Manly v. State , 7 Md. 135 ( 1854 )

Tuck, J.,

delivered the opinion of this court.

The present indictment was found in Baltimore city court at May term 1851. The traverser filed a suggestion and affidavit for the removal of the record to an adjoining county. Afterwards, at May term 1853, of the Criminal Court of Baltimore, “the indictment,” (as we are informed by the record,) “having been transferred under and by virtue of the new constitution,” to that court, he obtained leave to withdraw his suggestion and affidavit, and having pleaded not guilty, was convicted and sentenced to the penitentiary.

The first question arises^ on the motion on the part of the State to quash the writ of error, on the ground that the Superior Court of Baltimore city had no authority to issue it.

Prior to the adoption of the present constitution, a party convicted of a misdemeanor was, ex debito justitiee, entitled to prosecute a writ of error. Anderson vs. State, 5 H. & J., 174. We have no idea that the Convention intended to deprive the people of the State, Of the benefit of this process, nor^ do we think that by any reasonable interpretation of the constitution, such a purpose can be deduced. The chancery court was abolished, but the system of equity jurisprudence was no otherwise disturbed, than by transferring the jurisdiction to other courts. As to the circuit courts for the counties this was done in the most ample manner. Not content with devolving upon these courts all the powers, authority and jurisdiction which the county courts then exercised, the constitution expressly declares, that the “judges in their respective circuits shall have and exercise all the power, authority and jurisdiction of the present court of chancery.” By the act of 1815, ch. 163, the county courts had equity jurisdiction conferred upon them in the most comprehensive terms, but it seems that they were never considered as having had authority to issue writs of error. If the Convention intended to restrict the circuit courts to the exercise of powers before possessed by the county courts, the first grant of jurisdiction, by the eighth section of the fourth article, would appear to have been sufficient for the purpose, and the assignment to the judges of the same powers that belonged to the chancery court would have been unnecessary, unless their design was to charge them with functions before exercised by the chancellor, and not previously conferred on the county courts “or their judges.” As the chancellor had this power, it is manifest that the constitution has devolved it upon the circuit' judges for the counties.

But the argument is, that the eleventh section of the judiciary article, by which the superior court for Baltimore city was created, only confers “equity jurisdiction” within the limits of that city; and that as the right to grant this writ was no part of the chancellor^ equity jurisdiction, but was vested in him as-the depository of a portion of the supreme power, after the manner that this officer represented the king, at common law, it does not appertain to the judge of the Superior Court, as a portion of his equity jurisdiction. It is unnecessary to inquire into the origin and nature of this writ. It is enough for us to know that it has always been considered in this State, as belonging to the applicant as matter of right; and, believing, as we have said, that the framers of the constitution had no intention to impair it in any degree, we are clear in the opinion, that the judge of the Superior Court possessed the power equally with the judges of the circuit" courts.

It is true that the same comprehensive language is not employed as to both these courts. But constitutions arc not to he interpreted according to t.he words used in particular clauses. The whole must be considered, with a view to ascertain the sense in which the words were employed, and its terms must be taken in their ordinary and common acceptation, because they are presumed to have been so understood by the framers and by the people who adopted it. This is unquestionably the correct rule of interpretation. It, unlike the acts of our legislature, owes its whole force and authority to its ratification by the people, and they judged of it by the meaning apparent, on its face, according to the general use of the words employed, where they do not appear to have been used in a legal or technical sense. State vs. Mace, 5 Md. Rep., 348.

Applying this mode of construction, it ought not to be doubted that the constitution, in granting equity jurisdiction to the Superior Court, intended to secure to the people of Baltimore the same rights, and as fully, in all respects, as by other clauses it extended to the rest of the Slate, in reference to the powers of the courts clothed with equity jurisdiction. If, by these other clauses, the writ of error may be claimed elsewhere, it would be unjust to the city of Baltimore, by a strict construction of these words, to deny the same power to the only court then administering equity jurisprudence within her limits. Believing that, under the constitution, the writ was not improvidently issued, it is unnecessary to express any opinion upon the act of 1852, ch. 16.

Two questions arise under the motion in arrest of judgment. 1st. As to the jurisdiction of the Criminal Court. 2nd. As to the form of the verdict.

1st. The point, on the part of the traverser, is, that, after the suggestion and affidavit for removal of the record, the Baltimore city court ceased to have jurisdiction, and could transfer none to the Criminal Court, and that the subsequent withdrawal of the suggestion did not restore the jurisdiction. We are of opinion that the jurisdiction was not ousted by the suggestion and affidavit. Jt does not appear that any order was passed, and until then, the indictment remained pending’ in the City Court. Indeed we cannot say but that the court would have deemed the suggestion insufficient, or for some other reason have refused to remove the record.

The case being before the Criminal Court, under the constitution, the question is, whether the accused had the right to withdraw his suggestion ? We think he had this right, in either court, before the order for removal was passed. The constitution authorizes the change of venue for the benefit of the parly making the application. Circumstances may arise, in the progress of the cause, to render this resort unnecessary. The objection, with the party, may be to the judge, the jury, or the sheriff. (State vs. Dashiell, 6 H. & J., 271.) If, in consequence of a change in these, the ground for the removal no longer exists, we perceive no reason against the party’s submitting the case to the court, in which the suggestion may have been made. On the contrary, convenience as well as justice, might often be promoted by this course.

2nd. As to the alleged error in rendering the verdict. Each of the counts in this indictment is sufficient, and standing alone, would have authorised a judgment against the party if found guilty. It is manifest that the two counts, though alleging offences of different degrees, relate to the same transaction. The one set out in the first count “is defined and prohibited” by the act of 1809, ch. 138, (3 Gill & Johns., 8, State vs. Dent,) by which a severer punishment is prescribed than at common law. This was necessary in order to bring the case within that act, with which the count for assault and battery might well be joined. It is quite common to insert several counts, stating the occurrence in different terms, that the indictment may, at the trial, correspond with the proof, for the State cannot always know what the evidence will be. This mode of pleading apprises the prisoner of the accusation in more precise language, and, at the same time, aids the jury in finding their verdict. But, as it is liable to abuse, the law allows the prisoner, where the nature of the case will permit, to require the prosecutor to elect on which count or counts he will proceed, and in some eases he may demur. The general practice in England and in this country, with very few exceptions, has been to pass judgment on general verdicts in these cases, according to the count charging the highest grade of offence. And even where some of the counts are good and others bad, the practice has been to pass judgment on those which aré good. This doctrine does not appear to have been questioned, until the case of O'Connell & al., vs. The Queen, 11 Clark & Finnelly, 155. If the law had been so understood in this State, before that judgment, it could not change it, and that such was the practice we have no doubt. The elementary writers, as well as reports, show this. In Burk vs. State, 2 H. & J. 429, Judge Buchanan said, “There is no principle better established than that if a general verdict of guilty be found on an indictment containing several counts, it is sufficient if one is good, although all the rest are bad.” The judgment, on rendering which this opinion was delivered, was affirmed, and, we believe, has ever since been considered as the law of this State. 1 Ch. Cr. Law, 249, 640. Starkie's Cr. Pl., 378, ch. 20. Rex vs. Lord Thanet, East's Cr. Law, ch. 8, folio 408. Regina vs. Ingram, 1 Salk., 384. 1 B. & P., 185. 2 Lord Raymond, 886. Cowp., 276. Arch. Cr. Pl., 175. Wheat. Cr. Law, 618. 1 Spencer, 408. 2 Strobhart, 17. 10 Georgia Rep., 60. There are decisions the other way, but we think that the weight of authority is greatly in favor of the practice pursued in this case. This branch of criminal jurisprudence was examined and discussed in 1 Woodbury & Minot, 305, where many cases are collected and arranged, to which we refer without citing them here.

It may be observed in reference to O’Connell’s case, that the judgment was pronounced by Lords Cottenham and Campbell, against Lords Lyndhurst and Brougham, the latter sustained in the most direct terms by all the judges, whose opinions had been required, except Parke & Coltman. It was not questioned, that this had always been the practice, but its correctness upon principle was denied.

The counsel for the plaintiff in error contends, that, whatever the doctrine may be as to other cases, it cannot apply to an indictment like the present, because there is a manifest incongruity between the .counts., one charging an assault with and the other without malice, and that the general verdict is necessarily repugnant. We think the inconsistency would be more apparent if the jury had found guilty on the first, but not guilty on the second count, because, as they relate to the same transaction, that finding would affirm, in one breath, that the party had committed an assault with intent to murder, and in the next, that he had committed no assault at all. We must presume that the jury understood the issues they were to try, and the consequences of their verdict, and that if they had intended to have acquitted the party of the intent charged, they would have said so, 10 Georgia Rep,, 60. In this case two offences, growing out of the same transaction, are connected together. One merged the other. No evidence could have been admissible on the second count that was not applicable to the other, which meets the argument of the counsel as to the confusion that might occur at the trial. 4 H. & J., 432. The case is unlike State vs. Sutton, 4 Gill, 494, where the party was convicted of the minor offence, and the court held that the verdict should have been rendered on all the issues. Where a general verdict is rendered, it is in effect or finding as to all the counts. On an indictment like the one before us, the jury must, where the party is guilty on either count, find the assault to have been committed, and if guilty of an assault with the intent charged, he is necessarily guilty on both counts. So on an indictment containing counts for robbery, and an assault with intent to rob, the crime is made by the law of a higher grade by the consummation of the illegal intent. If the accused be convicted of the actual robbery, how could the jury with any consistency say that he was not guilty of the intent to rob ? It appears to us that in such cases, where all the counts relate to, and are but various statements of the same occurrence, the general verdict establishes that all the circumstances exist that are embraced iu either charge. The higher crime necessarily merges the inferior offence, and dispenses with a finding of non cul, as to that count.

Judgment affirmed.