State v. Scarborough

Alvey, J., delivered the opinion of the Court. The petition and assignment of error, upon which this case has been brought into this Court, must he dismissed. There is an entire failure to make any such assignment of error as is required hy Rule 1, in respect to Appeals and Writs of Error, 29 Md., 1 . The rule requires that the party applying to have the record removed as upon writ of error, shall plainly designate the points or questions of law, hy the decision of which he feels aggrieved; and this Court is forbidden to hear or determine any point or question not thus plainly designated in the petition.

The only assignment of error made in this case is, “that in the record and proceedings, as also in the rendition of the said judgment, manifest errors have happened, to the damage of the State, to wit: in overruling the demurrer of the State, to the defendant’s fifth plea to the indictment.” Now, a demurrer puts the legality of the whole proceedings in issue (1 Chitty Cr. L., 358,) and requires the Court to go hack to the first error apparent on the face of the record. That being so, the object of the Rule, requiring special assignment of errors, was to prevent surprise, and the raising of new points and objections in this Court ³⁴⁹ for the first time, and which, perhaps, if they had been suggested to the Court below, would have been met, and the necessity for bringing the record here avoided. To assign as error the overruling or sustaining a demurrer, or the overruling or sustaining a motion in arrest of judgment, without designating specially the point or question of law involved in the ruling of the Court below, is no sufficient assignment, within the meaning and object of the Eule.

If the object in bringing this, case here was to have reviewed the decision of the Court below in determining that the facts set out in the defendant’s fifth plea were sufficient to abate the indictment; or that the Court, upon overruling the demurrer, instead of proceeding at once to quash the indictment, should