Cearfoss v. State

Decision Date03 June 1875
CourtMaryland Court of Appeals

The cause was submitted to BARTOL, C.J., STEWART, BOWIE, GRASON MILLER and ROBINSON, J.

Edward Stake and Lewis C. Smith, for the plaintiff in error.

Attorney General Syester, for the defendant in error.

STEWART J., delivered the opinion of the Court.

The indictment charged the appellant with a violation of the Act of 1865, ch. 191, in giving to one Michael Burke, spirituous liquor, to wit: "whiskey," on the day of an election, in Washington County.

The traverser pleaded, that in his own house, he was visited by some friends, who, in the course of hospitality, partook of some whiskey which he had there for his own use.

The State demurred to this plea. The Court sustained the demurrer and imposed a fine on the appellant.

Under the writ of error this judgment has been brought up for our review.

In the case of Spielman vs. State, 27 Md., 520 where the State demurred to the plea of the traverser, and judgment by the Circuit Court was rendered against him, upon writ of error to this Court it was decided, that he could avail himself of any defect in the indictment, notwithstanding the provision of the Code, Art. 30, sec. 82; that all all the pleadings, in criminal or in civil cases, were open to review, under demurrer; and judgment must be given against the party whose pleading was first defective.

In the absence of such demurrer he could have no such defence. Cowman vs. The State, 12 Md., 250.

It was urged in the brief of the appellant's counsel, that the word "give," in the Act in question, must be construed to mean "sell," and the offence be so described. That otherwise the Act is not in accordance with the 29th sec. of Art. 3 of the Constitution, declaring "that every law shall embrace but one subject, and that shall be described in its title."

The title of the Act is "An Act prohibiting the sale of spirituous or fermented liquors, in the several counties of the State on the day of elections." That the Act, from its title, only prohibiting the "sale," is not unconstitutional, because by its first section it makes the "gift" as well as the "sale" of liquors, unlawful, has been settled by this Court, in the case of Parkinson vs. State, 14 Md., 184. See also Franklin vs. State, 12 Md., 236.

Further objection was made to the indictment because it charged the traverser with unlawfully giving "whiskey," without setting forth the facts which made the "giving" unlawful.

The indictment using the terms of the law was sufficient.

It is only where the act charged is not in itself, unlawful, but becomes so by other facts connected with it, that the facts in which the illegality consists must be set out. 1 Chitty's Crim. Law, 229.

It is not necessary to state matter of evidence unless it alter the offence. Bishop on Crim. Proc., sec. 276. See also Parkinson vs. The State, 14 Md., 184.

The "giving" of intoxicating liquor on the day of election is declared by the law to be an offence--that was charged in the words of the Act, describing also the party to whom it was given.

The indictment informed the appellant of the nature of the offence. He was enabled to make his defence, and to protect himself against the repetition of the charge in any other trial; the tribunal trying him could reach its conclusion thereon, and apply the proper punishment.

These are the purposes requiring certainty in criminal proceedings.

The Act provides " That it shall not be lawful for the keeper of any hotel, tavern, store, drinking establishment, or any other place where liquors are sold, or for any person or persons, directly or indirectly, to sell, barter or give, or dispose of any spirituous or fermented liquors, ale or beer, or intoxicating drinks of any kind, on the day of any election hereafter to be held in the several counties of this State."

There is no question, as urged by the appellant's counsel, that in construing this statute the real intent of the Legislature must prevail over the literal sense, if there be any inconsistency; a thing within the letter of the statute is not within the statute, unless it be within the intention of the makers.

But where the words are plain, they are the best evidence of what was meant. Whilst the statute is not to be followed in its literal terms, if it can be discovered that such was not the intention, yet the meaning must be ascertained by a reasonable construction to be given to the provisions of the Act, and not one founded on mere arbitrary conjecture.

Where clear words are used, to indicate the purpose, there is no necessity to resort to other aids. Beale vs. Harwood, 2 H. & J., 167. No man incurs a penalty unless the act which subjects him to it, is clearly, both within the spirit and letter of the statute. Things which do not come within the words are not to be brought within them by construction. The law does not allow of constructive offences or of arbitrary punishment. Dwarris on Stat., 247.

But where the acts are within the words of the law, there may be cases not within its spirit, or within the scope of the mischief, intended to be avoided.

Whether the administration of intoxicating liquor, in good faith, for medicinal or other necessary purposes, although within the letter, would be within the...

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  • Smith v. Higinbothom
    • United States
    • Maryland Court of Appeals
    • June 19, 1946
    ... ...          Under ... the Constitution of Maryland of 1776, the Governor appointed ... all Judges in the State with the consent of the Council ... After 1837, when the Council was abolished, the Governor ... appointed them with the consent of the Senate ... unless the act with which he is charged comes plainly within ... both the letter and the spirit of the statute. Cearfoss ... v. State, 42 Md. 403, 407; Mitchell v. State, ... 115 Md. 360, 365, 80 A. 1020. It has been held, for example, ... that the words 'other ... ...
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    • November 19, 1918
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  • Benesch v. State
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    • December 13, 1916
    ...to prohibit or restrain minors and people of color from obtaining intoxicating liquors; that was the subject of the law." In Cearfoss v. State, 42 Md. 403, the title of the was "An act prohibiting the sale of spirituous or fermented liquors, in the several counties of the state on the day o......
  • State v. Petrushansky
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    ...over literal intent. State v. Boyd, 2 Gill & J. 365; Chesapeake & O. Canal Co. v. Baltimore & Ohio R. Co., 4 Gill & J. 1; Cearfoss v. State, 42 Md. 403, at page 406; Mitchell State, 115 Md. 360, 80 A. 1020; Jones v. Gordy, 169 Md. 173, 180 A. 272. Article 2B of the Code has already been thu......
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