State v. Gambrill
| Citation | 81 A. 10,115 Md. 506 |
| Parties | STATE v. GAMBRILL. |
| Decision Date | 19 April 1911 |
| Court | Court of Appeals of Maryland |
Appeal from the Criminal Court of Baltimore City.
George T. Gambrill was indicted for unlawfully issuing a warehouse receipt without destroying an outstanding receipt. From a judgment sustaining a demurrer to the indictment, the State appeals. Affirmed.
Emory L. Stinchcomb and Isaac Lobe Straus, Atty. Gen., for the State.
Clifton S. Brown and George Whitelock, for appellee.
Argued before BOYD, C.J., and BRISCOE, PEARCE, PATTISON, and URNER JJ.
The appellee was indicted on the 5th day of May, 1910, in the criminal court of Baltimore city for the alleged violation of section 194 of article 27 of the Code of Public General Laws of 1904, entitled, "Crimes and Punishments." The indictment, in substance, alleges that the traverser on the 27th day of August, in the year 1908, being an agent and officer of the Roxbury Distilling Company, a corporation unlawfully did willfully issue a certain receipt of the said corporation, dated the 27th day of August, 1908, numbered 335, to a certain person unknown, for 125 barrels of rye whisky, being on deposit, and under the control of the said corporation, without, before the issuance of the receipt having canceled and destroyed a certain other receipt, then outstanding, for the same number of barrels of whisky previously issued on the 17th day of June, in the year 1907 to the order of the Citizens' National Bank of Baltimore, contrary to the form of the act of assembly in such case made and provided, etc.
The material part of the section of the Code upon which the indictment rests is as follows: "No warehouseman or corporation or person whatsoever having issued or caused to be issued or having outstanding and issued by an agent or officer of such person or corporation as aforesaid any receipt, acceptance of order or other voucher for goods, chattels or commodities as on deposit or the control of such person or corporation shall issue any other receipt, acceptance of order or other voucher whatsoever for the same, or any part thereof, until the said first issued instrument shall have been returned and canceled or destroyed; and no person or corporation whatsoever having issued or having outstanding, as aforesaid, any such receipt, acceptance of order or other voucher aforesaid, and no agent or officer of any such person or corporation shall part with, deliver or remove or permit to be delivered or removed the goods, chattels or commodities in such instrument named or described, or any part thereof, except only to or by the holder of said instrument, or upon his order, and upon the presentation of said instrument with his indorsement in every case, or without canceling or destroying said instrument in case of complete delivery or removal or indorsing thereon the quantity and description of the goods, chattels and commodities, delivered or removed, and the names of the persons to whom delivered, or by whom removed in case such delivery or removal shall be partial only; and any principal person or corporation or agent or officer of any person or corporation willfully violating this section or any of the provisions thereof shall be guilty of misdemeanor, punishable by a fine of not less than one thousand nor more than five thousand dollars, and imprisonment in the penitentiary for a period of not less than one year, nor more than three years in the discretion of the court."
A demurrer to the indictment was sustained by the court below and a judgment entered thereon for the traverser. From the judgment thus entered, the state has taken this appeal.
It is contended upon the part of the traverser, first, that section 194 of article 27 of the Code has been repealed by chapters 336 and 406 of the Acts of 1910, and, there being no saving clause in the repealing statutes, the indictment must fall; secondly, that even if section 194 of article 27 is still in force, and unrepealed, "the receipt" set forth in the indictment is not a receipt or order within the meaning and the terms of the act, and the indictment therefore charged no offense within the statute. It is obvious we think that, if either one of the grounds here relied upon by the traverser is sound, the demurrer was well sustained in the court below, and its judgment will have to be affirmed. The question involved in the first proposition, as to whether the legislation of 1910 (chapter 406) operates as a repeal of section 194 of article 27 of the Code, is not free from difficulty, and this difficulty arises from a double codification of section 6 of the act of 1876 in the Code of 1888, and inserted therein in its original form, in two separate and distinct articles, to wit, in article 14, section 6, tit. "Bills of Lading, Storage and Elevator Receipts," and in article 27, § 119, tit. "Crimes and Punishments." And in the present Code (1904) the two penal sections, as previously codified, were recodified as section 10 of article 14, and as section 194 of article 27, the section here in dispute.
It is conceded that the two sections are identical, and, except for some unimportant changes, are as originally enacted by the act of 1876, and, as codified, in the Code of 1888. In this state of the law, as then applicable to the offense here charged against the appellee, the Legislature, during its session of 1910, passed and adopted two acts of assembly, one relating to bills of lading, and known as the "Uniform Bills of Lading Act," (chapter 336, Acts 1910), and the other, relating to "Warehouse Receipts" and to be cited, as the uniform warehouse receipts acts (chapter 406 Acts 1910). The title of the bills of lading act is "An act to repeal article 14, of the Code of Public General Laws of 1904, title 'Bills of Lading, Storage and Elevator Receipts' and to re-enact said article 14, with amendments under the title 'Bills of Lading."' Now it is admitted by the state that article 14, including section 10 (the duplicate section), was repealed in toto by Acts 1910, c. 336, and an entirely new scheme of legislation relating to bills of lading was adopted and substituted therefor, but that article 27, § 194, was not repealed by either act. The title of the uniform warehouse receipts act is an act to add a new and additional article to the Code of Public General Laws of 1904 to follow immediately after article 14, said new and additional article to be designated as article 14A, under the title "Warehouse Receipts." By section 57 of ...
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