252 ARTICLE 5.

Method of bringing up appeal.

Since the act of 1892, ch. 506, appeals in civil and criminal cases may be taken in
the same manner. On appeal from the granting of a motion to quash an indict-
ment, the facts upon which the defendant relies should be spread upon the record
by an agreed statement or by a special finding by the court. In the absence of the
facts upon which the judgment below was founded, that judgment will be affirmed.
State v. Williams, 85 Md. 233. And see State v. Floto, 81 Md. 602.

No appeal lies when no exceptions were taken, and there is no motion in arrest
or petition designating the points by the decision of which the appellant is ag-
grieved. Mitchell v. State, 82 Md. 531.

No bill of exceptions is necessary to bring up for review the action of the court
upon demurrers. An appeal brings up the whole record. Kendrick v. Warren, 110
Md. 76; State v. Mercer, 101 Md. 537; Rasch v. State, 89 Md. 759; Fox v. State,
89 Md. 384; State v. Floto, 81 Md. 602; Taylor v. State, 79 Md. 136; Avirett v.
State, 76 Md. 515; Cochran v. State, 119 Md. 542.

The act of 1886, ch. 169, held inapplicable, there being no bill of exceptions or
affidavit. Stevens v. State, 66 Md. 205.

The affidavit.

The record should show that the affidavit prescribed by this section was made by
counsel for the accused, naming him. Neff v. State, 57 Md. 393. And see Stevens
v. State, 66 Md. 205.

As to the purpose and intent of the affidavit prescribed by the act of 1872, ch.
316, see Deckard v. State, 38 Md. 200. And see Weir v. State, 39 Md. 434; Rhine-
hardt v. State, 45 Md. 456.

Defects in record.

Where in a criminal case there is no demurrer or formal exception taken to any
ruling of the trial court, there is nothing for the court of appeals to review; objec-
tion interposed by counsel to a statement of opposing counsel not equivalent to a
bill of exceptions. Appeal dismissed. Dunn v. State, 140 Md. 164.

Though a petition, affidavit and exhibits appear in the record, since they are
not set out or contained in the bill of exceptions as required by this section and
sec. 12, they will not be reviewed. Cochran v. State, 119 Md. 548.

The proceedings on appeal in criminal cases are the same ..as in civil cases. Unless
the record discloses the facts upon which the traverser relies in support of a motion
to quash, the rulings of the lower court cannot be reviewed. Hamilton v. State,
127 Md. 313.

Generally.

Under this section an appeal brings up for review both the exceptions and the
judgment upon the demurrers. After an acquittal upon a regular trial, the verdict
cannot, on the application of the prosecutor in any form of proceeding, be set aside
and a new trial granted. The court of appeals notices exceptions by the state on
the state's appeal only where the accused has been convicted and has also taken
exceptions and appeals; where, however, defendant has not been tried upon the
indictment, or upon one or more of the counts therein charging different offenses,
the appeal by the state brings up for review the judgment of the lower court on
the demurrers. State v. King, 124 Md. 496. And see Birkenfeld v. State, 104 Md.
257; State v. Shields, 49 Md. 306.

There is no inconsistency between this section and rule 23 of the court of appeals,
providing that an appeal or writ of error in criminal cases shall be taken within
thirty days from date of judgment or sentence. This section refers specifically to
the manner and not to the time of taking appeals. State v. Hardesty, 132 Md. 177.

Under this section and sec. 10, where no question is raised below by motion in
arrest of judgment or otherwise, a new trial will not be granted because a verdict
did not discriminate between the count of an indictment charging robbery and that
charging receiving stolen goods. Novak v. State, 139 Md. 542.

If this section could be held to authorize appeals in cases of criminal contempt,
the present appeal would have to be dismissed, there being no bill of exceptions;
distinction between criminal and civil contempt. Kelly v. Montebello Park Co.,
141 Md. 204.

A sentence could have been stayed either by a new trial or by an appeal in con-
formity with this section. Backus v. State, 118 Md. 538.