Quesenbury v. State

Melvin, J., delivered the opinion of the Court. On October 26, 1943, the appellant was found guilty by a jury in the Circuit Court for Prince George’s County of assault with intent to rape. The next day he was sentenced by the court to ten years in the penitentiary and ⁵⁷² two days later (October 29) there was filed a “motion to set aside sentence and for new trial.” This motion was argued and overruled on February 15, 1944, and on February 18 notice of appeal was filed. It is to be noted ;at the outset that neither the motion itself nor the order for appeal appear in the record and that not a single exception was reserved at the trial.

Besides the docket entries, all that the record does show is a transcript of testimony and even this is unauthenticated. It is apparent, therefore, that on the very face of the proceedings there is no ground for this appeal It was presumably taken from the adverse ruling on the motion “to set aside sentence and for new trial,” but there is nothing in the record or before this Court, by way of argument or otherwise, to indicate that this paper was anything more than the formal motion for a new trial. It is elementary that the ruling of the trial court on such a motion is not appealable. Archer v. State, 45 Md. 457 ; Myers v. State, 137 Md. 482 , 113 A. 87 ; White v. State, 143 Md. 535 , 123 A. 58 ; Wilson v. State, 181 Md. 1 , 26 A. 2d 770 . .

It is likewise thoroughly settled that while a motion to strike out a judgment, as distinguished from a motion for a new trial, is appealable (Duker v. State, 162 Md. 546 , 160 A. 279 ), the, reviewing court will look to the real character of it and will not be misled by the mere titling of the motion into passing upon matters embodied in it that must be .addressed to the discretion of the trial court. Willie v. State, 153 Md. 613 , 139 A. 289 ; Myers v. State, supra; Margulies v. State, 153 Md. 204 , 137 A. 896 ; Miller v. State, 135 Md. 379 , 109 A. 104 . In the case at bar no reasons or grounds whatever for the appeal are shown in the record, and the only argument presented was that contained in appellant’s brief. There, it is pointed out, his