State v. Bauerman

SOMERVILLE, J. The present appeal is taken by the State, from the judgment of the Circuit Court, sustaining a demurrer to an indictment in a criminal case. • Such an appeal is authorized, in certain cases, under a late statute, entitled “ An act to secure the right of appeal to the State in criminal cases, when the act of the General Assembly, under which the indictment is found, is held to be unconstitutional;” which was approved December 8th, 1880. — Acts 1880-81, p. 65. This act provides, that “ the constitutionality of a statute, under which an indictment is found, can only be raised by demurrer to the indictment or complaint,” and that, when the act is held to be unconstitutional, “ the solicitor may take an appeal on behalf of the State, to the Supreme Court.” The conditions, upon which this right is secured to the State, it will thus be seen, are two: first, the act must have been pronounced by the lower court to be tmconstitutional: second, this decision must have been made by the court on demw/rrer, interposed by the defendant. An exception being thus incorporated by this statute into the general rule, which denies to the State the right of appeal in criminal cases, we are of opinion that the record should affirmatively show that the constitutionality of the act assailed was one of the questions specifically presented by the demurrer. The clear legislative intent is, that the lower court shall not consider or decide the question of the constitutionality of any statute, unless it is presented by demurrer with reasonable certainty, alleging, in substance, that the statute is violative of a certain article and section of the constitution, or, at least, in what particular respect it is viola-tive of the fundamental law. If the judgment-entry shows, however, that the specific ground of the court’s decision was the unconstitutionality of the act under which the indictment was found, and any ground of demurrer assigned is broad enough to embrace the question, although ambiguous, we need not say that the State would, in such cases, be debarred of the right of appeal intended to be secured by the act under consideration. But it is needless to say that such a case can not properly arise, so long as a proper regard is had for the rules of pleading in nisi-prius courts. The record fails to show a case within the statute, it no [254] where appearing that the act, under which the indictment was found, was declared to be-unconstitutional by the Circuit Court, or that it was assailed by demurrer on this specific ground.. The appeal is, for this reason, dismissed.