| Md. | Jan 13, 1882
delivered the opinion of the Court.
The appellant was indicted for bastardy, and pleaded—
2nd. That the prosecution was not commenced within a year from the commission of the offence as alleged in the indictment.
3rd. That the prosecution was not commenced within a year from the hirtli of the child.
4th. That the warrant issued by the justice of the peace, was not a proper warrant.
5th. That he was arrested on a warrant issued by one O. J. Moat, justice of the peace, and was tried by one Jones, another justice, and judgment was rendered against him, from which he appealed to the Circuit Court, and was indicted, and the indictment quashed. That he was arrested again and taken before Justice Moat, and judgment was again rendered against him, from which he appealed, and that he now appears to answer to the indictment found on this appeal.
The State demurred to the second, fourth and fifth pleas, and joined issue upon the first and third pleas.
No appeal will lie in criminal cases, from the rulings of the Court on demurrer, until after final judgment; and then only by a proceeding in the nature of a writ of error. Rule 1, 29 Md.; Forwood vs. State, 49 Md., 538.
No judgment has been entered in this case, and the rulings of the Court on the demurrer, are not therefore before us for review iu this appeal. The questions raised by the demurrer, have, however, been argued, and as it may prevent a second appeal, we will state briefly our views in regard to the same.
The second plea is a bad plea, because in cases of this kind, time is not of the essence of the offence, and the State was not bound to prove that the child was horn on the precise day charged in the indictment. The offence was consummated by the birth of the illegitimate child, and it was only necessary for the State to prove that the prosecution commenced within a year from that time. To con
The fourth and fifth pleas are also bad pleas. The fifth plea, if intended as a plea to the jurisdiction of the Court, is bad, because it shows that the appellant was arrested and was tried, and judgment loas entered against him, from which he appealed, by entering into a recognizance for his appearance to the next Circuit Court of the county. This was all that was required to give jurisdiction to the county Court, and having jurisdiction, the regularity or irregularity of the proceedings before the justice of the peace, did not, in any manner affect the questions at issue upon the indictment. On the other hand, if the plea was-intended as a plea of former acquittal, it is equally defective, because it does not allege that the appellant had been tried and acquitted.' Th.e quashing of the indictment'did not operate as an acquittal, nor did it prevent the defendant from being again indicted.
We come now to the two exceptions taken to the rulings of the Court, during the progress of the trial.
The demurrer to the second, fourth and fifth pleas, having been sustained, the only questions at issue, were the pleas of unot guilty,” and the Statute of Limitations.
* In the first exception, the State offered in evidence the warrant issued by Justice Moat, the judgment and recognizance of the appellant, being the proceedings upon which the present indictment was found. This evidence was clearly admissible under the plea of limitations, for the purpose of showing that proceedings were begun against the appellant within a year from the birth of the child, and the objection to its admissibility was, therefore, properly overruled.
In the second exception, the appellant offered in evidence the judgment and proceedings before Justice Jones, and proposed to show that the indictment found upon
In concluding this opinion, we must call attention to the form of the affidavit. The law requires that the counsel for the accused, shall make affidavit that the appeal is not taken for delay, and we have said that the record must show that the affidavit has been made by the counsel of the accused. Rhinehart vs. State, 45 Md., 454. The record in this case merely states that the affidavit was made in due form of law. It should have stated that it was made by A. B. counsel for the accused.
Rulings affirmed.