Beard v. State

McSiierry, J., delivered the opinion of the Court. The appellant was indicted for the common law offence of keeping a disorderly house, and was convicted by the verdict of a jury in the Criminal Court of Baltimore. He thereupon appealed to this Court upon exceptions reserved during the trial, and pending the appeal was released on bail. In June, 1889, the rulings of the Court below were.affirmed ( 71 Md., 275 ) and Beard disappeared.

His recognizance was forfeited, but he was not taken until the sixteenth day of October, 1890. In the meantime, — that is, after his conviction, and before his arrest in October last, — an Act of Assembly was passed, being chapter 523 of the Acts of January Session, 1890. That statute enacts that “ any person who shall keep a disorderly house shall, on conviction thereof, be subject to a fine of not less than fifty dollars nor more than three hundred dollars, or by (to) imprisonment in jail for not less than ten days nor more than six months, or by (to) both fine and imprisonment. ” On the eleventh of October a motion in arrest of judgment was filed. It was founded on the change made by this Act of Assembly in the punishment for keeping a disorderly house.

This motion was heard by the Supreme Bench of Baltimore City, and overruled, whereupon a sentence of thir ¹³² teen months in jail and. twelve hundred dollars fine was imposed by the Criminal Court; and from that final judgment Beard has brought the record into this Court by petition as upon writ of error. The question is, whether the Criminal Court had authority to inflict the punishment it did. The offence of keeping a disorderly house is a common law misdemeanor. It is not defined in and was not created by any statute of the State.

The punishment for it when Beard was convicted was, in the discretion of the Court, a fine or imprisonment or both; and the amount of the fine and the length of the imprisonment were likewise in the Court’s discretion. This was the punishment at common law. - The Act of 1890, passed after Beard had been convicted and had fled, and before he was .sentenced', prescribed, for the first time a statutory penT alty, which is greater than the minimum and less than the maximum common law punishment. The common law, and not the statutory penalty,, was imposed upon him. He claims that the statute repealed by implication the common law punishment, even as respects cases previously tried and convictions previously had; and that there was, therefore, no power in the Court to impose the penaltjr it did; and that, consequently, the sentence is a nullity.

As the Act of 1890 makes the minimum penalty for the offence greater than the lowest limit at common law, it is quite apparent that the statute is as to Beard an ex post facto law, and that he cannot he punished under it. A law which punishes that which was innocent when done; or adds to the punishment of that which was criminal; or increases the malignity of a crime, is an ex post facto law. Strong vs. The State, 1 Blackford, (Ind.), 193; Calder vs. Bull, 3 Dallas, 386 ; 1 Kent’s Com., 409, side page. But whilst he cannot he punished under the statute, does it follow that he cannot, though prop ¹³³ erly convicted, be punished at all?

It will be observed that the Act of 1890 does not create, define, enlarge, or diminish, or in any way alter or change the common law offence. It leaves that offence precisely as it found it, and deals only with the punishment. In dealing with the punishment it is confined exclusively to the future, and expressly declares that any person who shall keep,— that is to say, who shall after the passage of that Act keep — a disorderly house shall be liable to the penalty provided by the Act. The obvious intention of the Legislature in passing it was, not to interfere with past of-fences, but merely to fix a penalty for future ones.

The language employed plainly indicates that the General Assembly had reference to prospective, and not to consummated offences; and it is not to be assumed that the Legislar.ure purposely enacted the law with a view to release irony all punishment a convicted offender, who was at that very time a fugitive from justice. There is no repealing clause in the Act of 1890, and it cannot be doubted that ha'd the statute contained an express saving or exception of pending cases from its operation, the common law penalty could have been lawfully imposed. Now, as there was no repeal of the old penalty, and as