Lynn v. State , 84 Md. 67 ( 1896 )

Boyd, J.,

delivered the opinion of the Court.

An indictment was found in the Circuit Court for Carroll County against the appellant, which charged that on the 27th day of January, 1894,* he did beget, in and upon the body of Rosa B. Haines, a male illegitimate child, which was born on the 27th day of October, 1894. A demurrer was entered to the indictment, which was overruled, and the traverser then filed four pleas, the second of which was withdrawn and the others demurred to and the demurrer sustained.

Before considering the demurrer to the indictment and the first bill of exceptions, which practically presents the same question, we will briefly pass upon the action of the Court in reference to the pleas. That the first plea was insufficient is clear. It simply states a conclusion of law without stating the facts out of which the defence arises. The third' plea was also defective for the same reason. It is not sufficient to state in a plea of this character that there is “ no proper recognizance,” etc., without setting it out, or stating sufficient facts to enable the Court to determine wherein it was not proper. “ Every dilatory plea must be pleaded with strictness and be certain to every intent. * * * And it is consequently essential that the facts should be stated out of which the defence arises or a negation of the facts which are presumed from the existence of a record.” State v. Scarborough, 55 Md. 349. The fourth plea was not pressed in this Court. It shows on its face that there is no issue raised as to the merits of the case under the prior indictment referred to in the plea, but only questions affecting the jurisdiction of the Court. The latter having been determined in his favor, and the Court therefore being without jurisdiction to pass judgment on the merits of the case, it was not a good plea of former acquittal, which it was intended to be.

This brings us to the consideration of the principal and important question in the case, which was very thoroughly and ably argued by the attorneys on both sides. The indictment charges, and the evidence objected to by the traverser but admitted by the Court tends to sustain it, that the child was begotten in January, 1894, and was born on the 27th day of October of that year. The Legislature passed an Act which went into effect March 1st, 1894 (being chapter 108 of the Laws of 1894), which repealed and re-enacted sections 2 and 5 of Article 12 of the Code, without any saving clause for pending cases or past offences. It was contended on the part of the traverser that the Act of 1894 inflicted a greater punishment than did the law in force when the crime .was committed, and was therefore an ex-post facto law, unconstitutional and void when attempted to be applied to this case. It must be conceded on the part of the State that if the premises of the traverser be correct, his conclusion must be admitted to be so. For without deeming it necessary to discuss at length what is meant by an ex-post facto law, it was held in Calder v. Bull, 3 Dall. 386, that “ Every law that changes a punishment and inflicts a greater punishment than the law annexed to the crime when committed ” was within the meaning of that term, and in Fletcher v. Peck, 6 Cranch, 138, Chief Justice Marshall said that “an ex-post facto law is one which renders an act punishable in a manner in which it was not punishable when committed.” See also Anderson v. Baker, 23 Md. 531, and Beard v. State, 74 Md. 132.

It is contended on the part of the traverser’s counsel, that although under the terms of this statute a proceeding of this character cannot be instituted before the birth of the child, yet, as the act done by him is when the child is begotten, therefore it must be said that the crime for which he is indicted was committed at that time, and not at the birth of the child. There is certainly great force in their argument in a case involving the question as to whether a law passed after the commission of an act can apply if it increases the punishment. A party is presumed to know what the law is, but not what it will or may be in the future. He is ordinarily liable to punishment according to the law as it is when he does a forbidden act, not “ in a manner in which it was not punishable ’ ’ at the time. But under our view of this case it is unnecessary to discuss that question. For the purposes of this case it may be conceded that the crime was committed when the child was begotten, and we will therefore consider the case with that assumption.

After providing for the arrest of the mother of an illegitimate child, and requiring her to enter into a recognizance on her refusal to disclose the name of the father, Article x 2 of the Code of Public General Laws, by section 2, provides : “ But if the said person shall on oath discover the father of such child, the justice shall discharge her and shall cause to be arrested and brought before him such father, if a resident of the county, and shall cause him to give security in the sum of eighty dollars to indemnify the county from all charges which may arise from the maintenance of such child.” The Act of 1894 re-enacted that much of section two and then added, “And upon failure of such putative father to enter into security the justice shall commit him to the custody of the sheriff of the county for the period of twelve months.” It is contended that the Act of 1894 thus materially altered and added to the punishment, and that the father on his failure to enter into security must be imprisoned for twelve months, although he might be able to furnish bail the next day, week or month, after he was taken before the justice of the peace. If that construction of the law be correct, the penalty has undoubtedly been increased. Prior to the Act of 1894 he was committed to the jail in default of security, but upon it being given he was discharged. The form of the commitment adopted in this State in such cases directed the sheriff to “him thus safely keep until he shall give such sectirity or be otherwise lawfully delivered from thence.” The original statute did not provide for any definite.time for which he might be committed in default of giving security before a justice of the peace, but as section 7 of Article. 12 made the recognizance liable for $30 per annum until-the-child should reach seven years of age, it was the- accepted and undoubtedly correct • interpretation of the law that there-was no lawful way of securing the release of the father, who continued thus in‘default, until after the expiration of the seven years. Therefore-, if he was unable or failed to -give security he was, as the law then stood, liable to be confined in the county jail for the period of seven years. It' is perfectly apparent, then; that the object of- the Legislature was to -lessen the penalty and avoid such a severe and harsh punishment, as well -as to relieve the county of the burden of supporting persons so charged for such length of time. Although the language of section 2; as amended by the Act of 1894, may by a strict construction be read to mean that -the justice of the peace shall, upon the -failure of the father to give security, then and there, commit him for the. period of twelve months,-without any authority .to afterwards take the security, it. is manifest when we remember the -evident object of the passage of the law, that such a construction is not in accordance with-the legislative intent-. It must be construed to mean that he is to be committed for the period of twelve months unless he sooner give the security. -There must be a contÍ7iuóus failure to enter into security to-authorize his confinement during the whole-period. Whilst it is intended to punish the guilty party for fornication, another great object of the law is to indemnify the county, which would be wholly defeated by saying a justice of the -peace could not after-wards take the security for that purpose, but must keep him •in jail at the expense of the county.

Section 5 of Article 12, as it stood in the Code and as amended by-the-Act of 1894, shows conclusively the meaning of the Legislature. That section provides that if any putative-father feeling aggrieved by the judgment of the justice takes his case to the Court and be there found guilty, upon his neglect or refusal to give security “ he shall be committed to the custody of the sheriff until he comply ; provided that such custody shall not continue longer than twelve months nor less than six months, in the discretion of the Court.” The Legislature cannot be said to have intended to refuse the father the privilege of giving security before the justice after the day of the judgment by him, although he can do so in Court at any time during the term for which he was committed.

We see no difficulty about the provisions of section 5 of the Act of 1894. Prior to that Act the putative father could only have his case reviewed by entering into a recognizance with security, whilst now, if he feels aggrieved by the judgment of the justice, he can enter into a personal recognizance for his appearance at Court, and upon his doing so the Court is required to “ take cognizance thereof,” and he can then, on being indicted, have a trial by jury. But as in many cases, if that was all he was required to do, he would never appear but escape punishment, he is further required, to “ entitle him to be discharged from the custody of the sheriff,” to enter into additional recognizance with good and sufficient securities “to indemnify the Court’,' as the Act says, which of course means the County, as shown by the context and the provisions of sections 1 and 2. There is certainly nothing in this section of the Act of 1894 which can be interpreted to mean that any additional penalty has been imposed, but on the contrary it has been for the benefit of the party accused. If there ever was any question about the constitutionality of the bastardy law on the ground that it authorized the commitment of the accused by the justice without providing for a trial by jury, this Act has now removed the objection and he can now have his case reviewed without furnishing security, but must of course remain in confinement or give the required security until his case is heard and disposed of. But under the former laws that question was settled in this State. State v. Glenn, 54 Md. 604.

Nor do we see any constitutional objection to this Act, as contended by the appellant, on the ground that it provides two different punishments for the same offence—that is to say, the father must be committed for twelve months for the failure to give security before a justice of the peace, whilst if his case is reviewed by the Court and he is convicted he can be committed for not less than six nor more than twelve months. It is very probable that one reason for making the distinction is the one suggested in argument on the part of the State, that the parties in some counties may have to remain in jail for months awaiting trial, and hence the Court can take that fact into consideration and commit them for less than twelve months, but not less than six, but whether that be the correct reason or not they certainly cannot complain because the Court may reduce the time of their confinement from what the justice must give in case of their conviction.

As what we have said disposes of the question raised by the exception to the testimony in the bill of exceptions, the only remaining point urged by the appellant is that the sentence was erroneous because it required him to stand committed to the custody of the sheriff for the period of six months, or until he should enter into the recognizance to indemnify the county “ and the additional recognizance required by section 5, Art. 108 of the Acts of 1894, provided he shall not remain in said custody longer than six months.” Without meaning to decide that this question is properly .before us on an appeal, it is apparent that the appellant is .not prejudiced thereby, as there is no “ additional recognizance ” required by that section, except the personal one he must have entered into before he was entitled to have his case heard in Court. That was probably inadvertently added, but it imposes no additional burden on the appellant, for if he enter into the recognizance to indemnify the county no other is required by that section, and the order of Court expressly provides that on his failure to enter into recognizance he shall not remain in custocjy longer than six months. We might add that if this were not so and the sentence exceeded that authorized by law, it would not entitle the appellant to be released. After the case of McDonald v. State, 45 Md. 90, cited by the appellant, was decided, the Legislature passed a law to meet the result of that decision, iyid it is now provided by section 78 of Article 5 of the Code that in case this Court reverses a judgment for error in the sentence, &c., it shall remand the record to the Court below in order that such Court may pronounce a proper judgment. But as we have already said, we do not think there was any reversible error in that addition to the judgment, as the appellant was not prejudiced thereby.

(Decided June 17th, 1896).

Judgment affirmed with costs to the appellee.