Neff v. State

Robinson, J., delivered the opinion of the Court. The appellant was indicted for bastardy, and pleaded— ³⁹¹ 1st. Not guilty. 2nd. That the prosecution was not commenced within a year from the commission of the offence as alleged in the indictment. 3rd.

That the prosecution was not commenced within a year from the hirtli of the child. 4th. That the warrant issued by the justice of the peace, was not a proper warrant. 5th. That he was arrested on a warrant issued by one O. J. Moat, justice of the peace, and was tried by one Jones, another justice, and judgment was rendered against him, from which he appealed to the Circuit Court, and was indicted, and the indictment quashed. That he was arrested again and taken before Justice Moat, and judgment was again rendered against him, from which he appealed, and that he now appears to answer to the indictment found on this appeal.

The State demurred to the second, fourth and fifth pleas, and joined issue upon the first and third pleas. No appeal will lie in criminal cases, from the rulings of the Court on demurrer, until after final judgment; and then only by a proceeding in the nature of a writ of error. Rule 1, 29 Md.; Forwood vs. State, 49 Md., 538 . No judgment has been entered in this case, and the rulings of the Court on the demurrer, are not therefore before us for review iu this appeal.

The questions raised by the demurrer, have, however, been argued, and as it may prevent a second appeal, we will state briefly our views in regard to the same. The second plea is a bad plea, because in cases of this kind, time is not of the essence of the offence, and the State was not bound to prove that the child was horn on the precise day charged in the indictment. The offence was consummated by the birth of the illegitimate child, and it was only necessary for the State to prove that the prosecution commenced within a year from that time. To con ³⁹² stitute a good plea of the Statute of Limitations, it was necessary, therefore, to allege that the prosecution was not begun within a year from the birth of child.

The fourth and fifth pleas are also bad pleas. The fifth plea, if intended as a plea to the jurisdiction of the Court, is bad, because it shows that the appellant was arrested and was tried, and judgment loas entered against him, from which he appealed, by entering into a