State v. Warfield

114 A. 835, 139 Md. 74, 1921 Md. LEXIS 135

• Court: Court of Appeals of Maryland
• Decided: June 28, 1921
• Status: Published

Opinion

Adkins, J.,

delivered the opinion of the Court.

This is an appeal from a, judgment entered on an order sustaining the demurrer to the following indictment:

“State of Maryland, Frederick County, Set.:

“The Grand Jurors of the State of Maryland for the body of Frederick County, upon their oaths do present that Carroll Warfield, late of said county, on the 28th day of March, in the year of our Lord one thousand, nine hundred and twenty, with force and arms, at the county aforesaid did feloniously place upon the tract of the Baltimore and Ohio Railroad Company, a body corporate of the State of Maryland, one piece of iron called an angular bar, one piece of iron called a brake shoe, and one piece of iron bar, calculated to obstruct, overthrow and direct from the track of the Baltimore and Ohio Railroad Company, a body corporate of said State, any car, vehicle or carriage travelling and passing on the track of the Baltimore and Ohio Railroad Company, a body corporate of said State, with intent then and there to obstruct, overthrow and direct from the track of the Baltimore and Ohio Railroad Company, a body corporate of said State, any car, vehicle or carriage travelling and passing on the track of the Baltimore and Ohio Railroad Company, a body corporate of said State of Maryland, and being then and there a railroad company in the said county and State of Maryland then and there, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State.

“Aaron R. Anders,

“The State’s Attorney for Frederick County.”

Appellee was indicted under Section 412 of Article 21 of the Criminal Code, -which provides as. follows:

“If any person shall place anything, or cause anything to be placed, on any railroad in this State, calculated to obstruct, overthrow or direct from the track of such railroad any car, vehicle or carriage, travelling or passing on such railroad, or shall break or injure in any manner any railroad in this State, with the view or intent to obstruct or overthrow any ear, vehicle or carriage, such person so offending shall be deemed guilty of felony, and upon conviction thereof shall.be sentenced to the penitentiary for not less than two years nor more than ten years.”

The only ground on which it was seriously argued that the indictment was had, was the use of the word “tract” in the first part thereof.

We think the learned trial court, erred in sustaining the demurrer, whether the word “tract” was used intentionally in preparing’ the indictment or is a mistake in spelling. Where that word occurs it would clearly have been a compliance with the statute if the word “property” or “right of way” had been used, as placing an obstruction upon the trach is not a necessary element of the offense charged under the statute. These expressions could he used interchangeably without violating any rules of good English or any requirement of the statute. If that were not so, then the only meaning that could be given to the word, in the connection in which it is used, would he “brack”-and the mistake in spelling could mis- •' d or deceive no one. The indictment would he saved by the doctrine of idem sonans, if on no other ground.

Errors in spelling which do not obscure the sense are not fatal. See 22 Cyc. 291, and illustrations in note.

We have examined carefully the authorities cited by appellee. Certainly none of the Maryland cases sustain his contention. The requirements for a good indictment, and the reasons for them, are perhaps as Well and concisely stated as anywhere in Homer v. State, 49 Md., at p. 284, as follows: “As a general proposition, every indictment must charge the crime of which the party is accused with such certainty and precision that it may be understood without resort to intendments, and all the elements to constitute Hie offense must he averred. This is important not only as a means of notice to the acidised, but as means of identification of the particular accusation, with a view to future protection against a second prosecution for the same offense.”

The indictment in this case gratifies all these requirements. It cannot be seriously contended that it failed in any respect to notify the accused of the precise offense with which he was charged, or that, by reason, of lack of particularity in the identification of the offense, it left him in danger of a future prosecution therefor. Neither is it open to the objection that it fails to aver any of the elements necessary to constitute the offense under the statute, or that it cannot bo understood, without resort to intendments.

It is true some of the cases in other states, cited by appellee, go very far in holding errors in spoiling and in the misuse or omission of words fatal; much further, indeed, than we feel disposed to go.

Recently, however, the Supreme Court of Missouri, in the case of State v. Adkins, 225 S. W. Rep. 981, overruled a former decision, of that court in State v. Campbell, 210 Mo. 202, which became known as the “The” case, because the omission of the word “the” immediately preceding the word “State,” in the phrase, “against the peace and dignity of the State,” was held fatal.

Ifaidly more than passing notice is required of another objection suggested by counsel for appellee in his oral argument, viz :■ The failure to use a capital “T” in the word “the” preceding “Baltimore and Ohio Railroad Company,” thereby in effect, it was suggested, omitting a part of the name by which the company was incorporated. That objection does not impress na as having much form

Judgment reversed and cause remanded.