5 Md. 82 | Md. | 1853
delivered the opinion of this court.
This is an indictment against the defendant in error for forging a constable’s bond. Tt appears that after the jury
The record does not disclose any ground for the motion, or reason for the action of the court. We are informed, however, in the written argument of the State’s attorney, that the court had decided, on a prayer by the counsel for the prisoner, that he was entitled to a verdict of acquittal, because the indictment did not set out the endorsement on the bond of its acceptance by the county commissioners, and that the State sought to obviate this difficulty by quashing the indictment, and having another found by the grand jury.
It is obviously incompetent for this court to revise a point or question not appearing by the record to have been decided in the court below. All that we can know, judicially, is that the court refused to quash the indictment. We do not know, nor can we assume, that there was any endorsement of approval on the bond. The copy of the bond in the record, which was sent down with the indictment, is not part of the indictment. It is usual to file the instrument alleged to have been forged, to be used as evidence at the trial, but not to be relied on as if set out in the indictment as a part thereof. We do not decide in the present case whether it was necessary to have set out the endorsement, even assuming that there was one.
As to the practice of quashing indictments, after the jury is sworn, we may remark that it obtains in most of the courts of the State. If the indictment be good the court will overrule the motion, and proceed with the trial; if bad, there is no reason for consuming time when the verdict would be set aside on a motion in arrest of judgment. Where the indictment is bad and no valid judgment of guilty can be entered upon the finding of the jury, the authorities show that it is not such a trial as to preclude another, it being what the law terms a mistrial. Sutton vs. State, 4 Gill, 494. The reason for such practice is recognised in the case of Bruce vs. Cook, 6 G. & J., 345.
Judgment affirmed,.
