Hahn v. State

Marbury, C. J., delivered the opinion of the Court. ¹⁶⁸ The appellant, on July 2, 1946, was indicted by the Grand Jury of Baltimore City for bastardy. The indictment states that the child was born on October 8, 1942. To this indictment the appellant filed a special plea of limitations to the effect that no action was commenced within two years after the birth of the child and no money has ever been paid for the child’s support. Anno.

Code, 1939, Art. 12, Sec. 15. The State traversed this plea, stating that the prosecution was commenced by the filing of an affidavit by the prosecuting witness before a Justice of the Peace for Baltimore City on June 30, 1943, and the issuance of a warrant for the arrest of the applicant on that date; that the warrant was not executed because the appellant was at that time a member of the Armed Forces of the United States and was outside the jurisdiction of the State. At the conclusion of the State’s evidence at the trial, heard before the court without a jury, appellant stated there was no evidence introduced to show that the proceedings were commenced within two years after the birth of the child, nor was there any evidence that the prosecuting witness had ever received any payment from the defendant after the birth of the child. The State’s Attorney replied that there was filed in the case with the indictment, the original papers, namely, the oath of the prosecuting witness and the statement by the prosecuting witness made before the magistrate on.

June 30, 1943, and the warrant issued on that date; and that this commenced the prosecution within the statutory period of two years after the birth of the child. The State’s Attorney offered in evidence these original papers, they were admitted over objection, the appellant was found guilty and sentenced to two years in the Maryland House of Correction, from which sentence and judgment the appeal was taken. Under the bastardy statute, Article 12 of the Annotated Code, a proceeding may be started before any Justice of the Peace upon written information given him under oath by a woman, accusing any person of being the ¹⁶⁹ father of her illegitimate child. The Justice then issues a warrant and upon the appearance of the accused person, the Justice passes an order putting him under bond to appear at court at a time after the birth of the child.

The statute provides (Sec. 3), “immediately upon passage of said order, said Justice of the Peace shall transmit the original papers and a transcript of the proceedings had before him” to the court. It is provided by Section 4 that at the hearing before the Justice, he must take down and reduce to writing the testimony of the woman making the complaint, together with her cross-examination, which testimony shall be signed and sworn to by her, and the Justice shall transmit the same with the original papers to the court and “such testimony shall be admitted in evidence at the trial of the accused person * * * if said accusing witness should die prior to the time of such trial.” This section was passed by Chapter 163 of the Acts of 1912 and it was construed in the case of O’Brien v. State, 126 Md. 270 , 94 A. 1034 . In that case the warrant, bond and testimony and cross-examination were shown by the evidence to have been mailed by the Justice of the Peace to the clerk of the court but were somehow lost. The contention was made that, unless these papers were filed, the court would not have jurisdiction to indict.

This contention was based upon the earlier case of Cushwa v. State, 20 Md. 277 , which held, under the statute then in force, that the jurisdiction conferred on the court was not original but was in the nature of a review of the judgment of the Justice. The court in the O’Brien case distinguished the prior Act from the Act of 1912, and stated that under the latter Act, the proceeding before the Justice was simply a preliminary examination; that the proceeding before the Justice formed no part of the record; and that no possible use of any of the papers required by the Act of 1912 to be sent to the court could be made at a trial under the indictment, unless for the examination and cross-examination of the woman. The court said that the primary object in requiring the testimony to be taken ¹⁷⁰ down was that the prosecution could have the benefit of