McDonald v. State

Miller, J., delivered the opinion of the Court. The plaintiff in error was indicted for murder, and on his trial was found guilty of manslaughter and not guilty of murder. Upon this verdict the Criminal Court of Baltimore City, in which he was tried, pronounced judgment, sentencing him to “five years imprisonment in the jail of Baltimore City,” and this judgment is brought before us for review, by writ of error. The punishment prescribed by law (Act of 1864, ch. 89,) for the crime of manslaughter, is confinement in the pen- ⁹¹ itentiary for not more than ten years, or, in the discretion of the Court, a fine of not more than five hundred dollars, or imprisonment in jail for not more than two years, or both fine and imprisonment in jail.

The Attorney General admits that through inadvertence a sentence was imposed on the prisoner, which the law does not authorize, and concedes upon the authority of Watkins vs. The State, 14 Md., 412 , this judgment must he reversed. That is undoubtedly so, and the only other question we can now decide is, whether upon such reversal this Court has the power to impose the proper sentence, or to remand the case to the Court of original jurisdiction for that purpose. In the absence of legislation conferring that authority upon this Court, it is clear it has no power to do either of these things. In Watkins vs. The State, where the judgment was reversed for a similar defect, the Court say “the effect of the reversal for error in the judgment itself, is properly stated by the counsel for the plaintiff in error in his argument.

It defeats all former proceedings in the cause. This will abundantly appear by reference to the following authorities cited by him on this point. 1 Chitty’s Cr. Law, 755; 4 Bl. Com., 393 ; Hawkin’s, Book 2nd, ch. 50, see. 19.” In addition to these authorities we refer to several more recent decisions of the English and Irish Courts upon the subject, viz., Rex vs. Ellis, 5 Barn. & Cress., 395 ; King vs. Bourne, 7 Adol. & Ellis, 58 ; Silversides vs. The Queen, 2 Gale & Davison, 617, and Holland vs. The Queen, 2 Jebb & Syme, 357.

In each of these, and especially in the first two, it was, upon full review of all previous decisions, denied that a Court of error had any power in a case like this, either to remand the record to the Court below for the proper judgment, or itself to pronounce such judgment as the law authorized, and Rex vs. Kenworthy, 1 Barn. & Cress., 711, which was cited in support of the power to remand, is there shown to he a case in which no judgment had in fact been given, and it ⁹² was therefore remitted hack to the Sessions in order that a judgment might he rendered. In this country also, the decisions wherever the question has arisen, are almost uniform and to the same effect. It was so decided in several cases hy the Supreme Court of Massachusetts, and we need refer only to Christian vs. The Commonwealth, 5 Met., 530 . After these decisions the Legislature of that State provided by statute, that “whenever a final judgment in any criminal case shall he reversed by' the Supreme Judicial Court, upon a writ of error, oh account of error in the sentence, the Court may render such judgment therein as should have been rendered, or may remand the case for that purpose to the Court before whom the conviction yras had,” and the Supreme Court of that State has since acted under that statute.

Jacquins vs. The Commonwealth, 9 Cush., 219 . In New York there is a series of cases in the inferior Courts to the like effect, and in Batzky vs. The People, 29 New York, 124, the Court of Appeals of that State, held it to be well settled law, that but for the airthority conferred upon that Court by the statute of 1863, it would have no power upon reversal of the judgment of the Supreme Court in that case for error in the judgment itself, either to pronounce the appropriate judgment, or remit the record to the Oyer and Terminer, to give such judgment. The statute referred to declared in effect, that the Appellate Court shall have power upon any writ of error, when it shall appear that the conviction has been legal and regular, to remit the record to the Court in which such conviction was had, to pass such sentence thereon as the Appellate Court shall direct. There are also numerous cases in other States where the same question has been, incidentally decided in the same way.

In Exparte Lange, 18 Wallace, 163, the Judges of the Supreme Court of the United States, though differing upon other points, agree in the proposition, that apart from authority conferred by the Legislature, Appellate Tribunals have only the power of ⁹³ reversal, where in criminal cases the judgments are entire and not such as the law authorizes to he imposed, and all the cases on the subject are collected and referred to in the dissenting opinion of Mr. Justice Clij?i?obd, in that case. We have been able to find but two cases which are in even seeming conflict with the great weight and current of judicial precedent and authority on this question. One of these is the case of Kelly, et al. vs. The State, 3 Sm. & Mar., 518, decided by the High Court of Errors and Appeals of Mississippi, in 1844. There the judgment was reversed for two reasons, 1st, because it did not appear in the record that the prisoners were personally in Court at the time of pronouncing the sentence, and 2nd, hecaus'e the sentence did not set forth the time from which the imprisonment, was to date.

For these two errors say the Court, “the judgment of the Court below is reversed without disturbing the verdict, and the cause remanded with directions to the Court below to pronounce its judgment in accordance herewith, having first duly inquired of the defendants whether they have anything further to urge why its judgment should not then he pronounced.” Ho question was made in argument and no authority is referred to by the Court, in support of the power to remand thus exercised, and this has led us to examine the statutes of that State as to the powers conferred on its Appellate Court at that time. As expected, we find (Hutchinson’s Code, 927,) that that Court was clothed with very full authority in such cases. They had power upon the reversal of any judgment or sentence, to render such judgment or pass such sentence as the Court below should have rendered or passed, and the power to remand in criminal as well as in civil cases, where there is anything uncertain in the judgment or sentence is also given in very broad and general terms. We think therefore, the Court in this case rested their action not upon the supposed possession of any inherent or common law powers to that end, hut upon ⁹⁴ statutory authority well understood and recognized in that State.

The other case is that of Beale vs. The Commonwealth, 1 Casey, 11, decided by the Supreme Court of Pennsylvania, in which the opinion was delivered by C. J. Lewis from which Woodward, J., dissented. To understand what weight as authority, justly attaches to this case we must first look to the antecedent decisions and legislation on this subject in that State. It appears that in the course of the argument in Drew vs. The Commonwealth, 1 Whart., 279 , which took place in 1835, Rogers, J., referred to a recent case in which he said the Supreme Court had decided that where the indictment was good, and the trial good, that Court would do what the Court below would do after a new conviction, viz., sentence the party de novo and aright. In i¡he following year, 1836, the-Legislature gave express power to the Court, “to examine and correct any and all manner of errors of the justices, magistrates and Courts of the commonwealth, in the process, proceedings, judgments and decrees, as well in criminal as in civil pleas or proceedings, and thereupon to reverse, modify, or affirm such judgments and decrees or proceedings as the law shall direct.” .

After this came the case of Daniels vs. The Commonwealth, 7 Barr., 371, in which the opinion was delivered by Rogers, J. In that case this statute is set out and the Court say that by it “ in addition to the power to reverse or affirm heretofore given, we have authority to modify the judgment; that is to change its form, vary or qualify it, and this as well in criminal as in civil cases. It would certainly be better if the Court had power also to remit the record but as this is not given by the Act of 1836, we must examine the sentence and do right and justice according to circumstances,” and accordingly acting under the statute the Court struck out the words “ hard labor ” from the sentence and affirmed it in other respects. It appears to us the Court in that case clearly decided they ⁹⁵ liad no power to remand the record, and that their only power to modify