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Vol. IV.]

HOLLAND v. DRAKE.

[No. 11.

But it is claimed that the assignment took effect from the date of its execution by McKay, because its subsequent approval by Tracy related back and took effect from the date of its execution, which was prior to the attachment. As between the partners, and as between them and third persons who acquired no new rights in the mean time, this is undoubtedly true. Such is the well settled law in all cases of volunteer agencies. It is equally well settled, however, that it cannot have effect so as to defeat the rights of third persons bona fide acquired in the mean time. A contrary rule of law would be calculated to work manifest injustice. Take the present case for an example. Holland and Pettitt levied their attachment while the assignment remained in abeyance. It might never be confirmed by Tracy. With him alone rested the power to give it effect or to defeat it. If Holland and Pettitt dismissed their attachment, Tracy night fail to affirm the assignment, and they would lose their lien if they persisted in their attachment proceedings. Tracy might affirm the assignment, and they would be left to pay their costs. They would thus be placed completely within Tracy's power, and their rights be made to depend on his will or caprice. Such is not the law. The assignment took effect from the date of its execution, but not so as to affect the rights acquired by the intervening attachment. The ques. tion, therefore, whether the assignment is to be regarded as taking effect from the time when it was delivered to the probate court, or from the time of its actual acceptance by the assignee, becomes immaterial. It is enough that the attachment was levied before the confirmation by Tracy.

It is also claimed that the lien of the attachment was lost by the agreement under which the property was delivered to the assignee by the sheriff. We are of opinion that the parties are estopped by their agreement from setting up any such defence. The property was given into the hands of the assignee on the faith of the agreement. But for the agreement it would have been retained and sold by the sheriff. To allow this defence would be to aid the defendants in practising a fraud upon the plaintiffs.

A further claim made by the defendants in error is that the proper parties were not before the court; that the creditors of the firm, as well as the assignee, should have been made parties defendant. We think otherwise. The assignee, like an executor or administrator, is an officer recognized by the law, and whose duties and qualifications are regulated by law, and he fully represents the creditors in such cases.

The judgment of the common pleas and probate courts must be reversed, and the cause remanded to the probate court for further proceedings.

son practicefendants credito

Vol. IV.)

McDonald v. The State.

[No. 11.

COURT OF APPEALS OF MARYLAND.

(To appear in 45 Ma.)

ERROR IN SENTENCE. — POWER OF APPELLATE COURT. — TWICE IN

JEOPARDY.

MCDONALD v. THE STATE.

Where a sentence not authorized by law has been imposed upon a prisoner, the court

of appeals can only reverse the judgment; it has no power to impose the proper sen

tence, or to remand the case to the court of original jurisdiction for that purpose. Where the accused was illegally sentenced and judgment reversed on this ground by

the appellate court ; held, that the accused could not be again tried for the same offence.

APPEAL from the criminal court for Baltimore city.
The case is stated in the opinion of the court.

The cause was argued before Bowie, Stewart, Miller, and Alvey, JJ., on the part of the appellant, and submitted on brief on the part of the state.

John P. Poe, for the appellant. The Attorney General, Gwinn, contra. MILLER, J., delivered the opinion of the court. The plaintiff in error was indicted for murder, and on his trial was found guilty of manslaughter and not guilty of murder. Upon this verdict the criminal court of Baltimore city, in which he was tried, pronounced judgment, sentencing him to “ five years' imprisonment in the jail of Baltimore city," and this judgment is brought before us for review by writ of error,

The punishment prescribed by law (Act of 1864, ch. 39) for the crime of manslaughter is confinement in the penitentiary for not more than ten years, or in the discretion of the court a fine of not more than five hundred dollars, or imprisonment in jail for not more than two years, or both fine and imprisonment in jail. The attorney general admits that through inadvertence a sentence was imposed on the prisoner which the law does not authorize, and concedes upon the authority of Watkins v. The State, 14 Md. 412, this judgment must be reversed. That is undoubtedly so, and the only other question we can now decide is, whether upon such reversal this court has the power to impose the proper sentence or to remand the case to the court of original jurisdiction for that purpose. In the absence of legislation conferring that authority upon this court, it is clear it has no power to do either of these things. In Watkins v. The State, where the judgment was reversed for a similar defect, the court say: “ The effect of the reversal for error in the judgment itself is properly stated by the counsel for the plaintiff in error in his argument. It defeats all former proceedings in the cause. This will abundantly appear by reference to the following authorites cited by him on this point: 1 Chitty's Cr. Law, 755; 4 Blackstone's Com. 393; Hawkins, book 2, ch. 50, sec. 19.” In addition to these authorities we refer to several more recent de* The decision announced in the second paragraph of the syllabus was made by the trial court.

EDITOR.

Vol. IV.)

McDonald v. The State.

(No. 11.

a writ of eminal case shaded by stati
case for dement therein.unt of error id by the su

cisions of the English and Irish courts upon the subject, viz. : Rex v. Ellis, 5 Barn. & Cress. 395; King v. Bourne, 7 Adol. & Ellis, 58; Silversides V. The Queen, 2 Gale & Davison, 617, and Holland v. The Queen, 2 Jebb & Symes, 357. In each of these, and especially in the first two, it was, upon full review of all previous decisions, denied that a court of error had any power in a case like this, either to remand the record to the court below for the proper judgment, or itself to pronounce such judgment as the law authorized; and Rex v. Kenworthy, 1 Barn. & Cress. 711, which was cited in support of the power to remand, is there shown to be a case in which no judgment had in fact been given, and it was therefore remitted back to the sessions in order that a judgment might be rendered. In this country, also, the decisions, wherever the question has arisen, are almost uniform and to the same effect. It was so decided in several cases by the supreme court of Massachusetts, and we need refer only to Christian v. The Commonwealth, 5 Met. 530. After these decisions the legislature of that state provided by statute, that " whenever a final judgment in any criminal case shall be reversed by the supremne judicial court, upon. a writ of error, on account of error in the sentence, the court may render such judgment therein as should have been rendered, or may remand the case for that purpose to the court before whom the conviction was had,” and the supreme court of that state has since acted under that statute. Jacquins v. The Commonwealth, 9 Cush 279.

In New York there is a series of cases in the inferior courts to the like effect, and in Ratzky y. The People, 29 New York, 124, the court of appeals of that state held it to be well settled law, that but for the authority conferred upon that court by the statute of 1863, it would have, no power, upon reversal of the judgment of the supreme court in that case for error in the judgment itself, either to pronounce the appropriate judgment, or remit the record to the oyer and terminer, to give such judgment. The statute referred to declared in effect, that the appellate court shall have power upon any writ of error, when it shall appear that the conviction has been legal and regular, to remit the record to the court in which such conviction was had, to pass such sentence thereon as the appellate court shall direct. There are also numerous cases in other states where the same question has been incidentally decided in the same way.

In Ex parte Lange, 18 Wallace, 163, the judges of the supreme court of the United States, though differing upon other points, agree in the proposition, that apart from authority conferred by the legislature, appellate tribunals have only the power of reversal where in criminal cases the judgments are entire and not such as the law authorizes to be imposed, and all the cases on the subject are collected and referred to in the dissenting opinion of Mr, Justice Clifford in that case.

We have been able to find but two cases which are in even seeming conflict with the great weight and current of judicial precedent and authority on this question.

One of these is the case of Kelly v. The State, 3 Sm. & Mar. 518, decided by the high court of errors and appeals in Mississippi, in 1841. There the judgment was reversed for two reasons: 1st, because it did not appear in the record that the prisoners were personally in court at the time of pronouncing the sentence; and 2d, because the sentence did not

Vol. IV.]

MCDONALD v. THE STATE.

(No. 11.

set forth the time from which the imprisonment was to date. For these two errors, say the court, “ the judgment of the court below is reversed without disturbing the verdict, and the cause remanded with directions to the court below to pronounce its judgment in accordance here with, haying first duly inquired of the defendants whether they have anything further to urge why its judgment should not then be pronounced.” No question was made in argument, and no authority is referred to by the court, in support of the power to remand thus exercised, and this has led us to examine the statutes of that state as to the powers conferred on its appellate court at that time. As expected, we find (Hutchinson's Code, 927) that that court was clothed with very full authority in such cases. They had power, upon the reversal of any judgment or sentence, to render such judgment or pass such sentence as the court below should have rendered or passed ; and the power to remand in criminal as well as in civil cases, where there is anything uncertain in the judgment or sentence, is also given in very broad and general terms. We think, therefore the court in this case rested their action not upon the supposed possession of any inherent or common law powers to that end, but upon statutory au-. thority well understood and recognized in that state.

The other case is that of Beale v. The Commonwealth, 1 Casey, 11, decided by the supreme court of Pennsylvania, in which the opinion was delivered by C. J. Lewis, from which Woodward, J., dissented. To understand what weight as authority justly attaches to this case, we must first look to the antecedent decisions and legislation on this subject in that state. It appears that in the course of the argument in Drew v. The Commonwealth, 1 Whart. 279, which took place in 1835, Rogers, J., referred to a recent case in which he said the supreme court had decided that where the indictment was good, and the trial good, that court would do what the court below would do after a new conviction, viz., sentence the party de novo and aright. In the following year, 1836, the legislature gave express power to the court, “ to examine and correct any and all manner of errors of the justices, magistrates, and courts of the commonwealth, in the process, proceedings, judgments and decrees, as well in criminal as in civil pleas or proceedings, and thereupon to reverse, modify, or affirm such judgments and decrees or proceedings as the law shall direct.” After this came the case of Daniels v. The Commonwealth, 7 Barr, 371, in which the opinion was delivered by Rogers, J. In that case this statute is set out, and the court say that by it, “in addition to the power to reverse or affirm heretofore given, we have authority to modify the judgment; that is, to change its form, vary or qualify it, and this as well in criminal as in civil cases. It would certainly be better if the court had power also to remit the record, but as this is not given by the Act of 1836, we must examine the sentence and do right and justice according to circumstances ;” and accordingly, acting under the statute, the court struck out the words “ hard labor” from the sentence and affirmed it in other respects. It appears to us the court in that case clearly decided they had no power to remand the record, and that their only power to modify the sentence was derived from the statute. Then comes the case referred to of Beale v. The Commonwealth, in which C. J. Lewis says: “ The doubts which formerly existed respecting the power of the

Vol. IV.]

McDonald v. THE STATE.

[No. 11.

supreme court upon reversing a judgment in a criminal case are entirely dissipated. We have authorities to show that the supreme court, on reversal of a judgment in a criminal case for error in the sentence, has power to pass such sentence as the court below ought to have passed." For this position Drew v. The Commonwealth, and Daniels v. The Commonwealth, are first cited, What these cases, and especially the latter, decide, respecting this power and whence it was derived has been stated. Two other cases, Commonwealth v. Ellis, 11 Mass. 465, and Kane v. The People, 8 Wend. 211, are also added in the same citation. These we have examined, but are unable to perceive that they have any bearing upon the proposition stated. We have fully shown what the Massachusetts and New York decisions on the question under consideration actually are, and as respects them there can, we think, be no doubt. He then says, "it has also the power to award a procedendo in a criminal case.” For this Rex v. Kenworthy, 1 B. & C. 711, is cited, and that case, the subsequent English decisions have declared, was one in which no judgment was rendered in the court of original jurisdiction. That case is therefore no authority for the position that a procedendo can be ordered after a reversal of a judgment in a criminal case for error in the sentence itself. He then adds “and it may, in its discretion, remit the record with orders to proceed on the indictment after the reversal of an erroneous judgment." For this Commonwealth v. M'Kisson, 8 Serg. & R. 422, and Commonwealth v. Church, 1 Barr, 110, are cited. These were cases brought up by the state from judgments quashing the indictments, and the court reversed the quashing orders, sustained the indictments, and remanded the cases, to the end that the parties might be tried under them. There the parties had never been tried, and no judgments had ever been pronounced against them. If nothing more was meant to be asserted by the proposition than was decided in these cases we have no occasion to quarrel with it. A large number of cases in this and other states might be cited to the same effect. But he then says, “ The Act of 16th of June, 1836, conferred no new powers in this respect. It was designed to remove doubts which had arisen in consequence of conflicting decisions.” If, however, the court in Daniels v. The Commonwealth did not decide that this act conferred a new power upon the court as to their control over judgments in criminal cases, they were certainly unfortunate in the language they there use, or we are unfortunate in being unable to comprehend it. Nor have we been able to find in the published reports any anterior conflicting decisions from which doubts as to the power of the court in such cases could have arisen. We may have overlooked them, or the reference may be to some unreported and unpublished decisions of that character. But certain it is that neither in the title, preamble, nor other parts of this act is there any reference to such doubts or conflicting decisions. Such reference or recital is frequently, if not usually, made in statutes passed for such purposes. The learned chief justice, for whose abilities and well earned reputation we have great respect, then proceeds thus : “ The common law embodies in itself sufficient reason and common sense to reject the monstrous doctrine, that a prisoner whose guilt is established by a regular verdict is to escape punishment altogether because the court committed an error in passing the sentence. If this court sanctioned such a

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