State v. Scarborough, 55 Md. 345

State v. Scarborough

55 Md. 345 | Md. | 1881

Alvey, J.,

delivered the opinion of the Court.

The petition and assignment of error, upon which this case has been brought into this Court, must he dismissed. There is an entire failure to make any such assignment of error as is required hy Rule 1, in respect to Appeals and Writs of Error, 29 Md., 1. The rule requires that the party applying to have the record removed as upon writ of error, shall plainly designate the points or questions of law, hy the decision of which he feels aggrieved; and this Court is forbidden to hear or determine any point or question not thus plainly designated in the petition.

The only assignment of error made in this case is, “that in the record and proceedings, as also in the rendition of the said judgment, manifest errors have happened, to the damage of the State, to wit: in overruling the demurrer of the State, to the defendant’s fifth plea to the indictment.”

Now, a demurrer puts the legality of the whole proceedings in issue (1 Chitty Cr. L., 358,) and requires the Court to go hack to the first error apparent on the face of the record. That being so, the object of the Rule, requiring special assignment of errors, was to prevent surprise, and the raising of new points and objections in this Court *349for the first time, and which, perhaps, if they had been suggested to the Court below, would have been met, and the necessity for bringing the record here avoided. To assign as error the overruling or sustaining a demurrer, or the overruling or sustaining a motion in arrest of judgment, without designating specially the point or question of law involved in the ruling of the Court below, is no sufficient assignment, within the meaning and object of the Eule. If the object in bringing this, case here was to have reviewed the decision of the Court below in determining that the facts set out in the defendant’s fifth plea were sufficient to abate the indictment; or that the Court, upon overruling the demurrer, instead of proceeding at once to quash the indictment, should have allowed the State to reply to the plea, and thus make an issue of fact; those points or questions should have been specially assigned and designated, as the ground for bringing the case to this Court. But, as we have seen, no such questions have been made by assignment under the Eule.

If the question of the sufficiency of the fifth plea in abatement were before us, we should have no difficulty in declaring it bad. The presumption of law is that the grand jury were legally and regularly drawn and empanelled ; and it might be true, as averred in the plea, that the grand jury consisted of only twenty-two members at the time the indictment was found, and yet be a legally constituted, and a competent jury, even though it were conceded that the panel would be illegally constituted, and incompetent to act, if it had not originally consisted of twenty-three jurors; a question in regard to which we intimate no opinion. If one of the original panel had died, or been sick, or had been excused for any cause, it would in no manner have affected the legality of the panel, or the power and competency of the remaining jurors to act and find valid indictments.

It is a settled rule, that every dilatory plea must be pleaded with strictness, and be certain to every intent. 1 *350Bac. Abr., tit. “ Abatement O,” p. 34. And it is consequently essential that the facts should he stated out of which the defence arises, or a negation of the facts which are presumed from the existence of a record; as in this case, the presumption that the grand jury were legally and regularly drawn and empanelled, according to law, should have heen expressly negatived, upon the averment of the facts. State vs. Brooks, 9 Ala., 10; 1 Whart. Cr. L., sec. 537. The plea fails to aver that the panel never consisted of more than twenty-two jurors; and no presumption or intendment will aid the plea. The demurrer, therefore, should have heen sustained. But, for defects already mentioned,

(Decided 27th January, 1881.)

Assignment .of Errors dismissed.