
    Davis vs. The State.
    Error fo the Court of Oyer and Terminer, &c. for Baltimore county. An indictment was found at September term 1810, for assaulting, and attempting fo commit So- ; domy, on the body of W C. The indictment contained two counts. The first count stated, that Davis, not having the fear of God before, his eyes, but being moved and seduced by the' instigation of the Devil, on, &c. with force' ;and arms at, &c. in and upon one W C, a youth of the age of 19 years, in the peace of God, and of the state of Maryland,, then and there being, did make an assault, and him the said W C, then and there did beat, wound,- and ill-treat, with an intent that most horrid and detestable crime, (among' christians not to be .named,) called Sodomy, with Ihim the said W C, and against the* order of nature, then and there feloniously, wickedly and devilishly, to commit and do, to the gl-eaf displeasure of Almighty God, contrary to the act of assembly in such case made and provided, and against the peace', government, and dignity of the state. The second count stated, that the said Davis, not having the' fear of God, &c. but being moved, &c. on, &c=> with force and arms, &c. in and upon the said W C, in the peace of God, &c. then and there being, did make an assault, and him the said W C then and there did beat, &c. with an intent then and there feloniously, &c. with him the said W C, against the order of nature, to have a venereal affair, and with him the' said W C, that sodom ideal, detestable, and abominable sin-, (among Christians not to be named,) called Brtggery, then and there feloniously, &c. and’ against the order of nature, to perpetrate and commit, to the great displeasure of Almighty God, and disgrace of, all human kind', contrary to the act of assembly in such case made'and provided,- and against the peace, government, and dignity of the state. The traverser hav - ing appeared, filed a' suggestion, on oath, that he' could not have a fair and impartial trial in the court of oyer and terminer; &c. and prayed the court to order and direct the record of the proceedings- to be transmitted to' the judges of an adjoining county court, there to be tried, &c. This prayer the court refused. The traverser having pleaded not guilty, the case was tried', and a verdict of guilty was found against him» His counsel moved the court in arrest of judgment, for the following reasons; 1. That the indictment concludes against the act of assembly, which makes the facts charged in the indictment criminal, or which forbids it. 2. That the facts charged in the indictment, as there charged, is no offence indictable by the laws of this state. 3. That the indictment is insufficient, inasmuch as it does not charge the traverser with an intent to have carnal knowledge of the body of W C, 4. That the indictment is insufficient wholly to authorise the court to pass judgment on against the party. The court, (Scott, Ch. J.) overruled the motion, and rendered judgment on the verdict, that the traverser should be imprisoned in the gaol of Baltimore county, from the 9th of January 1811, until , the 9th of April 1811, and that he stand in the pillory on the third Saturday of January, being the 19th day of the said month, in the year 1811, for the space of fifteen minutes, between the hours of 12 and 1 o’clock of the same day, and that he also pay to the state the sum of 0500, for his fine laid upon him for the offence aforesaid, according to the act of assembly in such case made and provided, and that he be committed to prison until he pays tfie said fine, &e. To reverse that judgment the traverser brought the present writ of error.
    
      ; An assault, with intent jto commit the crime of sodomy^ is within the act of 1793, c7u 57, and is thereby punishable.
    As the judgment may be either at common law, or under ‘the act of assembly, the conclusion m the indictment, contra formam statute is not improper.
    The crime of sodomy is too well known to be misunderstood, and too disgusting to be defined farther than by merely namingitjit is unnecessary therefore to lay the carnaUter cognovit in the indictment.
    The court of cycr and terminer, fee. for Baltimore comity, have an undoubted power to order' the record of proceedings on an indictment, to be transmitted to the adjoining county i court, the party charged having previously complied with the directions of the act of 180S, ch.lfSi ¡pf
    
    The criminal court of Baltimore county, altho5' de-nominated the court of oyer and terminer, &e. must be considered as a branch of Baltimore count}' court, exercising criminal jurisdiction only, which is invested in all-the other county courts.
    Neither party can appeal from the decision of the court on an application for a removal of the suit to another county court.
    ■Where an .of-fence is punishable either at common law, or under an act of as-, sembly, and the common lawjudg^ ment is entered, but is stated to be according to the ¿ct of assembly— Held, that the unmeaning expressions that follow the judgment of the eouriy •'ue to be rejected as auirfasjige* As to the punctuation, of the tenth section of the act of 1793, ch, 57,
    
      The cause was argued in this court before Chase, Ch. J. Polk, Buohakae, Nioholsos, and Earle, J.
    
      Winder and Brice, for the Plaintiff in error,
    contended, 1. That the cause should have been removed to an adjoining county court on the motion, &c. of the traverser. They referred to the acts of 1799, ch. 58, s. 1; 1804, ch. 55, s. 3; and 1805, ch. 65, s. 49, s. 25.
    
    
      2. That the indictment was founded on the act of 1793, ch. 57, when no such crime as that charged in the indictment, is prohibited by that act. They referred to Stubb's Cr. C. C. 108, 109, 110. 2 Hawk. 35, 45. 76; and Hale, 170, 171.
    3. That admitting if to be an offence, |t was not sufficiently set out in the indictment. 1 East's C. L. 480. Stubb's Cr. C. C. 202, 203. 12 Coke, 36, 37; and 1 Hale, 628.
    5. That the judgment was entered as an ofience against the act of assembly.
    
      
      Johnson, (Attorney General,) for the state,
    contended-, that it was discretionary with the court, under the acts o£ assembly, to remove the cause or not; and having decided that the cause should not be removed, no appeal lies therefrom. He referred to the act of 1805, ch. 65, s. 49. Upon the other questions he referred to the act of 1793, ch. 57, s. 10. Stubb's Cr. C. C. 140; and East's C. L. 448.
   Earle, J.

delivered the opinion of the court. The court are of opinion, that an assault, with an intent to commit the crime charged in this case, is within the act of 1793, eh 57, and is thereby punishable. The objections made to the indictment do not appear to the court to have any solidity in them. As the judgment of the court may be either at common law, or under the act of assembly, the conclusion contra fonnam statuti, is not improper; and the crime intended to be committed, being only in aggravation of the assault, it is sufficiently set forth in the manner it i,s stated.

The criminal court of Baltimore county have an undoubted-power, we conceive, to order the record of proceedings on an indictment to be transmitted to the adjoining county court, the party charged haying previously complied with the directions of the act of 1805, ch. 65, s. 49. The criminal court of Baltimore county, although denominated the Court of Oyer and Terminer and Gaol Delivery, must be considered as a branch of Baltimore county court, ^ercising criminal jurisdiction only, which is vested in all fhe other county courts in the stats. Unless it is so considered, this consequence will be the necessary result, that the citizens of Baltimore county will be deprived of a privilege which is enjoyed by the citizens of all the other counties — the privilege of removing the indictment into an adjoining county, when a fair and impartial trial cannot be had in the county in which the person is indicted. The potver is to be exercised in the discretion of the court, according to all the circumstances attending the prosecution, and it being impossible they should appear in the record, neither party can appeal, we think, from the decision of such a question. ’

The unmeaning expressions that follow the judgment of the court below, are to be rejected as surplusage.

Polk, J. dissented.

Nicholson, «T.

I am of opinion, that an assault, with intent to commit sodomy, is punishable by the act of 1793, ch. 57. The punctuation of the tenth section might perhaps warrant á different construction, by separating the words “or sodomy,” from “assault, with intent to commit murder, robbery or rape.” Such a constniction would confine the punishment to the actual perpetration of sodo* pay, which clearly was not the intention of the legislature. All the higher offences, such as mm'der, robbery, rape, burglary, arson, sodomy, and the like, are included in the general antecedent expressions1, “felony with or without benefit of the clergy,” and the legislature could not mean to descend to a particular designation of a single offence, which had been before made punishable by the general clause. The crime of sodomy is too well known tobe misunderstood, and too disgusting- to be defined, farther than by merely naming it. I think it unnecessary therefore, to lay the carnaliter cognovit in the indictment, particularly as Stubbs, a compiler of some repute, g’ives a form of indictment without these words, and East, another author of merited celebrity, does not consider them essential.

The criminal court of Baliirnore has not, in my judgment, any authority to transmit indictments to an adjoin- . jng county court for trial. The act of 1804, ch. 55, s. 3, does not give the authority, for it speaks only of transmitting proceedings from one county court to another county court, and manifestly relates only to those courts which bad been created by the preceding section. The criminal court of Baltimore is not a county court, but a court of limited jurisdiction, established by the act of J 793, ch. 57, . for especial purposes, and expressly named and styled. iiThe Court of Oyer and Terminer and Gaol Delivery.” The county courts are created by the constitution as changed in 1804 arid 1805, which declares that they shall be composed of a chief judge, and two associate judges, to be thereafter commissioned by the governor and council, and it has never heretofore been supposed that the criminal court of Baltimore was one of these. The forty-ninth section of the act of 1805, ch. 65, is merely restrictive; it confers no new authority upon any court, but was intended barely to prohibit the removal before the indictment is found.

Although I differ with the other members of the court in some of their reasoning, I nevertheless concur with them in affirming the judgment.

JUDGMENT AFFIRMED,  