O'Brien v. State

Boy», C. J., delivered the opinion of the Court. The appellant was indicted in the Circuit Court for Prince George’s County for bastardy and fornication, and on his application the case was removed to Charles County. He was found guilty and was sentenced to give bond for the maintenance and support of the child mentioned in the proceedings. From that judgment this appeal was taken.

There are nine bills of exception in the record, but the most important questions were raised by a motion to quash the indictment, by rulings on replications to pleas to the jurisdiction of the Court filed after the motion to quash was overruled and by an exception taken to the instruction given the jury as to the form of their verdict. First. There is no motion to quash, in which the reasons were assigned, set out in the record, but as the docket entries and a bill of exceptions taken to the action of the Court in overruling the motion show that such motion was passed on, and as the pleas to the jurisdiction do set forth the grounds relied on (which we understand to be the same as those relied on for the motion) we will not stop to determine whether the motion of itself could properly be considered by us. We pursue this course because the State has raised no question about it, and it is important that some of the questions raised be determined, inasmuch as Chapter' 163 of the Acts of 1912 has not been before this Court for construction.

The Act of 1912 repealed and re-enacted Article 12 of the Code, entitled “Bastardy and Fornication,” and made many material changes on the subject. It will be helpful to refer to so much of that Act as is involved in this case. Section 1 requires a justice of the peace, upon written information ²⁷³ under oath of a woman being pregnant with or delivered of a bastard child, to cause her to be brought before him, and upon failure to disclose the father to give bond to indemnify the county, etc. Section 2 provides that, “Whenever any woman, who has been delivered of or who is pregnant with a bastard child, shall in writing under oath, accuse any person before a justice of the peace, having criminal jurisdiction, of being the father of the said bastard child, such justice of the peace shall by his warrant cause such person to be brought before him,” etc. Section. 3 is, “TJpon the appearance of said accused person, the justice of the peace shall pass an order requiring said accused person to give bond to the 'State of Maryland in a penalty not exceeding $500, .with good and sufficient securities, conditioned that he will appear at the next term of the Circuit Court of the county from which said warrant issued, or the Criminal Court of the City of Baltimore, as the case may be, or to any later term of such Court, after the birth of said child. In default of such security, said accused person shall be committed to the custody of the Sheriff until such bond is given or until final judgment is rendered by said Court.

In case the bond provided for by this section shall be forfeited, the Court may from time to time direct that the proceeds thereof be applied for the maintenance and support of said bastard child.” In the Act, as published in the Laws of 1912 and in the 3rd Volume of the Code, there is only a comma before the word “In” in each of the two instances above where that word is italicised, but manifestly there should be something more than a comma, and we have substituted a period. Section é provides: “At the hearing before said justice of the peace, it shall be his duty to tate down and reduce to writing the testimony of the woman mating complaint, together with the cross-examination of said woman by the accused, or his attorney, which testimony shall be signed and sworn to by said woman, and he shall transmit the same with the original papers in the case to the Circuit Court of the county ²⁷⁴ or to the Criminal Court of the City of Baltimore, as the case may be, and such testimony shall be admitted in evidence at the trial of the accused person under section 5 of this article, if said accusing witness should die prior to the time of such trial.” Section 5 is: “Immediately upon the passage of said order, said justice of the peace shall transmit the original papers and a transcript of the proceedings had before him to said Circuit Court or the Criminal Court of the City of Baltimore, as the case may he, and thereupon, but not before said woman shall have been delivered, the same proceedings shall be had as in other criminal cases, and if the accused person shall be found guilty by the verdict of a jury, or by the Court, if the case be tried before the Court, the Court shall immediately order such person to give bond to the State of Maryland in a penalty not exceeding $500, with good and sufficient securities conditioned to pay for the maintenance and support of said child,” etc. Section 6 authorizes the Court in its discretion to require the mother to give bond to indemnify the county or city; and section 7 is: “All bonds or recognizances required under this article to be taken or given before a justice of the peace shall be immediately returned by said justice of the peace (a copy thereof being retained by the said justice of the peace), to the clerk of the Circuit Court of the county or the Criminal Court of Baltimore City as the case may be; and the clerk of the Court shall record said bonds or recognizances together with any other bonds or recognizances taken or given by the order of the Court therein among the proceedings of the Court.” The objections to the proceedings, as particularly set out in the pleas to the jurisdiction are: 1st, that there was no order passed by a justice of the peace requiring the accused to enter into a recognizance or give bond for his appearance at Court, and that he never entered into such recognizance or gave such bond, and no copy of any such recognizance or bond was made or retained by the justice; 2nd, that no justice ever took down and reduced to writing the testimony of the woman making ²⁷⁵ the complaint, together with the cross-examination of her by the accused or his attorney, and transmitted the same, together •with the original papers to the Circuit Court; 3rd, that no justice of the peace immediately upon the passage of an order in and upon the premises transmitted the original papers and a transcript of the proceedings had before him to the Court; 4th, that no bond or recognizance required under the 12th Article of the Code was so taken or given, or immediately or ever, returned (a copy thereof being retained by him) to the clerk of the Court, and 5th, that no recognizance, bond, transcript of any proceedings, original papers, written accusation under oath, or testimony reduced to writing, together with the cross-examination, was ever transmitted or received or filed or docketed among the records of the Court. The evidence shows that such papers as were issued or taken by the justice of the peace (the warrant, bond, testimony and cross-examination) were mailed by him, addressed to the clerk of the Circuit Court for Prince George’s County, but were not received by the clerk and have never since been found. The appellant contends that the Circuit Court had no jurisdiction under Article 12 of the Code, in the absence of all such papers as are required to be taken by the justice of the peace, by the provisions of that article.

As the uncontradicted testimony of the justice who acted in this case shows that some of the things directed to be done by him were not done, but that he did place in a mail box in front of the Post Office at Laurel where he, the woman and the accused lived, such papers as he took, duly addressed to the clerk, using his name and official title, we will consider (a) the effect of the papers, etc., not being received by the clerk, or Court, either before or after the indictment was found, and (6) the effect of the omissions and errors of the justice as to some of the proceedings. (a) Assuming for the purposes of this part of the discussion that all papers, if any, which were essential to give the Court jurisdiction were taken and mailed by the justice to the clerk as above stated, but have been in some way lost. ²⁷⁶ there can be no question about the right of the State to prove their contents, if that became for any reason necessary or proper. The Act of 1912 made radical changes in o-ur statute. Under former statutes when the alleged father of the child was taken before the justice the latter required him to give security to indemnify the county from all charges that might arise for the maintenance of such child, and upon his failure to- enter into security the justice committed him to the custody of the sheriff of the county for the period of twelve months.

If he felt aggrieved by the judgment of the justice he had the right to enter into his personal recognizance for his appearance at the next term of Court, but in order to be released was compelled to give security for his appearance. In Cushwa v. State, 20 Md. 277 , it was held that in the .absence of the judgment of the justice and the recognizance to appear “the Circuit Court was without jurisdiction, the basis for the Court’s proceeding is the judgment of the justice, and the recognizance of the party to appear, upon which alone it is authorized to take cognizance of the matter.” But-the Court then went on to give the reason why that was so, saying: “The jurisdiction conferred on the Circuit Court by the 5th section is not original, but in the nature of a review of the judgment of the justice before whom alone the proceeding can originate under the Code.” Great hardship was-sometimes imposed on accused persons who were unable to-give security, and it was not until the Act of 1894, Chapter 108, that the accused could get the Court to take cognizance of his appeal without entering into a recognizance with security. Under the Act of 1912 the justice does not render any judgment, and hence what was said in Cushwa's case, supra, is not applicable, as the proceeding in Court is no longer “in the nature of a review of the judgment of the justice.” The proceeding before the justice is simply a preliminary examination for the purpose of holding the accused for Court, if the evidence justifies it. Under the former law action was not taken, before the justice, before the birth of the child, ²⁷⁷ but now it may be taken when tbe woman is pregnant, although the father cannot be indicted until after the birth of the child.

If the woman dies before she is delivered of the child or the child is not bom alive, then there can be no indictment under this article, and there is in such case no judgment against the father. It would therefore be remarkable if the accused could not be proceeded against because the papers were lost in their transmission to the Court—especially when we remember that even under the former statutes the proceedings before the justice formed no part of the record and it was not necessary to set them out in the indictment. Norwood v. State, 45 Md. 68 . No possible use of any of the papers required by the present statute to be sent to the Court can be made at a trial under the indictment, unless it be the examination and cross-examination of the woman.

Inasmuch as the statute does require certain documents, etc., to be' sent to the Court by the justice, when they are lost the proper practice is to have copies of them made and filed, so the copies may be used, if it becomes necessary; but in passing it may be well to say that there is no exception in the record as to the method of proof of the lost papers or their contents, but the contention was that as the papers were not filed in Court, it had no jurisdiction. In 19 Am. & Eng. Ency. of Law (2nd Ed.), 556, it is said: “In case of the loss or destruction of a judicial record, or any part thereof, such record may be restored at the instance of the party affected- This power, which has long since been recognized, has frequently been exercised by the restoration of lost or destroyed warrants, summonses and other writs, pleadings, exhibits, bills of exceptions, bonds and recognizances,” etc. Then on page 557 it is said that the record of a judgment and a lost or destroyed indictment can be restored. While it is true that a justice’s Court is not a Court of record, there can be no reason why copies of proceedings taken before one under this article should not- be permitted to be proved. ²⁷⁸ Indeed in some respects it is more important than permitting copies from courts of record, as it is well known that few justices of the peace have the protection for their papers that courts of record presumably have.

In 5 Cyc. 654, having spoken of the complaint, examination of complainant, the warrant and decision in this class of cases, it is said: “The original papers are not indispensable in the higher Court, but the proceedings may be continued on certified copies of ,, same. A transcript of the proceedings has been held sufficient, though a copy of the complaint or warrant be omitted. While the recognizance for appearance of defendant should be transmitted, it has been held that if there has been a failure to exact such recognizance the appearance may be enforced by a capias.” In the notes are cited Biggane v. Ross, 126 Mass. 233 ; Kennedy v. Shea, 110 Mass. 152 ; Ramo v. Wilson, 24 Vt. 517 ; and it is said that' a certified copy of the proceedings may be filed in the higher Court at any time before the trial begins, citing Hawes v. Gustin, 2 Allen, 402 ; Packard v. Lawrence, 15 Gray, 483 ; Allen v. State, 4 Blackf. 122 ; Altschuler v. Algaza, 16 Neb. 631 . It is also said that an entry nunc pro tunc may be allowed by the Court.

Dineen v. Williams, 138 Mass. 367 . In another note on that page of Gyc. it is said: “The neglect of the justice to file a transcript, or even the fact that the papers are lost, does not render it obligatory upon the Court to grant a continuance. A new transcript may be substituted, and the testimony which was taken may be proved by parol,” citing Burt v. State, 79 Ind. 359 ; Hoff v. Fisher, 26 Ohio St. 7 . We are aware of the fact that in most, if not all, of those cases the proceeding for bastardy was regarded as a civil, and not a criminal proceeding, but the cases were tried on the papers sent up by the justices, and we cite them to show how ready other courts have been to avoid a miscarriage of justice by substituting papers and