Leister v. State , 136 Md. 518 ( 1920 )

The appellant was convicted of bastardy by a jury in the Circuit Court for Carroll County, and sentenced to give bond to the State in the penalty of five hundred dollars to secure the payment of twelve dollars per month for the maintenance of his illegitimate child until it reached the age of twelve years. From that judgment this appeal is taken. The record contains ten exceptions, one of which relates to the Court's ruling on a prayer offered by the appellant in the course of the proceeding; one to the Court's refusal to strike out a statement by the State's Attorney, and the others to questions of evidence.

The indictment in the case charged in the usual form that the appellant had begotten at Carroll County an illegitimate male child, which was afterwards born alive. To this indictment the appellant interposed what is described in the record as a "plea to the jurisdiction," in which he stated that the fornication referred to in the indictment did not take place in Carroll County. This pleading was not a plea to the jurisdiction as that term is usually understood, but was a mere traverse of one of the material averments of the indictment, and possessed none of theindicia or elements of a technical plea to the jurisdiction, as that plea is known to the law of this State. A technical plea to the jurisdiction is something more than a mere allegation that the traverser is not guilty of the crime charged in the indictment, and that is all the "plea to the jurisdiction" in this case amounts to. Unless the State proved that the fornication referred to in the indictment occurred at Carroll County, the traverser would be acquitted, if it did prove it he would be convicted, and whether the State did or did not prove it could only be determined by a jury or the court, sitting as a jury. A plea, therefore, that the fornication did not occur at Carroll County, was in effect equivalent to the general issue plea of "not guilty," and therefore bad in law. A technical plea to the jurisdiction must allege facts from which it may be inferred that the Court has no jurisdiction over the subject matter, or over the person of some party to the proceeding, as for instance, that the alleged offense was not an offense against the laws of the State of the forum, but against a federal or foreign statute or law, or that some party to the proceeding was for some reason not subject to prosecution in the particular forum.

It cannot be questioned that the Circuit Court for Carroll County had jurisdiction over the subject matter of the proceeding, that is of the particular offense charged in the indictment, and it is not suggested that the appellant enjoyed any special privileges or status which prevented his prosecution in that Court. The demurrer to this plea should therefore have been sustained. Bishop's New Cr. Proc., § 736; Trem. P.C. 271; Hochheimer Cr. Law, par. 119; State v. Mitchell,83 N.C. 674.

The demurrer was however overruled and the plea traversed. The issue thus made up was tried before the Court, which found its verdict thereon against the appellant. At the conclusion of the testimony in that trial, the appellant submitted a prayer, in which the Court was asked to instruct itself (sitting as a jury in a criminal case) that there was no evidence legally sufficient to prove the allegations of the indictment beyond a reasonable doubt, and that its verdict should be for the defendant. The Court refused this prayer, and this ruling is the subject of the first exception.

From what has already been said that trial was wholly irregular and it is difficult to see just how any verdict the Court might render in it could affect any right or interest either of the State or of the traverser, unless indeed it could be assumed that the trial before the Court as a jury was the final trial for the determination of the guilt or innocence of the traverser. While there would be some reason for that contention in the fact that the issue tried there was the identical issue which was later tried before a jury, nevertheless, as it does not appear to have been so regarded by the Court or the parties below, we will treat it as a nullity and immaterial. But even if it could be assumed that the Court in holding this preliminary trial was acting within its authority, there would have been no error in the refusal of this prayer. A prosecution for bastardy in this State is a criminal proceeding and as such is affected and controlled by those provisions of the Constitution of Maryland, relating to the trial of criminal causes. Under those provisions the courts are not charged with the duty, nor have they the power to peremptorily instruct juries trying criminal cases either as to matters of law or matters of fact. Luery v. State,116 Md. 293. The cases cited in the very carefully prepared brief of the appellant are not at all in conflict with these views. Those cases relate to the establishment and recognition of certain rules and principles by which courts are controlled in the investigation of facts bearing upon the right of a person charged with crime to be tried in a certain court or in a certain locality, and not to the weight or sufficiency of the evidence necessary to establish such facts. There was therefore, no error in the ruling of the Court in respect to this prayer, nor was there any error in its action in overruling the motion in arrest of judgment, later filed on much the same ground.

The second, third and fourth exceptions relate to the admission in evidence of testimony of the mother of the illegitimate child, that appellant had given her money to get "different things" and when spoken to about marriage had told the witness to wait until his mother came home. The witness had already testified that he had advised her, referring to the child, to "rid herself of it." The testimony was admissible as tending to show appellant's recognition of his responsibility for the woman's condition.

The same witness, after having testified that she had had intercourse with the appellant at Hanover, Pennsylvania, on May 6th and at Carroll County on May 7th, was asked on cross-examination if she had not testified in an examination before a magistrate in Carroll County that she had had intercourse with appellant at Hanover, Pennsylvania, on May 6th and not for some time after that, and had replied that she did not know whether she had so testified, and was then asked a question concluding as follows: "Please tell me which is true, what you swore to in Hanover before the magistrate, or what you swore to on the stand"? The Court sustained an objection to this question and this ruling is the subject of the fifth exception. There was no error in this ruling. The question was bad in form and substance. There was no evidence that the witness had testified at all before any magistrate in Hanover, nor any affirmative testimony that she had testified anywhere that she had not had intercourse with the appellant on May 7th. If the purpose of the cross examiner was to impeach the witness by proof that she had made statements on a former occasion inconsistent with those made in the course of this trial, after having interrogated her in reference to such statements, he could have submitted proof of them, and the jury could then have considered such proof in estimating the credit to be given the testimony of the witness. The same witness was also asked if she had been "out buggy riding or automobile riding during the months of May or June, 1917, with any young men besides your father." The Court sustained an objection to this question and we find no error in this ruling. Automobiles, and to a less extent buggies, are very generally and extensively used for purposes of business and pleasure by perfectly reputable and respectable persons as a convenient and effective means of transportation, and no evil or sinister inference could be drawn from the fact, if it were a fact, that the witness had on occasions ridden in the one or the other, even if accompanied by young men other than her father.

The seventh, eighth and ninth exceptions relate to the refusal of the Court to permit certain witnesses offered on behalf of the appellant to tell of conversations and correspondence between persons other than the mother of the illegitimate child, apparently with a view of impeaching her testimony. This testimony was obviously hearsay and irrelevant and there was no error in its exclusion.

The last exception relates to the refusal of the Court to strike out a statement made by the State's Attorney in his argument to the jury to the effect that one of the witnesses for the appellant who had testified to having had intercourse with the mother of the child did not have to tell the jury of it. Whether this statement was or not correct is immaterial, for it cannot be assumed that an intelligent jury could be affected by it. At most it merely went to affect the credibility of the witness Williams, whom the jury had seen and whose testimony they had heard, and while the remark had little relevance to any issue in the case, it cannot be said to have injured the appellant.

Finding no errors in the rulings of the lower Court, the judgment will be affirmed.

Judgment affirmed, with costs.