Davis v. State , 3 H. & J. 154 ( 1810 )

Earle, J.

delivered the opinion of the court. The court are of opinion, that an assault, with an intent to commit the crime charged in this case, is within the act of 1793, eh 57, and is thereby punishable. The objections made to the indictment do not appear to the court to have any solidity in them. As the judgment of the court may be either at common law, or under the act of assembly, the conclusion contra fonnam statuti, is not improper; and the crime intended to be committed, being only in aggravation of the assault, it is sufficiently set forth in the manner it i,s stated.

The criminal court of Baltimore county have an undoubted-power, we conceive, to order the record of proceedings on an indictment to be transmitted to the adjoining county court, the party charged haying previously complied with the directions of the act of 1805, ch. 65, s. 49. The criminal court of Baltimore county, although denominated the Court of Oyer and Terminer and Gaol Delivery, must be considered as a branch of Baltimore county court, ^ercising criminal jurisdiction only, which is vested in all fhe other county courts in the stats. Unless it is so considered, this consequence will be the necessary result, that the citizens of Baltimore county will be deprived of a privilege which is enjoyed by the citizens of all the other counties — the privilege of removing the indictment into an adjoining county, when a fair and impartial trial cannot be had in the county in which the person is indicted. The potver is to be exercised in the discretion of the court, according to all the circumstances attending the prosecution, and it being impossible they should appear in the record, neither party can appeal, we think, from the decision of such a question. ’

The unmeaning expressions that follow the judgment of the court below, are to be rejected as surplusage.

Polk, J. dissented.

Nicholson, «T.

I am of opinion, that an assault, with intent to commit sodomy, is punishable by the act of 1793, ch. 57. The punctuation of the tenth section might perhaps warrant á different construction, by separating the words “or sodomy,” from “assault, with intent to commit murder, robbery or rape.” Such a constniction would confine the punishment to the actual perpetration of sodo* pay, which clearly was not the intention of the legislature. All the higher offences, such as mm'der, robbery, rape, burglary, arson, sodomy, and the like, are included in the general antecedent expressions1, “felony with or without benefit of the clergy,” and the legislature could not mean to descend to a particular designation of a single offence, which had been before made punishable by the general clause. The crime of sodomy is too well known tobe misunderstood, and too disgusting- to be defined, farther than by merely naming it. I think it unnecessary therefore, to lay the carnaliter cognovit in the indictment, particularly as Stubbs, a compiler of some repute, g’ives a form of indictment without these words, and East, another author of merited celebrity, does not consider them essential.

The criminal court of Baliirnore has not, in my judgment, any authority to transmit indictments to an adjoin- . jng county court for trial. The act of 1804, ch. 55, s. 3, does not give the authority, for it speaks only of transmitting proceedings from one county court to another county court, and manifestly relates only to those courts which bad been created by the preceding section. The criminal court of Baltimore is not a county court, but a court of limited jurisdiction, established by the act of J 793, ch. 57, . for especial purposes, and expressly named and styled. iiThe Court of Oyer and Terminer and Gaol Delivery.” The county courts are created by the constitution as changed in 1804 arid 1805, which declares that they shall be composed of a chief judge, and two associate judges, to be thereafter commissioned by the governor and council, and it has never heretofore been supposed that the criminal court of Baltimore was one of these. The forty-ninth section of the act of 1805, ch. 65, is merely restrictive; it confers no new authority upon any court, but was intended barely to prohibit the removal before the indictment is found.

Although I differ with the other members of the court in some of their reasoning, I nevertheless concur with them in affirming the judgment.

JUDGMENT AFFIRMED,