State v. Phelps

Eccleston, J., delivered the opinion of this court. The reasons assigned in support of the motion in arrest of judgment relate to matters prior to the verdict, and either allege the record to be defective on account of the absence of such proceedings before the magistrate as were required by law, or on account of a variance between the recognizance returned by the magistrate and the indictment. These reasons necessarily assume, not only that the proceedings to whiclx they allude should have taken place, but also that they were necessary parts of the record; for a motion in arrest of judgment must be based upon some error or defect appearing in the record. Amer.

Cr. Law, (by Wharton,) 975, (3 Ed.,) 3 H. & J., 2 , Horsey vs. The State. In Root vs. The State, 10 G. & J., 374 , upon a motion in arrest of judgment, it is said on the part of the appellant: “The ixxdictment and verdict are not warranted by the proceedings filed in this case, and making part of the record thereof, and upon the whole record no judgment or order can' be passed.” And it is evident the court considered the proceedings returned by the magistrate as being before them on the appeal. They speak of the affidavit and recognizance as correct, and all the subsequent proceedings as erroneous: and then say: “The indictment, so far from being pursuant to the affidavit, makes a case in which all the parties reside in Carroll county, and in which consequently Carroll county is to be indemnified.

On this indictment a verdict was rendered against the party charged, and the judgment on that verdict, so far from pursuing its finding, directs a recognizance to indemnify Frederick county. The indictment should have stated the fact of the mother’s ²⁶ residence with the child in Frederick, so that the verdict could be properly given, to compel the recognizance to indemnify the county of Frederick.” ■ For these errors the court reversed the decision of the county court, which had overruled the motion in arrest. Now if the proceedings before a magistrate in a case of this sort should constitute parts of the record, and admitting that prior to the act of 1852, ch. 63, the objections relied upon to sustain the present motion in arrest might have availed the traverser, nevertheless they cannot do so since the passage of that act, because these objections could have been taken advantage of by demurrer. And the act will not permit a judgment to be arrested on a motion for that purpose, for any matter which is a ground of demurrer.

Thus the traverser is placed in this dilemma. If the proceedings on which his objections are based are not necessarily parts of the record in such a case, then, because they are not, his motion in arrest must fail. And if such proceedings are required to complete the record, then the defects relied upon would be reached by a demurrer, and the motion must be overruled under the act of 1852. That we are right in supposing a demurrer would reach the alleged defects, if by the record they are shown to exist, may be seen by reference to American Cr.

Law, 242, 243, by Wharton, 3 Ed., where it is said: “A demurrer puts the legality of the whole proceedings in issue, and compels the court to examine the validity of the whole record, and therefore, in an indictment removed from an inferior court, if it appear from the caption that the court before which it was taken had no jurisdiction over it, it will be adjudged