State v. Fisher

Henderson, J., delivered the opinion of the Court. The State appeals here from a judgment and suspended sentence to pay a fine of $500 and costs, upon conviction for violation of certain provisions of the Workmen’s Compensation Act. The indictment in three counts charged that the appellee, an employer engaged in an extra-hazardous occupation, unlawfully failed to secure compensation insurance or otherwise assure compensation for his employees. The appellee was represented by counsel and entered a plea of guilty.

It was brought to the court’s attention that an award of not to exceed $7,500 had been passed against him as a non-insurer by the State Industrial Accident Commission in favor of dependents, for an injury and death arising out of and in the course of the employment of a deceased employee; and that the award had not been paid. The court entered the judgment and imposed sentence and then, over the State’s objection, suspended the sentence upon a representation that the appellee was unable to pay the fine imposed. These facts, supplementing the docket entries, were incorporated in the record by affidavit of the State’s Attorney, certified by the trial court. No brief was filed for the appellee, but the State contends that it has a right to appeal and that the court exceeded its statutory authority in suspending the sentence.

There was no motion to dismiss the appeal, but we could hardly treat the point as waived or abandoned under the circumstances. In any event, we think the question is reviewable on appeal by the State. ³¹¹ In State v. Adams, 196 Md. 341, 347 , Judge Marked, speaking for the Court, said that “Under the Act of 1892 [ch. 506; Code (1951), Article 5, Section 86] an appeal can be taken only after judgment, and presents for review not only questions presented by bills of exceptions but also questions appearing on the face of the record, formerly reviewable only on writ of error.” He also noted that “apparently the right of review by writ of error originated in the common law and not in any statute,” and that in State v. Buchanan, 5 H. & J. 317 , it was held that a writ of error lies at the instance of the State, in a criminal prosecution to review a judgment sustaining a demurrer to an indictment and discharging the defendant. While it was held in the Adams case that the granting of a motion to suppress evidence was not reviewable on appeal by the State, Cf. State v. Barshack, 197 Md. 543 , it was recognized that there is an exception, to the general rule that the State cannot appeal to this Court in a criminal case, in “cases which were — and still are * * * — reviewable on (or ‘as on’) writ of error, but since 1892 have also been reviewable on appeal in lieu of writ of error, * * Cf.

State v. James, 203 Md. 113 , 100 A. 2d 12 . In a comment on the Adams case by Strahorn, in 12 Md. L. R. 68, it was suggested that the whole subject of appeal by the State should be examined by the legislature, in the light of recent changes in the scope of review on appeal by an accused and the fact that, in Maryland, double jeopardy is not a constitutional defense. But the suggestion has not been adopted. The appeal in the instant case does not challenge the validity of the sentence, which was within the limits set by the Statute, but only the authority of the court to suspend the sentence imposed.

The question is one that appears on the face of the record for the docket entries show that a proper sentence was imposed and then indefinitely suspended. For present purposes it seems clear that the judgment is final even though its enforcement is deferred. Cf. Hite v. State, 198 Md. 602, 606 , ³¹² and Pritchett v. State, 140 Md. 310 .

We need not now consider whether the indefinite suspension could be set aside for cause, in the absence of probation or express reservations in the order, and if it could not, whether the suspension gratified the suspension statute. Cf. Code (1951), Article 27, sections 725 and 727, and Article 41, section 91 (f). See also People v. Court of Sessions, 36 N. E. 386 (N. Y.).

The state does not challenge the form of the suspension order; it contends that the Statute creating the misdemeanor stripped the court of all power to suspend the sentence, except on the conditions specified in the Statute itself. Since it appears on the face of the record that the statutory conditions were not met, the question of the legality of the suspension is jurisdictional. Cf. State v. Ward, 95 Md. 118 , Kelly v. State, 151 Md. 87, 100 , and Hite v. State, supra.

See also United States v. Albrecht, 25 F. 2d 93 (CCA 7th), and United States v. Murray, 275 U. S. 347 (jurisdiction to award probation after sentence reviewed upon writs of error). The right to require the enforcement of a sentence illegally suspended, by petition for writ of mandamus, has been sustained in many cases. Ex Parte United States, 242 U. S. 27 ; Note, 141 A. L. R. 1225, 1235. While the State’s right to appeal “as on” writ of error in Maryland has been chiefly recognized in cases where the indictment was quashed, we think the principle has a somewhat wider application, and appeal lies in the circumstances of the instant case.

Code (1951), Article 101, Section 15 (3) (b) provides: “Any employer, subject to the provisions of this Article, who, after November first, nineteen hundred and fourteen, fails or refuses to submit to said Commission, as provided in the next succeeding paragraphs, the method he desires to adopt for assuring compensation, or who shall fail to secure insurance by one of such methods or who fails to pay compensation