Lank v. State

⁴³⁵ Horn®y, J., delivered the opinion of the Court. Jarrell Lank (the defendant) was indicted in the Circuit ■ Court for Wicomico County on a charge of bastardy. When the State moved to amend the indictment the defendant moved to dismiss it. The trial court granted the motion to amend and overruled the motion to dismiss, whereupon the defendant pleaded not guilty.

At the trial of the issue by a jury the defendant was convicted, and, from the judgment and sentence entered on the verdict, he has appealed. There is no dispute as to the facts and the sole question is whether the indictment was defective and, if so, whether the defect involved a matter of substance [precluding amendment except by the grand jury], or a matter of form [permitting amendment before trial]. See Gray v. State, 216 Md. 410 , 140 A. 2d 643 (1958). The pertinent pai'ts of the indictment as returned by the grand jury, and as amended by interlineation, read: “The Grand Jurors * * * do on their oath present that [Jjarrell Lank * * * on or about the 15th day of November, 1957, * * * did commit fornication with Sylvia Timmons [and a bastard child upon the body of Sylvia Timmons] then and there did beget, of which child the said Sylvia Timmons was afterward, to wit: on the 15th day of August, 1958, * * * delivered, and which child was then and there born alive and is still living * * The misnomer of the given name of the defendant was cured, pursuant to the provisions of Code (1957), Art. 27, § 603, without objection, by inserting “Jarrell” in the place of “Darrell” erroneously set forth in the indictment.

The italicized phrase within the brackets constitutes the amendment allowed by the trial court on the motion of the State. The State, claiming that the amendment was a mere matter of form, contends that the granting thereof was proper. The defendant, claiming that the amendment concerned a matter of substance, moved to dismiss the indictment pursuant to the provisions of Maryland Rule 725 a, b 2, contend ⁴³⁶ ing that the indictment was fatally defective. As to what constitutes substance and what is merely formal in an indictment, it may be said that all facts which must be proved to make the act complained of a crime are matters of substance, and that all else—including the order of arrangement and precise words, unless they alone will convey the proper meaning—is formal. 27 Am.

Jur., Indictments and Informations, § H7. Since a prosecution for bastardy, although civil in purpose, is a criminal proceeding in Maryland it is subject to the same constitutional guarantees as affect and control the trial of other criminal cases. Kisner v. State, 209 Md. 524 , 122 A. 2d 102 (1956); Leister v. State, 136 Md. 518 , 111 A. 78 (1920). Cf.

Fiege v. Boehm, 210 Md. 352 , 123 A. 2d 316 (1956). Thus, every defendant in a bastardy proceeding has a right to be “informed of the accusation against him.” Article 21 of the Declaration of Rights. It has been stated that the purpose of a criminal charge—be it a state warrant, an information or an indictment—is twofold, that is, the charge must so characterize the crime and describe the particular offense “as to put the accused on notice of what he is called upon to defend and to prevent a future prosecution for the same offense.” Gray v. State, supra, The real question then, is whether the indictment in this case met that test before it was amended. We believe it did.

As was pointed out in State v. Wheatley, 192 Md. 44 , 63 A. 2d 644 (1949), modern courts disregard extremely