Dutton v. State

Boyd, C. J., delivered the opinion of the Court. The appellant was convicted of an assault with intent to rape, and was by virtue of section 17 of Article 27, Code of Public General Laws, as amended by Chapter 366 of Acts of 1908, sentenced to be hung. The record originally transmitted to this Court was defective, but on application of the appellant a writ of diminution was ordered. The appellant then applied to the lower Court to have the record in that Court corrected, so as to have what .occurred properly stated.

In Greff v. Fickey, 30 Md. 75 , after a writ of diminution was issued by this Court, for the purpose of having ³⁷⁶ some alleged errors in the record corrected, a motion was made to have the docket entries in the lower Court amended and completed, but that Court overruled the motion because it was of opinion that the term having passed, and the Court of Appeals having ordered that the docket entries be returned as they actually stood upon the docket, it would be improper to grant the motion. This Court, through Bartol, C. J., said: “We think the learned judge was in error as to the purport and design of the writ, and his powers and duty in the premises. If satisfied either from his own knowledge of what had actually occurred in the progress of the cause, or from evidence adduced, that the docket entries as made by the clerk were erroneous or incomplete, it was within his power and his plain duty to have them corrected, so that a fall, true and perfect transcript of the whole proceedings as they actually occurred in the progress of the cause might be sent up, in obedience to the writ.” That course was also approved in Hays v. P., W. and B. R. Co., 99 Md. 413 , and Koch v. Wimbrow, 111 Md. 21 . The lower Court accordingly very promptly and properly granted the motion of the appellant in this case, and has made certain corrections which we will insert in this opinion, so that it may be seen how the record now stands, — the action of that Court in reference to the changes requested being final and not subject to review on appeal.

Greff v. Fickey, supra. By an order in writing signed by the two judges who sat below, the clerk was directed to and did make the changes, additions and corrections in the docket entries and record, so as to now read as follows: “Plea and traverse. Whereupon the said James Dutton, travérser, cometh to the bar of the Court here in his proper person, and forthwith being demanded concerning the premises in said indictment ■ .above specified and charged upon him, how he will acquit himself thereof, he waived arraignment and he - . said, ‘Not Guilty,’ and ‘Traverse before the Court,’ and the said V. Calvin Trice, Esquire, State’s Attorney ³⁷⁷ of Dorchester, aforesaid, who for the said State of Maryland in his "behalf prosecuteth, doth the like. “That the consent of the attorneys for the State and for the traverser having been first given, thereupon the trial in this case was adjourned to and held in the petit jury room, immediately adjoining the court room proper, including the taking of all testimony, and the same being taken in the presence of the Court, the Clerk with his docket and other Court officers, the said attorneys for the State and traverser, and all witnesses, hut without the presence of said traverser during any part of the testimony of the chief prosecuting witness, Margaret Gillis, who testified while said traverser was in said adjoining court room, with the, door of communication closed, and in custody of the Sheriff, except for the interval when said traverser was brought to said communicating door then opened, and identified by said witness, the said door being immediately thereafter closed until said witness left the stand and the traverser brought into said petit jury room, to testify in his own behalf, where he then remained until the conclusion of said| trial. “The Court, having heard evidence, thereupon directed the Clerk of the Court to enter in the proceedings in said case, “The Court finds the party guilty.’ “Sentence. Whereupon all and singular the premises being seen, and by tbe Court fully understood, it is thereupon considered by the Court that James Dutton, prisoner at the bar, be taken to tbe jail of Dorchester County from whence he came, and from thence to the place of execution,” etc. !

A motion for a new trial was made “short” the day the appellant was sentenced (November 14th, 1913), and on November 18th a formal motion in writing was filed. On December 23rd that inpiiou was overruled, and on January 24th, 1914, which was during the same term of Court, a motion to strike ont the judgment and sentence was made, which was overruled, and this appeal was taken to this Court. ³⁷⁸ That the.action of the Court in overruling the motion for a new trial is not subject to review by us is too well settled to require or 'justify the citation of authorities, but its action on the motion to strike out the judgment and sentence is reviewable by us. The ruling on such a motion was reviewed by us in Hommer v. State, 85 Md. 562 , and other cases which might be cited, but we are confined to what appears on the face of the record itself, and there is no bill of exceptions, agreed statement of facts, or substitute for either of them. We will consider the questions referred to in the motion, but in somewhat different order from that in which they are therein stated. 1.

Objection is made that the appellant was not arraigned. An assault with intent to rob, murder or commit a rape is not a felony in this State. The punishment for those crimes, is provided for in one section of the Code, and has been for many years — being now section 17 of Article 27. In Hollohan v. State, 32 Md. 399 , it was said, “Robbery, murder and rape are felonies.

To constitute either of these crimes, the felonious act and felonious intent must concur’. An assault with intent to commit either of these crimes is not a felony, but to bring an assault within this Article and section and subject the party charged to the punishment provided, it must be charged and proved to have been committed with an intent to commit a crime, which is a felony. If the intent had been effectuated by the act, a felony would have been committed. Only because it was not effectuated, the crime' sinks from the grade of a felony to that of misdemeanor.” See also State v. Dent, 3 G. & J. 12 .

The distinction made in some jurisdictions that crimes punishable by death or confinement in the penitentiary are felonies, and others misdemeanors has never existed in this State, but here only those are felonies which were such at common law, or have been so declared by statute. The fact that a crime is punishable in the penitentiary or is “infamous” does not make it a felony in this State. It was said' in State v. Bixler, 62 Md. 360 : “The General Court of this- ³⁷⁹ State in 2 H. and McH. 378 (Clarke's Lessee v. Hall), defined ‘infamous crime’ to be one which rises at least to ‘the grade of felony.’ This is, however, too narrow, for perjury is a misdemeanor, but by all authority is ‘infamous.’ ” On the same page it is also said: “There are many misdemeanors punishable by confinement in the penitentiary, which clearly are not ‘infamous crimes’ within the meaning of the common law or of the Constitution. If, for example, the prisoner has been convicted of any of the assaults with intent, mentioned and punished by the Code, and had been sentenced to the penitentiary and served his time out there, without being pardoned by the Governor, he would not be chargeable with having committed ‘an infamous crime.’ ” In Garritee v. Bond, 102 Md. 379 , Judge Schmucker, in delivering the opinion of the Court, referred to the ease of Ex Parte, Wilson, 114 U. S. 422 , where the Supreme Court held that the provision in the United States Constitution which prohibits prosecution for “a capital or other infamous crime unless on a presentment or indictment of a Grand Jury” must be considered not merely from the standpoint of the character of the crime, hut also from the nature of the consequences to the accused, if he should he found guilty, and went on to say: “But even in Wilsons case it was held that at common law prior to the Declaration of Independence ‘it was already established law that the infamy which disqualified a convict to be a witness depended upon the character of his crime and not upon the nature of his punishment.’ ” Again it was there said: “The authorities generally, though not with entire uniformity, hold that the infamous nature of a crime was determined at common law by the character of the ad itself, and not by the penalty inflicted for its commission,” and after referring at length to State v. Bixler, supra, it was distinctly held that the crime considered in Garritee v. Bond could not be regarded as infamous merely because it was punishable at the discretion of the Court in the penitentiary. ³⁸⁰ So whatever may be the law elsewhere, it is clear that am assault with am intent to commit a rape is not a felony and is not even an “infamous crime” as that term is understood in this State.

It is not now and never has been so far as we are aware customary or necessary to arraign one accused of a misdemeanor — even though if convicted he could or must be punished by confinement in the penitentiary. The Legislature in authorizing the Court, in its discretion, to impose the death penalty or confinement in the penitentiary for not less than two nor more than twenty years on one convicted of the crime of assault with intent to commit a rape, did not declare it to be a felony, and in our judgment did not make it such by providing for the death penalty in the discretion of the Court. In Gibson v. State, 54 Md. 447 , the first count charged that the accused “feloniously, wilfully and maliciously did set fire to and burn, a certain barn,” etc. One ground for a motion in arrest of the judgment was “Because the jury have found him guilty of a felony and the offense committed is only a misdemeanor by the laws of Maryland.” In the course of the opinion it was said: “The argument of the Attorney-General, that the offense charged-m the first count is legally a felony, because the common law attached the character of felony to all offenses punishable by death, however well founded according to the English authorities, does not apply to offenses where the punishment of death is in the discretion of the Court, and this Court having decided, in Black v. State, 2 Md. 376 , that such offenses are misdemeanors, we are not disposed to disturb that decision.” In Salfner v. State, 84 Md. 299 , Ctuek Ludoe McSherey said: “Tt-is unnecessary that a party accused of a misdemeanor should be arraigned; but it is indispensable that a plea should be entered to the-indictment or that the record should show he waived a plea.” So without dooming it necessary to further discuss this branch of the case, or to refer to authorities out of the State as to when the accused must be arrainged, we hold that it ³⁸¹ was not necessary to arraign the appellant, and there was no error in not doing so, and hence the effect of a waiver of arraignment becomes immaterial. 3. The reason alleged that the defendant never, either in person or by his attorney, pleaded the plea of ‘TSTot Guilty” which appears in the docket entries — it having been entered without the order or authority of the defendant or his attorney, and without his having been called upon to plead,--is not sustained by the record.

We have quoted above what the record states on that subject, and as it shows that he did plead “Eot Guilty,” and as there is nothing in conflict with that statement, it is unnecessary to further discuss the question. 3. Another reason assigned in support of the motion is that sentence of death was pronounced against the defendant without first asking him if he had anything to say. The authorities are not entirely uniform on the subject, although it may he admitted that the greater number of them hold that at least in capital cases the accused should he asked if he had anything to say why sentence should not he pronounced. The question has not heretofore been passed on by this Court, and we have no statute on the subject, as many States have.

There can he no doubt that most of the reasons originally given for the adoption of that practice are not applicable in this State. In the first place the prisoner is not only allowed counsel, hut the Courts always appoint counsel to defend those who are unable to employ them, in capital cases. Again, the rules of Courts generally fix the time within which a motion for a new trial or motion in arrest of judgment can be filed, and in the absence of such rules, the time allowed at common law is applicable. Even if sentence should be passed before the expiration of such time, without having given the prisoner an opportunity to then speak, such a motion would he afterwards entertained if made within the time allowed.

In Heiskell v. Rollins, 81 Md. 397 , a judgment was entered by the clerk in a civil case the day the verdict was rendered, and on the same day a motion for a ³⁸² new trial was filed. We dismissed the appeal without prejudice, in order that the appellant could take steps to have the entry of judgment which was improperly entered stricken out and a final judgment then entered from which an appeal could be taken. The case was here on a second appeal, as reported in 82 Md. 14 . Such a practice being adopted in a civil case, the Court would be all the more careful to see that a prisoner under the sentence of death did not suffer by reason of a premature judgment and sentence.

Then under our practice a motion can be made to strike out the judgment and sentence at any time during the term, as was done in this case. It would be practically impossible for the prisioner to suffer from this omission because he desired to present a pardon. If a pardon had been granted by the Governor before sentence, it is impossible to conceive of a ease under our system and practice, in which the Court could fail to be informed of it, because of the omission to ask the prisoner whether he had anything to say. So we might look to the various reasons originally given for this practice, without finding a substantial one under existing conditions for setting aside a judgment and sentence in a criminal case because of the omission of this inquiry.

The decisions of the various Courts which hold that omis- . sion to be reversible error differ as to the effect of such an error, but even if we were inclined to hold that it was indispensable in capital cases to ask the prisoner if he had anything to say, we would not hestitate to hold that the error would only affect the sentence and would not affect the verdict. In State v. Hoyt, 47 Conn. 518 , one of a number of reasons given by that Court for declining to hold it to be necessary, was that it would only affect the sentence and the weight of authority is to that effect. But in this State we have a statute (Sec. 81 of Art. 5 of Code) which provides that if this Court shall reverse a judgment for error in the judgment or sentence itself, it shall be then the duty of this Court to “remit” the record to the Court below, in order that it may pronounce the proper judgment. In this case a ³⁸³ motion for a new trial was made and overruled, as was the motion now under consideration, and it would seem peculiar, to speak mildly, if the rules of practice required us to reverse the judgment and send it back to the same Court which passed the sentence in order that it might first ask the prisoner if he had anything to say and then re-sentence him.

Inasmuch as we will reverse the judgment for another reason, and order a new trial, it is perhaps unnecessary to discuss this point at such length, but as it was fully argued and thoroughly considered by us, we concluded to state our views on the subject. We are of the opinion that it is not reversible error, even in capital cases, not to ask the prisoner if he has any