Bake v. State

21 Md. 422 | Md. | 1864

Bartol, J.,

delivered the opinion of this Court:

This was a prosecution for bastardy under the 13th Article of the Code. The preliminary proceeding in such case against the putative father, is had before a justice of the peace. By the 5th section, the party charged is secured a trial before the Circuit Court of the County, upon his entering into recognizance to appear “at the next Circuit Court,” and the same section directs, that “such proceedings shall thereupon be had as in other criminal cases.”

These provisions of the Code are similar to those of the Act of 1781 and its supplements, which were considered by the Court of Appeals in Oldham vs. The State, 5 Gill, 90, and Owens vs. The State, 10 Md. Rep., 164. In the former case Chief Justice Archer said: “The proceeding is treated by the law as a criminal proceeding, and it is classed by the law itself as a criminal case,” and in Owens vs. The State, the same construction of the Act was adopted. In both cases the Court say, although one purpose of the law is to indemnify the County, this does not change the character of the proceeding, which is criminal in its nature, designed to punish the offence of fornication.

(Decided May 27th, 1864.)

We entertain no doubt that such a prosecution is within the 10th section of the 51th Article of the Code, and must be commenced, within one year from the time of the offence committed; that is to say, from the birth of the illegitimate child, when, the offence is consummated for which the 13th Article of the Code provides the punishment.

In this case the appellant by his fourth plea alleges, that the prosecution and proceedings were not commenced “within one year from the birth of said illegitimate child, mentioned in said indictment.” To this, the State, by its attorney, demurred, thereby admitting the fact as pleaded, which under the 10th section of the 51th Article is a bar to the prosecution.

In our opinion the Circuit Court erred in ruling’ the plea insufficient and in sustaining the demurrer, the judgment must therefore be reversed.

Judgment reversed.