State v. PhelpsState v. Phelps
- Reporters:
- Before:
- Eccleston
delivered the opinion of this court.
Thе reasons assigned in support of the motion in arrest of judgment relate to matters prior to the verdict, and either allеge the record to be defective on account of the absence of such proceedings before thе magistrate as were required by law, or on account of a variance between the recognizance returnеd by the magistrate and the indictment. These reasons necessarily assume, not only that the proceedings to whiclx they alludе should have taken place, but also that they were necessary parts of the record; for a motion in arrest of judgment must be based upon some error or defect appearing in the record. Amer. Cr. Law, (by Wharton,) 975, (3 Ed.,) 3 H. & J., 2, Horsey vs. The State.
In Root vs. The State, 10 G. & J., 374, upon a motion in arrest of judgment, it is sаid on the part of the appellant: “The ixxdictment and verdict are not warranted by the proceedings filed in this casе, and making part of the record thereof, and upon the whole record no judgment or order can’ be passed.” And it is еvident the court considered the proceedings returned by the magistrate as being before them on the appeаl. They speak of the affidavit and recognizance as correct, and all the subsequent proceedings as erroneous: and then say: “The indictment, so far from being pursuant to the affidavit, makes a case in which all the parties reside in Carroll county, and in which consequently Carroll county is to be indemnified.
On this indictment a verdict was rendered against the party charged, and the judgment on that verdict, so far from pursuing its finding, directs a recоgnizance to indemnify Frederick county.
The indictment should have stated the fact of the mother’s *26residence with the child in Frederick, so that the verdict could be properly given, to compel the recognizance to indemnify thе county of Frederick.” ■
For these errors the court reversed the decision of the county court, which had overruled the motion in аrrest.
Now if the proceedings before a magistrate in a case of this sort should constitute parts of the record, and admitting that prior to the act of 1852, ch. 63, the objections relied upon to sustain the present motion in arrest might have availed the traverser, nevertheless they cannot do so since the passage of that act, because these оbjections could have been taken advantage of by demurrer. And the act will not permit a judgment to be arrested on а motion for that purpose, for any matter which is a ground of demurrer.
Thus the traverser is placed in this dilemma. If the proceedings on which his objections are based are not necessarily parts of the record in such a case, then, beсause they are not, his motion in arrest must fail. And if such proceedings are required to complete the record, then thе defects relied upon would be reached by a demurrer, and the motion must be overruled under the act of 1852.
That we arе right in supposing a demurrer would reach the alleged defects, if by the record they are shown to exist, may be seen by refеrence to American Cr. Law, 242, 243, by Wharton, 3 Ed., where it is said: “A demurrer puts the legality of the whole proceedings in issue, and compels the court to examine the validity of the whole record, and therefore, in an indictment removed from an inferior court, if it appear from the caption that the court before which it was taken had no jurisdiction over it, it will be adjudged to be invalid.” See also the authоrities referred to in note 1 on same page, and 1 Archb. Cr. Pr. & Pl., 115, (by Waterman.)
With a view to relieve his case from the operation of the аct of 1852, the appellant’s counsel says, its provisions relate to felonies and misdemeanors only, and this case is nеither a felony or a misdemeanor. But we think it is the latter.
Misdemesnor, or Misdemeanour, is described in 4 Jacob’s Law Dic., 292, as a crime less than felony. And he says: *27“The term misdemeanor is generally used in contradistinction to felony, and comprehends all indictable offences which do not amount to felony, as perjury, libels, coiispiracies, assaults, ’ ’ &c. This author also says: “This term maybe considered as, and in fact is, a genus, which contains under it a great number of species, almost as various in their nature as human аctions.” See also the definition of a misdemesnor in 4 Bl. Com., Ch. 1, page 5, and in note 2.
The act of 1781, ch. 13, entitled, “An act directing the proceedings against persons guilty of fornication,” is the law on which this case was instituted. The first section directs what is to be done before a justice of the peace, and prescribes his duty. Under thе second section, if the party charged with being the father of the bastard child thinks himself aggrieved by the judgment of the justice, a rеcognizance is to be taken by the justice for the appearance of the party at the next court, and thаt court is to take cognizance thereof, “and such proceedings shall thereupon be had as in other criminal cases I This act was brought before the Court of Appeals for construction, in Oldham, vs. State, use of Crothers, 5 Gill, 90. The father of an illegitimate child had been discharged under the insolvent laws, which discharge he contended released him from his recognizance previously entered into by him for the support of the child. But the court held the proceeding to be a criminal one, and therefore he continued to bе bound by the recognizance, notwithstanding he had taken the benefit of the insolvent laws.
In reference to such a case in the county court, it is said by the Court of Appeals: “The same proceedings are to be had by indictment as in other criminal cases, and if found guilty, then thе court adjudge him to give security to indemnify the county, and if he neglect or refuse to comply, he is to stand committed until he shall comply.
The proceeding is treated by the law as a criminalproceeding, and it is classed by the law itself among criminal cases.
That the design of the law, in the punishment inflicted, was to indemnify the county, does not in the least change the character of the proceеding. The recognizance is to be given *28to the State to accomplish a purpose of public convenience, and the insоlvent laws do not reach such a case.”
The act of 1796, ch. 34, authorises the mother or other person maintaining the child to demand the money falling due under the recognizance for the child’s support, but this substitution of the mother or other persоn, in the place of the county, the court say “doesnot at all change the character of the procеeding.”
After such an interpretation of the act of 1781 we think this case comes within the definition of a misdemeanor, as given by thе authorities to which reference has been made, and since the act of 1852 such a motion in arrest of judgment cannot be sustained.
Judgment reversed and procedendo ordered.