2 A.2d 430 | Md. | 1938
The appellant, Chester Friend, was arrested on a warrant, issued by a justice of the peace for Caroline County, charging him with "unlawfully having received certain stolen goods under the value of $25.00 knowing them to have been stolen on or about March 15th, 1938, the property of Perry Thomas." He was tried, convicted and sentenced to nine months in the Maryland House of Correction. From this judgment and sentence the defendant appealed to the Circuit Court for Caroline County. While the appeal was pending, there was an indictment returned against him by the grand jury for that county. The offense charged in the indictment was the same as that in the warrant. The indictment states that "Chester Friend and Lester Thomas late of the County aforesaid, on the sixteenth day of March, in the year of our Lord nineteen hundred and thirty-eight at the county aforesaid nine chickens, each chicken of the value of one dollar, current money, of the goods and chattels, moneys and properties of Perry Thomas, then lately before unlawfully stolen, taken and carried away, unlawfully did then and there have and receive * * *." It is admitted in a statement of facts, filed in support of a motion to quash the indictment, that the goods received, and described in the indictment, are the same as those in the warrant upon which the accused was tried by the justice of the peace and that the crime was the same offense in each of these proceedings. After the indictment was found, the state's attorney entered a nolleprosequi of the case pending on the appeal. The appellant then filed the motion to quash the indictment, supported by an affidavit and the agreed statement of *354
facts, all of which clearly presented to the trial court the question here to be considered. The defendant claimed that for the crime charged under the indictment he was being twice put in jeopardy for the same offense. The plea to that effect is defective in that it is not verified by affidavit. Johns v.State,
It is apparent that, if the law so stood at the time of the trial of the defendant, the justice of the peace would have been without jurisdiction, and the conviction would have been unlawful and would not put the defendant in jeopardy. Commonwealth v.Cunningham,
The effect of these provisions is obvious, and justices of the peace, excluding those in Baltimore City, are empowered and jurisdiction is conferred upon them to try cases involving receiving of stolen goods as defined therein when the value thereof is less than twenty-five dollars. This jurisdictional authority is expressly conferred in such cases, and is concurrent with that of the circuit courts. The trial and conviction of the appellant, therefore, was valid in law, provided the terms and provisions of the act were observed by the justice of the peace, and there is nothing in the record to the contrary, and a second trial for this same offense would be in violation of the common law and of our constitutional prohibition with respect to placing a person in double jeopardy as to the same crime. When the indictment was found the case stood on the appeal docket for trial, by order of the defendant, and the State had no authority to dismiss this appeal. That was the right of the accused and had he seen fit to exercise it the magistrate's judgment and sentence would have stood; but the State indicted him on the same charge and for the identical crime and then entered a nolle prosequi of the proceedings on the appeal.
It was evidently the intention of the State to clear the docket of a supposed illegal proceeding arising out of a lack of jurisdiction of the justice of the peace, and to proceed under the indictment. The Act of 1936 above referred to, and especially section 470A, was evidently not considered by the State. The State having no authority to dismiss the defendant's appeal, the entering of a nolle prosequi could not be construed as a dismissal of it. The nolle prosequi, if it could be legally entered, would *356
effect a final disposition of the entire prosecution originating before the justice of the peace, and would place the defendant on his deliverance, in so far as that proceeding was concerned. InBarrett v. State,
Judgment reversed.
OFFUTT, J., dissents. *357