36 Md. 257 | Md. | 1872
delivered the opinion of the Court.
This record shows that the plaintiff in error being indicted for murder, was tried by a jury, who, failing to agree upon a verdict, were discharged; he was then admitted to bail, and the case continued to December Term, 1871. At that Term he elected to be tried before the Court, under the 91st section, Art. 30, of the Code; and the case was accordingly tried before the Court on the 15th day of January, 1872. The Court, consisting of two Judges, were unable to agree, and ordered a re-trial.
On the' 31st day of January, 1872, the plaintiff in error, by his attorneys, moved the Court that he. be discharged, insisting that the failure of the Court to agree, was equivalent to a judgment of acquittal. This motion being overruled, he prayed for a writ of error.
Afterwards, on the 3d day of February, 1872, he was tried before a jury, plead “not guilty,” and the jury rendered a verdict of “ not guilty of murder, but guilty of manslaughter,” and recommended the prisoner to the mercy of the Court. On the same day a motion was made on behalf of the prisoner for a ■“ new trial,” which was granted by the Court, and the cause continued.
There being no final judgment in the case, the writ of error was prematurely brought, and must be dismissed. But as the counsel on both sides have intimated a wish that the opinion of this Court should be expressed upon the main question in the case, which has been fully argued; and as the decision of the same will obviate the necessity of suing out another writ of error, or taking an appeal, in case the final judgment should be against the defendant below, we consider it proper briefly to express some of the reasons why, in our judgment, the Court below was right in refusing to discharge the defendant.
By the Constitution, Art. 15, sec. 5, it is declared that “ in the trial of all criminal eases, the jury shall be the judges of law as well as of fact.” The Code, Art. 30, sec. 91, provides
The effect of this is to allow a party the privilege of electing to be tried by the Court instead of a jury, and when such election is made, the Court is substituted for the jury, and has the same duties and functions to perform in passing upon the guilt or innocence of the accused.
Unless the party charged is determined to be guilty, or not guilty, there can be no judgment either of conviction or of acquittal.
In this case the party was not found guilty by the tribunal elected to try him, nor was lie determined to be not guilty. The record states that in fact there was no judgment pronounced in his ease. The two Judges were unable to agree, and so could do nothing, except to order a re-trial in the same manner as when the jury failed to agree upon a verdict. It would be a strange consequence from this to say that in law or in fact, the failure of the Court to pronounce any judgment- is equivalent to a judgment of acquittal.
It has been argued that where a Court is equally divided in opinion upon a question, the judgment is against the party maintaining the affirmative, as in Michael vs. Schroeder, 4 H. & J., 227, the Court being equally divided in opinion upon a motion to remove a case to another jurisdiction, the motion was lost. And if this Court is equally divided in opinion upon a motion to dismiss an appeal the motion is lost, as was held in Hatton vs. Weems, 12 G. & J., 83-102, and Gregg vs. Mayor and C. C. of Balt., 14 Md., 479-503. And from this it has been argued that the onus or affirmative being upon the State, an equal division of the Court, or a failure of the Judges to agree upon a judgment of conviction necessarily entitled the party to bo acquitted. But in our opinion the rule which governs judicial tribunals where propositions of law are submitted to them which are not sustained, has no application to a case like this. If the argument was sound, it 'would apply
The only difference is that which results from the difference in the constitution and nature of the two tribunals; to make a legal verdict all the jurors must agree; but where the matter is traversed before ¡the Court, if it is composed of two or more members, a majority of them must concur in rendering the judgment; and where there is an equal division among them and no judgment is rendered, the party is left in the same position as if no trial had taken place. It is in law a mis-trial, and a re-trial must of necessity be had.
Writ of Error dismissed.
