Wagaman v. Byers

17 Md. 183, 1861 Md. LEXIS 31

• Court: Court of Appeals of Maryland
• Decided: May 28, 1861
• Status: Published

Opinion

'Goldsborough, J.,

delivered the opinion of this court:

This was an action for slander, instituted in the circuit court for Washington county, by the appellant against the appellee.

The alleged slander consisted in charging the appellant with adultery.

After the evidence had been submitted to the jury, the appellee’s counsel prayed the court to instruct the jury that the charge, if proved as alleged, is not sufficient,per se, to maintain the action. Which instruction the court gave, and as 4he case is before us upon the ruling of the court, we must pronounce the instruction correct. It was contended by the ¿appellant’s counsel that adultery was made a crime by the ■Act of 1715, ch. 27. But, by that Act, the penalty was a pecuniary fine.

In Stanfield vs. Boyer, 6 H. & J., 248, where an unmarried woman was charged with fornication, which, under the Act of 1781, ch, 13, is criminally punished, this court decided that the action would not lie. The law, in this respect, was changed by the Act of 1838, ch. 114. And Star Me, in his work on Slander, vol. 1, page 43, says: “that where the penalty for an offence is merely pecuniary, it does not appear that an action will lie for charging it; even though, in default of payment, imprisonment shall be prescribed by statute, imprisonment not being the primary and immediate punishment for the offence.” It was further urged that the appelleeought to have demurred to the declaration, or have taken the verdict of the jury, and then made a motion in arrest of judgment.

(Decided May 28th, 1861.)

The right to obtain an instruction from the court upon the sufficiency of the declaration, as was done' in this case, is so well established that we need only refer to the case of Berry vs. Harper, 4 G. & J., 470, and the authorities there cited.

Judgment affirmed,