Curry v. State

• Decision Date: 29 February 1912
• Citation: 83 A. 1030,117 Md. 587
• Parties: CURRY v. STATE.
• Court: Maryland Court of Appeals

83 A. 1030

117 Md. 587

CURRY v. STATE.

Court of Appeals of Maryland

February 29, 1912

Appeal from Circuit Court, Harford County; Wm. H. Harlan, Judge.

Ella Curry was convicted of unlawfully disposing of intoxicating liquors, and she appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, THOMAS PATTISON, and URNER, JJ.

H. A Whitaker and Harry S. Carver, for appellant.

J Royston Stifler and Edgar Allan Poe, Atty. Gen., for the State.

BURKE J.

Section 228 of the Public Local Laws of Harford county declares that "It shall not be lawful for any person, or any house, company or association, or body corporate, to sell, directly or indirectly, or to solicit or receive orders for the purchase of, at any place within the limits of Harford county, or to give away, or dispose of under any device whatsoever, at his or their place of business, within the limits of said county, any spirituous or fermented liquors or alcoholic bitters, or intoxicating drinks of any kind, or tonic beer, lager beer, schnapps or gin, or any article used and sold as a beverage, in the composition of which whisky, brandy, high wines or alcohol, or any spirituous or fermented liquors shall be an ingredient or ingredients, nor shall any license be granted for the sale of the same in said county." The appellant was indicted, tried, and convicted for the violation of this section, and was sentenced to pay a fine of $100 and costs, and be confined in the Maryland House of Correction for a period of six months.

The indictment contained nine counts, but upon the application of the state's attorney the ninth count was withdrawn. Each count charges the violation of the law by the traverser on the 1st day of August, 1911, by selling, giving away, or disposing of certain spirituous or fermented liquors to William Rampley.

The first count charged the sale to Rampley of spirituous liquors; the second a sale of fermented liquors; the third a certain intoxicating drink; the fourth a sale of a certain article used and sold as a beverage to the jurors unknown in the composition of which spirituous liquor was then and there an ingredient; the fifth that the traverser gave away and disposed of at her place of business certain spirituous liquors; the sixth that she gave away and disposed of at her place of business fermented liquors; the seventh that she gave away and disposed of at her place of business a certain intoxicating drink; and the eighth that she gave away and disposed of at her place of business an article used and sold as a beverage to the jurors unknown, and in the composition of which spirituous liquor was then and there an ingredient. Each act charged in each count of the indictment constituted a violation of the section of the Public Local Laws of Harford county which we have quoted, and each count is sufficiently definite and certain to gratify the requirements of the law relating to pleading upon statutes. The offense is a statutory one, and the indictment described it in the words used in the statute, and this manner in stating the offense has been repeatedly held by this court to be sufficient. Mincher v. State, 66 Md. 227, 7 A. 451; Cearfoss v. State, 42 Md. 403; Steven v. State, 89 Md. 669, 43 A. 929; State v. Camper, 91 Md. 672, 47 A. 1027. Under section 446, art. 27, of Code 1904, it was not necessary to specify the particular variety of liquor sold or disposed of. The traverser demurred to the whole indictment and to each count thereof. The court overruled the demurrer.

It would seem to be evident from the face of the indictment that it relates to one transaction, and that "the variation of the form in which the offense is charged in the different counts is done with a view to meet the evidence." State v. McNally, 55 Md. 559. The experience of every prosecuting officer has shown the wisdom of this method of stating the offense in prosecutions of this kind. But if it was the intention of the pleader to set out in each count a separate and distinct violation of the liquor laws of Harford county, and if it be admitted that this was in fact done, the indictment would not for that reason be demurrable.

It has been definitely settled in this state that two or more offenses, either felonies or misdemeanors, may be charged in different counts of the same indictment. State v. McNally, supra; State v. Blakeney, 96 Md. 711, 54 A. 614. In McNally's Case, supra, it is said: "Where several distinct felonies are charged in the same indictment, the rule in England is, as stated by Chitty (1 Cr. L. 449m), 'that the only mode of objecting to such a joinder of offenses is by an application to the court to quash the indictment before plea, or to compel the prosecutor to elect which charge he will try in a subsequent stage of the proceedings. But the court will only listen to such a request when they see that the charges are actually distinct and may confound the prisoner, or distract the attention of the jury."'

This rule of the common law exists in Maryland, and in a case where there are several counts in the indictment charging the defendant with more than one distinct and separate felony it is competent for the court, in its discretion, either to compel the prosecutor to elect upon which he will proceed, or in a clear case to quash the indictment." The same rule applies to distinct misdemeanors charged in different counts of the indictment. State v. Blakeney, supra. No motion was made to quash the indictment in this case, nor was there an application made to compel the state to elect.

An application of that kind is addressed to the discretion of the court, and the action of the court upon it is not the subject of appeal. It will be granted or refused in the exercise of the sound discretion of the court upon careful consideration of the facts of the particular case.

Under the indictment, the state was bound to prove that the traverser had violated the terms of the act under which the indictment was...