Black v. State , 2 Md. 376 ( 1852 )

Le Grand, C. J.,

delivered the opinion of the court.

This case comes before us on a writ of error; It appears that the appellant was indicted in Carroll county, for burning a stack of hay. The only count in the indictment on which he was tried is in the following words:

“The jurors of the State of Maryland, for the body of Carroll county, do on their oaths present, that Daniel Black, late of Carroll county aforesaid, yeoman, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the twentieth day of December, in the year of our Lord, eighteen hundred and fifty-one, with force and arms at Carroll county aforesaid, a certain stack of hay of and- belonging to one Aaron Miller, feloniously, unlawfully, wilfully and maliciously did burn, against the form of the act of Assembly,” &c.

The jury found the party guilty of having ‘ feloniously,” as well as unlawfully, wilfully and maliciously, burnt the stack of hay, and the question for the decision of this courtis, whether on such an indictment, and finding, a valid and legal judgment can be pronounced ?

Neither at the common law, nor by the act, of 1809, ch. 138, nor by the act of 1845, ch. 381, is the .act of burning a stack of hay a felony.

This is admitted on the part of the State; but, it is contended, that the introduction of the word “feloniously,” in the indictment and also in the verdict of the jury, is a matter of no importance, and ought, therefore, to be regarded .as mere surplusage.

In support of this view several cases have been relied on. However great our respect may be for the learning of the court which pronounced the decision in the .case of Hess vs. The Stale of Ohio, 5 Ohio, 13, we cannot adopt, that decision, unsupported as it is by a single authority, and resting entirely as it does on the avowed desire of the court, to see that those who have offended shall be punished, to effect which they seem to have been disposed to observe neither the forms nor the requirements of the law.

In regard to the other cases cited on the part of the State, it need only to be observed, they were overruled in Rex vs. Westbeer, 2 Strange, 1133, in which it was said by the court, that in the cases relied upon by the State, “the judges appeared to be transported by zeal too far.” The doctrine of the case in Strange, was fully recognized by the supreme court of Massachusetts, in Commonwealth vs. Newell and others, 7 Mass., 245. In that case the prisoners had been indicted for feloniously and burglariously breaking and entering the dwelling house of Edward Dixon of Boston, with intent, unlawfully and feloniously to assault Dixon, and to cut off one of his ears, with an intention the said Dixon to maim and disfigure. To the indictment the prisoners demurred, and on their part it was contended that the crime charged in the indictment did not amount to a felony; that to constitute the crime of burglary, there must be an intent to .commit a felony. And the court held, that the cutting off an ear with set purpose and malice aforethought, with the intention to maim and .disfigure, is not bythelaws of Massachusetts a felony;and having so held,they decided, in opposition to the argument of the attorney general, that the indictment could not be sustained as an indictment for a misdemeanor.

In principle that case is precisely the one before us, and we adopt it, because it appears to us to be founded in sound reason and to be in strict concurrence with the English authorities.

By the common law, a person convicted of an infamous crime is disqualified thereby as a witness, and to this disqualification our constitution by the fifth section of its first article superadds another, the deprivation of the elective franchise. The prisoner has been convicted of an infamous crime, to wit, of a felony, when the offence proved against him according to legal definition was not of that character, We are therefore of the opinion, that according to the principles of the law of pleading in criminal cases, no valid j udgment can be pronounced on [such indictment and verdict as are those in this case, and therefore we reverse the judgment of the county court.

Judgment reversed.