State v. Reed

12 Md. 263 | Md. | 1858

Le Grand, C. J.,

delivered the opinion of this court.

This appeal, we think, is conclusively settled by the second section of the act of 1852, chapter 63. If the prisoner had been found guilty on the trial under the first indictment, the only inquiry would have been, whether judgment could be entered upon the verdict of the jury? If a valid judgment could have been entered, then it was not what is technically known as a mistrial, which would enable the State to proceed anew under another indictment, and this being so, of course any motion in arrest of judgment would have been properly overruled. The question, then, is: Why was not the finding of the jury such as to authorize the court to award judgment? To this inquiry it is auswered, the indictment was defective in several particulars, first, in its allegation of venue; second, in its failure to designate the prisoner as a free uegro; third, because it charged “that the said Gfeorge Vansant, him the said Albert. Reed, in the manner and form aforesaid, then and there feloniously, wilfully, and of ¡naiiee aforethought, did kill and murder,” &c.; and fourthly, that the given name of the prisoner was incorrectly set out. Whatever may be the true philology of the averment as to the killing; that is, whether the words impute the crime to Reed or to Vansant, cannot be matter of importance in the posture of the case before this court. For, were it, conceded that each and every of the objections urged by the State against, the sufficiency of the indictment was well taken, they could not avail, and for the plain reason, because the law of the State says they shall not.

(Decided July 20th, 1858.)

The act. of 1852, chapter 63, expressly declares, “That no indictment or presentment for felony or misdemeanor shall be quashe.d, nor shall any judgment upon any indictment for any felony or misdemeanor, or upon any presentment., whether after verdict, by confession, or otherwise, be stayed or reversed for want of a proper or perfect venue, when the court shall appear, by the indictment, inquisition or presentment, or by the statement of the venue in the margin thereof, to have had jurisdiction over the offence, nor for tire omission or misstatement of the title, occupation or degree of the defendant,” s- « * -s as s “nor for any matter or cause which might have been a subject of demurrer to the indictment. ” Now it is clear that each and every of the objections urged against the first indictment, was “matter or cause which might have been a subject of demurrer,” and the prisoner electing not to demur, but to go to trial on the issue of not guilty, if the jury liad returned a verdict of guilty against him, the judgment. on such finding could not have been “stayedor reversed.” The law pointed out the mode in which he was to take advantage of the defects in the indictment; if he failed t,o avail himself of it, the verdict of the jury was conclusive against him, and, if so, there would be no mistrial; and if no mistrial, then he is not liable to be tried again for the same crime. Hce, also, The State vs. Buchanan, 5 H. & J., 329.

Judgment affirmed.