Hayes v. State

²⁸¹ Urner J., delivered the opinion of the Court. The judgment in this ease was entered in the Circuit Court for Baltimore County on November 15, 1921. It imposed sentence of imprisonment in die penitentiary upon the appellants for a robbery of which they had been found gniltv on the preceding day, The appeal was not taken until December 24th. TliiA was nine days, after the expiration of the thirty day period prescribed by Rule 28 of this Court for appeals in criminal cases.

There is a motion to dismiss the appeal on that ground. It will he necessary to grant the motion (State v. Hardesty, 132 Md. 172 ), unless it can be held that the judgment was suspended or made nugatory by a motion for a 'new trial which was- filed two days after its rendifion and was overruled fourteen days before the date of the appeal. In Heiskell v. Rollins, 81 Md. 397 , the judgment appealed from was mitered by the clerk on the day of the verdict and while a motion for a new trial was pending. It was held that the entry of the judgment under such eondiiions must have been the result of a mistake on the part of the clerk.

The case was decided on the theory that there was no valid judgment from which an appeal could he taken, and for that reason the appeal was dismissed without prejudice to the right of the appellant to have an appealable judgment entered. In'the present case the judgment, was rendered by the court two days before the motion for a new trial was filed. It is to be presumed that the court followed the usual practice, in such cases, of inquiring whether the prisoner had anything to say why sentence should not then be pronounced. "Whether the motion for a new trial was tiled within the time specified by the rules of the Circuit; Court for Baltimore County we arc* not informed by the record.

It was filed three days after the verdict. 'Phis was within the four day period allowed at common law, and it may have been within the time limited by the rules of the trial court. But it, was after the judgment had been actually and formally ²⁸² rendered. It is apparent, therefore, that the question raised ■on the motion to dismiss the appeal in this case is materially different from the one decided in Heiskell v. Rollins, supra,. The entry of the present judgment is not attributable to any ■clerical inadvertence but was made in the presumably regular exercise of the authority possessed by'the court in which the case was tried and