Broll v. State

Demtirrer — Practice in the Court of Appeals — Jury not bound by the Instructions of the Court in Criminal cases — Discretionary with the Court in Criminal cases to advise the Jury upon the law, or the Legal effect of the Dvidence — Construction of the Act of 1872, ch. 316, authorizing Deceptions in Criminal cases. Where the demurrer to an indictment is not set out in the record transmitted to the Court of Appeals, it is not properly before the Court for review. The jury, in the trial of criminal cases, being the judges of law as well as of fact, are not bound by any instruction given by the Court. They are at liberty to find a verdict in direct opposition to the instruction. In the trial of criminal cases the Court may advise the jury as to the law and legal effect of the evidence, but is not bound to do so, and being a matter within its discretion, its refusal to do so cannot be reviewed on appeal! The Act of 1872, ch. 316, which authorizes exceptions to be taken in criminal cases, only applies to such rulings as the Court may be called upon to make with regard to the admissibility of evidence during the trial.

Appeal from the Circuit Court for Anne Arundel County. The appellant was indicted in the Circuit Court for Aune Arundel County, for a violation of the Act of 1874, ch. 181, relating to Oysters. The indictment contained six counts; the first, second, third and fourth were abandoned by the State, the fifth and sixth were as follows: 5. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Lewis Broil, of the county aforesaid, on the said second day of October, in the year eighteen hundred and seventy-five, with force and arms, at the county aforesaid, being then and there the master of a certain boat, .to wit, a pungy called the “James Bui act,” and having then and there a license, Ho. 48, duly issued according to law, authorizing him, the said Lewis Broil, to use and employ said boat in catching oysters with scoop, dredge or similar instrument, within the waters of the Chesapeake Bay and Eastern Bay, outside of a line drawn from the southwest corner of second Kent Point to Wade’s Point, but which said license did not then and there authorize the catching of oysters with scoop, dredge or similar instrument, on any oyster bar within one and a half miles of Holland Island Bar, unlawfully then and there, to wit, on the day and year aforesaid, at the county aforesaid, in the waters of said county, in the State aforesaid, and on an oyster bar then and there, within one and a half miles of Holland Island Bar, did use and employ said boat, as in this count aforesaid, in catching oysters with a certain instrument called a dredge, contrary to the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State. 6. And the jurors aforesaid, upon their oath oforesaid, do further present, that the said Lewis Broil, late of the county aforesaid, on the second day of October, in the year eighteen hundred and seventy-five, with 'force and arms, within the limits of this State, but without the body of any county thereof, and within the jurisdiction of the Circuit Court for Anne Arundel County, a Court having then and there criminal jurisdiction of similar crimes, and before which said Court, the said Lewis Broil was duly-brought for trial, being then and there the master of a certain boat, to wit, a pungy called the “James Bulack,” and having then and there a license, No. 48, duly issued according to law, authorizing him, the said Lewis Broil, to use and employ said boat in catching oysters with scoop, dredge or similar instrument, within the waters of the Chesapeake Bay, and in Eastern Bay, outside of a line drawn from the southwest corner of second Kent Point to Wade’s Point, but which said license did not authorize the catching of oysters with scoop, dredge or similar instrument, on any oyster bar within one and a half miles of Holland Island Bar, unlawfully, to wit, on the day and year aforesaid, within the limits of this State, but without the hody of any county thereof, and within the jurisdiction of this Court, and within the waters of the Chesapeake Bay, in the State aforesaid, on an oyster bar within one and a half miles of Holland Island Bar, did use and employ said boat, as in this count aforesaid, in catching oysters with a certain instrument called a dredge,'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. Although the demurrer was not set out in the record, it would appear that there was a demurrer to the indictment and that it was overruled. The traverser pleaded not guilty and was tried. The jury found that the traverser was guilty on the fifth count, and not guilty on the sixth count of the'indictment. After the close of the evidence, the traverser asked an instruction to the jury which is set out in the opinion of this Court. The instruction was refused and the traverser excepted, and the verdict being against him, he appealed.