martin, 10 Wend. 300; S. C, 25 Am. Dec. 564. I'KKLnilNAKY l'K(>< 'KKDINCS. 45 in irt'sli pursuit may lorec an cntiance to a house under eircunistanees which authoiize him to make an arrest.' An escape by a prisoner hiwtiilly arrested warrants the retaking;- ofhini on Iresh puisnit and the breaking of doors for tliat pnr[)ose. " § ~>{). — Hue and Cry. — Hue and cry is the old common - hiw process of pursnin*;' felons and such as have danger- ously wounded others from town to town until taken. The hue and cry may be raised by constables, private persons or both. The constable and his assistants have the same powers, protection and indemnification as if acting under a warrant from a magistrate. Private persons who Join are justified, even though it should transpire that no felony has been committed. To raise the hue and cry without cause is a misdemeanor. British statutes in relation to this process are still regarded as being in force in this State.-' ^ 51. — Time of Arrest. — The arrest may be made at any time, at night as well as during daytime, at what ever hour the officer having the warrant deems expe- dient,* but no warrant may be executed or served on Sun- day, except in cases of treason, felony or breach of the X^eace. § 52. — Exemptions from Arrest. — The Senators and Eepreseutatives of the United States are in all cases, except treason, felony and breach of the peace, privileged from arrest during their attendance at the session of their respective houses and in going to and returning from the same.*^ Foreign ambassadors, ministers and representatives are independent of the ordinary criminal jurisdiction of the countrv to which sent and not liable to arrest or other ' 4 Bla. Coram. 293. -1 Chitty Cr. L. 61: Comni. r. McGahey. 11 Gray, 194: Cahill r. People, 106 111. 6'21. ' 13 E. 1, Stat. -\ ch. 4; 7 K. 2. ch. 0: Alexauder Br. Stat. 154, 190. See also 1 Hale, 4b9, 490: 1 Hawk. P. C. ch. 28, s. U: Post. 309: 1 East P. C. ch. 5, s. 67. ^ 1 Bishop Cr. Proc. 'i 207. ^29 Car. 2, ch. 7: Alexander Br. Stat. 562. '•Coust. U. S.. art. 1. sec. 6: 1 Story Const. *. 865. 46 CRIMINAL LAW. criminal ])iocess. If guilty of grave crimes, they must be remaiKled home to their sovereign for judgment.' Jurymen and witnesses, during their attendance at court, are privileged from an arrest; but it is the privilege of the court and not of the party. ^ § 53. — TJie Preliminary Hearing. — When an offender has been arrested, he should i)roin[)tly be carried before the proper officer for examination upon the charge. The power to issue warrants and to conduct the examination of offend- ers is vested in all judges of superior courts, who, by virtue of their offices, are conservators of the peace throughout the State ,^ and justices of the peace,* the latter being the officials before whom the preliminary examination is ordi- narily had in this State. The Mayor of Baltimore, in virtue of his office, has all the jurisdiction and powers of a justice of the peace, except as to the recovery of debts," and similar powers are conferred upon mayors, town burgesses and the like officials by various local laws in other portions of the State. While arrests may and should be made without a war- rant in cases of breach of the peace, offenses committed within view of the officer and where there is danger of the escape of a felon, yet, unless under exceptional circum- stances of this kind, an arrest should be ui:>on complaint, or information, under oath and warrant issued thereupon."' And magistrates are not bound to issue a warrant, even though there be a ])ositive charge on oath; but it is their duty well to consider all the circumstances sworn to and not to grant any warrant groundlessly or maliciously, with- out such a probable cause as might induce a discreet and ' Woolsey Int. L. % 92 e, 96; U. S. v. Benner, 1 Baldw. 234-. Rev. Stats. U. S. H 4062-4065. - Brookes r. Chesley, 4 H. & McH. 295. » Const, art. 4, sec. 6: Exp. O'Neill, 8 Md. 227; In re Glenn, 54 lb. 572: Parrish v. State, 14 lb. 238, 246. ' Const, art. 4, sec. 42. ^Code P. L. L. art. 4, sec. 11. •* 1 Chitty Cr. L. 83. But see, as to arrests of thieves and pick- ])0ckets. Code, art. 27, sees. 255, 256; as to arrests, in Baltimore City, of paupers, habitual beggars, vagrants, vagabonds or disorderly persons. Code P. L. L., art. 4, sec. 880. PRKLIMINARY PKOCEEDINCiS. 17 iTiii)iirtial iiinii to sns]i(H't tlic i)arty to be /guilty.' Tin- lol- lowiiij;" provision of tlio iJeclaration of Itiylits slioiild Iw noted ill tliis connection: That all warrants, without oath or atlirniatioii, to search suspected i)laces, or to seize any jierson or property, are grievous and oiipressive; and all gen- eral warrants to search suspected jdaces, ortoapjire- hend suspected jiersons, without naniing or de- scribing the place or the i)erson in special, are illegal and ought not to be granted. " In the City of Baltimore certain justices of the peace are especially designated to sit at the station houses, to hear all charges made against any person for any criminal of- fense, and all criminal writs issued by any Justice of the I)eace must be made returnable before one of the justices so designated to sit at station houses, and it is the duty of all l)oli(;e otiicers and constables making arrests for crime to take the person arrested to the nearest station house, and the justice of the peace sitting at such station house shall take jurisdiction of the case.^ It is the duty of the ofticer to bring the party accused, within a reasonable time after the arrest, belore the pro[)er magistrate, in order that he may be examined, and, after due investigation, discharged, bailed or committed. It then l)ecomes the duty of the magistrate to take and com- plet(» the examination of all concerned, and to discharge or commit the individual suspected as soon as the nature of the case will [termit; but he is allowed a reasonable time for this i)urpose before he makes his tinal decision. ' § 54. — Discharge of Prisoner. — If. ui>on the examina- tion of the luisoner, it appears that no crime was committed or that the suspicion entertained against the {)risoner was groundless, he should be discharged. \J\i\vssii ]>riiti<( foci e case is made out against the i)risoner, by witnesses entitled to a reasonable degree of credit, the magistrate should not commit or hold him to bail. ' 1 Chitty Cr. L. 34. - Art. 26. SeealsoConst. U.. S., Amendment4: Story ('oust. ?. 1902. ■'Code P. L. L. iirt. 4, sees. 614-G29. ' 1 fhitty Cr. L. 72, 73. 4S CKIMINAL LAW. § ."iS. — Bail. — The iiiao eonii)letely discharged, is next to determine whether he sliall bail or commit him. But, it should be remembered, that the ])risoner may always waive the pre- liminary examination and at once be committed or bailed. Bail is the delivery or bailment of a person to his sureties, upon their giving", generally together with himself, sufti- cient security for his ai)pearance, he being supposed to continue in their friendly custody instead of going to prison.^ The sureties are his kee])ers and may reseize to bring him in, if they fear his escape, and take him before the court or magistrate by whom he may be committed, and thus the bail be discharged; but he is at liberty to find new sureties.- The manner of taking bail in this State is by recog- nizance, entered into before the court or magistrate, con- ditioned that the accused shall appear at the ])lace of trial to answer the charge against him; and, wlien forleiture is declared and entered by the court, it becomes a judgment enforcible by execution.^ When the accused is present, it is proper that he join in the recognizance; but, when the accused is an infant, a married woman, or sick in jail, the recognizance is taken from the surety alone.* A recog- nizance to appear before a court, having no existence and designating no fixed day is absolutely void;^ but mere in- formalities or irregularities in the recognizance can not be availed of upon motion to quash the execution. "^ ' 1 Bla. Comm. 297. ''2 Hale, 124; Code P. L. L. art. 4, sec. 200. •'Schultze /•. State, 43 Md. 295. 'lb. •■'Coleman v. State, 10 Md. 168. ''Shultze V. State, supra; Parrish r. State, 14 Md. 238. As to procedure where recoguizance is forfeited, see Code, art. 75, sees. 18, 19. If a party is brought before a court ou habeas corpus, and it appears that the offense was committed in another county, he raaj' be re- cognized to appear before the court having Jurisdiction of the offense. Parrish v. State, supra. Where a judgment rendered in favor of the traverser upon de- murrer to the indictment is reversed on writ of error, and the case PRELnriNAKY PKOf'EEDlNGS. 49 In criminal (;asi*s the prisonor may of li^lit j;ivo bail lor liis a])p('aiaiic(' to answer the charge or indictment, except in cai)ital <»llenscs where the proof is evident or the pre- sumption great. In these eases bail should be refused where a Judge would sustain a capital conviction, if pro- nounced by a jury, on su(;h evidence of guilt as is exhibited on the hearing lor bail. If the evidence is clear and strong, leading a well-guarded and dispnssiiuiate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally, if the law be administered, bail is not a matter of right.' A justice of the peace, or committing magistrate, may not in all cases bail where judges of superior courts may and should admit the accused party to bail. ►Statutes 3 E. 1, ch. 14,^ 1 K. 3, ch. 3,^ 3 II. 7, ch. 3,* 1 & 2 P. & M., ch. 13,'' and 2 & 3 P. & M., ch. 10," relating to examinations before magistrates and bail, are in force in Maryland, and are commonly cited as containing the regulation to be ob- served in such matters. IJut a number of their provisions are clearly iniipi)licable under the mode of (uiminal pro- cedure established in this State and are not now, if ever they were, followed in i)ractice. According to these statutes the list of cases in which magistrates may not ad- mit to bail would seem to be considerable. The doctrine u[)on this subject, as founded in the established practice in this State, may be stated as follows: Justices of the peace cannot bail in cases of treason, murder and other cai)ital ollenses; neither can they bail in cases of manslaughter, but in cases of killing by mere misadventure or in clear remauded, the recognizance can not be forfeited- if the party fails to reappear. State '•. Minpliy, 10 G. & J. 36o. Enlistment of tlie principal in tlie army of the United States does not discharge the recognizance. State c. Reany. 13 Md. 230, 236. '2 Encyclop. Law, <>-9. * Alexander Br. St. o.">. •'lb. 250. ■•lb. 2.-)3. »ib. mo. «lb. 374. 50 CETMINAL LAW. self-defense, a justice may bail/ yet the responsibility is not, in practice, assumed by justices. The same remark will apply to the case of persons arrested upon light suspicion of homicide. Where a dangerous wound has been given, justices may bail, but are advised to observe great caution." In other cases justices should bail as a matter of right, fixing the penalty with regard to the gravity of the charge and the weight of suspicion attaching to the accused, and having regard to the provision of the Consti- tution, "that excessive bail ought not to be required.'" If the justice concludes not to admit to bail, or if the accused is unable to furnish the required security, the party must be committed for the action of the proper court. ^ § 50. — Statutory Provisions in Relation to Bail. — Bail may be taken by a court or judge upon habeas corpus, the recognizances to be transmitted to the court having jurisdiction over the offense.'' The sheriff or his deputy, when he arrests a person on a writ for any criminal offense not punishable by confine- ment in the Penitentiary, may take a bail-bond from the person so arrested, with security to be by him apj)roved and in a penalty not exceeding three hundred dollars, except in those cases where a specific fine or penalty is prescribed for the commission of the offense, in which cases the penalty of the bond shall be the highest penalty or fine fixed by the law, with condition tluit the person so arrested shall ap])ear in court on the day the said writ is returnable, and attend the court from day to day, and not depart therefrom without the leave of the said court; and, if the I)erson so arrested cannot give bail-bond, he shall be taken beforea justice of the peace, to be dealt with accord- ing to law. Such bail-bond shall be taken in the name of the State, and shall be returned to the court to which such writ is returnable, on the first da}' thereof.* > 1 Chitty Cr. L. 95. ''Hawk. P. C. b. 1, ch. 63, sec. 19. ^'Dec. of R. art. 2j. ■•The commitment should be under seal. Somervell v. Hunt, 3 H. & McH. 113. *Code, art. 42, sec. 11: Parrish v. State, 14 Md. 238, « Code, art. 87, sec.-^. 7, 8. PllELIMINARY PROCEEDINGS. 51 Each of the circuit judiLCos lor the counties or judicial circuits may make orders, in recess of their several couits, in cases of law, and may reciuire in writing the original papers on any case, or abstracts and trans be rearrested and tried for his crime. Exp. Jlil- burn, y Pet. 704. Mere iusutiicieucy of bail, liowever. without fraud, does not constitute an escape justifying a rearrest . lugi am v. State, 27 Ala. 17. 52 CRIMINAL LAW. any plea whicli would have been good and sufficient to a scire faciaH on said recognizance, if a Hcire facias had issued thereon; and, upon such plea being determined in favor of the person pleading the same, he shall be dis- charged from the said forfeiture; provided, such person shall not be discharged from such execution until the trial of the plea, unless he shall i)ay and satisfy the execution, or give bonds, payable to the State, before the sheriff, or enter into recognizance in court, with one good and sufficient security, in double the forfeiture and costs due upon such execution, conditioned to api)ear and plead in .discharge of the said execution, and to abide by and fulfil the judgment of the court thereu])on/ The Governor may remit the whole or any ])art of any recognizance which may be forfeited, provided the judge of the court in which such forfeiture took place shall recom- mend the remission of the whole or some part thereof.- If any security in any recognizance shall request to deliver U]) the prin(;ipal, the Criminal Court of Baltimore, or the judge thereof in recess, may accept such surrender and may require and take other recognizance, or commit the principal to jail until he gives such security as the law requires.^ § 57. — Recognizance of ^A(^itnesses. — If the magistrate determines to hold the accused to appear at court, he thereujion commits him and the witnesses, or takes their several recognizances, as the case may require.* Where a witness against any person accused of a crime cannot find security for his appearance to testify against the person so accused and for want of such security shall be committed to prison, the county where the prosecution shall be carried on shall be chargeable with and pay the imprisonment fees of such witness, and the county com- missioners, or the Mayor and City Council of Baltimore shall levy the same, from time to time, as the case may require.^ 'Code, art. 75, sec. 19: Schultze r. State, 43 Md. 2Q'>. ^ Code, art. 41, sec 8. ='Code P. L. L. art. 4, sec. 200. * 1 Bishop Cr. Proc. ?, 234 b. ^Code, art. 3o, sec. -30. PKEHMINARV PROCEEDINGS. 53 § oS.— Transmitting Case to Court. — All ooinniifincnts and recojiiiizaiices for ott'tMise.s coiiiiDittcMl within th<* City of Baltimore aro to be returnod, from time to time, by the committiiii;- magistrates to the Criminal Court, and shall be lod<;ed with the clerk of said Court on the day next preceding the day apiminted for holding the said Court.' In the counties, recognizances and commitments must be returned to the (Circuit Courts. When the magistrate has transmitti'd the papers to court, his functions are ended. ^ r>!>. — Referring Case to Grand Jury. — Summary Pro- ceeding in Baltimore. — When the recognizance or com- mitment, as the case may be, has been filed in court, the next stej) in the ordinary course of procedure is to refer the matter to the grand jury for its action. In tlie City of Baltimore, however, persons who have been committed by Justices of the peace for want of bail for trial on charges of assault and l)attery, keeping a disorderly liouse, violations of the article of the Code relating to Licenses, or for any other small offenses for which no greater punishment than fine and imprisonment can be im[)osed, may have their causes heard ami determined in a summary way, if they so elect, by the court, without the aid of a Jury, on the Saturday next succeeding the commitment; and, in such case, only half the costs established by law in cases of indictment iound by a grand jury are taxed. All cases for the violations of the Public General Laws relating to Licenses may be tried upon presentment and be likewise chargeable with oidy half costs. - § <)(». — Grand Jury. — Presentment. — Indictment. — In- formation. — In all cases except those referred to in the foregoing Ksection and cases of summary convictions before inferior magistrates, prosecutions must be upon a previous finding of fact or inr|iu\st by a grand jury. The i)roce«lure known as an (ippcal (tf'/cloni/' is now entirely obsolete. The {)roceeding by in/oninttion' is now likewise ludcnown in the criminal practice of this State. A presentment, in the 'Code P. L. L. art. 4, sec. 183. 'Code P. L. L. an. 4, sees. iy4-l8.'"), 188. U Bla. Coinin. :U-2: Soaper v. Negro Tom. 1 H. cS; McH. 227. '4 Bla. CoiiHu. o08: Kilty Kep. 23.'); Alexander Br. St. 410: Pro- prietary r. Fartliiug, I H. & McH. 62. 54 CRIMINAL LAW. enlarf^od sense of tlie term, inclurtes not only iiresentments proi)erly so called, but also inquisitions of otHce and indict- ments by a <>rand jury/ In this State, a presentment signifies an informal written presentation by tbe grand jury of ail offense, upon wbicb the State's attorney after- wards frames a bill of indictment, which is then sent to the grand jury and, if adojjted by them, endorsed "a true bill," and signed by the foreman. A variance between the presentment and the indictment is immaterial; when once an indictment has been found, the subsequent proceedings are based upon it alone, the presentment being superseded.^ Jurors are drawn by the judges of the Circuit Courts of the counties according to a careful plan detailed in the Code of Public General Laws,^ and the grand jurors are drawn from the list of jurors so obtained, at the beginning of each term, the foreman, however, being appointed by the court.* In Prince George's County a somewhat differ- ent system prevails," the number of grand jurors consisting of twenty-three instead of twenty-four, as in the other counties. The drawing of petit and grand jurors for the City of Baltimore is regulated by local laws,*^ twenty-three grand jurors being selected by the judges of the Supreme Bench, of which number one is designated as foreman by the judge of the Criminal Court of Baltimore. In England and in all our states, twelve of the grand jurors must consent in order to render a finding valid; nor need more than twelve, even though the grand jury should consist of the full number of twenty-three." The grand jurors, being assembled in the court-room at the beginning of the term and the foreman having been selected, they are next sworn by the clerk in the following form : '4Bla. Comm. 301. ''Laird v. State, 61 Md. 309. •' Art. 51, title '"Juries." 'lb., sec. 10. 'Code P. L. L. art. 17, sees. 167-170. "Code P. L. L., art. 4,, sees. 538-606. ' 1 Bishop Cr. Proc. § 854. At common law a grand jury consists of not less than twelve nor more than twenty-four persons, and is selected by the sheriff. PRELIMINARY PROCEEDINGS. 55 0((1li of the Foreman. You, , as foroman of tlie ^raiul iuquost of tlie State of ^Maryland, for the body of , shall (lili.!;eiitly iii(|iiire and tiue presentinent make of all tsiich matters and things as shall be given yoii in charge, or shall otherwise come to your knowledge, touching this present service; the counsel of the State of Maryland, your fellows, and your own, you shall well and truly keep secret; you shall present no [lerson through envy, hatred, malice or ill will; neither sliall you leave any one unpresented through love, fear, favor or affection, or for any hope or promise of reward, but you shall present all things truly as they come to your knowledge, according to the best of your under- standing. So help you God. Oath to the other Jurymen, three at a time. The same oath that , your foreman, bath taken ou his part, you and each of you, on your respective parts, shall well and truly observe and keep. So help you God.^ This oath contains the substance of the duties of the grand jury. After the jurors have been sworn, the court delivers a cliarge to them in relation to their functions and duties and such matters falling within their cognizance as are of special i)ublic importance. Courts are required bj" different statutes to give in charge to the grand jury the ])rovisions of the laws relating to abortion,- defaulters,^ the protection of liie and property in Baltimore and other cities.' The Criminal Court of Baltimore shall, at each term, charge the grand jury attending to inquii-e into the conduct and management of the warden, assistant warden and otticers of the Penitentiary, and make presentments of all oHenses and omissions of the said warden, assistant warden and otiicers in and relating to the said Penitentiary; and the said Court shall, at the terms aforesaid, direct a number, not exceeding six of the said grand jurors, to visit '2 Hair. Enc 3; 2 Ev. Harr. 282; 1 Bishop Cr. Proc ? 5^56. -Code, art. 27, sec. 4. ' lb., sec. 47. ^Code P. L. L.. art. 4, sees. 125-128. 56 CRIMINAL LAW. and examine the said Penitentiary.' The Criminal Court of Baltimore is likewise directed to give the provisions of the article of the Code of Public Local Laws in relation to elections in said City in charge to each grand jury which shall be in session at the time of anj* election held in said City or next thereafter.'' If the essential requirements of a statute relating to the constitution of the grand jury are disregarded, that body has no authority to act and any indictment found by it is void. The right of objection to the grand jury is not confined to the cluillenge to the array, but objection, whether to individual jurors or to the constitution of the wiiole body, may be taken by plea in abatement, or motion to quash after bill found and before ])lea to the merits^ but not after judgment, by motion in arrest thereof.* Yet, although there may be technical objections, to the i)ro- ceedings in regard to the selection and summoning of grand jurors, in point of strict regularity, the courts will not set them aside, unless satisfied that the}' have resulted, or may result, to the prejudice of the party accused;" the possibility that injury has been done in the partuudar case must not be remote and conjectural.'^ ' Code, art. 27, sec. 412. •^ Code P. L. L., art. 4 sec. 267. No grand jury sitting at the time of any election in said City or assembling next thereafter shall be discharged by the said Court until they have made written presentment on their oaths to the said Court, that they have diligently and to the best of their knowledge and ability examined such judges of election as may have come be- fore them and inquired into and acted upon all complaints con- cerning alleged violations of the Constitution and laws touching elections, at the election next preceding, and all matters concerning the same which have come to their knowledge, or concerning which they have had information or reasonable ground of inquiry. lb., sec. 266. 3 Clare v. State, 30 Md. 163: Green v. State, 59 lb. 123. •* Green v. State, supra. * State V. Glascow, 59 Md. 209. « Cooper V. State, 64 Md. 40, 47. CHAPTER VI. Special Puoceedincjs. § CI. — Scope of Chapter. — The forej^oing chapter hav- ing" treated of the j)relimiiiary proceedings in a criminal prosecution, to the time ot the selection and <|nalilication oltlie grand jury, the next subject in the reguhu' orihn- of such prosecution that calls lor consideration is the indict- ment. Befor(\ however, proceeding with this subject it is thought well to take up the diseussion of certain spe- cial proceedings which should be discussed in this work and lor the discussion of which this is considered the most convenient place. The proceedings forming the subject of this chapter are Hummanj proceedin(i>i before maf/istrates, proceedinf/s in rela- tion to minors, search warrants and peace warrants. § 62. — Summary Proceedings. — Definition. — By the term sun)mar\ proceedings, within the meaning of this chapter, are designated all i)roceedings before justices of the peace and other similar magistrates, in which these otiicials have jurisdiciion to pronounce a Judgment or to commit an oU'ender, when their adjudication is either abso- lutely final, or made final by the waiver of rights orsubnns- sion by the party accused. § (VS. — Drunkenness and Disorderly Conduct. — lOvery person who shall be found drunk, or acting in a dist»rderly manner, to the disturbance of the public peace, upon any public street or highway, in any city or county of this State, or at any place of public worship or publi(; resort or amusement, in any city or county of this State, shall be deemed guilty of a misdemeanor, and upon conviction thereof, sliall be subject to a fine of one dollar and costs, and shall be committed until su(di fine and costs are paid, or until such ottender is dischargey due course of law. The Justices of the peace for the respective counties of this State shall have concurrent Jurisdietion over such offense with the Circuit Courts for their respective counties, and the 58 CRIMINAL LAW. Justices of til e peace selected to sit at the station houses in the City ofBaltimore^shall have concurrent jmisdictiou over such offense with the Criminal Court of Baltimore. This section not to apply to Frederick County.^ § 04. — ^Jurisdiction of Police Justices in Baltimore City. — It shall be the duty of each justice of the peace so selected lo sit at any statiou house in the City of Baltimore to hear all charges made against auy person, because of the alleged commission by such person of auy criminal offense ; it shall be the duty of each of said justices to examine carefully into every such charge, to the end that, while justice shall be done, no person shall be sub- jected to costs or imprisonment without sufficient cause ; each of said justices of the peace shall have i)ower to hear, try and determine the case of every person who may be arrested and brought before him in the said City of Balti- more charged with being a tramp, who is or may be punish- able as such under sections 275 and 276 of article 27 of the Code of Public General Laws, title "Crimes and Punish- ments;" and to hear, try and determine the cases of all persons arrested and brought before him charged with any offense specified in sections G7 or 68 of the same article, or in sections 894-897 of this article, subtitle " Vagrant Child- ren; " and to hear, try and determine all prosecutions or criminal proceedings brought before him for any act done, or omitted to be done, in the City of Baltimore, the doing of which act or the omission to do which act is or may be punish- able under any act of Assembly of this State or under any ordinance of the Mayor and City Council of Baltimore by a pecuniary fine only not exceeding in amount the sum of one hundred dollars. It is, however, hereby expressly pro- vided, that the said justices shall not have power to try and determine any violation of the Code of Public General Laws of this State, relating to licenses, except violations of the laws relating to "Hawkers and Peddlers," which they shall have jurisdiction to try and determine ; and shall not have power to try and determine anj- violations of the laws relating to " Sabbath-breaking, " but shall cause all such offenders against the said provisions of said Code of ^Code, art. 27, sec. 68 SPECIAL PROCEEDINGS. 59 Public General Laws, except as aforesaid, to be coiniiiitted or lield to bail lor trial before tbe Criminal Court of IJalti- moie.' In all criminal prosecutions or proceedings wliicli, un«ler tbe provisions of tbe precedinj; section, niay be beard, tried and determined before a justice of tbe peace sitting at a station bouse in tbe City of Baltimore, it sball be tbe duty of sucb justice of tbe peace before wbom sucli case is tried, in tbe event of tbe conviction of tbe accused at tbe said trial, to impose upon tbe said accused so convicted tbe tine or tbe tine and puuisbment, prescribed, in case of sucb con- viction, by tbe act of Assembly of tbis State, or by tbe or- dinance of tbe Mayor and City Council of Baltimore, for tbe violation of wbicb tbe accused was so tried. Any person sentenced to tbe payment of any tine and to tbe payment of tbe costs of bis or ber prosecution, wbo sball not torflnvitb pay tbe said tine and costs of said prosecution, sball be com- mitted by sucb justice of tbe peace to tbe jail of Baltimore City until sucb fine and costs are paid, or until tbe said person sball be discbarged from sucb jail by due course of law." If any person cbarged witb any of tbe ortenses bcrein- before referred to sball, wben brougbt before any justice of tbe peace sitting at a station-bouse in tbe City of Balti- more, before tbe beginning of bis actual trial for sucb offense, pray a jury trial it sball be duty of sucb justice of tbe peace to commit sucb alleged offender for trial before tbe Criminal Court of Baltimore, or to bold tbe said alleged oH'cnder to good and suflicient bail, to api)ear for trial before tbe Criminal Court of Baltimore at its next sitting, and to endorse u]»on said commitment or recog- nizance tbe names and residences of tbe witnesses for tbe prosecution; and sucb commitment or recognizance so en- dorsed shall be returned fortbwitb to tbe clerk of tbe said Criminal Court of Ibiltimore.' § 0."» — Summary Jurisdiction of Justices of the Peace in Certain Counties. — Tbe several justices of tbe peace ' Code P. L. L.. art. 4, sec. 615. -lb., sec. 61C. ■'Code P. L. L.. art. 4. sec. 017. 60 CRIMINAL LAW. of IMonrgoiiier.v, Kent, C^barles, Howard, Caroline, Calvert, Harlord, Garrett, Dorchester, Prince George's, 8t. Mary's, Somerset, Talbot, Washington, Wicomico, Anne Arundel and Allegany counties shall have, in addition to the juris- diction which they now possess and which may be con- ferred upon them by or under the laws of this State, juris- diction concurrent with that exercised by the Circuit Courts for said counties in all cases of assault without any feloni- ous intent; and in all cases of assault and battery; and in all cases of petit larceny, when the value of the property stolen does not exceed tlie suu) of live dollars; and in all misdemeanors not punishable by confinement in tlie Penitentiary, which may be committed within their re- s[)ective jurisdictions; and shall have jurisdiction in all prosecutions or i)roceedings for the recovery of any penalty for doing or omitting to do any act the doing of which or the omission to .v the clerk thereof, under the seal of the court, and be made re- turnable into the same court.- It cannot be directed to any officer or niagistiate of inferior jurisdiction l)eyond the limits of the county from whose Circuit (.'ourt it may issue.' § (»!>. — Proceedings in Relation to Minors — Their Nature — Constitutionality of Statutes. — .lustices of the peace ami other ofiicials are vested by various statutes with authority to commit minors to the care and guardianshii) of juvenile institutions. The proceedin<;- in such cases is not a criminal proceeding', and no regular ///a/ is necessary to anthoiize the commitment of minors to houses of refuge and reformatories when such course is rendered necessary or requisite to their moral and future welfare. The right of the state, or government to intervene in sucli cases is fully established.' Third |)arties, wbetber parents, guar- dians or others, can set up no rights or claims to interfere with a proper disposition and care of the minor. No one can claim a right, in the ordinary sense of the term, to the control or guardianshii) of a nunor.^ The domestic rela- tions are under the control and regtdation of municipal 'Hall V. State, 12 G. & J. 329: Rayner v. State, 52 Md. 368. 2 State V. Glenn, 54 Md. 572, GIO. * Roth V. House of Refuge, 31 Md. 329; Exp. Grouse, 4 Whart. 9; Milwaukee lud. School v. Supervisors, 40 Wis. 328; Prescott v. State. 19 O. St. 184; In re Kruse, 2 Ciun. Sup. Ct. R. 71; House of Refuge V. Ryan, 37 O. St. 197; Faruham i: Pierce, 141 Mass. 203; In re Donohue, 1 Abb. New Gas. 1; S. C., 52 How. Pr. 251; People c Tur- ner, 55 111. 280; S. G., 10 Am. L. Reg. 366; In re Ferrier, 103 111. 367; McLean c. Humphry, 104 lb. 378. • 1 Bla. Comm. 452; 2 Kent Comin. 204; In re Moore, 11 Ir. C. L. N.S. 1, 14; In re Connor, 16 Ir.G. L. N. S. 112, 124: Merceiu r. People, 25 Wend. 64, 103; Striplin r. Ware, 36 Ala. 87; Albert r. Perry, 14 N. J. Eq. 540; In re Lewis, 88 N. C. 31; The Etna, 1 Ware, 462; Wodell r. Goggeshall, 2 Mete 89; Gary r. James, 4 Desauss. 185; Stausbury r. Bertron, 7 W. & S. 362; U. S. r. Green, 3 Mason, 482; Comm. r. Gilkeson, 10 Penna. L. J. 505: S. C, 1 Phila. 194: Exp. O'Neal, 3 Am. L. Rev. 578; Exp. Schumpert, 6 Rich. S. G. 344: In re Gregg, 5 N. Y. Leg. Obs. 265; People c. Porter, 23 111. App. 196. 64 CRIMINAL LAW. laws.' Thus, the matter of fixing- the period of miuority.- the disabilities and iiiimuuities attaching to the status of infancy, the right of custody, the matter of education,-' the matter of the sale of liquor to minors, with or without the consent of parents or guardians,* are all within legislative and judicial control. Where, how-ever, the proceeding against a minor has for its object his punishment for crime, even though the commitment be to a juvenile institution, all the regular formalities of criminal procedure must be observed;" and where the proceeding is quasi criminal, as under statutes authorizing the commitment of minors to juvenile reformatories upon complaint of incorrigibility preferred by i)arents or guardians, tlie powers of commit- ment are strictly construed." § 70. — Commitment of Mendicant and Vagrant Chil- dren. — Any person, having in his care, custody or control any child under the age of sixteen years, whether as parent, guardian, relative, employer or otherwise, who shall sell, apprentice, or give away, let out or otherwise disi)Ose of any such child to any person, under any name, title or pre- tense whatever, and any person, whether as parent, guar- dian, relative, em])loyer or otherwise, who shall take, re- ceive, hire, employ, use or have in custody any such child for the vocation, use, occupation, calling, service or pur- ])ose of singing, playing on musical instruments, rope-walk- ing, dancing, peddling, begging or any mendicant or wandering business whatsoever, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, before any competent tribunal to which such person may be committed for trial, shall be fined not. less than fifty nor more than two hundred and fifty dollars, or be imprisoned in a county jail for not less than thirty days nor more than a year, or sulier both such fine and imprisonment, in the discretion of the said tribunal, one-half of all fines so imposed to be paid ' Bennet r. Bennet, 13 N. J. Eq. 114. -Parker r. Starr, 21 Neb. 680. •' Bennet v. Bennet. supra. "State V. Clottu, 33 Ind. 409; State r. Lawrence, 97 N. C. 492. ■^Comm. r. Horregau, 127 Mass. 4r)0: State r. Ray, 63 N. H. 406. " Comm. r. McKeagy, 1 Ashm. 251. SPECIAL lM{OrEEDTX«S. ()~> to the intbnner.' Ft, on .cxatniiiation before any court or justice of the jjeace, it shall be proved, tliat any child was enj>:a'o minor, if a girl, under the age of sixteeu years, or, if a boy, under the age of fourteen years, shall be ad- mitted to or i)ermitted to remain iu any saloon, place of entertainnjent or amusement, known as dance-houses, con- cert saloon, theatre or varieties, where immoral, indecent, obscene or vulgar language, display or performance is per- mitted, allowed or carried on , or where any spirituous 1 iquors, wines, intoxicating or malt liquors are sold, exchanged or given away, unless accompanied by parents or guardian. Any proi)rietor, keeper or manager of any such jdace who shall admit such minor to or permit him or her to remain in such i)lace, unless accompanied by parent or guardian, shall be guilty of a misdemeanor, and shall, upon convic- tion by any court of competent jurisdiction, be fined ten dollars and costs for each and every oflfense.' Every per- son having the custody of any girl under the age of sixteen years, and of any boy under the age of fourteen years, shall restrain such child from habitually begging, whether actually begging or under tlie pretense of peddling. Any person oflending under this section shall be considered and deemed as incapable of taking care of and providing for such child, and such child shall, by reason thereof, be deemed as coming within the conditions of the next suc- ceeding- section.' Any girl apparently under the age of sixteen years and any boy apparently uuder the age of fourteen years that comes within any of the following de- scriptions named: that is known to be habitually begging or receiving; or gathering alms, whether actually begging ' Code, art. '21. sec. '27:^. •lb., sec. 274. 'Code P. L. I... art. 4. sec. 894. "lb., sec. biO.'i. 66 CRIMINAL LAW. or under the preten.se of peddling' or offering" for sale any- thing, or being in any street, road or public place for the purpose of so begging, gathering or receiving alms; that is found wandering and not having any home or settled place of abode or proper guardianship, or visible means of sub- sistence; that is found destitute, either being an orphan or having a vicious parent who is undergoing penal servitude or imi)risonment; that frequents the company of reputed thieves or i)rostitutes, or houses of assignation or prostitu- tion, or dance-houses, concert saloons, varieties, or places specitied in section 894 hereof, without parent or guardian, shall be arrested and brought before a court or magistrate. When, upon examination before a court or magistrate, it shall appear that any such child has been engaged in any of the aforesaid acts, or comes within any of the aforesaid descriptions, such court or magistrate, when it shall deem it expedient for the welfare of the child, shall commit such cliild to an orphan asylum, charitable or other institute, or make such other disposition thereof as now is or may here- after be jirovided by law in case of vagrants, truant, dis- orderly, pauper or destitute children; provided, however, that none of the provisions of this subtitle shall be con- strued so as to prevent children from selling or offering for sale newspapers.^ Any person representing himself or her- self to be, or passing himself or herself off as the parent or guardian of a child or children referred to in an^' of the aforesaid sections of this subtitle, when it shall appear that such i)ersou is not either the parent or guardian of said child, shall be deemed guilty of a misdemeanor, and, upon conviction by any court of competent jurisdiction, shall be fined not more than twenty dollars and costs for each and every offense. - § 72. — Destitute and Suffering Minors. — Commitment. — Any minor, having no parent or guardian and being desti- tute ofmeansofsupport, or suffering through the neglect, bad habits or vicious conduct of its parent, guardian or other custodian, may be arrested and brought before any judge of a court of record or justice of the peace and committed > Code P. L. L. art. 4, sec. 896. nb., sec. 897. SPECIAL PROCEEDINGS. 07 by said ju(lf;e orjustiot' of tiie peace to any eharitable, le- lonnatoiy or other institution for the care and custody of minors, incorporated under the hiws of this State, subject to the discipline, reyuUitions and powers of sucli institu- tions.' Upon the return of any writ of habeas corpus issu- ing' for the production of any child so committed, the court or judj;e before whom the habeas corpus proceeding- is tried may review the facts upon which the commitment was made, and hear new evidence, and remand, release or com- mit such minor.^ § 73. — ^Juvenile Institutions. — The foregoing statutes, in a large measure, supersede the necessity of i)roceoding under laws relating si)ecitically to particular institutions. It should be noted, however, that special provisions for the commitment of minors are to be found in regard to the following institutions: House of Kefuge,' Female House of Eefuge,* House of the Good Shepherd,' St. ^Mary's Indus- trial School for Boys," House of Eeformation,' Industrial Home for Colored (Tirls,** Home of the Friendless,' Boys' Home,'" Henry Watson Children's Aid Society,'' Dolan (Children's Aid Society," Hebrew Orphan Asylum," Pro- testant Infant Asylum," St. Vincent's Infant Asylum, '^ St. .Mary's Orphaline School,'* Asylum and Training School for the Feeble Minded,'" The Nursery and Child's Hospital of Baltimore City.'* ' Code, art. 43, sec. 18. -lb., sec. 19. ^Code, art. 27, sees. 351-371. nb.,secs. 372, 373. Mb., sees. 321-329. « lb. . sees. 384-388. 'lb., sees. 330-3i0. •"lb., sees. 374-383. "Code P. L. L., art. 4, seca. 903-907. '"lb., sees. 898-900. " lb., sec. 911. ■nb., sec. 901. "lb., sec. 902. 'Mb., sec. 908. i^b., sees. 909, 910. '"Laws 1818, ch. 71; 1886, oh. 172; 1888, ch. 159. "Laws 1888, ch. 183. "*Law8 1888, ch. 426. 6S CRIMINAL LAW. Questions of tlie regularitj' of the commitments to sucb institutions, so far as matters of mere form are concerned, are obviated bj- tbe following statutory provision : Wbenever a minor is brought before a court or judge upon haheafi corpus^ in private custody, it shall be the duty of such court or judge, in the determina- tion of the case, to be guided by what ap[)ears to be for the best interests of such minor, in respect to his temi)oral, his mental and his moral welfare ; and, if it be made to appear, to the satisfaction of such court or judge, that such interests would be best pro- moted by such course, it shall be the duty of suck court or judge to commit such minor to the care and custody of any charitable, reformatory or other insti- tution for the care and custody of minors, incorpo- rated under the laws of this State, subject to the discipline, regulations and powers of such institution; and any court or judge disposing of the custody of a minor upon habeas corinis may retain jurisdiction over such minor, and may make such other and further orders in relation to the care and custody of such minor as circumstances may require.^ § 74. — Search-Warrants. — A search-warrant is a war- rant requiring the officer to whom it is addressed to search a house or other place therein specified, for property therein alleged to have been stolen, and, if the same shall be found upon such search, to bring the goods so found, together with the body of the person occupying the same, who is named, before the justice or other officer granting the war- rant, or some other justice of the peace or other lawfully authorized officer." 'Code, art. 42, sec. 20. The custody of a charitable or reformatory institution to which a minor is committed for mere care and guardianship, as distinguished from a commitment by way of sentence or punishment for crime, is priratecvfitody, this phrase, when applied to infants or minors, having a technical meaning, to wit, custody under claim of guardianship as distinguished from the custody of a public officer in virtue of his office. R. V. Delaval, 3 Burr. 1434. The institutions enumerated are not classed as public institutions. St. Mary's Ind. School v. Brown, 4o Md. 310: Perry r. House of Refuge. 63 lb. 20. -Bouvier Law D., lit-. Search- Warrant. SPECIAL I'llOCEEDlNGS. 0!> The Declaration of liights asserts, That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppres- sive; and all <;eneral warrants to search suspected places, or to ai)prchend suspected ])ersons, without nainiiiif or descrihinj;- the place or the [)erson in special, are illegal and ought not to be granted.' The use of search warrants, at common law, appears to be limited to the search for stolen goods." A search-war- rant to seize libels and other papers of a suspected party is illegal.' Statutes in this State authorize the seizure, by means of this process, of arms, weapons and ammunition intended to be used for the purpose of interfering with the freedom of elections' and to enter places where unlawful gaming is carried on,-' or where gunpowder is unlawfully stored." The search-warrant is not to be granted without oath made before the justice, that the party complaining has probable cause to susi)ect that his pro[>erty has been stolen, or is concealed in such a i)lace, and showing the reasons for such suspicion. The oath need not positively and directly aver that the property has been stolen. The war- rant should direct the search to be made in the daytime, though, it is said, that where there is more than probable suspicion, the process may be executed in the night. It ought to be directed to a constable or other public officer, and not to a i)rivate person, though it is lit that the party complaining should be present and assisting, because he will be able to identify the property he has lost. It should also command that the goods found, together with the party in whose custody they are taken, be brought before some justice of the peace, to the end that, ni)ou further examination of the fact, the goods and the prisoner may be disposed of as the law directs." ' Art. 26. M Bishop Cr. Proc iS. 241. ^ 1 Chitty Cr. L. 6".. ^Code P. L. L., art. 4, sec. 270. ' Baltimore City Code, art. 21, sec. 4. " lb., art. 20. sec. 57. ' 1 Chitty Cr. L. 65. 70 CRIMINAL LAW. ^yith respect to the mode of executing tliis warrant, if the door be shut and, upon demand, not opened, it may be broken open, and so may boxes, after the keys have been demanded, and though the goods be not found, the officer will be excused, though, if the party obtaining the warrant acted maliciously, he will be liable to a special action on the case, but not to an action of trespass. But the officer must strictly observe the directions of the warrant, and, if, for instailVie, he be directed to seize only stolen sugar, and seize tea, he will be a trespasser.^ If, on the return of the warrant before the justice, it appear that the goods were not stolen, they are to be re- stored to the possessor. If it appear that they were stolen, they are not to be delivered to the proprietor, but depos- ited in the hands of the sheriff or constable, in order that the party robbed may proceed, by indicting and convicting the offender, to have restitution. The party who had the custody of the goods is to be discharged, if they were not stolen; and, if they were, not by him, but by another per- son, Avho sold or delivered them to him, and it ai)pear that he was ignorant of the mode in which they were procured, he may be discharged, but bound over to give evidence as a witness against him that sold them; if it appear that he knew them to be stolen, then he should be bound over to answer the felony. - § 75. — Peace "Warrants. — Surety of the peace is one of the branches of preventive justice, and consists in obliging those persons whom there is probable ground to suspect of future misbehavior to stipulate with and give full assur- ance to the public that such offense as is apprehended shall not happen, by finding ])ledges or securities for keeping the peace. One who seeks surety of the peace against another must apply to some justice of the peace and take the required oatli, in which among other things, he must swear that he does not ask it "out of malice or for vexa- tion." This is an important part of the oath and should never be omitted, for great caution should be observed ' 1 Chitty Cr. L. 66. 2 lb. 67. For form of warrant see Latrobe Just. 377. SPECIAL PROCEEDINf'rS. 71 by tlio maf>:isti'ate, espociiilly wliore the ajiitlication seems to arise IVoiii malice; and the writ sliouhl never be granted merely because the ai)plicant is at variance with anf>ther. Wlien this oath is duly taken, the justice issues the war- rant, which, after recitinj,' the oath, commands the sheriff or otiier otlicer to api)rehend the party and bring him be- fore the subscriber, or some other justice, to find surety for his ap|)earance at the next Circuit Court of the county as also for keeping the peace in the meantime towards the citizeJis of the State and chiefly towards the complainant. When he is arrested and brought before the magistrate, he is at once required to give the requisite security, and if he refuses or fails to do so, he is committed to jail until he linds such security or is discharged by due course of law. W he gives the security immediately or before the next (•ourt, the magistrate releases him from custody. The con- dition of the recognizance is that the party shall well and truly make his appearance to the next Circuit Court, there to receive what the court may enjoiu upon him, and, in the meantime, to keep the peace as stated in the warrant; and the recognizance is then returned to the court. If the party remains in jail, or appears according to the tenor of his recognizance, and the complainant does not apj)ear to ask its continuance, the court, as a matter of course, releases liim from custody, or discharges the recognizance, as the case may be. If, however, the complainant does appear, and seeks a continuance of the proceeding, then the court, on a full examination of the evidence, as well on behalf of the complainant as the party accused, may release him, or discliaige the recognizance, or order the proceeding to be continued.' ' Hyile r. Greuch. (i'l Md. "»77. Fur tonns of proceedings see Latrobe Just. cli. Ki. CHAPTP]K VII. The Indictment. § 70. — Prosecution By. — If a statute eujoiiis an act to be doue witliout pointing out any mode of punishment, an indictment will lie for disobeying the injunction of the leg- islature;' but an indictniout does not lie upon a statute which creates a new offense and prescribes a particular remedy. - § 77. — Formal Allegations. — Prosecutions against offen- ders are relieved from a number of the technical retiue- nieuts existing at common law by the following statutory provisions: ^o indictment or presentment for felony or mis- demeanor shall be quashed, nor shall any judgment upon any indictment for ahy felony or misdemeanor, or upon any presentment, whether after verdict, by confession or otherwise, be stayed or reversed for the want of a proper or perfect venue, when the court shall appear by the indictment, inquisition or presentment, or by the statement of the venue in the margin thereof, to have jurisdiction over the offense, nor for the omission or misstatement of the title, occupation or degree of the defendant or other person or persons named in the said indictment, in(|uisition or presentment, nor for the want of the averment of any matter unnecessary to be proved, nor for the omission of the words "asai)i)ears by the record, "or of the words "with force and arms," nor for the insertion of the words ''against the form of the statute," instead of "against the form of the statutes," or vice versa, nor for omitting to state the time at which the offense was committed, in any ' Keller v. State, 11 Md. 525, 536. m. l: Wright, 1 Burr. 543. THE INDICTMENT. 73 case where time is nut of tlie essence of the offense, nor for stating' the time imperfectly, nor for stating- the offense to have been committed on a day sul)se- <|uent to the linding of tlie indictment or making the presentment, or on an impossible § 79. — Names of Third Persons. — In acconlance with tlie doctrine ie(iiiiring" certainty in tlic indictnicnt, it lias, in a number of instances, been held necessary to set out the names of third persons. Where a statute prohil>it(Ml the sale of li(iuor to slaves without the consent of the master, an indictment for its violation was held to be defective for omittiny: ti»e name of the slave and that of the master;^ an indictment charging" the sale of liquor on Sunday must allege the name of the person to wiiom the same was sold,* and an indictment for the sale of merchandise, in viola- ti(ui of the license laws, must set forth the name of the per- son to whom the sale was nuide.^ The sale of liquor with- out license, or to minors, or on a Sunday or election day to a particular person is an oti'ense in this State; each sale is a separate offense and the party may be indicted for each; but the case is different upon an indictment against a register of voters for making out and publishing a false list of voters stricken from the registry. The indictment need not si)ecify the names of the voters alleged to have been ])ublished in the list ns stricken from the registry. Such list becomes false by including therein the uames, whether few or many, of the voters who had not been stricken off. The offense is one and entire, and there can- not be se[)arate indictments for each name thus wronglully included.' § 80. — Allegation of Circumstances Constituting Ille- gality. — Where the act charged is not in itself necessarily unlawful or criminal, but becomes so by its peculiar circumstances and relations, all the matters must be set forth in which its illegality consists. Thus, the wilful obstruction of a road or way constitutes an indictable offense only when the road or way is i)ublic and the obstruction tends to the inconvenience of the common right to use it; hence, an indictment for obstructing a highway which, in one count, described the obstructed road as "a common highway, leading from Sniiih St;iiidi- ' State V. Nutvvell, 1 G. 54. -Capritz r. State. I .^Kl. 569. ^Spielmau r. State. 27 lb. 520. ^Mincher r. State, fiG Ih. 227. 76 CEIMINAL LA.W. ford's gate toward the Baltimore and Philadelphia turn- pike, to the house known as Berry's house," and, in another count, as "a common highway leading from Sarah Standiford's gate toward the Baltimore and Philadelphia turnpike," was adjudged defective. It was held, that the connection of the road with some other common thorough- fare, by means of which the i)ubli(5 could have access to it, was a necessary element of the offense charged, and it should have been shown with certainty; the indictment should have shown that the road obstructed connected with and was accessible from a public highway.^ But it is only where the act charged is not in itself unlawful, but becomes so by other things connected with it, that the facts in which the illegality consists must be set out. Therefore, where the giving away of intoxicating liquor on election days is made an oflense by statute, an indict- ment charging the defendant, in the language of the statute, with unlawfully giving away whiskey, without setting forth the facts wiiich make the giving unlawful, is sufficient, it not being necessary to state matter of evidence, unless it alter the offense.^ Upon the same principle it was held, that, in an indictment for an assault with intent to murder, it is not necessary to state the instrument or means made use of bj^ the assailant to effectuate the murderous intent. The means of effecting the criminal intent or the circumstances evincive of the design with which an act was done, are considered to be matters of evidence for the jury to demonstrate the intent, and not necessary to be incorporated in an indictment.^ § 81. — Time and Place. — Time and place must be added to every material fact in an indictment; that is, every material fact stated in an indictment must be alleged to have been done on a particular day and at a particular place. It is, in general, in relation to time, requisite to state that the defendant con)mitted the offense for which he was indicted on a specific day and year.* If an offense ' State V. Price, 21 Md. 448. '^Cearfoss i: State. 42 lb. 403. 3 State c. Dent, 3 G. & J. «. ^ State r. Brown, 24 S. C. 224. Cf. Jones r. State, 68 Md. 613. THE INDICTMENT. 77 consists in doinjj: a tiling on Sunday, the indictment, in addition to the day of the month and year, must aver that it was oil Sunday, and nor merely mention a day found to be Sunchiy hy the calenresence and with the assent of his fellow jurors, makes the necessary correction, and, on a subsequent occasion, the paper thus amended is returned in the usual way. The preliminary examination thus giveu by the judge to a bill of indictment is usually confined to ascertaining whether it bears the ])ioi»er en- dorsement of "True I>ill,' signed by the foreman. The body of the indictment is rarely looked at, because the judge assumes that this has been jjrojjcrly framed by the State's attorney, and such a defect as existed in the body of this indictment is a very unusual one. If the judge to whom it was delivered by the foreman of the grand jury 'Wharton Cr. PI. & Prac. ? 376: Archbold's Cr. Pr. & PI. 211, 11. 1 ; Low's Case, 4 Me. 439, i')i). 84 CRIMINAL LAW. bad opened it and had discovered that the blanks had not been properly filled up, it would have been his dnty, in- stead of handing it down to the clerk, to have returned it to the foreman for correction in the mode above indicated. The defect, however, was not discovered until the next day, and after the indictment had been delivered to the clerk and filed by him. In this state of case, no doubt, the more regular, formal and safe course would have been for the State's attorney to have had this indictment cpiashed and to have framed a new one and submitted it to the grand jury for their approval.^ But this was not done, and the public and formal proceeding set out in the statement made by the learned judge of the court below was adopted in lieu thereof. The grand jury came into court while it was in open session and, through their foreman, made a public and formal request that the indictment should be returned to them for the purpose of properly filling up the blanks left in it, and the court thereupon gave a formal and express direction to the clerk to return the indictment to the foreman for this jnirpose. The indictment was then placed in the hands of the foreman, in the presence of his fellow jurors and in open court. Tlie grand jury then retired, and, on the same day, returned the same bill, with the blanks properly filled up and bearing the same endorse- ment of 'True Bill,' signed by the foreman, and delivered it to the court, and the judge thereupon handed it to the clerk. All that was thus done was done in open court and with the court's express sanction and direction. It was the duty of the clerk to have entered these proceedings upon the minutes and as part of thie record and proceedings of the court on the day on which they occurred, an Norwood V. State, 4o Md. 68; Neff r. State, 57 lb. 385. ••Scarborough v. State, 55 Md. 345; Johns ;.'. State. lb. 350. ^Norwood c. State, siijini. 00 CRIMINAL LAM^ iu addition to the suggestion in writing of either of the parties to such presentment or indictment, that such party can not have a fair and imjKirtial trial in the court in which the same may be pending, it shall be necessary for the party making such suggestion to make it satisfactorily - appear to the court that such suggestion is true, or that there is reasonable ground for the same ; and thereupon the said court shall order and direct the record of proceed- ings in such presentment or indictment to be transmitted to some other court having jurisdiction in such cases for trial ; and such right of removal shall exist, upon sugges- tion, in cases when all the judges of said court may be dis- qualified, under the provisions of this Constitution, to sit in any case, and said court to which the record of proceed- ings in such suit or action, issue, presentment or indictment may be so transmitted shall, hear and determine the same in like manner as if such suit or action, issue, presentment or indictment had been originally instituted therein; and the General Assembly shall make such modification of existing law as may be necessary to regulate and give force to this provision. ' When any suit or action, issues or petitions, presentment or indictment for offenses which are or may be punishable by death shall be removed, according to the provisions of the preceding section, it shall and may be lawful for the party at whose instance the said suit or action, issues or l^etition, presentment or indictment was not removed, if he shall think that justice can not be done him in said court to which said suit or action, issues or petition, presentment or indictment has been removed, to file an affidavit, as pre- scribed by the i)receding section, in said court to which said removal is ordered, suggesting that he cannot have justice in such court, whereupon the said court shall remove the said cause, suit or action, issues or petition, presentment or indictment to such other court having jurisdiction in such cases as the said court shall think will best tend to justice between the parties to said suit or action, issues or petition, presentment or indictment. When any present- ' Const., art. 4. tec. 8; Code, art. 75, sec. 97: Biscoe r. State, 68 Md. 294; McMillan v. State, lb. 307. THE TRIAL AND ITS INT I DENTS. i>l ment or indictnieiit ibr otlenscs wliicli are not or may not be punishable by efore application for renewal, the ai)pIication is governed l)y the liiw as existing at the time when it is made.' 8nl»ject to this (lualilication, the constitutional privilege has, in every respect, been construed liberally.' When there has been no rfecUml trial of a cause, a jury having been sworn and discharged, because of their inability to agree, the cause is still pending for trial, as much so, to all intents and purposes, as if a jury had never been sworn, and the right of removal obtains;* but ordinarily, when a trial has com- menced, the jury having been sworn, the application lor removal can not be entertained.^ Upon the receipt of the transcript of the record of the removed cause, the court to which the same is transmitted at once aciiuires jurisdiction, not only of the cause itself, but of the parties accused; and the fact that they are still detained iu prison in the county from which the record was sent in no manner atlects the jurisdiction thus ac- The provisions of the lour preceding' sections shall apply to all eiimiiial cases where the ii<;ht of ix'remptory clml- leuge is not allowed, and the State's attorney for the county or city, or the attorney prosecuting" for the State, shall strike for the State/ Any alien, denizen or foreigner who may be indicte, ch. 3; Alexander Br. Stat. 171 « Lee /•. Peter, 6 G. & J. 447. 96 0RI3IINAL LAAV. Where several parties are jointly indicted and tried, the right to challenge the array or polls for favor or cause is one that each defendant is entitled to exercise for himself, independently of his co-defendants; but, in relation to the right of striking four persons from the list of twenty, all the defendants are considered bnt as one parti/, and can not claim the right to strike more than four juiors collec- tively/ Bnt in cases where the ])unishment is death or confinement in the Penitentiary, the right of peremptory challenge is given to the accused by section 19 of the same article in ditierent language, and such right of challenge ■where there are several del'endauts may fairly be held to be sei)arate.- Either party to a cause may challenge a juror for cause, whether he has or lias not exercised his statutory right of peremptory challenge.^ The statutes relating to peremptory challenges do not prescribe the order in which challenges shall l)e made, or direct whether the State or the prisoner shall first exercise the right. It would seem. Therefore, that the ])roceeding in this respect is lett to the discretion of the Circuit Courts. Jt appears that the i)ractice in the circuits has not been uniform. While in several of them the practice has been to require the State to challenge first, in the City of Balti- more and in the first and fourth circuits a different rule has prevailed.* It has been the uniform practice of the courts of this State to proceed to make uj) and swear the panel from vsuch jurors or talesmen as have been found attending the court, without waiting for or directing process against others who may have failed to attend, and whose names may have been first drawn, or who may have been first summoned. The accused has no special right to have any particular individual or individuals presented to be sworn as jurors rather than others Cipially competent. All that he has a right to demand is, that the persons presented to ' Hamlin v. State, 67 Md. B33. -State r. Reed, 47 N. H. 466; 1 Bishop Cr. Proc 'i 1028. 3 Edelen v. Gough, 8 G. 87. ■"Turpin v. State, 55 Md. 463. THE TRIAL AND ITS INCIDENTS. 07 "be sworn as Ins triers shall be fjood and lawful men, com- petent, nnder estahlislie. — Argument before the Jury. — Whatever power the Constitution may have conferred niton juries in criminal cases, it has conferred none upon counsel. They are still oHIcers of the (;ourt and under its ])roper control; th<*y have no right and should not be ])erniitted to argue against the oi)inion of the court on a question of law upon which the court has a right to express itself, in order to induce the jury to disregard it." 1 Broil v. State. 45 Md. 3")C; Bloomer v. State. 48 lb. 521, 5^9; For- wood r. State, 49 lb. 531; Balto. & Yorktowu Turnpike r. !iti.te. 63 lb. 573; ante. \ 32. « Belt V. State, 57 xMd. lOS: Franklin v. State. 12 lb. 23. 431 . ='Fenvvick r. State, (Ji Md. 339. ••Davis r. State, 38 Md. 1"). ^ I Greenl. Ev. 'i Ml: R. i: Brasier, 2 Leach, 183: S. C, 1 East P. C. 443; S. C, Bull. N. P. '293; Comm. r. llutchiusou, IU Mass. 22r>: McGuire c. People. 44 Mich. 286. ''Kelly c. State, To Ala. 21. 102 CRIMINAL LAW. there a child, having a due sense of the obligation of an oath, can be admitted to testify.^ At the age of fourteen, every person is presumed to have common discretion and understanding: but, if tlie Avitness offered be below that age, inquiry is made by the judge, at his discretion, in order to ascertain the capacity of the witness.^ The questions should be put in a simple fashion, adapted to the ca])acity of a child. ^ If the child, being a principal witness, appears not yet sufticientlj' instructed in the nature of an oath, the court may put' off the trial that this may be done.* The sole reason for M'hich infants of tender years may be ex- cluded as witnesses is, that they do not, at the time when their testimony is offered, comprehend and realize the danger and impiety of falsehood; and, hence, the fact that an infant was of too tender years to be sworn at the time of the occurrence of the transaction about which he is after- wards called to testify does not render him incompetent, but is merely a circumstance that bears on the weight of his testimony." § 102, — Number of W^itnesses. — One witness is ordi- narily sufticient for conviction. In cases of treason, by levying war against the State, or adhering to the enemies thereof, two witnesses, both of them to the same overt act are necessary," and the mere unaided testimony of one wit- ness is not sufticient to convict of perjury.' These are the only offenses requiring proof by more than one witness. § 103. — Accomplices. — An' accomplice is detined to be "one who becomes a partaker with others in a crime, Avhether his guilt is in the same degree with theirs or not."* In all cases in which an accomplice is admitted to testify ' Wharton Cr. Ev. 9 ed., § 366. But the dying declarations of a child four years of age have been rejected (R. v. Pike, 3 C. & P. 598); and Mr. Wharton assigns four years generally as a minimum 'Cr. Ev., 9 ed., '/. 367.) '' 1 Greenl. Ev. I 367. => Reg. V. Holmes, 2 F. & F. 788. '' 1 Greenl. Ev. ^ 367; Comm. v. Lynes, 142 Mass. 577. ^ Kelly V. State, 75 Ala. 21. "Code, ait. 27, sec. 264. Cf. 2 Bishop Cr. Proc, ? 1037. '2 Bishop Cr. Proc, ^^ 927-932. «1 lb.. ^. 1159. THE EVIDENCE. 103 on behalf of the prosecution, while tlie jury may, if they deem tit, conviot upon his testimony, yet it is the practice of botli llngiish and American conrts, in the exercise of a sonnil discretion, to advise the Jury not to convict the prisoner, unless the testimony of such accomplice be con- firmed, not only as to the circumstances of the crime which he confesses to have committed, but also as to such circum- stances as he testifies to as identifying: the i)risoner there- with; in other words, the corroborative proof must come from other sources, or third parties, of acts done by the prisoner connecting him with the accomi)lice and identify- ing the prisoner with the crime of the accomplice.^ § 104. — Admissions and Confessions. — The term ad- misfiioii is usually applied to civil transactions and to those matters of fact in criminal cases that do not involve crimi- nal intent; the term co^/'t'.s.s/o/t being generally restricted to 4icknowledgments of guilt. " Declarations of the accused as to the crime with which he is cha^rged, if voluntary, are always admissible against him;'' but declarations of third parties are not ordinarily admissible.^ A confession is a person's declaration of his agency or participation in crime. ^ A confession made in court or be- fore an examining magistrate is judicial; made out of court, whether to an official or non-official person, extra-judicial.'^ Of the latter kind are the preliminary examinations, taken in writing by magistrates, pursuant to statutes ob- taining in some jurisdictions, and the i)lea of '-guilty " made in open court to an indictment. Either of these is sufficient to found a conviction upon, even if to be followed by sentence of death, they being deliberately made, under the deepest solemnities, with the advice of counsel and the i)rotecting caution and oversight of the judge.' The > 1 Bishop Cr. Proc, H 1169, 1170; 1 Greeul. Ev. ? 380. - 1 Greeul. Ev., 'i 170. ^ Lamb r. State, 66 Md. 285. ^ State r. RidRely, 2 H. & McH. 120. * People V. Partou, .19 Cal. 632. M Bishop Cr. Proc, ? 1217. ' 1 Greenl. Ev.. S 216. 104 CRIMINAL LAW. plea of ''guilty-' in a capital case should, however, be received with extreme caution.^ lu cases of doubt as to the sanity or understanding of the accused, or his freedom from pressure or influence, the proper plan is for the court to refuse to receive the plea, but direct a plea of ''not guilty " to be entered, so that the offense maybe duly proven against him. In cases of extra-judicial confessions the following doc- trines prevail in this State. A confession is not admis- sible in evidence against the prisoner, unless it is freely and voluntarily made. When a prisoner has been told that he had better tell the truth, and these expressions are used by or in the presence of a person in authority, the evi- dence of the confession thus obtained should be rejected. Before permitting a witness to testify in regard to the con- fession, the court ought to ascertain, firstly, whether any inducement, at the time or prior thereto, had been held out to the prisoner, and, in the next place, whether he was influenced by such inducement in making the confession. The court may, it is true, rule out a confession, even after it has been admitted in evidence, if satisfied, in the subse- quent i^rogress of the case, that it was not a free and volun- tary confession and may instruct the jury that it is not to be considered by them in determining the question as to the guilt or innocence of the prisoner; but, once in, it may have au influence more or less prejudicial against the prisoner. The preliminary question, therefore, as to its admissibility, is one which ought, in all cases, to be decided by the court, before it is permitted to go before the jury. ^ The presumption of law is, that the influence of a threat or promise, once made, continues to operate; but this pre- sumption may be rebutted by other proofs, showing that it had ceased to operate.* ' Comtn. V. Battis, 1 Mass. 95. 2 Nicholson v. State, 38 Md. 140; Biscoe v. State, 67 lb. 6. 3 Peter v. State, 4 Sm. & M. 31; State r. Jones, 54 Mo. 478; Van Bureu r. State, 24 Miss. 513; State r. Guild, 10 N. J. L. 163; Comm. V. Harman, 4 Pa. St. 269; Barnes v. State, 36 Tex. 356; Porter i\ State, 55 Ala. 95. THE EVIDENCE. 105 Evidence oiven or statements made liv a jtaitv under compulsion or order of court cannot afterwards be used against him in a criminal proceeding.' A confession alone ought n<»t to be sufficient evidence of the corpus delicti. There should be other proof that a crime lias actually been committed; and the confession should only be allowed for the purpose of connecting the defendant with the offense.* § 105. — Declarations— Res Gestae. — Declarations or acts immediately following the commission of the act com- jilained of are competent and proper evidence to exjilain such act. The rule ap[)licable to the rea (/estae does not require that the circumstance proposed to be given in evi- dence should have occurred at the precise time when the principal fact happened; if it arose either at the time or so soon thereafter as to constitute a part of the transac- tion, then it serves to give color and detiniteness to it.^ It is always competent for the State to prove that the party charged has previously made false or contradictory statements with respect to the circumstances attending the commission of the crime and the facts bearing upon him,* The declarations of one conspirator ai-e admissible in evidence against his co-conspiratoivs.' On a trial for murder the a<1 missions or declarations of third persons that they killed the deceased are not evi- dence; and, even if such third ])ersons, on being examined as witnesses, im[)licate the jnisoner by their testimony, evidence of their declarations that they were guilty of the the offense is not admissible.* Evidence offered by the defense on an indictment for murder, to the effect that the deceased, prior to the homi- cide, threatened the defendant's life is inadmissible, unless 'Reg. r. Garbett, 1 Den. C. C. 236: U. S. r. Prescott, 2 Dill C. C. 40'). -Cooley Coust. Lim. 315; 1 Greeul. Ev. 'i 217; 1 Bishop Cr. Proc. U 1058, I0r)9; Wharton Cr. Ev., 9 eti., H 632, 633. * Handy r. Johnson, "> Md. 450: Robinson r. State, 57 lb. 14. ^Hays r. State. 40 Md. 633. ^Hays c. State, .s/'/)/-(r." Bloomer r. State. 4S Md.521: Kernan r. State, 65 lb. 253. * Munshower r. State, 55 Md. 1 1 . 106 CRI3IINAL LAW. proof be first given that there was au overt act of attack, aud that the defeudant, at the time of the collision, was in apparent imminent danger.^ § 106. — Dying Declarations. — "Dying declarations are affirmations deriving their sanction, not from an oath, but from the solemn sense of impending death, and they do not admit of the o[)portimity for cross-examination. Yet, for the i)rotection of human life, they are accepted as anomalous evidence in criminal prosecutions for homicide, when they proceeded from the very person alleged to have been unlawfully killed, to the single question of the circum- stances of the killing and by whom; yet to no greater extent, and in no other causes, civil or criminal, what- ever. Being admissible against defendants, they are, con- sequently, so also in their favor. "^ The same rules which determine the competency of a witness prevail also as to the declarant; and the declaration may be impeached or contradicti^d in the same manner as other testimony.^ § 107. — Expert Testimony. — Whenever the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, or when it so far partakes of the nature of a science or trade as to require a previous habit, or experience, or stud}', in order to the attainment of a knowledge of it, the opinion of experts is admissible; but, if the matter of inquiry be not such as to require any peculiar habits or study in order to qualify a person to understand it, then such evidence is not admissible.* Upon a trial for murder, the general appearance of wounds found upon the body of the person alleged to have been killed, the extent of the injury, whether they were inflicted by a sharp or a dull instrument, or came by accident, are proper subjects for the testimony of a medical expert.^ A physician may likewise be called upon to express au opinion as to what would be the result of pressing violently with ' Turpin v. State, 55 Md. 462. - 1 Bishop Cr. Proc, '<'. 1207. ■■•lb., (J 1209. * Davis V. State, 38 Md. 15. *Ib. ; Williams r, State, 64 Md. 384. THE EVIDENCE. 107 the fool upon the neck of ;i iiiaii lying on the ground.' Medical books, however, are not admissible in evidence, either for the i)uri)ose of sustaining or contradicting the opinion of a witness.^ A medical witness in a trial for murder, who hears the physician who examined the body of the deceased fully describe the wounds on the head and the fracture of the skull, and hears several witnesses de- scribe the construction and condition of a sink in which the body was found, is com[)etent to testify whether such wounds and fracture were likely to have been occasioned by accidentally falling into the sink, and the fact that he does not hear the whole cross-examination of the physician who described the wounds and fracture on the head does not attect his competency.^ But, while an expert may gives his oi)iniou upon facts assumed to have been estab- lished, he will not be allowed to state his opinion upon the conclusions and inferences of other witnesses.^ § 108. — Almanacs. — Courts have received as evidence weather reports, reports of the state of the markets, price currents and insurance tables, tending to show the probable duration of human life, and, upon a trial for murder, it was held competent for the State to offer in evidence an almanac, for the ])urpose of proving at what hour the moon rose on a certain night.'' § 109. — Relevancy. — The evidence must be relevant to the issue." On a trial for murder, evidence of what occurred at a saloon, half a square from another saloon where tbe homicide occurred, and only four or live minutes before the killing is admissible to show the movements and general conduct of the prisoner immediately preceding the killing. What was said and done by others at the same time and in company with the prisoner was held to be admissible upon such charge.' ' Williams r. State, 64 Md. 384. - Davis i\ State, 38 Md. 15. ' Davis r. State, stipra. ■* Williams r. State, supra. *Miinshower '■. State, o") Md. 11. "Hays r. State, 40 Md. 633: Chelton r. State, 4.") lb. 504; Muu- shower r. State, 55 lb. 11; Turpiu r. State, lb. 462; Donovan c. State, 64 lb. 365. 'Kernan r. State, 65 Md. 2.53. 108 CRIMINAL LAW. Proof that a luau has violated the law in particular in- stances cannot be rebutted by proof that he did not violate it in other instances where he had the opportunity and temptation to do so.^ But evidence of other acts than that charged may, under certain circumstances, be admitted for the puri)ose of proving guilty knowledge on the part of the accused. Thus, where a party is indicted for uttering a forged instrument, knowing the same to be forged, it is competent for the State, in order to prove the scienter, to show, that, at or about the time of the forgery charged in the indictment, the defendant held and uttered simi- lar forged instruments;" and, upon an indictment for attempting to procure a miscarriage and an abortion, evi- dence of an attempt by the defendant, made subsequent to the act charged, to accomplish the same purpose by a differ- ent means is admissible, in order to prove the purpose in the former attempt.* Upon a trial for murder, the State may prove, as bearing upon the (piestion of malice, that, on the day before the fatal assault and several days prior thereto, the accused had beaten and otherwise maltreated the deceased.* Upon the trial of an indictment for the sale of liquor without a license, where it appeared that the traverser had kept cigarettes for sale and ostensibly given away a drink of whiskey with the purchase of cigarettes, testimony was allowed to be given on the part of the State, in order to proNe the real nature of the transac- tion, that, on other occasions than that stated in the indict- ment and about the same time, cigarettes had been sold by the traverser at a sum dis[)roportioned to their value, and that, with each purchase, a drink of liquor was ostensibly given away by the traverser.^ A defendant, u])on a trial for burglary, in order to prove that he entered the dwelling-house in question with intent, not to commit a felony, but to commit adultery with a woman in the same, may offer in evidence facts tending to 'Archer c. State, 45 Md. 33. - Bishop r. State, 55 Md. 138; Bell r. State, 57 lb. 108. '■' Lamb v. State, 66 Md. 285. •■ Williams v. State, 64 Md. 384. * Archer v. State, supra. THE EVIUENCK. lO'J show siH'cific illicit relations between tin- two parties.' Wherever a si)e<'ilic intent is an essential inj^redient of the ott'ense eharj;e U. S. (;. Vickery, 1 H. «& J. 427. "Comm. r. Griffin. 21 Pick. 523. ^ Wharton Cr. Ev., 9 ed.. 'i 14G: 1 Bishop Cr. Proc, 'i'i 485-487. *Per Story, J., U. S. r. Howard, 3 Sumn. 12, 15. Cf. State r. Jackson, 30 Me. 29: Turner r. State, 3 Heisk. 452; People r. Jones. 5 Laus. 340; R. r. Deeley. 1 Moody, 303. "1 Bishop Cr. Proc, >/. 400. '"lb.; Capritz r. State, 1 Md. 509; Clayton r. State, 60 lb. 272. " 1 Bishop Cr. Proc, HOI- 110 CRIMINAL LA"W. in a form descriptive of the ofiense, it must be proved as laid.^ In tliis State it is provided by statute, that no prosecu- tion or suit shall be commenced for any tine, penalty or for- ieiture, or any misdemeanor, exce[)t those punished by con- finement in the Penitentiary, unless within one year from the time of the offense committed,* and that all actions or prosecutions for blasphemy and Sabbath-breaking, or drunkenness, shall be made withiu one month after the fact.* The statute of limitations in criminal cases is a rule of evidence, and the proof must affirmatively show tlie offense to have been committed within the period limited.* § 112. — Sufficiency of Evidence. — In criminal cases the jury may find the prisoner or accused guilty only when convinced, by the evidence, of his guilt beyond a reasonable doubt." This doctrine extends to all classes of offenses,^ but applies only to the corpuH delicti' and the question of the identity or criminal agency of the accused,* not to collat- eral matters.-' The law, in all cases, raises a i)resumption of innocence in favor of the accused, and this presumption can only be overcome by such proof as shall be inconsistent with the hypothesis of his innocence and exclude every 1 U. S. V. McNeal, 1 Gall. 387; Comm. v. Monahan, 9 Gray. 119. 'Code, ait. 57. sec. 10. ^Ib., s=ec. 11. ■• R. V. Phillips, R. & R. 369; U. S c. Smitli. 4 Day. 131, 128; Comm. f. Ruffner, 28 Pa. St. 259; World v. State, 50 Md. 49. A scire facias issued in the name of the State to secure the for- feiture of the charter of a corporation is not a suit for a fine or forfeiture within the meaning of this statute. — Wash. & Balto. Turnpike Road v. State. 19 Md. 239, 294. The sale of liquor on Sun- day is not Sabbath-breaking withiu the meaning of section 11, above quoted, but prosecutions for this offense come within section 10, above quoted, and may be brought within one year from the date of the offense. — State v. Popp, 45 Md. 432; Seim v. State, 55 lb. 566. Prosecutions for bastardy must be commenced within one year, from the date of the birth of the child.— Bake v. State, 21 Md. 422; Neff V. State, 57 lb. 385. •'Snyder v. State, 59 Ind. 105; Bressler v. People, 117 111. 424. "l Bishop Cr. Proc , i* 1094; Norwood v. State, 45 Md. 68, 75. ^Norwood V. State, supra. " 1 Bishop Cr. Pcoc, i 1060. "Norwood V. State, supra. THE EVIDENCE. Ill reasonable doubt tlieieof. ' In a leading case,^ the jury were instructed, "that tlie government is bound to i)rove the defeiKbint guilty beyond all reasonable doubt an\^: Williams '•. State, 60 lb. 402. 3 Weighorst r. State. 7 Md. 442. ••State r. Flauuigau, 6 Md. 1(>7. ^ Maguire v. Stale, 47 Md. 485, 498. M Bishop Cr. Proc, i! 1001. " lu cases of misdemeauor this is omitted. lb. "*Ib.; Ford r. State, supra. 8 114 CRIMINAL LAW. juror to dissent wlieii questioned, belongs to either party, and the direction may be given by the court of its own motion.* § 118. — Verdicts where Defense is Insanity — When any person indicted for a crime or misdemeanor shall allege insanity or lunacy in his defense, the jury impanelled to try such per.son shall find by their verdict whether snch person was, at the time of the commission of the offense, or still is insane, lunatic or otherwise.^ If the jury find by their verdict that such person was, at the time of commit- ting the offense, and then is insane or lunatic, tlie court before which trial was had shall cause such person to be sent to the almshouse of the county or city in which such person resided at tbe time of the commission of such act, or to a hosi)ital, or some other place, better suited, in the judgment of the court, to the condition of such prisoner, there to be confined until he shall have recovered his reason and be discharged by due course of law.^ Where any person, arrested for irai)roper or disorderly conduct, or charged with any crime, offense or misdemeanor, against whom no indictment has been found, shall appear to the court, or be alleged to be a lunatic or insane, the court shall cause a jury of twelve good and lawful men to be im- panelled forthwith, and shall charge said jury to inquire, whether such person was, at the time of the comtnission of the act complained of, insane or lunatic, and still is so; and, if such jury shall find that such person was, at the time of the commission of such act, insane or lunatic, and still is so, the court shall direct such person to be confined as directed in the preceding section, at the expense of the county or city, as the case may be, until he shall liavc^ re- covered and be discharged by due course of law.* If, during the recess of the Circuit Court for any county, or the Crim- inal Court of Baltimore, any person appearing or alleged to be insane or lunatic shall be arrested and charged with any crime or misdemeanor before the judge thereof, the ' 1 Bishop Cr. Proc. § 1003; Ford v. State, 12 Md. 514; Williams v. State, 60 Md. 402; Biscoe v. State, 68 lb. 294. * Code, art. i")9, sec. 4. 'lb., sec. "). "lb., sec. 6. THE VERDICT AND SUBSEQUENT PROCEEDINGS. Ill said Jii(l;;c shall issue an ordci- to tlie slicrill of tlic comity or city wlunc said oiicuso lias l)eoj) cornrnitted, ic(jiiiiiiiff liiin toithwitli to suniiiioii a jury of twelve ji;ood and lawful men, and to charge sucdi jury to in(|uire, whetluM- such person was lunatic or insane at the time such ofiense was committed, and still is so; and, if the jury find that the l)aity (diarged was insane or lunatic at the time of the i'ominission of the ofiense, and still is so, the judge shall commit such person as directed in the i)recedino^ section/ The provisions of the preceding sections shall ap[)ly to the case of any person who may be arrested on any process issued by any couit or judge of this State, founded on oath, requiring security to keep the peace, and who shall fail to give such security.- If any insane or lunatic i)erson, mentioned in the three preceding sections, shall be possessed of real or personal property, the annual jiroiit or rent of which shall be adequate to his reasonable support in any hospital or asylum for the recei)tiou of insane or lunatic l)ersons, the court or judge shall api)oint a ti'ustee for the estate of said lunatic or insane i)erson, and shall require the said trustee to give bond to the State of Maryland, in such jienalty and with sucli security as the court or judge shall approve, with condition that he will cause the said lunatic or insane person to be confined and sui)ported in some hospital or insane asylum until such jierson shall have recovered his reason, and that he will faithfully administer an If any orteinU'r, on conviction, may be sentence*] to sutler (leatli, the court helbit^ wlioni such olfendei shall be tried and convicted shall sentence him to sutier death by han.uin;j: by the neck.' \\'hcre a case has been removed Tor trial, and the paity shall I>e sentenced to be hunjn", the court shall remand him to the place where the indictment was toun" tii-e to which is piinisli- able by contiiicnieiit in the I'eiiitciitiary in the case of adults, shall be sentenced to the I'enitentiary for the said crime in the same manner as if they were of fall a<;e, or, in the discretion of the court, may be confined in the Honse of Kefnidations, within the limits of said State, all infants over twelve and under the age of fifteen years, until they shall arrive at an age of not less than eighteen nor more than twenty-one years, who shall be convicted of any offense punishable in adults by confine- ment in the Penitentiary, other than those specified in tlie preceding section. - It shall be the duty of every court having criminal jurisdiction to examine into the character of all infants convicted of offenses for which they may be bound as api)rentices under the preceding section and to exercise a sound discretion in determining whether the infant so convicted should be bound out in accordance with existing laws, or should be sentenced to the Penitentiary, in the same manner with adults convicted of like crimes, and to bind out or sentence such infants accordingly.'' Whenever any colored minor under the age of sixteen years shall be convicted before any court or justice of the peace of any felony or other offense against any law or laws of this State, the judge of said court (»r said justice, in his discretion and with reference to the character of saie lor a less period than may now or hereafter be lawfully imposed for the ofl'ense of which such person was so convicted, and that such person so sentenced to confinement in said Mary- land House of Correction be not sentenced to be confined therein for a longer period than three years. ^ Any i)crson, not insane, who is convicted of beiug a tramp shall be sentenced by the justice of the peace, or by the court, as the case may be, before whom such offender is tried to confinement in the Maryland House of Correction for a period of not less than two months nor more than one year.- When an3' ]>erson is convicted in any court of this State of assault and battery, riot, or any other misdemeanor l^unishable, under the laws of this State, by imprisonment in jail or by fine and imprisonment in jail, such court shall have power to sentence such person to be confined in the Maryland House of Correction; provided, that the said term of confinement in the said Maryland House of Cor- rection shall not be for a less period than two months.^ »Code, art. 27, sec 311. -lb., sec. 312. 'lb., sec. 313. CHAPTEJi XL Fi>'ES, Costs and Miscellaneous Matteks. § 126. — Fines. — Mode of Recovering. — When any fine or i)enalty is imposed by any act of Assembly of this State, or by any ordinance of any incorporated city or town of tliis State, enacted in pursuance of sufficient autliority, for tlie doing of any act forbidden to be done by such act of Assembly or ordinance, or for omitting to do any act re- quired to be done by sucli act of Assembly or ordinance, the doing of such act or the omission to do such act shall be deemed to be a criminal offense. Such offense, in the City of Baltimore, shall be prosecuted by the arrest of the offender for such offense, and by holding him to appear in or committing him for trial in the Criminal Court of Balti- more, at the Saturday sessions of said Court, which Court shall have jurisdiction in the said cases, and shall proceed to try or dispose of the same in the same manner as other criminal cases triable at the Saturday sessions of said Court may be tried or proceeded with or disi>osed of: or, such offense may be prosecuted by indictment in such court. Such offenses, in any county of this State, shall be prose- cuted by the arrest of the offender for such offense, and by holding him to bail to appear in or committing him for trial in the Circuit Court for the county in which such offense was committed, or by indictment in the Circuit Court for such county for such offense. If any person shall be ad- judged guilty of any such offense by any court having' jurisdiction in the premises, he shall be sentenced to the fine or penalty prescribed by such act of Assembly or ordi- nance and to the costs of his prosecution, and, in default of payment thereof, he shall be committed to jail until thence discharged by due course of law. Any indict- ment for the violation of any ordinance of any incorpor- ated city or town of this State may conclude, "against the form of the ordinance in such case made and provided, FINKS, COSTS AjND .MlSCKLLANKTirs MM'-JEltS. 125 and aj^aiiist the i>eace, goveniiueiit and dignity oT the State."' § 127.— Same Subject— To Whom Paid.— All lines, IKMialtics and loi Icitiires. when recovered, shall he paid to the county or city where the .same n)ay he imposed, unless directed to be ]taid otherwise by the law imposing them; but, it theie be an informer, he shall have halt, uidess otherwise provided — this section not to ai)[)ly to tines or lorleitures tor olfenses at common law.- § 128. — Same Subject — Discharge from Jail. — Any person who shall or may hereafter be committed to jail, by the judgment of any court of justice, or by any justice of the peace of this State, for non-payment of any fine and costs, not exceeding the sutu of tlfty dollars, wlio shall have remained in custody as aforesaid for the space of thirty days; or any person who shall or may hereafter be com- mitted to jail aforesaid for non-i)ayment of any tine and costs, above lifty and not exceeding one hundred and titty dollars, who shall have remained in custody aforesaid for the space of sixty days, shall be discharged Irom further imprisonment on account of said fine and costs; j)rovided, such person sliall prove, to the satisfaction of tlie court imposing said tine and costs, or any judge thereof, or jus- tice ot the ]>eace, as the case may be, that he is unable to pay said tine and costs.^ § 129. — Costs. — No person who may be prosecuted lor any misdemeanor or offense and discharged by the court on submission, or lined not exceeding tifteeu cents, or prosecuted for any crime and acrpiitted on trial by jury, shall be burdened with the payment of any costs or fees accruing on such prosecution, but all such costs and fees, with the legal costs of the party accused, shall be paid by the county; and no persou taken upon any warrant or capias on presentment, where no bill of indictment is found, shall be liable to pay or give security for costs, but such costs shall be j»aid by the county. The Mayor and City Council of Baltimore shall not, however, be liable, iu any 'Code, art. 38, sec. 1; Suowden v. State, 69 Md. - Code, art. 38, sec. 2. nb.. sec. 3. 126 CRIMINAL LA.W. such cases tried in the Criminal Court of Baltimore, for the appearance fees allowed by law to the attorney of the traverser/ § 130. — Commitments. — Warrants of commitment must be under seal.- A commitment in execution of a sentence of a court of competent jurisdiction, or upon a summary judgment for contempt, cannot be assailed collaterally, as upon a return to the writ of habeas corpus;'' and, even in the case of in- ferior magistrates, the presumi)tion is, that, there has been a good conviction and that the magistrate has done every- thing required by law.* But, when a prisoner is brought up by habeas corpus^ even though he have been committed after sentence of a court or conviction by a magistrate, he may controvert the return, and in case of a conviction by a magistrate (so recited in the commitment), he may show that there has been no conviction in fact, or that it is simply void for want of jurisdiction in the magistrate to make it." § 131. — Custody of Prisoners. — Xo citizen of this State, committed to the custody of an officer for any criminal matter shall be removed from thence into the custody of another officer, unless it be by habeas corpus or by other legal writ, except where the prisoner shall be delivered to a constable or other inferior officer, to be carried to some »Code, art. 24, sec. 7. As to costs in removed canes, see lb., sees. 1-G; Mayor v. County Commissioners, 19 Md. 554; County Commissioners Howard v. County Commissioners Frederick, 30 lb. 432; County Commission- ers Allegany v. Couuty Commissioners Howard, 57 lb. 893. Costs in Baltimore Citj', in certain cases, are payable by the person who instigates the prosecution. Code P. L. L . art 4. sees. 196, 199. In certain classes of cases in said City only half the ordinary charges are to be taxed lb., sec. 188. The estate of Penitentiary convicts is liable to costs and charges. Code, art. 27, sec. 302; ante, \ 123. 2 Somervell v. Hunt, 3 H & McH. 113. =* Exp. Maulsby, 13 Md. 625: In re Morris, 39 Kans. 28. ■^ State V. Glenn, 54 Md. 572 609. Mb. Cf. Divine's Case, 11 Abb. Pr. R. 90: In re Golding, 57 N. H. 146: In re Davis. 38 Kans. 408; Sennott's Case. 146 Mass. 489: In re "Wooldridge, 30 Mo. App. C12. FINES, COSTS AND MISCELLANKOl'S 3IATTERS. 127 coninioii jail, orslia!) IxMemoved Irom one place to anotlier, within tlie said county or an adjoining county, in order to his discharge or trial, in due course of law; or in case of sudden tire or infection or other necessity; or where the prisoner shall be charged, by allidavit or other lawful evi- dence, with tieason, felony or other crime, alleged to be done in any other of the United States of America or ter- ritories thereof, in which last case he shall, on demand of the executive authority of the state, district or territory from which he tied, be immediately delivered up." In ICngland, prisoners were removed from one place of impiisonment to another by writ of huben.s corpus ad snb- jicietidnm, issued at the instance of the crown. Under the above statute, the necessity of a writ for removal of a pris- oner from one county to another adjoining is dispensed Avith, and no mode is i)rescribed, leaving it to the officers of the law to a may be sentenced to confinement in tlie Penitentiary on sMcli like conditions, without such icinission ojjeiating as a lull i)aiI(' to the I'acts.' A writ of error docs not sta> c.rccntioii in < i iniinal cases. - § ];i,"), — No Formal Writs of Error. — Formal writs of error shall, in all cases, i)e (lisi)cnsc(l with, and the party applying;- to have the record removed, as upon writ of error, in cases where by law writs of error are allowable, shall, by brief petition, addressed to the court in which the case was tried, plainly ricvcd, which apjdication, so to remove the record, shall be allowed as of right, and uo point or question not thus plainly designated in such ap- plication shall be heard or determined by the Court of Ap- peals.^ § I'M). — Appeals upon Prosecutions for Fines or Pen- alties. — Fron» any judgment or determination of any court of law in any civil suit or action, or in any j)rosecution for the recovei-y of any penalty, tine or damages, any party may appeal to the Court of Appeals.^ The ettect of the above statute is, in the class of cases designated, to give a remedy by appeal instead of by writ of error.' Whenever the punishment, in a criminal case, consists of a tine or penalty, an appeal will lie upon ques- tions of law apparent on the record; and such questions surticiently appear on the record, where the defense is pre- sented in the court below by an af/reed statement of fads." § 137. — Appeals from Rulings at the Trial. — In all trials upon indictment or presentment in any court of this State having criminal Jurisdiction, it shall be lawful ior the party accused, or the State's attorney, in behalf of the State, to except to any ruling or determination of the court. 'Ford r. State, 12 Md. oU: Clare i: State, 30 lb. 1(53; Johns r. State. ").-) lb. 3r)0: Byevs r. State, 6:5 lb. 2G7. -Hugueiiiu I'. Baseley, 1") Ves. Jr. ISO; Anderson r. State, 3 H. & J. 174. ^Code, art. •■). sec. 4; State r. Williams, 5 Md. 82; Davis c. State. .Sy lb. 355. 3!^6; Hearu r. Gould, 51 lb. 319; State r. Soarboroup^h. 55 lb. 345; State i: McNally. lb. 559: Ilaitinan /•. State. CO lb. XIV. ••Code, art. 5, seo. 2. * Queen r. State, 5 H. & J. 232; Rawlings r. State. 1 Md. 127. "Keller r. State, 12 Md. 322. i;32 CRIMINAL LA\^^ and to tender to the court a bill of exceptions, which shall be signed and sealed by the court, as is now practised in civil cases; and the party tendering such bill of exceptions may appeal from such ruling or determination to the Court of Appeals; provided that the counsel for the accused shall xuake oath, that such appeal is not taken lor delay; and such appeal shall be heard by the Court of Appeals at the earliest convenient day after the same shall be transn)itted to said Court; and, after such appeal shall be entered, no judgment shall be rendered against the accused, in case he be found guilty, until the Court of Appeals shall have de- termined upon the exception; and the accused, if convicted, shall not be entitled to remain on bail until the case is reujanded from the Court of Appeals, except in cases in which the punishment is fine or confinement in Jail, or con- finement in Jail or Penitentiary, in the discretion of the court. ^ The right of appeal under the above ])rovision is confined exclusively to cases where exceptions are taken- at the trial/ The right to except to rulings of the court in crimi- nal cases rests solely upon the provisions above quoted, the statute of Westminster having rei'erence only to civil cases/ They must be sealed,^ as well as signes which are reviewable npon writ of error, such as rulings upon denuirrers.' Before a riilin*;" exceptcid to can be reversed, it must appear that the app(;l- lant lias been injunMl; hen(;e, wiiere a (juestion allowcMl to be i)ut to a witness is e.\(;epte(l to, the answer must be set foith, in order to show that it was prejudicial.- The pre- sumption always is, until the contrary be made to appear, that all things have been rightly and properly 356. 138 CRIMINAL LAW. mail, the consent of the woniaTi to the carnal interconrse is not indispensable, bnt the otfense may, as against him, exist thongh the interconrse was effected by force and against her will,^ or the woman was in such a state of stupe- faction as to be incapable of consent.- The penalty is a fine of ten dollars.' § 1 42. — Arson and Burning. — The offense of arson, which is a felony at common law, is defined* to be the malicious^ and voluntary (or wilfur) burning" of the house* of another,' by night or by day. The punishment is prescribed by statute." Statutes also provide against the burning of un- tenanted dwelling-houses,^^ vessels^" public buildings,*^ arsenals, magazines, ships or naval stores," fences, hay or tobacco,'^ outhouses and the like,'" and attemi)ting to burn dwelling-houses, outhouses or grain.'" The word ''empty" in section 12, article 27, Code of Public General Laws, must be considered as relative and used in contradistinction to enumerated articles, and, there- fore, within the view of the law, every barn that does not 'State r. Donovan, 61 Iowa, 27S: Egbert r. Greenwalt, 44 Mich. ^45; S. C, 38 Am. Rep. 260. ^Cotnm. v. Bakeman. 131 Mass. o77; S. C. 141 Am. Rep. 248. ^ Code, art. 27, sec. 5. ■*3 lust. 66; 1 Hale P. C 566. ^Kellenbeck v. State, lO Md. 431. * Jones r. Hungerford. 4 G. & J. 402. 'There must bean actual burning of the house or some part of it, though it is not necessax'y that any part should be wholly con- sumed or that the fire should have any continuance. 2 Bishop Or. L. ? 10; Cochrane r. State. 6 Md. 400. *The house is, in general terms, said to include a building, with its outbuildings, finished for habitation. 2 Bishop Cr. L. ? 11; Gib- son V. State, 54 Md. 447. "2 Bishop Cr. L. ^. conttiin personal property must be considered as empty.* A scliool-house, not jmrcel of adwellin<;-lioiise, is embiaeed by the statutory terms "any other outhouse not parcel of a dvvelliii<;-house."- The word "burn" is necessary in indictments for arson :^ it must also be allege lb. 4o "Code, art. 27, sees. 14, 15. '"lb., sec. 1(5. 140 CRIMINAL LAW. must be such that, if death had ensued, the off'eiise would have been, not manslaughter, but murder.' In the case ot' an assault with intent to rape, the evidence must show, not merely that the defendant committed an assault upon the woman for the purpose of having carnal intercoui'se with her. but that, at the time of committing the assault, he in- tended to comj)el her, by force and against her will, to have sexual intercourse wit h him, notwithstanding any resistance she might make.- The matter of "night-assaults" in the City of Baltimore is covered by special statutes.^ Where an assault is charged, the jury are to decide whether there was an intention to do any violence or injury. If, in a threatening and rude or angry matiner, a man points a sword or fork at another, or shakes his fist in the face of another, within striking distance, attended with present ability to strike, although no stroke is given, such act is an assault, notwithstanding the failure to strike; and the jury caunot infer a want of intention to do violence or injury merely from the failure to strike, m the absence of any declarations or circumstances indicating an absence of such intention, other than the fact that no blow was given. If, however there are any declarations or circum- stances tending to indicate a want of such intention, then the jury are bound to take them into consideration in deciding upon the intention.^ Declarations or acts accom- panying or immediately following the commission of the alleged assault are competent and proper evidence to explain the act. The circumstances proposed to be given in evidence need not have occurred at the precise time when the principal fact happened: if they arose either at the time or so soon thereafter as to constitute a part of the transaction, they serve to give color and detiniteness to it and are admissible.^ Where an assault with a specific ' 3 Wharton Cr. L. ?. 1279: Fenwick v. State, 63 Md. 239. -'State r. Cannada, »>9 Iowa, 397; Krnm r. State, 19 Neb. 728; State r. McDevitt, 69 Iowa, 549; People r. Lynch, 29 Mich. 274: Stale r. Kendall. 34 N. W. Rep. 843. 3 Code P. L. L., art. 4, sees. 71-73. * Hand}' '■. Johnson, 5 Md. 450. ' lb. SPECIFIC OFFEN.SKS. 141 intent is cliai'icd, the defendant may testily as to the particnlar intent entertained by liini. Tims, a jierson on trial for an assault witli intent to murder may testify as to tlie ]>ur|)ose for wliicli lie i)rocnred tlie implement with which he committed the assanlt.' An indictment for assanlt with intent to mnrder, rob or commit a rajte is j^ood, if it state, with the usnal precision, the facts requisite to constitnte an assanlt, and allef>es the intent with which it was n)ade in the words of the statnte:^ bnt it may }i<) further and alle;j;e an assault with intent fclonionslii to murder, rape or rob, ' The means of eflecting the criminal intent or the circumstances evincive of the design with which the act was done are considered matters of evidence, for the jury to demonstrate the intent, bnt need not be incorporated in the indictment/ When the indictment is for assanlt and battery, the omission to state the name of the i)arty upon whom the assault was committed is not fatal, if it appears b^' necessary intend- ment from another portion of the same count alleging the battery — the in. 201. 'Code, art 12. 'Oldham i: State, 5 G. 90: State r. Phelps. 9 Md. 21: Oweus r. State, 10 lb. 164. 142 CRIMINAL LAW. child.* The jnrisdictiou and iiiode of proceeding, being^ special, must be strictly pursued.^ The affidavit of the niothei-, the foundation of the pro- ceedings, may i)roper]y be made in the county in which she and the child reside, and be transmitted to the county in which the supposed father resides; and a magistrate of the latter county may recognize liim to appear before the court thereof, at its next session, to answer the charge.^ The indemnity must be given to the county in which the child is.^ Yet, while the i)rincipal design of the ])roceeding is to indemnify the county, its character as a criminal i)rose- cution to punish fornication is not thereby changed, and, when the offense was i)erpetrated in another State, no prosecution can be maintained here.-' If the putative father feels aggrieved by the judgment of the magistrate, he must i)roceed as the statute directs; otherwise the action of the magistrate is conclusive." When the party, how- ever, proceeds as directed, by entering into a recognizance for his ai)pearance at court, the same i)roceedings are had as in other criminal cases; that is, there must be a present- ment and indictment, upon which the trial must proceed as in other criminal cases." The regularity of the ])roceed- ings before the n)agistrate does not come into question upon the indictment.* Wheie the mother has given security to indemnify the county, all furtheri)roceedings are barred.* The indictment need not allege the residence of the mother, but must show in what county the child is at the time of the finding thereof.'" The proceedings before the magistrate need not be alleged.** ' Bake r. State. 21 Md. 422; Nefif v. State, 57 lb. 385. 2 Root V. State, 10 G. & J. 374. ='Ib. ■• lb.: Mong r. State, lb. 380; Norwood v. State, 45 Md. 68; Robin- son V. State, 68 lb. 617. * Owens i: State, 10 Md. 164. « Huyett V. Slick, 43 Md. 284. 'Norwood V. State, supra. ® Netf V. State, supra. 9 State V. Trimble. 33 Md. 468. '" Robinson v. State, supra. " Norwood V. State, supra. SPK(J1FIC OFFENSES. 14.'i The ordinary rules in re<»ar(l to the reknaiiey and admis- sihiiity of evidence |)revail.' The mere )»iesenee of the child in »:oiirt is not •;roiind ol' objection.' ]>nt it has been considered " dan«;'eroiis . 171; State v. Buchanan, 5 H. & J. 317. ''2 Bishop Cr. L. ^ 192; State c Buchanan, .tii])ra. 'State c. Buchanan, sujird. « Bloomer r. State, 48 M.l. 521. Cf. State v. Jackson, 82 N. C. 565. »2 Bishop Cr. L. ?. 187; note, 5 H. «& J. 500. '" Bloomer v. State, sitpra. "lb. 148 CRIMINAL LAW. conspiracy ori<;inate(l or was conducted has jurisdiction to punish the offense.^ An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and work- men is not indictable as a conspiracy, if such act, com- mitted by one person, would not be punishable as an oifense.- § 152. — Counterfeiting and Forgery. — The term counter- feit signifies the fabrication of a false image or representa- tion. It refers usually to imitations of coin or paper money. Forgery is defined to be the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efticacy, or the foundation of a legal liability.^ The entire subject of counterfeiting and forgery is regulated by statutes in this State.* The mode of pleading and the sufficiency of the evidence are likewise regulated by statnte.^ The alleged forged writing should be produced at the trial,*' or the proper foundation laid for secondary evidence, as in civil cases." To prove the scienter, evidence is admissible, that the defendant had, about the same time, uttered or at- tempted to utter other forged instruments of the same de- scrii)tion.^ § 153. — Cruelty to Animals. — There is no general legis- lation upon this subject. Various kinds of cruelty and neglect are provided for in local laws relating to the City of Baltimore" and several of the counties. ' Bloomer r. State, 48 Md. 521. 2 Code, ait. 27, sec. 31. 3 2 Bishop Cr. L. | 528; Arnold v. Cost, 3 G. & J. 220. " Code, art. 27, sec. 32-46. *Ib., 'i 291; ante, p. 73; Hawthorn v. State, 56 Md. 530. As to forgery of certificates of "Baltimore City stock," see Bishop V. State, 55 Md. 138. As to forgery of bank checks, see Hawthorn v. State, supra; Laird v. State, 61 Md. 309. « 3 Greeul. Ev. ^ 107. Mb.; Brashears v. State, 58 Md. r,^3. ** 3 Greenl. Ev. ^ 111 ; Bishop v. State, supra; Bell v. State, 57 Md. 108. ®Code, P. L. L. art. 4, sees. 241-245. SPECIFIC OFFENSES. 14!) § 154. — Defaulters. — Deiaultiiift- public officers are pun- isliable for neglect to pay over public nioneys within the time specified by statute.' § lo5. — Destroying Property Maliciously. — I'nderthis title, various otlenses are (ielined and made punishable by statute. - § 156. — Disturbance of Public Peace. — Any person who shall wilfully hinder or obstruct the free passage of persons passing by or along any public street or highway in any city or town of this State, or who shall wilfully disturb any neighborhood in such city or town, by loud and unseemly noises, or shall profanely curse and swear, or use obscene language, upon or near to any such street or highway, within the hearing of persons passing by or along such highway, shall, upon conviction thereof, be sentenced to a fine of not less than one dollar and to the costs of his prose- cution, or to such fine and costs and to imprisonment in jail, in the discretion of the court — this section not to apply to i'^rederick County.^ § 157. — Drunkenness and Disorderly Conduct. — Every person who shall be found drunk, or acting in a disorder!}' njanner, to the disturbance of the public peace, upon any public street or highway, in any city or county of this State, or at any place of public worship or public resort or amusement in any city or county of this State, shall be deemed guilty of a mis. — Female Sitters. — Female sitters are prohibited at variety entertainments and concert halls. All females who are allowed in or about the premises, who shall drink, smoke or partake of any kinds of eatables or refreshments at the expense of others, or solicit others to purchase such things as may be purchased there, upon which they shall receive or expect to receive a commission, or who may be paid a regular salary therefor, or who participate in any way in the profits thereof are deemed sitters." § 161. — Female Waiters. — Women or girls may not be employed as waiters at theaters, museums or other places of amusement in the City of Baltimore.' ' Code. art. 27, sees. 72-80. 2 Code. art. 27, sec. 81. ••' Code, art. 27, sees. 82, 84. As to form of indictvieiit , see State v. Scribner. 2 G. & J. 246, 253; Code, art. 27, sec. 288. *2 Bishop Cr. L. ? 415. * Stansbury v. Fogle. 37 Md. 369, 388, 389. «Code, art. 27, sees. 85, 86. 'Code P. L. L., art. 4, sees. 913, 914. SPECIFIC OFFENSES— CONTINUED. 153 § 105. — Fraud. — ^';u•iou.s acts and omissions in relation to bills of ladiny:,' butter and oleoniargaiine,- conversion by factors of consi^jned goods,' conversions of money or securities/ corporate niisrei)resentation,^ sales of tlour and whiskey,* fruit and vegetable packing," frauorations or individuals to work niore than twelve hours during each or any day of twenty-four hours is made a misdemeanor, punishable by a tine of one hun- dred dollars, and, in the case of corporations, is also a cause of forfeiture of the corporate franchise; " the sale, barter- ing or giving away, by dealers, vendors or manufacturers, of cigars, cigarettes, smoking or chewing tobacco to minors under the age of fourteen years, unless i)revionsly autlior- ized in writing by the parents or guardian, or where a minor is acting solely as the agent of his en)ployer, is punishable by a fine of not less than ten nor more than one hundred dollars, or, in default of payment, imi)risonment in jail for not less than five nor more than thirty days;* manufactories, manufacturing establishments and workshops are required to be kei)t in a sanitary condition, under a penalty of one hundred and titty dollars.' In the City of Baltimore it is made the duty of all employers of females in any mercan- tile or manufacturing business or occupation to provide and maintain suitable seats for the use of such female employees, and to permit the use of such seats by such employees to such an extent as may be reasonable for the pi-eservation of their health, a violation of this jyrovi- sion being a misdemeanor, punishable by a fine of one hundred and fifty dollars.*^ § 172. — Heating Steam Passenger Cars. — After the 1st day of May, 1890, steam railroads may uot heat their passenger cars by any stove, or furnace kept inside the car or suspended therefrom, the punishment being a penalty ' Code, art. 27, sees. 137, 138. "lb., sees. 139-141. 3 lb., sees. 142-144. nb., sees. 140-147. *Ib., sees. 148, 149. *Code P. L. L., art. 4, sees. 898, 399. 156 CRIMINAL LAW. of ooe thousand dollars, upon conviction, and an additional penalty of one hundred dollars for each day during which the violation shall continue/ § 173. — Importing Convicts. — Every commanding offi- cer, captain or master of any vessel who shall be convicted of wilfully importing in such vessel into this State from any foreign country, and not any part of the TTnited States, any felon or convict shall be sentenced to the Penitentiary for not less than eighteen months nor more than five years." § 174. — Incest. — Every ]>erson who shall knowingly have carnal knowledge of another person, being within the degrees of consanguinity within which marriages are pro- hibited by the law in this State, shall be deemed guilty of felony, and, upon conviction thereof, shall be punished by imi)risonment in tlie Peniteutiarj' for a term not less than one nor more than ten years, in the discretion of the court. ^ Sexual commerce between parties thus related is indictable, whether under the form of a marriage or without it;* and illegitimate consanguinity has the same effect as legitimate.^ § 175. — Kidnapping. — Every person, his counselors, aiders or abettors, who shall be convicted of the crime of kidnap- ping and forcibly or fraudulently carrying or causing to be carried out of this State any person, with intent to have such person carried out of this State, shall be sentenced to the Penitentiary for not less than two nor more than ten years.* Every person, his counselors, aiders or abettors, who shall be convicted of kidnapping and forcibly or fraud- ulently stealing or carrying away any child under the age of sixteen years, shall be sentenced to the Penitentiary for uot less than five nor more than twelve years.' § 176. — Larceny. — Larceny is defined to be the taking and removing, by trespass, of personal property which the trespasser knows to belong, either generally or specially, to- ' Code, art. 27, sees, loO, 151. nb., sec. 152. 'lb., sec. 153. * Bishop Stat. Cr. I 727. ^ lb.; State r. Laurence, 95 N. C. 659. «Cocle, art. 27, sec. 154. " lb., sec. 155. Sl'ECU'IC OFFENSES — rONTINUED. I.jT another, with the intent to deprive sueli owner of the ownership therein.' Whether or not the act must Ik- hicri cansa, is a question upon which the authorities are not har- monious.- Theort'enseis felony. The irrnn2 Bishop Cr. L. ^^001. Mb., 'i 1008. ^Code. art. 27, sec. 187. nh., sees. 188. 189. ^ State V. Elborn, 27 Md. 488. « 1 Bishop Cr. L. 'i 459; Martin v. State, 1 H. & J. 721. ' Bevard v. Hoflfmau, 18 Md. 479. SPECIFIC OFFENSES, CONTINUED. 163 inff that lie, at such a time and place, heing then and there a justice of the peace, uiiliiwfnlly, wilfully, oppressively, cor- ruptly and in violation and coiitcriipt of his duty as justice of the peace, neglected and reiuscd to deliver the said bank notes and i)roinissory notes to the said i)erson to whom they had been assigned, being then and there requested so to do, well knowing that he was entitled to receive the same. It was held, that the lacts alleged constituted an indictal)le (►ffense, and that it was immaterial whether the hiw imposed upon the magistrate the duty to receive the property oi- not — it having been received by him colore officii, if not virtnte officii, there could be no doubt as to Lis legal obligation to restore it to the person entitled.' § 18;i. — Manslaughter. — Homicide is the killing of a human being by a human being. A child beconu's a human being, within this detinition, when it has completely pro- ceeded in a living state fnun the body of its mother, whether it has or has not lueathed, and whether the umbilical cord has or has not been severed, and the killing of such a child is homicide, whether it be killed by injuries inflicted before, during or after birth.- As a general propo- sition, he whose act causes, in any way, directly or indi- rectly, the death of another, kills him, w ithm the law of homicide.^ If a man, in doing what the law neither requires nor forbids, or in strictly i)erforming a legal duty, and ex- ercising such care as the circumstances demand, causes the death of another, he commits no offense; but, if he is doing something which the law does not command, of a sort en- dangering life — or, if, in the [)erformauce of a legal duty, he is grossly careless, in a way to put life in jeojtardy. — or if he is committing some breach of the criminal laws which is malum in sc — or if he is neglecting a legal duty, where the neglect endangers life, — he then becomes guilty of a felonions homicide, should death, whether intended or un- iutended, result within a year and a day/ ' Hiss r. State. 24 Md. 556. As to prosecutions for raisconduct of officern of regvit ration , see Miiicher v. State. (56 Md. 227. ^Steplieu Dig. Cr. L., art. 218-. 2 Bisliop Cr. L. U 632, 633. =•2 Bishop (Jr. L. U 635-641. * lb., 'i 656. 164 CRIMINAL LA.W. Felonious homicides are divided into murder and raau- slaugliter, wliicli are regarded, not as different degrees ot the same offense, but as separate crimes/ Manslaughter is unlawful, or ielonious, homicide without mali(!e afore- thought, ^[urder is unlawful, or felonious, homicide with malice aforethought.'- The legal meaning of malice aforethought in cases of homicide is not confined to homicide committed in cold blood, with settled design and premeditation, but extends to all cases of homicide, however sudden the occasion, when the act is done with such cruel circumstances as are the ordinary symptoms of a wicked, depiaved and malig- nant spirit.* Every person convicted of the crime of manslaughter shall be sentenced to the Penitentiary for not more than ten years, or, in tlie discretion of the court, may be tined not more than five hundred dollars, or be imi)risoned in jail for not nu)re than two years, or be both fined and im- prisoned in jail.* § 184. — Marrying Unlawfully. — Under this title vari- ous acts in relation to marriages are prohibited and penal- ties prescribed therefor.^ § 185. — Mineral Waters, Porter and Other Bever- ages. — The i)r<)visions under tliis title are designed for the protection of bottlers and dealers in beverages in the ex- clusive use of certain boxes and vessels, a description of which has been recorded by them.* § 180. — Minors — Care and Protection of. — Every agent, officer or lepresentative of any institution, society or body, incorj)orated under the laws of this State, for the care, custody or protection of children or minors, having in his possession, custody or personal charge any minor, or person under twenty-one years of age, for any purpose connected with the objects of such institution, society or body, shall ' Weighoist V. State, 7 Md. 442, 451. =* Stephen Dig. Cr. L., art. 223. 3 U. S. V. Cornell, 2 Mason, 91 ; Comm. i: Webster, 5 Cusb. 295, 306, 307, 308; Nye r. People, 35 Mich. 16. ^Code, art. 27, sec. 190. nb., sees. 191-200. «Ib., sees. 201-207. SPECIFIC OFFENSES, CONTINUED. 105 be entitled to all the privileges and authority of a con- servator of the peace ; and any person, whether under the claim or color of authority over the person of such minor, as parent, guardian or otherwise, or under any other color, pretense or claim, who shall, in any manner, interfere with or obstruct such agent, oflicer or representative, in re- lation to his possession, custody or j)ersonal charge of such minor, shall be guilty of a misdemeanor; and it shall be the duty of all oflic^ers of the police, policemen, constables and otticers and oHicials of every description having the authority to make arrests to enforce this section in every particular.' It shall be unkiwful for any i)erson, b»i he [a] licensed dealer or not, to sell, barter or give away any firearms whatsoever or other deadly weapons, except shot guns, fowling pieces anremises to be so used, or not giving ' P. W. & B. R. R. r. State, 20 Md. 157. ' 1 Bishop Cr. L. 'i 1079; Wioe v. State. S Md. 416. » Code, art. 27, sec 219. ^Ib., sec. 3'20. As to the legal test of " iudecency,"" see 11 Crini. L. Mag. 121. ^Nicholson v. State, 36 Md. XE. 170 CRIMINAL LAW. inlormation, if their premises are so used, or, in any man- ner, soliciting or causing others to visit such places or to use oi)ium, or exhibiting- apparatus, devices or instruments for smoking or using opium, or participating in such ex- hibition are guilty of a misdemeanor; and provision is made for searching premises and seizing and destroying appa- ratus; but this legislation does not apply to druggists or physicians, or others engaged in the legitimate use or sale of opium. ^ § 19ii. — Oysters. — Various penal provisions in relation to oysters, their destruction, measuring them, the time of taking them are to be found in the Code of Public General Laws,' and this legislation has, on a number of occasions, been the subject of judicial interpretation. The decisions will be found collected in a note.' ^ 19;',. — Perjury. — Perjury, at the common law, is defined to be the wilful giving, under oath, in a judicial proceed- ing or course of justice, of false testimony material to the issue or point of inquiry.* An oath or affirmation, if made wilfully and falsely, in any of the following cases, shall be deemed perjury: first, in all cases where false swearing would be perjury at com- mon law; secondly, in all affidavits required by law to be taken; thirdly, all affidavits to accounts or claims made for the purpose of inducing any court or officer to pass such accounts or claims; fourthly, all affidavits required to be made to reports and returns made to the General Assembly or any officer of the government.^ Any person who shall procure another to make a false oath or affirmation in any of the cases embraced in the preced- ' Code, art. 27, sees. 221-225. ^Art. 72. 'Destroying oysters— State v. Mister, o Md. 11. Bedding of oysters— Phipps r. State, 22 Md. 380. Disposing of oysters by heap- ing measure— McGrath r. State, 46 Md. 631. Carrying oysters with- out license— State v. Insley, 64 Md. 28. Dredging beyond prescribed limits— Jones v. State, 68 Md. 613. "2 Bishop Cr. L. 'i 1015. 5 Code, art. 27, sec. 226; Deckard v. State, 38 Md. 186; State v. Bixler, 62 lb. 3.54. SPECIFIC OFFENSES, CONTINUED. 171 ing section sliall be deemed guilty of suboruatioii of j)er- jnrv.' In indictments for perjury it is sutficient to set forth the substance of the offense charged upon the defendant and by what court or before wliom the oath was taken, aver- ring such court or person or persons to liave a competent autliority to administer the same, together with the proper averment or averments to falsify tli<- matter or matters wherein the perjury or ])erjuries is or are assigned, with- out setting forth the bill, answer, information, indictment, declaration or any part of any record or proceeding, either in law or equity, other than as aforesaid, and without set- ting forth the commission or authority of the court or per- son or persons before whom the perjury was committed. - In informations or indictments for subornation of i)er- jury, or for corrupt bargaining or contracting with others to commit wilful and corrupt perjury, it is sufficient to set forth the substance of the offense charged upon tlie defend- ant, without setting forth the bill, answer, information, in- dictment, declaration or any part of the record or proceed- ing, either in law or equity, and without setting forth the €ommission or authority of the court or person or persons before whom the perjury was committed, or was agreed or promised to be committed.^ Every person who shall be convicted of the crime of per- jury or subornation of perjury shall be sentenced to undergo a continement in the Penitentiary for not less than five nor more than ten years.* § 194. — Poison — Attempting To. — Every person, his aiders, a 490. •'Weed r. State. 55 Ala. 13; Hill r. Eldridge. 126 Mass. 234. Cf. Bain v. State. 61 Ala. 75; Cherry i\ State, 68 lb. 29; Comstock v. State, 14 Neb. 205. 207. "Code, art. 27, sec. 232. 'Code, art. 27, sec. 234; onte. e presumed leloniously to break and enter into any «lwelling house, warcdiouse, store- house, stable or outhouse, or shall have upon him any pistol, hanger, cutlass, bludgeon or other offensive weapon, also at i)laces and under circumstances fiom which may be i)re- sumed an intent feloniously to assault any ])erson, or shall be found in or ujton any dwelling liouse, warehouse, store- house, stalde or outhouse, or in any enclosed yard or garden or area belonging to any house, with an intent to steal any goods or chattels, every such i)erson shall be deemed a rogue and a vagabond, and, on being convicted thereof, shall besentencejir nor more tiian ten years.' § L»()4. — Telegraphs. — Any person who shall nnlawfiilly and intentionally injure, molest or destrov any of the lines, posts, i)iers or al)ntments, or tiit; materials or property conneeted with the workinjjf ot any tele<;raph lines, shall, on conviction thereof, be deemed guilty of a misdemeanor and be punished by a line not exceeding live hundi(,'d dollars, or bv imprisonment in the county or city jail not exceeding" one year, or both, at the ickpocket. The offense is purely statutory and the method of i)ractice and procedure are regulated by the statute, = which must be strictly construed.^ The proof must establish that the accused was a thief or pickpocket within one year from the time of the institution of the prosecution and must be confined to acts of stealing and thieving.* § 207.— Toy Pistols. — It shall be unlawful for any person within this State to manufacture, or to sell, barter or give away the cartridge toy pistol to any one whomsoever. Any person violating this section shall, on conviction thereof, pay a fine of not less than fifty nor more than two hundred dollars, together with the costs of prosecution, and, upon failure to pay said fine and costs, shall be committed to jail and confined therein until such fine and costs are paid, or for the period of sixty ly of any city, town, village, community or household is fouled or rendered unfit for drinking and domestic i)urposes, he shall be guilty of a misdemeanor, and upon conviction thereof in a court of comj)etent jurisdiction, be fined not more than two hundred dollars for every such offense, and, after reasonable notice, not exceeding fifteen days, from the State Board of Health or any local sanitary authority, to di.scontinue the act whereby such water supply is fouled, a lurther sum of not more than fifty dollars for every day during which the offense is continued/ • Code. art. 27, sec 277. I N OEX. PAGE. ABATEMENT. plea in 89 ABDUCTION. defined 135 what constitutes , 135 evidence 135 ABETTING. what, in felonies 6 ABORTION. what constitutes 136 indictment 136-137 evidence 137 " ABOUT HIS PERSON." meaning in statute 140 '^ ABUSE." meaning in statute 173 ACCESSORY. before the fact, defined , 6 guilt depends upon that of principal 6 after the fact, defined 6 principal must be convicted first 15 but accessory may sometimes be held guilty of substan- tive crime G wife can not be made to husband's felony lo ACCOMPLICES. testimony of 102-103 ADMISSIONS. defined 103 admissibility in evidence 103 ADULTERY. what constitutes 137-13S penalty 138 AGE. full, what 10 burden of proof 11 ignorance of no defense upon charge of abduction 135 how established. 160 182 CRIMINAL LAW. PAGE. AIDI}fG. what, in felonies 6 ALMANACS. admissible in evidence 107 AMBASSADORS. privileged from arrest 45-46 AMENDMENT. of indictment 80-85 ANIMALS. cruelty to 148 APPRENTICES. negro, constitutionality of statutes 37 APPEAL. to be prosecuted without delay 133 upon prosecutions for fines or penalties 131 from rulings at the trial 131-133 APPEAL OF FELONY. obsolete 53 ARRAIGNMENT. form of 87-88 procedure 88 ARREST. who may make 42-43 causes and manner of 43-44 pursuit of offenders 44-45 time of 45 exemptions from 45-46 when may be made without warrant 46 when must be upon warrant 46-47 ARREST OF JUDGMENT. when granted 116-117 ARSON. defined 138 indictment • 139 ASSAULT. defined 139 what constitutes 139 upon wife 139 at night, in Baltimore City 140 with specific intent 139-140 with intent to rape, by boy under fourteen years 11 indictment 141 evidence 140-141 compromising charge 8 sentence 123 INDEX. 183 PAGE. ATTEMFr. defined 5 to poisou 171-172 AUTREFOIS ACQUIT. pleaof 89 AUTREFOIS ATTAINT. plea of 89 AUTREFOIS CONVICT. plea of 89 BAIL. defined 48 ruauiier of takiug 48 iu what cases allowed 49-51 may be taken upon liabeas corpus 50 how taken in courts. 51 arrest after forfeiture 51 surreudet' by surety 52 BAIL-BOND. wlien may be taken 50 BASTARDY. proceedings classed as criminal 1-2 procedure 141-3 BATTERY. defined 139 BEGGARS. procedure in Baltimore City 62 BEVERAGES. statutes for protection of bottlers and dealers 164 BIGAMY. doctrine in relation to 143-4 BLASPHEMY. punishable by statute 144 BOUNDARIES. statutory offenses iu relation to. 144 BREAKING. into dwellings and the like 145-6 of doors, to make arrests 44-45 BRIBERY. of voters 144 of public ofl[icers 144 BURGLARY. defined 144 what constitutes 144-145 184 CRIMINAL LA.W. PAGE. BURNING. iu cases of arson, what constitutes 138 statutory offenses enumerated 138 CARNAL KNOWLEDGE. of females under ten years 172-173 "CARRY" meaning in statute 146 CARS. -heating of 15o-156 CERTIORARI. to examine proceedings of justice of the peace 62 CHANGE OF VENUE. nature of power 28 CHARGE. ■ to grand jury 55-56 CHILD, CHILDREN. competency as witnesses 101-102 unlawful employment 155 carnal abuse of female under ten years 173 kidnapping 156 CHILDREN'S SOCIETIES. powers of ofHcers 42-43 CLERGY. . benefit of .... 118 COMMITMENTS. to be returned to Criminal Court 53 to be under seal 126 how far may be assailed 126 COMMON THIEVES. statutory provisions 178 COMPOUNDING. defined :..'....... ■■......„,,, 7-8 COMPROMISE of assaults and other offenses 8 '^CONCEALED." meaning iu statute 146 CONCEALED WEAPONS. discussion of offense 146-147 CONFESSION. . defined • 103 rule*as to admissibility , 103-105 CONFRONTING. with witnesses, meaning 26 INDEX. IHH PAGE. CONSF^RVATORS OF THE PEACE. who are 42-43 CONSPIRACY. discussion of offense ; 147-148 constable:^. duties in relation to arrest 42 before whom to being prisoner. .. 47 CONSTITUTION. general rule of construction 23 CONVICTS. fugitive, procedure 153 importing, punishable 156 CORPORATIONS. extent of criminal liability 10 COSTS. when accused not charged with 125-126 imprisonment for hon-payment of 29 COUNTERFEITING. ' discussion of offense 148 COVERTURE. effect upon criminal responsibility 11-13 CRIME, CRIMES. defined .'. 1 classification 3-4 infamous, defined 4-5 CRIMINATION. of self, meaning....^. 26-27 CRIMINAL LAW. defined 1 CRIMINAL PROCEEDINGS. what classed as 1-2 CRIMINAL PROSECUTIONS. constitutional provisions in relation to 24 CRUEL PUNISHMENT. meaning of term 31-32 CRUELTY. to animals 14s DEBT. actions to recover penalties classed as criminal 2 imprisonment for '. 2;^-29 DECLARATIONS. admissibilit5- of ...103-106.167 18G CRIMINAL LAW. PAGE. DEFAULTERS. public officers punishable 149 DELEGATION. of legislative powers 33 DEMURRERS. practice in relation to 88-89 DESTROYING PROPERTY. offense under statues 149 DISCHARGE. when prisoner entitled to 47 DISORDERLY CONDUCT. procedure in cases of 57-58 punishment 149-150 DISORDERLY PERSONS. procedure in Baltimore City 63 DISTURBANCE. of public peace 149 DOORS. breaking open 44-45 "DRUNK.'- definition 150 DRUNKENNESS. how affects responsibility 21-22 procedure for statutory offense 57-58 punishment 149-150 DUEL, DUELING. definition 150 discussion of offense 150 DWELLING-HOUSE. definition 145 DYING DECLARATIONS. doctrine in relation to 106 ELECTIONS. offenses in connection with 151 EMBEZZLEMENT. di-scussion of offense 151 EMBRACERY. of jurors 144 EMPLOYEES. hours of work 155 seats for female 155 "EMPTY." meaning in statute 138-189 INDEX. 1.S7 PAOE. ENGINES. See Traction Engines. *' ENTICE." definition 13G ERROR. See Writ of Error. ESCAPE. of prisoner, retaking 45 from Penitentiary 152 EVIDENCE. compelling accused to give, doctrine 26-27 relevancy 107-109 surplusage 109 allegata et probata 109 suflSciency 110-111 EXAMINATION. preliminary, how conducted 47 may be waived 48 EXCEPTIONS. when and how taken 132-133 EXPERTS. testimony of 106-107 EX POST FACTO LAWS. defined 37 FALSE PRETENSES. discussion of offense 153 indictment 73 FELONY. definition 4 FEMALE EMPLOYEES. seats to be provided for 155 FEMALE SITTERS. prohibited 152 FEMALE WAITERS. prohibited 152,177-178 FEME COVERT. criminal liability 11-13 FINES. mode of recovering 124-125 to whom payable 125 discharge of persons unable to pay 125 remission of 129 FISH AND FISHERIES. statutory provisions 174 188 CRIMINAL LAW. PAGE. FISHERY. common right of 35 FORCIBLE ENTRY AND DETAINER. proceedings classed as criminal 2 FORGERY. discussion of offense 148 indictment 73 FORNICATION. with negroes 168 FRAUD. acts made penal under this title 153 FUGITIVE CONVICTS. procedure in relation to 153 FUNERALS. collection of tolls from 153 GAMING. certain acts prohibited 153-154 GOVERNOR. powers to grant pardons and reprieves 128 may commute or change sentence of death 128 may remit fines and recognizances 129 may grant 7ioUe prosefpii 128 duties where sentence of death pronounced 128 GRAND JURY. inquest by 53 how selected 54 how sworn and charged 54-56 irregularities in constitution... 56 GRANTS. to corporations, how construed 39-40 GRAVEYARD DESECRATION. penalties 154 GUILTY. plea of 88 GUNNING. penalty for unlawful 154 HABEAS CORPUS. bail may be taken upon 50 in case of minors 67, 68 controverting truth of return 126 HEALTH. of community, State may regulate 32 provisions for protection of 154-155 INDEX. !> PAGE. HEARING. prel i 111 iuary, procedure 40-47 HOMICIDE. defined 1C3 verdict in cases of 112-113 ''HOUSE/' definition 138 HOUSE. OF CORRECTION. sentence to 122-123 HUE AND CRY. defined 45 manner of raising 45 IGNORANCE. of law 14 of fact 14-18 INCEST. discussion of ofifense 156 "INDECENCY." legal test of 169 INDICTMENT. prosecution by 72 formal allegations 72-74 certainty '''4 names of third persons 75 allegation of circumstance constituting illegality 75-76 allegation of time and place 76-77 matters unknown 77 technical words 77-78 surplusage 78 upon statutes 7S-79 conclusion 79 joinder of counts 79-80 allegation of ownership or possession 80 amendment 80-S5 mode of returning into court 83 jury may be sworn upon one count 9^ INFAMOUS CRIMES. defined 4-5 INFANT. defined 10 criminal capacity.. 10-11 sentence 120-122 INFORMATION. prosecution by obsolete 53 VJO CRIMINAL LAW. PAGE. INNOCENCE. presumption of 110-111 INSANITY. defined 19 effect upon responsibility.. 19 moral, or lesion of will 20, 21 procedure when alleged 114-115 INSPECTION. of tobacco, constitutionality of statutes 34-35 INSTRUCTIONS. to jury, duty of court 98-99 INTENT. evil, doctrine of 18 INTERNAL POLICE. State may regulate 32-33 INTOXICATION. how far affects responsibility 21-22 JUDGES. of superior courts are conservators of the peace. 46 may issue warrants of arrests 46 may conduct preliminary hearing 46 JUDGMENT. how to be rendered 117-118 statutory provisions 118 -120 courts retain control of during term 118 arrest of 116-117 reversal and its consequences 118,138-134 JURISDICTION. criminal, in what courts vested 87 police justices in Baltimore City 58-59 justices of the peace in counties 59-61 goods stolen in another state 87 conspiracies conducted indifferent states 87 where act done in one county and death ensues in another 86 where act done on Chesapeake Bay 86 where act committed on steamboat or railroad train 86-87 ]3lea to 89 JURORS. privileged from arrest 46 how drawn 54 intimidating, impeding and the like 144 INDEX. 11)1 PAGE. JURY. right to trial by. how claimed in certain cases 58-61 uiauuer -114 maybe polled 113-114 discharge of 98 special panel may be selected to try removed case ... 91 JUSTICES OF THE PEACE. police jurisdiction in Baltimore City 47, 58-59 summary jurisdiction in counties 59-61 issuing of warrants ' 46 powers as to bail 49-50 preliminary hearing 46 procedure upon charges of drunkenness and disorderly conduct 57-58 jurisdiction in relation to "tramps.'' 61-63 certiorari may be directed to 62 JUVENILE INSTITUTIONS. special provisions 67 regularity of commitments to immaterial 68 powers of otticers of 42-43, 164-165 KIDNAPPING. penalty 156 LARCENY. defined 156 what constitutes 157 goods taken in another state 158 indictment 158 punishment 157-158 sentence 122-123, 159 LETTERS. wrongfully opening 159 LIBEL. defined 159 what constitutes 159 truth may be given in evidence 159-160 LICENSE. to sell liquor, may be modified or annulled by Legislature 32-33 statutes, penalties ICO 192 CRIMINAL LAW. PAGE. LIMITATIONS, STATUTE OF. bearing 11 pou evidence 109-110 LIQUOR SELLING. ma J- be prohibited 32-33 to minor 14-18, 160 on election days 151 evidence to prove real nature of transaction where evasion attempted 160 scienter 15 LOCAL OPTION LAWS. •constitutionality 33-34 LOTTERIES. discussion of offense 161 MAIMING. definition 162 indictment 162 punishment 163 MALFEASANCE IN OFFICE. discussion of offense 162-163 MALICE AFORETHOUGHT. definition... 164 MANSLAUGHTER. definition 164 punishment 164 MARRYING UNLAWFULLY. statutory prohibitions 164 MARYLAND HOUSE OF CORRECTION. See House of Correction. MAYOR OF BALTIMORE. vested with police powers of justice of the peace, 46 MAYHEM. See Maiming. MENTAL INCAPACITY. discussed 18-20 MERGER. at common law «-9 statutory provision 9 MINERAL WATERS. statutes for protection of bottlers and dealers 164 MINORS. meaning of term 10 right of State to protect welfare 63-64 care and protection of 164-5 proceedings in relation to 63-68 commitment of mendicant and vagrant 64-66 INDEX. lO.i PAGE. Ml'i^ORii— Continued. coinmitmeut of destitute and suffering G6-67 procedure wlien brouglit up by //o^er^w t'o?7i'/.s (J8 no trial necessary to authorize commitment for care 63 but. where proceeding^ is criminal, same formalities ne- cessary as in case of adults 04 sale of liquor to 100 selling or giving weapons to lO-"' giving cigars, cigarettes or tobacco to l")") l)ermitting to play at games 165 pawnbrokers receiving deposits from 16 ") may testify as to their own age 160 sentence of convict 120-122 MINISTERS. foreign, privileged from arrest 45-46 MISDEMEANOR. defined 4 MISPRISION. defined '"^ MISTRIAL. doctrine discussed 110 MORAL INSANITY. relation to responsibility 20-21 MORALS. of community. State may regulate 32 MUNICIPAL CORPORATIONS. police powers 3 MURDEbt. defined 104, 106 classes .of 166 "wilful, deliberate and premeditated,'' meaning 168 evidence 167 verdict 100 punishment 166-167 NEGRO APPRENTICES. constitutionality of statutes 37 NEGROES. fornication with 168 NOLLE PROSEQUI. defined 127 power of State's attorney 127 Governor may grant 128 effect of 128 i;; 194: CRIMINAL LAW. PAGE. NUISANCE. defined 168 what constitutes 168 prescription can not be set up as defense 168 evidence..... , 2 judgment to abate 169 OATH. of petit jurors 97-98 of grand jurors 55 OBSCENE PUBLICATIONS. statutory prohibition 169 OBSTRUCTION OF RAILROADS. statutory provision 172 OFFICERS. See Peace Officers. OPIUM JOINTS. statutory provision 169-170 OYSTERS. statutorj' provisions 170 PARDON. Governor may grant 128 violation of condition 129 PARTICIPATION IN CRIME. degrees of 5-6 PAWNBROKERS. - not to receive deposits from minors 165 PEACE OFFICERS. who are 42-43 when may break doors 44-45 PEACE WARRANTS. nature and procedure 70-71 PENITENTIARY. escaping from 152 PERJURY. definition 170 what constitutes 170 indictment 171 punishment 171 subornation of 170-171 PICKPOCKETS. statutory provisions 178 INDEX. 195 PAGE. PLEA. necessary to enable trial to proceed 8b of guilty *^^ not guilty 89 special 89 PLEADING. how to be conducted 88-S9 POISON. attempting to 171-172 POLICE COMMISSIONERS. of Baltimore City, powers 42 POLICEMEN. duty to arrest 42 before whom to bring prisoner in Baltimore City 47 special, for corporations 42 POLICE POWERS. of municipal corporations 3 POOLS. on horse races 154 PRAYERS. duty of court in relation to 98-99 PRESENTMENT. definition 53-54 trial upon 53 PRESUMPTION. of innocence 110-111 PRINCIPAL. defined 5 in first degree 5-6 in second degree 5-6 PRISONERS. custody of 126-127 PROFANITY. punishable by statute 144 PROSECUTIONS. criminal, constitutional provisions 24 PUNISHMENT. for felony 118 cruel or unusual 31-82 PURSUIT. of offenders 44-45 190 CRIMINAL LAW. PAfiE. RAILROADS. obstructing 172 RAPE. defined 172 what constitutes 172 when accused under fourteen years 11 punishment 173 REASONABLE DOUBT. doctrine of 110-111 RECEIVER, RECEIVING. definition 6 procedure 7 punishment 173 RECOGNIZANCE. is the mode of taking bail in this State 48 requisites 48 enforcible 48 forfeiture 48-49 may be taken upon Tia&eas corpus 48 State's attorney may order execution 51 proceedings after execution 51-52 arrest after forfeiture 51 surrender by surety 52 Governor may remit 52, 129 return to Criminal Court 53 REMOVAL OF CAUSES. nature of power 28 statutory regulations 89-93 RELIGIOUS MEETINGS. offenses in relation to 174 REPRESENTATIVES. foreign, privilege from arrest 45-46 REPRIEVE. Governor may grant 128 RESCUE. of prisoner 6 RES GESTAE. doctrine of 105-106 RIOT. punishment 123 RIVERS. casting ballast into 174 INDEX. 107 PAOE. ROBBERY. defined 174 what constitutes 174 punishment 175 "ROGUES AND VAGABONDS." statutory provisions 176 SABBATH BREAKING. what constitutes 17.5-176 SEARCH WARRANTS. definition 68 how granted and executed 69-70 SEATS. for female employees 155 SECOND OFFENSE. proof required. Ill verdict 113 SELF-CRIMINATION. what meaus 26-27 SENATORS. privileged from arrest 45 SENTENCE. requisites 117-118 how to be rendered 117-118 statutory provisions 118-120 of minors 120-122 to House of Correction , 122-123 of death, powers of Governor 128-129 SHERIFF. duty to arrest 42 may take bail-bond 50 SITTERS. female, prohibited 152 SODOMY. definition 176 punishment 177 STATE'S ATTORNEY. power in relation to ?io?/e prosegijj 127 STATUTES. when may be declared invalid 23 general rule of construction 38-39 repeal 40-41 108 CRIMINAL LAW. PAGE. STET. defined • 127 effect of 128 SUBORNATION. of perjury 170-171 SUMMARY PROCEEDINGS. defined 57 constitutionality 24-26 statutory provisions 57-62 SUNDAY. statutory provisions 175-179 SURETY OF THE PEACE. when demandable 70-71 procedure 70-71 SURPLUSAGE. when treated as 78 "TARRING AND FEATHERING." penalty 162 TELEGRAPHS. statutory provisions 177 THEATRICAL EXHIBITIONS. employment of females 177-178 THEFT-BOTE. defined 7 THIEVES. common 178 TIME. allegation of 76-77 proof of 109-110 TOBACCO INSPECTIONS. constitutionality of statutes 34-35 TOWN BAILIFFS. duty to arrest '^2 TOY PISTOLS. statutory provisions ^'° TRACTION ENGINES. statutory provisions 1'° TRADERS. non-resident 36-37 TRAMPS. procedure in relation to 61-62 sentence ^''** INDEX. 1!M> PAGE. TREASON. discussion of oflfense 3-4 TRIAL. when said to commence 98 upon commitment or presentment 53 before court witliout jurj' 03-94 UNUSUAL PUNISHMENT. meaning 31-32 '^VAGABONDS."" procedure in Baltimore City 02 ''VAGRANTS." procedure in Baltimore City 62 VALUE. allegation of 158 VENUE. change of 28, 89-93 VERDICT. general doctrine 112 rendition of 113-114 polling jury 113-114 effect of 115-116 in cases of homicide 112-113 in second-offense cases 113 where defense insanity 114-115 VOTERS. bribery of 144 WAITERS. employment of females 152, 177-178 WARRANT. to be under seal 126 when to be granted 46-47 constitutional prohibition 47 WATER SUPPLY. pollution of sources of 178-179 WEAPONS. carrying of 146-147 WHIPPING. punishment of, constitutionality of statute 31-32 WITNESSES. privileged from arrest 46 confronting with, meaning 26 200 CRIMINAL LAW. PAGE. \V ITN ESSES - Continued . competeucy 100-102 number necessary to convict 102 intimidating, impeding and the like 144 WRIT OF ERROR. formal dispensed with 131 when lies 130 what brings up for review — 180 to be prosecuted without delay 133 does not stay execution... 131 '^'JAL LIBRARY f.- """"Ill AA 000 594 074 7 ' • ■ M .' » », '^