58 A.2d 906 | Md. | 1948
William B. Duncan, aged 82, of Pocomoke, indicted for assault and battery on Frank Willett on March 1, 1947, was tried and found guilty by a jury on October 23 in the Circuit Court for Worcester County. On the same day the two presiding judges entered judgment on the verdict and sentenced defendant to pay a fine of $500 and costs. He immediately paid the fine and costs. On October 28 he entered an appeal from the judgment.
The Attorney General suggests that the appeal should be dismissed because appellant, by paying the fine, waived his right to an appeal. In this country there is a conflict in the decisions on the right of a defendant in a criminal case, after he has been convicted and has paid the fine imposed upon him, to have the judgment of conviction reviewed on appeal. In a majority of the jurisdictions *488
where the question has arisen it has been held that a defendant, by voluntarily paying his fine, waives his right to obtain a review of the conviction by the appellate court. Commonwealth v.Gipner,
In 1931 the Supreme Court of Indiana, while acknowledging that some courts had held that an appeal in a criminal case will be dismissed as moot where the appellant has satisfied the judgment, asserted that the better reasoning is with the cases to the contrary, and that the theory and result of these cases are more consonant with justice. In support of this view Justice Treanor said: "The right of reputation was early recognized in Anglo-American law, and the machinery of legal redress is at the disposal of any person to vindicate *489
his good name. * * * Thus it is clear that the law recognizes and protects the individual's interest in his reputation from defamation that imputes criminal misconduct, regardless of pecuniary damage; and it would seem absurdly inconsistent to dismiss as moot a proceeding initiated to clear one's reputation of the infamy and stigma resulting from an allegedly erroneous conviction on a criminal charge, even though the one seeking vindication cannot, for reasons of public policy, recover the amount of his fine and costs, nor compel the state to pay damages for his unjust imprisonment." State ex rel. Lopez v. Killigrew,
In 1943 the United States Supreme Court in St. Pierre v.United States,
In 1946 the Supreme Court developed the law further in Fiswickv. United States,
On this appeal we are not called upon to decide whether appellant could recover the amount of the fine if he should be given a new trial and acquitted. But certainly he would have the right to seek its recovery. We hold that the payment of the fine did not deprive him of his statutory right of appeal since he still has a substantial stake in the judgment of conviction in view of our constitutional provision that the Governor has the power to remit fines and forfeitures for offences against the State. Md. Constitution, art. 2, sec. 20.
Appellant contends that the trial judges committed reversible error in refusing to strike out irrelevant testimony of William Mason, one of the witnesses for the State. Mason testified that it was on the afternoon of March 2 when he heard about the alleged assault. The State's Attorney asked him whether he heard Duncan make any remark about it. His answer was: "Well, yes and no. * * * He was talking to a bunch of men. He didn't mention no names." Six times the State's Attorney urged him to tell what he heard Duncan say. At first he indicated that he could not recall the exact words. But after the State's Attorney's requests, he stated: "I can tell you what he said. It doesn't apply to this case." The State's Attorney insisted upon an answer. He then testified: "Well, he said if he didn't die in the hospital, he would kill him when he came out." When the State's Attorney then inquired whether "that was said by this Mr. Duncan," he explained: "Mr. Duncan and four or five men were standing there. I don't know whether Mr. Duncan said it or who said it." Counsel for defendant moved to strike out the testimony, but the Court overruled the motion. *491
In a criminal prosecution for assault, any declaration made by the accused shortly before or after the assault indicating a desire to inflict violence upon the person assaulted is admissible in evidence to show malice. Hodge v. State,
Judgment reversed and case remanded for a new trial. *492