State v. Chaney

Schmucker, J., delivered the opinion of the Court. The appellee was indicted by the grand jury of Frederick County, where he resided, for bastardy. The mother and the child resided in Carroll County. She voluntarily appeared before F. -I. Lewis, a magistrate of Carroll County, and charged the appellee under oath with being the father of her child.

Lewis transmitted to John Wood, a Justice of the Peace of Frederick County, the original affidavit of the mother made before him instead of a copy of the proceedings in the case ⁷² had before him certified under his hand and seal as required by section 3 of Art. 12 of the Code. Wood had the appellee arrested and held him to bail for the action of the grand jury of Frederick County, by whom he was presented and indicted. The appellee first demurred to the indictment and his demurrer having been overruled he filed five pleas to the jurisdiction. The State traversed the second plea and demurred to the other four.

The Court sustained the demurrer to the first and fourth pleas and overruled it to the third and fifth. The second plea averred that there was no complaint made by the mother before a Justice of the Peace of Carroll County and transmitted under his seal to the justice of Frederick County who issued the warrant for the arrest of the traverser. The third plea averred that the complaint made by the mother against the traverser in Carroll County and transmitted to the Justice of the Peace of Frederick County, contained no certificate that the party before whom it was made was a Justice of the Peace. The fifth plea set up the failure of the Justice of the Peace of Carroll County, before whom the mother made the complaint, to transmit under his hand and seal a copy of the proceedings in such case had to the justice in Frederick County, who issued the warrant for the traverser, as is required by sec. 3 of Art. 12 of the Code.

The case was tried before the Court who found for the State on the third-plea and'for the traverser on the second and fifth pleas and entered judgmeut for the traverser who was thereupon discharged and the State appealed. There is but one bill of exceptions and that is to the Court’s action in sustaining the objection of the traverser to the offer in evidence by the State at the trial in the Circuit Court of the original affidavit made by the mother before F. I. Lewis, the Justice of the Peace for Carroll County, and by him transmitted to the Justice of Frederick County, who ordered the arrest of the traverser and bound him over for the grand jury. The learned Judge below was clearly right in excluding this evidence. The proceeding against the putative father of an ⁷³ •illegitimate child in this State is founded upon and regulated .by the 12th Article of the Code which prescribes the mode of ■procedure to be followed.

The initial steps are taken before the Justice of the