Duncan v. State

Delaplaine, J., delivered the opinion of the Court. William B. Duncan, aged 82, of Pocomoke, indicted for assault and battery on Frank Willett on March 1, 1947, was tried and found guilty by a jury on October 28 in the Circuit Court for Worcester County. On the same day the two presiding judges entered judgment on the verdict and sentenced defendant to pay a fine of $500 and costs. He immediately paid the fine and costs.

On October 28 he entered an appeal from the judgment. The Attorney General suggests that the appeal should be dismissed because appellant, by paying the fine, waived his right to an appeal. In this country there is a conflict in the decisions on the right of a defendant in a criminal case, after he has been convicted and has paid the fine imposed upon him, to have the judgment of conviction reviewed on appeal. In a majority of the juris ⁴⁸⁸ dictions where the question has arisen it has been held that a defendant, by voluntarily paying his fine, waives his right to obtain a review of the conviction by the appellate court.

Commonwealth v. Gipner, 118 Pa. 379 , 12 A. 306 ; Leavitt v. People, 41 Mich. 470 , 2 N. W. 812 ; People v. Melovicz, 221 Mich. 620 , 192 N. W. 562 ; State v. Westfall, 37 Iowa 575 ; State v. Conkling, 54 Kan. 108 , 37 P. 992 , 45 Am. St. Rep. 270 ; Madsen v. Kenner, 4 Utah 3 , 4 P. 992 ; State v. Cohen, 45 Nev. 266 , 201 P. 1027 , 18 A. L. R. 864; Washington v. Cleland, 49 Or. 12 , 88 P. 305 , 124 Am. St. Rep. 1013 ; Bergdoll v. United States, 3 Cir., 279 F. 404 . But it has been held by other courts that payment of the fine by the defendant does not constitute a waiver of his right of appeal.

Barthelemy v. People, 2 Hill, N. Y., 248, 255; Johnson v. State, 172 Ala. 424 , 55 So. 226 , Ann. Cas. 1913E, 296; State v. Winthrop, 148 Wash. 526 , 269 P. 793 , 59 A. L. R. 1265. In Commonwealth v. Fleckner, 167 Mass. 13 , 44 N. E. 1053 , where the statute provided that allowance of exceptions should not stay execution of sentence, Justice Holmes said: “We should be slow to suppose that the legislature meant to take away the right to undo the disgrace and legal discredit of a conviction * * * merely because a wrongly convicted person has paid his fine or served his term. The fact that no indemnity is provided by this act is far from enough to lead us to that conclusion. Of course, the payment of the fine in accordance with the sentence was not a consent to the sentence, but a payment under duress.” In 1931 the Supreme Court of Indiana, while acknowledging that some courts had held that an appeal in a criminal case will be dismissed as moot where the appellant has satisfied the judgment, asserted that the better reasoning is with the cases to the contrary, and that the theory and result of these cases are more consonant with justice.

In support of this view Justice Treanor said: “The right of reputation was early recognized in Anglo-American law, and the machinery of legal redress is at the disposal of any person to vindicate ⁴⁸⁹ his good name. * * * Thus it is clear that the law recognizes and protects the individual’s interest in his reputation from defamation that imputes criminal misconduct, regardless of pecuniary damage; and it would seem absurdly inconsistent to dismiss as moot a proceeding initiated to clear one’s reputation of the infamy and stigma resulting from an allegedly erroneous conviction on a criminal charge, even though the one seeking vindication cannot, for reasons of public policy, recover the amount of his fine and costs, nor compel the state to pay damages for his unjust imprisonment.” State ex rel. Lopez v. Killigrew, 202 Ind. 397 , 174 N. E. 808, 810 , 74 A. L. R. 631. In 1943 the United States Supreme Court in St. Pierre v. United States, 319 U. S. 41 , 63 S. Ct. 910 , 87 L. Ed. 1199 , adopted the rule that the moral stigma of a judgment which no longer affects legal rights does not present a case for appellate review. In that case the petitioner for certiorari had been sentenced to imprisonment for five months for contempt of court, and he had served the sentence before certiorari was granted.

It was held that the case was moot because a reversal of the judgment could not restore to him the penalty of the term of imprisonment, and he did not show that any further penalties or