Callahan v. State

• Decision Date: 08 March 1938
• Docket Number: 23.
• Citation: 197 A. 589,174 Md. 47
• Parties: CALLAHAN v. STATE.
• Court: Maryland Court of Appeals

197 A. 589

174 Md. 47

CALLAHAN v. STATE.

No. 23.

Court of Appeals of Maryland

March 8, 1938

Appeal from Circuit Court, Caroline County; J. Owen Knotts, Judge.

Leo Callahan was convicted of the illegal sale of intoxicating liquors, and he appeals.

Affirmed.

J DeWeese Carter, of Denton (William J. Rickards, of Denton, on the brief), for appellant.

Herbert R. O'Conor, Atty. Gen., Hilary W. Gans, Deputy Atty Gen., and Layman J. Redden, State's Atty., for Caroline County, of Denton, for the State.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

MITCHELL Judge.

The indictment in this case is based upon the alleged violation of section 369, of article 6 of the Code of Public Local Laws, prohibiting the sale of liquor and intoxicating drinks in Caroline county; said section being a codification of a part of the Acts of 1910, c. 34, p. 679, and having been amended by subsequent legislation, to the extent of permitting the sale in said county for beverage purposes, of beer, ale, and porter containing one-half of one per centum or more of alcohol by volume, but not more than 3.2 per centum of alcohol by weight. For amendatory legislation, see chapter 523, Acts of 1933, and chapter 68, Acts of the Extra Session of 1933.

Article 2B of the Code of Public General Laws Supp.1935, is a codification of chapter 2 of the Acts of 1933, Extra Session, and is a regulatory law designed to permit and to regulate the sale of or traffic in intoxicating liquors in those parts of the State to which its provisions apply.

The appellant was indicted on October 5, 1937, in said county for the sale of 'two one-half pints of spirituous, vinous, malt or fermented or other intoxicating liquors.'

To that indictment he pleaded not guilty, was tried and convicted by a jury, and was sentenced to the Maryland House of Correction for a term of six months. This appeal is from that judgment.

The record presents eight exceptions to rulings of the trial court upon the admission of evidence, and one to the action of the court in overruling the traverser's motion in arrest of judgment.

The latter motion was made after the verdict of guilty was rendered, and before sentence, and in substance submitted: (a) That the trial court was without proper jurisdiction to determine the issue involved in the case, and to try and pass judgment thereon; and (b) that prior to and at the time of the finding of the indictment by the grand jury, and of the trial of the defendant and rendition of the verdict in the case, there was an outstanding criminal warrant issued by a justice of the peace of Caroline county, charging the traverser with the same offense alleged in the indictment, which warrant was, at the time of the trial and motion, pending on the criminal appeal docket of the lower court. The latter reason for the motion was not pressed in this court, and is therefore considered as having been abandoned.

It is the contention of the appellant that the jurisdictional question designed to be raised by the above motion was properly before the trial court, and is properly before this court, because section 369 of article 6, Code P.L.L., was repealed by the enactment of chapter 2 of the Acts of the Extra Session of 1933, now codified as article 2B, as above set forth. And the theory of that contention is upon the reasoning found in the respective opinions in Close v. Agricultural Ass'n, 134 Md. 629, 108 A. 209, and Green v. State, 170 Md. 134, 183 A. 526.

That question, however, in so far as it concerns the decision in this case, is now a moot one, due to the fact that since this case was argued before us, this court has declared that the local and general laws above mentioned are not inconsistent, to the extent that the former is repealed by the latter.

The case referred to as being decisive of the jurisdictional issue raised in this case is that of Thomas v. State, Md., 197 A. 296, 299, 1938, and the facts in that case bear such close analogy to the facts in the instant case as to justify reference thereto.

In that case, Thomas, the traverser, was indicted under section 369 of article 6, P.L.L., for the unlawful sale of one pint of liquor in Caroline county; the alleged sale having been made on the same date as alleged in the indictment now under consideration, and the case having been tried at the same term of the circuit court for Caroline county, at which this case was tried. The phraseology appearing in the two indictments, except as to the respective names of the traversers and the description of the packages of liquor sold, is identical.

It would be a useless prolongation of this opinion to attempt to reproduce here what has been already stated by this court in the exhaustive and lucid opinion filed by Judge Offutt in the cited case. Suffice to say, after carefully construing the various provisions of article 2B of the Code, in so far as they affect the local statute prohibiting the sale of liquor and intoxicating drinks in Caroline county, Judge Offutt concludes as follows: 'Chapter 2, Extra Session Acts 1933, is not therefore inconsistent with, but complementary to, Code P.L.L. article 6, § 369, and the latter act is, except in so far as it prohibits the issuance of a wholesaler's license in Caroline county or is inconsistent with chapter 523, Acts 1933, and chapter 68, Acts 1933, Ex.Sess., in full force and effect.'

It may be added that in the Thomas Case, upon demurrer, the indictment was held to be duplicitous, and therefore fatally bad. The latter question is not, however, before us in the instant case, because here no demurrer was filed. Code P.G.L. art. 5, §§ 86 and 10; Article 27, § 553(533).

As all of the exceptions to rulings of the trial court on evidence involve the same principle or question, they will be considered together.

At the trial below the State produced two witnesses who testified that on the evening of September 18, 1937, the date charged in the indictment, the traverser sold to G. Hammond Myers, Jr., one of the witnesses, in the presence of J. Walter Banks, the other witness, two one-half pints of Calvert Special liquor, which said liquor was shown by subsequent testimony to contain 44.26 per cent. alcohol by volume. These witnesses further testified that the sale was consummated in the filling station and place of business conducted by the traverser, and that during the interval in which they remained at the scene of the transaction, they observed the traverser make a sale of a package of similar liquor to three other persons.

The aforegoing testimony was followed by that of G. Murray Phillips, another State witness, who testified that on August 25, 1937, while en route from Salisbury to Baltimore, he passed the place of business of the traverser, and noticed a Chevrolet coach standing under the porch in the driveway near the front door of the filling station; that the porch was built adjacent to the main building, and the gas pumps of the filling station were in front of it; that at the time he noticed the car, three men were standing in the rear of it and the lid of the trunk was up, one of the men being the defendant; that after passing the premises he decided to return, and that upon his return the lid to the trunk had been put down; that he liquired of the defendant what was in the car, looked in it, and found some cases of liquor; that the traverser admitted the ownership of the car and the liquor, the quantity of which was shown by the witness to consist of five broken cases in the front section of the car. The witness further testified that when he first passed the filling station he saw from three to...