
    OLEVIA COLE vs. STATE OF MARYLAND.
    
      Adultery: statutory offense,, fine and costs. Costs: correction of—•.
    The offense of adultery is not a common law offense, and in Maryland was made punishable only by statute, according to Chapetr 27 of the Acts of 17.15. p. 242
    To such an offense, section 1 of Article 38 (regulating “fines and forfeitures”) is applicable, as well as section 5 of Article 27, and upon a conviction under the latter, a sentence that the traverser pay a fine of $10.00 and costs is proper. p. 242
    The costs in such a case should include the costs of the prosecution only, and should not include any charge for counsel feos.
    • p. 243
    For an error in such a taxation of costs, the traverser can have the correction made by application to the trial court.
    p. 243
    
      Decided May 5th, 1915.
    
    
      Appeal from the Circuit Court for Charles County. (Beall and Camalier., JJ.)
    The facts are stated in the opinion of the Court.
    The cause was submitted to Boyd, C. J., Briscoe, Burke, Thomas, Pattison, Urner, Stockbridge and Constable, JJ.
    
      Adrian and F. Stone Posey, on the brief, for the appellant.
    
      Edgar Allan Poe, the Attorney-General, on the brief for the appellee.
   Boyd, C. J.,

delivered the opinion of the Court.

The plaintiff in error was convicted of adultery, and was sentenced to pay a fine of ten dollars and costs. The only alleged error is that costs could not legally be imposed as a part of the sentence, the case being brought before us on a. writ of error which alleges: “That the minimum and maximum punishment prescribed by law for the commission of the crime of adultery is a fine of ten ($10.00) dollars; the Court, therefore, erred in its judgment in imposing upon the defendant both a fine of ten ($10.00) dollars and costs, which was more than the maximum punishment prescribed by law as aforesaid for the commission of such an offense.”

We will not stop to determine whether the petition for a writ of error is in all respects regular, as no question was raised about that by the State, but, assuming that it is, we will consider the assignment of error. 'Section 5 of Article 27 of Code of Public General Laws provides that: “Any person who shall commit adultery shall upon conviction thereof in any of the Circuit Courts for the counties in this State or the Criminal Court of Baltimore be fined ten dollars,” and does not mention costs, but section 1 ojf Article 38, being the article on “Fines and Forfeitures,” contains these provisions: “When any fine or penalty is imposed by any Act of Assembly of this State or by any ordinance of any incorporated city or town in tbis State enacted in pursuance of sufficient authority, for tbe doing of any act forbidden to be done by sucb Act of Assembly or ordinance, or for omitting to do any act required to be done by sucb Act of Assembly or ordinance, tbe doing of sucb act or tbe omission to do sucb act shall be deemed to be a criminal offense,” and then, after providing for the prosecution of such offense, tbe section proceeds: “If any person shall be adjudged gmilty of any sucb offense by any Court having jurisdiction in tbe premises, be shall be sentenced to tbe fine or penalty prescribed by sucb Act of Assembly or Ordinance and to tbe costs of bis prosecution; and in default of payment thereof he shall be committed to jail until thence discharged by due course of law.”

Tbe latter provision would seem to be conclusive of the question, but tbe attorney for tbe traverser contends that that section is only applicable to offenses created by statute, and not to common law offenses, and he further contends that adultery is a common law and not a statutory offense. For tbe latter proposition be cites Hochheimer's Criminal Law (2nd Ed.), sections 239-242, but in section 239 that author distinctly states that “Fornication and adultery are not common law offenses, but are generally punishable by statutes,” and we find nothing to tbe contrary in any of tbe above sections. Adultery was not a criminal offense at common law. In Wagaman v. Byers, 17 Md. 183, which was an action of slander, where tbe words consisted in charging tbe plaintiff with adultery, it was held they were not sufficient, per se, to maintain tbe action, because, by tbe law of tbis State, the penalty for adultery is a pecuniary fine. "While the Court did not in so many words say it was not punishable as a common law offense, that is necessarily implied, and seemed to be a concessum in tbe case. Mr. Alvey, attorney for tbe appellee, who was afterwards a distinguished member of tbis Court, said in bis brief: “Tbe common law tabes no cognizanee of the crime of adultery, and in England the party guilty of the commission is only liable to ecclesiastical censure. In this State, the only law making it a crime, and authorizing its punishment, is the Act of 1715, Ch. 27, sec. 3;” and the Court said: “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 Shafer v. Ahalt, 48 Md. 171, Judge Robinson said: “Now, adultery was a spiritual offense cognizable by the Spiritual Courts, and the punishment was confined to the infliction of penalty, “pro salute animae.” In 1 Am. and Eng. Ency of Law (2nd Ed.), 747, it is said: “Adultery was not an indictable offense at common law, except, indeed, when open and notorious, amounting to a public nuisance,” and in 1 Cyc. 952. it is stated that: “Adultery as a crime was unknown to the common law”; and again: “Adultery not being a common law offense, is not punishable in this country unless made soi by statute.” 1 R. C. L. 633, under the title “Adultery (As A Crime) ” this statement is made: “Adultery was not, however, regarded as an indictable offense, but, as a private wrong, for which the injured husband had his right of ■action for damages. Nevertheless, in early times it was regarded as an offense, and was cognizable by the ecclesiastical courts, though the offense was not defined by the canon law the same as by the common law.” As there are many authorities cited in the notes to those three volumes, we will not refer to others.

As section 1 of Article 38 thus clearly applies to a conviction under our statute .for adultery, it would be useless to determine how far section 1 of Article 38 is applicable to convictions of what were crimes at common law, but the punishments for which have been fixed by statute. Nor will ■ we discuss other questions on the subject of costs in criminal cases except to call attention to the fact that in the taxation of the costs, as set out in the record, the appearance fee of the defendant’s attorney is included. There may be other costs incurred by her, included, as the sheriff’s, clerk’s and witnesses’ fees of the State and traverser are not stated separately and the record does not show whether any of them were incurred by the defendant in the course of the trial. Of course, the costs included in the sentence are those of the prosecution, as indeed the statute above quoted provides. The error can be corrected in the lower Court and is no ground for reversal, not only because no objection was made to it in the lower Court, but because the sentence of the Court in such case is that the traverser pay the fine fixed and the costs. The clerk then taxes the costs, and if he makes an error as to what should be included, the traverser can have it corrected by application to the lower Court. It is said in 8 Ency. of PI. & Pr. 994, that: “When improper items are taxed as costs, the general method of obtaining relief is by a motion in the trial Court that the costs be retaxed,” and the practice throughout this State so far as we are aware, is to make application to the trial Court to have the error corrected.

Judgment affirmed, with costs to the appellee.  