45 Md. 90 | Md. | 1876
delivered the opinion of the Court.
The plaintiff in error was indicted for murder, and on his trial was found guilty of manslaughter and not guilty of murder. Upon this verdict the Criminal Court of Baltimore City, in which he was tried, pronounced judgment, sentencing him to “five years imprisonment in the jail of Baltimore City,” and this judgment is brought before us for review, by writ of error.
The punishment prescribed by law (Act of 1864, ch. 89,) for the crime of manslaughter, is confinement in the pen-
We have been able to find but two cases which are in even seeming conflict with the great weight and current of judicial precedent and authority on this question.
One of these is the case of Kelly, et al. vs. The State, 3 Sm. & Mar., 518, decided by the High Court of Errors and Appeals of Mississippi, in 1844. There the judgment was reversed for two reasons, 1st, because it did not appear in the record that the prisoners were personally in Court at the time of pronouncing the sentence, and 2nd, hecaus'e the sentence did not set forth the time from which the imprisonment, was to date. For these two errors say the Court, “the judgment of the Court below is reversed without disturbing the verdict, and the cause remanded with directions to the Court below to pronounce its judgment in accordance herewith, having first duly inquired of the defendants whether they have anything further to urge why its judgment should not then he pronounced.” Ho question was made in argument and no authority is referred to by the Court, in support of the power to remand thus exercised, and this has led us to examine the statutes of that State as to the powers conferred on its Appellate Court at that time. As expected, we find (Hutchinson’s Code, 927,) that that Court was clothed with very full authority in such cases. They had power upon the reversal of any judgment or sentence, to render such judgment or pass such sentence as the Court below should have rendered or passed, and the power to remand in criminal as well as in civil cases, where there is anything uncertain in the judgment or sentence is also given in very broad and general terms. We think therefore, the Court in this case rested their action not upon the supposed possession of any inherent or common law powers to that end, hut upon
The other case is that of Beale vs. The Commonwealth, 1 Casey, 11, decided by the Supreme Court of Pennsylvania, in which the opinion was delivered by C. J. Lewis from which Woodward, J., dissented. To understand what weight as authority, justly attaches to this case we must first look to the antecedent decisions and legislation on this subject in that State. It appears that in the course of the argument in Drew vs. The Commonwealth, 1 Whart., 279, which took place in 1835, Rogers, J., referred to a recent case in which he said the Supreme Court had decided that where the indictment was good, and the trial good, that Court would do what the Court below would do after a new conviction, viz., sentence the party de novo and aright. In i¡he following year, 1836, the-Legislature gave express power to the Court, “to examine and correct any and all manner of errors of the justices, magistrates and Courts of the commonwealth, in the process, proceedings, judgments and decrees, as well in criminal as in civil pleas or proceedings, and thereupon to reverse, modify, or affirm such judgments and decrees or proceedings as the law shall direct.” . After this came the case of Daniels vs. The Commonwealth, 7 Barr., 371, in which the opinion was delivered by Rogers, J. In that case this statute is set out and the Court say that by it “ in addition to the power to reverse or affirm heretofore given, we have authority to modify the judgment; that is to change its form, vary or qualify it, and this as well in criminal as in civil cases. It would certainly be better if the Court had power also to remit the record but as this is not given by the Act of 1836, we must examine the sentence and do right and justice according to circumstances,” and accordingly acting under the statute the Court struck out the words “ hard labor ” from the sentence and affirmed it in other respects. It appears to us the Court in that case clearly decided they
Is there then any law which has given this Court the power to pass a proper sentence in this case, or to remand it to the Criminal Court for that purpose? We know of none. The 14th and 16th sections of Art. 5 of the Code, have no application to such cases. They give the Court no power to modify criminal sentences or to direct them to be modified by the inferior Courts. The same provisions were in force when Watkins vs. The State was decided, and in that case this question was fully argued. The reversal of that judgment without a procedendo is conclusive of it.
Whether the plaintiff in error by thus requesting and obtaining his discharge from this indictment, has waived the protection ' which the law provides against a second jeopardy, so that he can he re-indicted and re-tried on the same charge, as has been suggested by some jurists and text writers, is a question we are not now at liberty to decide. It has not been argued on either side by counsel, and we should he stepping far beyond the line oí duty, •if not committing a grave impropriety, in now expressing any opinion upon it. We can only say with O. J. Shaw, in Christian vs. The Commonioealth that “ whatever other remedy the State may have, it is not competent for this Court to pass a new sentence upon this prisoner, nor to remit the case to the Criminal Court.” Our power is limited to a simple reversal of the judgment.
Judgment reversed.
Note. — After the above decision was rendered, the prisoner Patrick McDonald was arrested, while in the jail, upon a bench-warrant issued out of the Criminal Court of Baltimore City, charging him with the murder of Daniel Brown. Whereupon he petitioned the Hon. Jas. L. Bartol, O. J., for a writ of Habeas Corpus, which was granted; and upon the hearing, it was admitted on the part of the State, that the felony and murder charged in the warrant was the same as that for which the petitioner had before been indicted and tried; the Chief Judge after full argument discharged the petitioner, deciding :
1st. That the facts being admitted, it was competent for the Judge under the Code, Art. 43, to decide the question whether there was sufficient legal cause for the detention of the petitioner.
2nd. That the petitioner having been arraigned and regularly tried upon a sufficient indictment, and a legal verdict having been rendered, had been in jeopardy, and that he could not lawfully be placed in jeopardy a second time for the same offence.
3rd. That the former trial was, in no sense, a mis-trial. If it had been, the Court of Appeals would have remanded the case, so that the party might be tried again.
4th. That the petitioner, by suing out his writ of error, and obtaining a reversal of the judgment, had not waived the protection which the law pro
In the opinion rendered by the Chief Judge, he remarked : “If the prisoner, after having been duly convicted of manslaughter, escapes punishment, by reason of an error in the sentence, this results from the want of legislative provision in such cases, to enable the Court of last resort to correct the sentence, or to remand the case to the Criminal Court for that purpose. Such legislation was had in England in 1848, (11th and 12th Victoria, ch. 78,) and has been enacted in several of the States.”