appears on the face of the record itself, and there is no bill of exceptions, agreed statement of facts, or substitute for either of them. We will consider the questions referred to in the motion, but in somewhat different order from that in which they are therein stated.

1. Objection is made that the appellant was not arraigned. An assault with intent to rob, murder or commit a rape is not a felony in this State. The punishment for those crimes is provided for in one section of the Code, and has been for many years-being now section 17 of Article 27. In Hollohan v. State, 32 Md. 399, it was said: "Robbery, murder and rape are felonies. To constitute either of these crimes, the felonious act and felonious intent must concur. An assault with intent to commit either of these crimes is not a felony, but to bring an assault within this Article and section and subject the party charged to the punishment provided, it must be charged and proved to have been committed with an intent to commit a crime, which is a felony. If the intent had been effectuated by the act, a felony would have been committed. Only because it was not effectuated, the crime sinks from the grade of a felony to that of misdemeanor." See also State v. Dent, 3 Gill & J. (Md.) 12..

The distinction made in some jurisdictions that crimes punishable by death or confinement in the penitentiary are felonies, and others misdemeanors has never existed in this State, but here only those are felonies which were such at common law, or have been so declared by statute. The fact that a crime is punishable in the penitentiary or is "infamous" does not make it a felony in this State. It was said in State v. Bixler, 62 Md. 360: "The General Court of this [379] State in 2 H. & McH. 378, Clarke v. Hall, defined 'infamous crime' to be one which rises at least to the grade of felony.' This is, however, too narrow, for perjury is a misdemeanor, but by all authority is 'infamous.'" On the same page it is also said: "There are many misdemeanors punishable by confinement in the penitentiary, which clearly are not "infamous crimes' within the meaning of the common law or of the Constitution. If, for example, the prisoner has been convicted of any of the assaults with intent, mentioned and punished by the Code, and had been sentenced to the penitentiary and served his time out there, without being pardoned by the Governor, he would not be chargeable with having committed 'an infamous crime." In Garitee v. Bond, 102 Md. 379, 5 Am. Cas. 915, 62 Atl. 631, 111 Am. St. Rep. 385. Judge Schmucker, in delivering the opinion of the Court, referred to the case of Ex p. Wilson, 114 U. S. 422, 5 S. Ct. 935, 29 U. S. (L. ed.) 89, where the Supreme Court held that the pro

vision in the United States Constitution which prohibits prosecution for "a capital or other infamous crime unless on a presentment or indictment of a Grand Jury" must be considered not merely from the standpoint of the character of the crime, but also from the nature of the consequences to the accused, if he should be found guilty, and went on to say: "But even in Wilson's case it was held that at common law prior to the Declaration of Independence it was already established law that the infamy which disqualified a convict to be a witness depended upon the character of his crime and not upon the nature of his punishment.'" Again it was there said: "The authorities generally, though not with entire uniformity, hold that the infamous nature of a crime was determined at common law by the character of the act itself, and not by the penalty inflicted for its commission," and after referring at length to State v. Bixler, supra, it was distinctly held that the crime considered in Garitee v. Bond could not be regarded as infamous merely because it was punishable at the discretion of the Court in the penitentiary.

[380] So whatever may be the law elsewhere, it is clear that an assault with an intent to commit a rape is not a felony and is not even ån "infamous crime" as that term is understood in this State. It is not now and never has been so far as we are aware customary or necessary to arraign one accused of a misdemeanor-even though if convicted he could or must be punished by confinement in the penitentiary. The Legislature in authorizing the Court, in its discretion, to impose the death penalty or confinement in the penitentiary for not less than two nor more than twenty years on one convicted of the crime of assault with intent to commit a rape, did not declare it to be a felony, and in our judgment did not make it such by providing for the death penalty in the discretion of the Court. In Gibson v. State, 54 Md. 447, the first count charged that the accused "feloniously, wilfully and maliciously did set fire to and burn a certain barn," etc. One ground for a motion in arrest of the judgment was "Because the jury have found him guilty of a felony and the offense committed is only a misdemeanor by the laws of Maryland." In the course of the opinion it was said: "The argument of the AttorneyGeneral, that the offense charged in the first count is legally a felony, because the common law attached the character of felony to all offenses punishable by death, however well founded according to the English authorities, does not apply to offenses where the punishment of death is in the discretion of the Court, and this Court having decided, in Black v. State, 2 Md. 376, that such offenses

are misdemeanors, we are not disposed to disturb that decision." In Salfner v. State, 84 Md. 299, 35 Atl. 885. Chief Judge McSherry said: "It is unnecessary that a party accused of a misdemeanor should be arraigned; but it is indispensable that a plea should be entered to the indictment or that the record should show he waived a plea."

So without deeming it necessary to further discuss this branch of the case, or to refer to authorities out of the State as to when the accused must be arraigned, we hold that it [381] was not necessary to arraign the appellant, and there was no error in not doing so, and hence the effect of a waiver of arraignment becomes immaterial.

2. The reason alleged that the defendant never, either in person or by his attorney, pleaded the plea of "Not Guilty" which appears in the docket entries-it having been entered without the order or authority of the defendant or his attorney, and without his having been called upon to plead, is not sustained by the record. We have quoted

above what the record states on that subject, and as it shows that he did plead "Not Guilty," and as there is nothing in conflict with that statement, it is unnecessary to further discuss the question.

3. Another reason assigned in support of the motion is that sentence of death was pronounced against the defendant without first asking him if he had anything to say. The authorities are not entirely uniform on the subject, although it may be admitted that the greater number of them hold that at least in capital cases the accused should be asked if he had anything to say why sentence should not be pronounced. The question has not heretofore been passed on by this Court, and we have no statute on the subject, as many States rave. There can be no doubt that most of the reasons originally given for the adoption of that practice are not applicable in this State. In the first place the prisoner is not only allowed counsel, but the Courts always appoint counsel to defend those who are unable to employ them, in capital cases. Again, the rules of Courts generally fix the time within which a motion for a new trial or motion in arrest of judgment can be filed, and in the absence of such rules, the time allowed at common law is applicable. Even if sentence should be passed before the expiration of such time, without having given the prisoner an opportunity to then speak, such a motion would be afterwards entertained if made within the time allowed. In Heiskell v. Rollins, 81 Md. 397, 32 Atl. 249, a judgment was entered by the clerk in a civil case the day the verdict was rendered, and on the same day a motion for a [382]

new trial was filed. We dismissed the appeal without prejudice, in order that the appellant could take steps to have the entry of judgment which was improperly entered stricken out and a final judgment then entered from which an appeal could be taken. The case was here on a second appeal, as reported in 82 Md. 14. Such a practice being adopted in a civil case, the Court would be all the more careful to see that a prisoner under the sentence of death did not suffer by reason of a premature judgment and sentence.

Then under our practice a motion can be made to strike out the judgment and sentence at any time during the term, as was done in this case. It would be practically impossible for the prisoner to suffer from this omission because he desired to present a pardon. If a pardon had been granted by the Governor before sentence, it is impossible to conceive of a case under our system and practice, in which the Court could fail to be informed of it, because of the omission to ask the prisoner whether he had anything to say. So we might look to the various reasons originally given for this practice, without finding a substantial one under existing conditions for setting aside a judgment and sentence in a criminal case because of the omission of this inquiry.

The decisions of the various Courts which hold that omission to be reversible error differ as to the effect of such an error, but even if we were inclined to hold that it was indispensable in capital cases to ask the prisoner if he had anything to say, we would not hestitate to hold that the error would only affect the sentence and would not affect the verdict. In State v. Hoyt, 47 Conn. 518, 36 Am. Rep. 89, one of a number of reasons given by that Court for declining to hold it to be necessary, was that it would only affect the sentence and the weight of authority is to that effect. But in this State we have a statute (Sec. 81 of Art. 5 of Code) which provides that if this Court shall reverse a judgment for error in the judgment or sentence itself, it shall be then the duty of this Court to "remit" the record to the Court below, in order that it may pronounce the proper judgment. In this case a [383] motion for a new trial was made and overruled, as was the motion now under consideration, and it would seem peculiar, to speak mildly, if the rules of practice required us to reverse the judgment and send it back to the same Court which passed the sentence in order that it might first ask the prisoner if he had anything to say and then re-sentence him.

Inasmuch as we will reverse the judgment and order a new trial, for another reason, it is perhaps unnecessary to discuss this point at such length, but as it was fully argued

and thoroughly considered by us, we concluded to state our views on the subject. We are of the opinion that it is not reversible error, even in capital cases, not to ask the prisoner if he has any reason to give why sentence should not be passed, unless it is apparent that the prisoner was or may have been injured by the omission. But we do strongly recommend and advise that the practice be followed in all cases in which either the death penalty or confinement in penitentiary can be imposed. In capital cases the practice, so far as we are aware, has been followed throughout this State, and in most of the Circuits in all penitentiary cases. In Givens v. State, 76 Md. 485, 25 Atl. 689, Judge Briscoe said: "In Com. v. Roby, 12 Pick, (Mass.) 514, the Court said, that the constant practice of the Commonwealth should be observed and followed unless good reason can be assigned for the change. The forms adopted in a criminal trial are of importance, inasmuch as they have a strong tendency by their solemnity, to impress upon all who are engaged in it, the interesting and highly responsible nature and character of the duties which devolve on them respectively."

No more responsible duty can rest upon an officer of the law than the exercise of the discretion vested in the judges of this State ir reference to this and some other crimes, by which they are called upon to determine whether a convict shall be sentenced to death or be imprisoned in the penitentiary. It is an exceedingly unpleasant duty in any case to impose the death penalty, and before exercising the discretion, cvery Judge should be glad to have all the information [384] he can properly consider. It may be possible that something can be said before sentence which might influence the Court in the exercise of its discretion, and, as we have already indicated, if it be apparent that such was or might have been the case, and the prisoner had not had an opportunity to be heard, we would feel called upon to remand the case in order that he might be re-sentenced, after the inquiry was made of him. Moreover, if the proceedings are conducted with the solemnity with which they should be when a sentence of death is about to be imposed, the prisoner may say something which will make his case a warning to others, even if his remarks are not of service to himself. So although we would not reverse a judgment unless we could see that the prisoner was or may have been injured by the omission, we repeat that in our judgment the practice, which we supposed was always followed in capital cases in this State, of making the inquiry, should be adopted in all cases in which the death penalty may be imposed, and ordinarily in all other cases in which the defendants may be confined in the penitentiary.

It may be well to add that when it is done the proper practice is to have the fact so noted in the record. In this case, we are not satisfied that any injury was done the appellant, by the omission to make the inquiry, and at any rate, as the judgment itself will be reversed, there is no occasion to remand the case for a new sentence. It will not be out of place to conclude the discussion of this branch of the case by referring to 19 Enc. of Pl. & Pr. 456, where it is said, "there seems to be a growing tendency, even where capital punishment is inflicted, to dispense with this ceremony, or at least to consider it not essential, on the ground that the reasons for its existence are not applicable at the present day."

4. It is also alleged that the judgment and sentence in this case impose a cruel and unusual punishment, and also that the sentence imposed is out of proportion to the crime charged in the indictment, and too severe a penalty for said crime. [385] The facts proven in the case are not presented by the record, but we cannot hold that the penalty authorized by the statute to be imposed for such a crime is in violation of the Constitutional provisions. Article 16 of the Declaration of Rights of our present Constitution declares that "No law to inflict cruel and unusual pains and penalties ought to be made in any case or at any time hereafter," and Article 25 is, "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted by the Courts of law." It would hardly be contended that the punishment provided by our statute for the crime of rape-death or confinement in the penitentiary for not less than eighteen months, or more than twentyone years-is in conflict with those provisions, and when the Legislature changed the penalty, for an attempt to commit the crime, to death or confinement in the penitentiary, in the discretion of the Court, it is probable that it took into consideration, the fact that it is often difficult to prove whether the crime of rape was actually consummated. Under some circumstances the outrage upon the particular woman and upon society can scarcely be said to be less because the prisoner did not succeed in accomplishing his purpose than if he had. If a revolting crime of this nature is so frequently repeated as in the judgment of the Legislature to call for such punishment, we cannot declare it to be contrary to such provisions of the constitution. It is said in Foote v. State, 59 Md. 269: "For the prevention of crime, which is the true end of all punishment, the law giver may properly consider the frequent and easy opportunities of committing the crime and the difficulty of guarding against it, and may grade his punishment accordingly." In passing it may be said that in that case the Court referred

to the fact that "The eighth amendment to the Constitution of the United States is not a restraint upon, and does not apply to, the Legislature of a State, but only to the National Legislature, and, therefore, has no application to this case. Pervear v. Massa

chusetts, 5 Wall. 470, 18 U. S. (L. ed.) 608." In Mitchell v. State, 82 Md. 527, 34 Atl. 246, the traverser was convicted [386] of an attempt to carnally know and abuse a woman child under the age of 14 years, that being a common law offense and not covered by our statute. He was sentenced to imprisonment in the city jail for fifteen years, and it was contended that it was contrary to the Declaration of Rights, but this Court in considering the case said: "Our law inflicts pain, not in a spirit of vengence, but to promote the essential purposes of public justice. Severity is not cruelty. The punishment ought to hear a due proportion to the offense. Crimes of great atrocity ought to be visited with such penalties as would check, if not prevent, their commission." Again on page 534 the Court said: "If the punishment is grossly and inordinately disproportionate to the offense, so that the sentence is evidently dictated not by a sense of public duty, but by passion, prejudice, ill-will, or any other unworthy motive, the judgment ought to be reversed, and the cause remanded for a more just sentence. But no such instance of judicial misconduct has ever occurred in our good old State, and we trust that the day may never come when it will be witnessed. When the discretion which the law confers is exercised with a sedate and conscientious judgment under the influence of a love of public justice, and a desire to promote it, the Judge is acting in the legitimate discharge of his duty and his sentence is not subject to reversal." So without further discussing this subject, no ground for reversal for the reason now being considered is shown by the record.

5. This brings us to the action of the lower Court for which we reversed the judgment by a per curiam order heretofore filed. The quotation above shows how the case was conducted, and that the witnesses for the prosecution were examined out of the presence of the prisoner. Article 21 of the Declaration of Rights provides, "That in all criminal prosecutions every man hath a right to be informed of the accusation against him; to have a copy of the indictment or charge in due time (if required) to prepare for his ¡defense; to be allowed counsel; to be confronted with the witnesses against him; to have process for his witnesses; to examine the witnesses [387] for and against him on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty." In determining whether any part of the public should be ex

cluded from the trial of a criminal case, some discretion must be allowed the trial Court. Under no circumstances should a trial be so conducted as to have the appearance of a Star Chamber proceeding, but cases sometimes occur which have a demoralizing influence on the spectators and to some extent on the community. It has always, so far as we are aware, been the practice in this State to exclude minors in such cases, and if women are not excluded they are often at least warned that the character of testimony will be such as to make it undesirable for them to be present. Of course no exclusion should be permitted which might injuriously and improperly affect the prisoner, but there may be cases where the prosecuting witness can be protected without doing the prisoner any harm. To require a refined, virtuous woman to relate the facts of a felonious assault upon her in the presence of a large audience inflicts a great punishment on her, and oftentimes does the accused more injury than if she were examined under other circumstances, for she may get in such a distressing condition as to improperly arouse the sympathies of the jury and possibly to cause counsel for the prisoner to refrain from a cross-examination which might have helped his client. The testimony of an outraged woman is calculated to create a bitterness against the accused amongst the audience, the effect of which is sometimes difficult to keep from the jury, as spectators may by their looks or manner even unconsciously betray their bitterness of feeling. The danger is that the horror of the crime may cause the hearers too readily to connect the accused with the commission of it. It is undoubtedly oftentimes better for the accused to have the trial conducted with less publicity than cases ordinarily are, and in a case such as this we are not prepared to say that the rights of the appellant were violated by having the trial in the petit jury room, instead of the Court room. The case was tried before the [388] Court, which, under our Constitution, the accused has the right to elect instead of a jury, and while the record does not show how many persons were in the room, it is not suggested that any one whom the prisoner or his counsel desired to be present was excluded. It does show that the trial was held there with the consent of the attorney for the traverser and no objection was made to it being held there instead of in the Court room. We can see no reason why the prisoner or his attorney for him could not agree to have the case tried where it was. We are aware that under some decisions, in other jurisdictions, that might not be allowed, but there is nothing in our Constitution or statutes to prohibit it, and we are satisfied that it may be in the interest of justice and for the good of the commun

ity to permit the trial Court to hear a case of this character outside of the hearing of the general public, provided there are enough persons present to secure protection to the accused against any possible advantage being taken of him or injury done to him, and that it is done with his consent or that of his attorney under such circumstances as show his consent. The general rule is thus stated in Cooley's Constitutional Limitations, side page 312: "It is also requisite that the trial be public. By this is not meant that every person who sees fit shall in all cases be permitted to attend criminal trials; because there are many cases where, from the character of the charge, and the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of portions of the community would be of the worst character, and where a regard to public morals and public decency would require that at least the young be excluded from hearing and witnessing the evidences of human depravity which the trial must necessarily bring to light. The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility, and to the importance of their functions; and the requirement is fairly met with, if, without [389] partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether."

But we are of the opinion that there was error in taking the testimony out of the presence of the appellant. Whether or not that could be expressly waived by the accused himself is unnecessary to determine, as the record does not show that it was. He had the constitutional right to be confronted by the witnesses, and although his attorney must have known that he was not present and may, so far as he could, have consented to let the traverser remain in the Court room while the witnesses were being examined, we are of opinion that that could not bind the ap: pellant. It is quite possible that one on trial may be able to make valuable suggestions to his attorney during the examination of witnesses, particularly the prosecuting witness in a case of this kind,-as it matters not how well an attorney may have prepared for the trial of a case, it is impossible for him to anticipate all that may be said, or to know all the details a witness on the opposite side will testify to. It might be that in the course of her examination in the presence of the accused the prosecuting witness would discover that she had made a

mistake in the identity of the party committing the crime. Other reasons suggest themselves to show the importance of the accused being present, but it has so far as we are aware been the uniform practice throughout the State to require the presence of the accused in capital cases during the examination of witnesses, and this is the first instance which has been brought to the attention of any of us where that practice has been departed from. We have no doubt that the lower Court was induced by the best of motives to adopt the course it did, but we cannot hesitate to hold that it committed a grave error in permitting the testimony to be taken-especially that of the chief prosecuting witness, out of the presence of the [390] accused. In Johns v. State, 55 Md. 360, Judge Alvey in considering an objection to the introduction of the Comptroller's Certificate, said: "It is only where the prosecution is to be maintained by the testimony of living witnesses that they are required to be produced in Court, confronted with the accused, and deliver their testimony under the sanction of an oath, and be subject to cross-examination. In other words, no witness shall give his testimony in secret or out of the presence of the accused; and no party shall be put upon his trial upon mere hearsay evidence; but the witness shall be produced, and be subject to all the tests that the law has devised for the full disclosure of the truth."

We do not overlook the fact that the crime of which the appellant is accused is a misdemeanor, but while that is true, he was liable to be sentenced to death, if convicted, as he in fact was, and he was entitled to the full protection of this constitutional provision. That he had the right to be confronted with the witnesses cannot be denied, and, if it be conceded, that he could waive that right, the record does not show that he did, and in our judgment his counsel could not waive it so as to bind him. It is too important a right for this Court to permit it to be waived by implication, by counsel, or by anything short of an express waiver by the prisoner, even if that is to be permitted, which need not be determined in this case.

For the error referred to the judgment was reversed by the per curiam order heretofore filed.

NOTE.

Effect of Failure to Ask Convicted Per-, son if He Has Anything to Say before Sentence.

In Capital Case, 96.

In Case Other than Capital: Felony, 97.

Misdemeanor, 99.