Cole v. State

Boyd, C. J., delivered the opinion of the Court. The plaintiff in error was convicted of adultery, and was sentenced to pay a fine of ten dollars and costs. The only alleged error is that costs could not legally be imposed as a part of the sentence, the case being brought before us on a. writ of error which alleges: “That the minimum and maximum punishment prescribed by law for the commission of the crime of adultery is a fine of ten ($10.00) dollars; the Court, therefore, erred in its judgment in imposing upon the defendant both a fine of ten ($10.00) dollars and costs, which was more than the maximum punishment prescribed by law as aforesaid for the commission of such an offense.” We will not stop to determine whether the petition for a writ of error is in all respects regular, as no question was raised about that by the State, but, assuming that it is, we will consider the assignment of error. 'Section 5 of Article 27 of Code of Public General Laws provides that: “Any person who shall commit adultery shall upon conviction thereof in any of the Circuit Courts for the counties in this State or the Criminal Court of Baltimore be fined ten dollars,” and does not mention costs, but section 1 ojf Article 38, being the article on “Fines and Forfeitures,” contains these ²⁴¹ provisions: “When any fine or penalty is imposed by any Act of Assembly of this State or by any ordinance of any incorporated city or town in tbis State enacted in pursuance of sufficient authority, for tbe doing of any act forbidden to be done by sucb Act of Assembly or ordinance, or for omitting to do any act required to be done by sucb Act of Assembly or ordinance, tbe doing of sucb act or tbe omission to do sucb act shall be deemed to be a criminal offense,” and then, after providing for the prosecution of such offense, tbe section proceeds: “If any person shall be adjudged gmilty of any sucb offense by any Court having jurisdiction in tbe premises, be shall be sentenced to tbe fine or penalty prescribed by sucb Act of Assembly or Ordinance and to tbe costs of bis prosecution; and in default of payment thereof he shall be committed to jail until thence discharged by due course of law.” Tbe latter provision would seem to be conclusive of the question, but tbe attorney for tbe traverser contends that that section is only applicable to offenses created by statute, and not to common law offenses, and he further contends that adultery is a common law and not a statutory offense. For tbe latter proposition be cites Hochheimer's Criminal Law (2nd Ed.), sections 239-242, but in section 239 that author distinctly states that “Fornication and adultery are not common law offenses, but are generally punishable by statutes,” and we find nothing to tbe contrary in any of tbe above sections.

Adultery was not a criminal offense at common law. In Wagaman v. Byers, 17 Md. 183 , which was an action of slander, where tbe words consisted in charging tbe plaintiff with adultery, it was held they were not sufficient, per se, to maintain tbe action, because, by tbe law of tbis State, the penalty for adultery is a pecuniary fine. "While the Court did not in so many words say it was not punishable as a common law offense, that is necessarily implied, and seemed to be a concessum in tbe case. Mr. Alvey, attorney for tbe appellee, who was