State v. Fleming

JOHNSON, J., delivered the opinion of the Court. In an indictment returned by the grand jurors for Carroll County on May 17th, 1928, C. Arnold Fleming was charged with the crime of bastardy. "Five days later he pleaded not guilty and elected to be tried before the court, sitting as a jury, by whose verdict he was found guilty, and under an applicable provision of section 5 of article 12 of the Code (as amended by Laws of 1927, ch. 458) the court gave judgment and sentence that the traverser give bond to the State in the sum of $300, with sureties, conditioned to pay to the mother of the bastard child, for her support and maintenance until she should reach the age of fourteen years, or during the life of the child should she die before reaching that age, the sum of ten dollars per month, accounting from the date of conviction, and further to pay a certain sum as expenses of the mother incident to confinement, likewise to pay the reasonable funeral expenses of the infant should she die before attaining the age of fourteen years, and in default of such bond the traverser was committed to the house of correction until it was given, not exceeding two years. Subsequently he was recognized with two other persons as sureties, who shortly thereafter filed a petition to be relieved of the obligation upon the ground ¹⁹⁴ that they had no intention of becoming sureties for the undertaking in question, and their bond was, after hearing on September 12th, 1928, found by the court to be null and void because of fraud, and accordingly vacated.

The traverser was thereupon resentenced by the court in form and manner identical with the original sentence, and on the same date executed a bond as contemplated by the sentence with George A. Fleming and George W. Gosnell as sureties. These sureties, by reason of financial reverses, have at the suits of creditors been divested of their property and are no longer adequate security for the ¡undertaking which- they entered into, and the female bastard child is still living, but Fleming, her father, is in default in payments to the mother. These facts were made the basis of a petition filed by the State on behalf of the mother, asking that the court pass an order vacating the recognizance of Fleming and Gosnell, and require Fleming to give new sureties to comply with the original order of the court. After hearing, the court passed an order declining to require a new recognizance to be given, assigning -as a reason a lack of jurisdiction, and this action presents the only exception contained in -the record.

It thus appears that no dispute arises .as to the facts, but a question of law is presented as to whether, ¡under these facts, the court may, under section 5 of article 12 of the Code (as amended by Laws 1927, ch. 458) require appellee to give a second bond with adequate sureties, and the answer must depend upon a construction of the statute. The present section, as well as those which it amended, has never been construed by this court. A consideration of -the decision in Oldham v. State, 5 Gill 90 , shows that our predecessors definitely declined to express any opinion as to the authority for ordering another recognizance to be entered into, that decision resting solely upon the ground that the proceeding being a criminal one, the father could not relieve himself from supporting his bastard offspring by applying for the benefit of the insolvent laws. And the decisions of this court, cited ¹⁹⁵ by the State in support of its contention, cannot be regarded as authority for its position, since in none of them has the matter ever been considered.

The part of the statute under which appellee was sentenced (Code, art. 12, sec. 5 [as amended by Laws 1927, ch. 458]) provides : “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