Dize v. State, 62

• Decision Date: 11 January 1957
• Docket Number: No. 62,62
• Citation: 212 Md. 1,128 A.2d 427
• Parties: Gorman DIZE v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 1

212 Md. 1

128 A.2d 427

Gorman DIZE v. STATE of Maryland.

No. 62.

Court of Appeals of Maryland.

Jan. 11, 1957.

George T. Burroughs, Upper Marlboro (Paul J. Bailey, Leonardtown, and Louis L. Goldstein, Prince Frederick, on the brief), for appellant.

Stedman Prescott, Jr., Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and David A. Harkness, State's Atty. Prince Frederick, on the brief), for appellee.

Before COLLINS, HENDERSON, HAMMOND, PRESCOTT and JAMES MACGILL, JJ.

JAMES MACGILL, Judge (Specially Assigned).

This is an appeal from a judgment upon a verdict of guilty of violation of the alcoholic beverages laws. The appellant was the holder of a Class A (Off Sale) beer, wine and liquor license for his premises in Calvert County, issued to him pursuant to the provisions of Section 18(a) of Article 2B of the Annotated Code, 1951 Edition. On April 10, 1956, on the oath and information of a Mr. Nadonley, an employee of a detective agency, which, in turn, had been employed by the Board of License Commissioners of the County to investigate possible violations of the alcoholic beverage laws by licensees, a warrant was issued for the arrest of the appellant, charging him as follows:

'* * * That the said Gorman Dize on said date as licensee of the premises known as Highway Tavern, licensed under a Class A--Beer, Wine and Liquor License (Off Sale) from the Board of License Commissioners of Calvert County, permitting the sale only of alcoholic beverages and the delivery of same in a sealed package or container which package or container shall not be opened nor its contents consumed on the premises where sold, unlawfully permitted the opening of a bottle of liquor and the consumption of its contents or a portion thereof on the aforesaid premises, by the selling and dispensing of said liquor by the drink or drinks, contrary to the Act of Assembly in such case made and provided. * * *'

The appellant requested a jury trial. Immediately prior to his trial in the Circuit Court for Calvert County, he filed, through counsel, a motion to dismiss the warrant, on the grounds that it was bad in form and insufficient in substance and that the allegations set forth were 'duplicitious'. The trial court denied the motion, and, thereafter, denied a motion for a bill of particulars. The case proceeded to trial, and the jury returned a verdict of guilty. The question before this Court is the sufficiency of the warrant.

Section 18(a) of Article 2B reads as follows:

'(Beer, Wine and Liquor License, Class A (Off Sale). (a) (General Provisions.) A Class A beer, wine and liquor license shall be issued by the Clerk of the Circuit Court of the county in which the place of business is located, or by the Clerk of the Court of Common Pleas of Baltimore City, if the place of business is located in said city, and shall authorize the holder thereof to keep for sale and to sell all alcoholic beverages at retail, in any quantity, at the place therein described, and to deliver the same in a sealed package or container which package or container shall not be opened nor its contents consumed on the premises where sold. The annual fee for such a license shall be Five Hundred Dollars ($500.00), except as otherwise provided in this section, and in all cases the fee shall be payable to said Clerk before any such license is issued, for distribution as hereinafter provided.'

It will be observed that the warrant, substituting the conjunctive 'and' for the disjunctive 'nor' in charging two related offenses, was drawn substantially in the language of the statute. 'The rule is that where an indictment is laid in the words of the statute, it will ordinarily be sufficient. * * * The insertion of 'and' in place of 'or' is the proper method in a case where a number of different but allied things are forbidden by the statute.' Sturgill v. State, 191 Md. 75, 78, 59 A.2d 763, 764. It is true that the following words, not found in the statute, were added: '* * * by the selling and dispensing of said liquor by the drink or drinks, * * *.' This addendum, however, may be regarded as surplusage, and in the nature of a particularization of the offenses charged. It in nowise impairs the validity of the warrant, and, if anything, helps the appellant by its specificness. Simonson v. State, 143 Md. 413, 122 A. 362.

The appellant's major contention, based on Capritz v. State, 1 Md. 569, is that the warrant was fatally defective because it failed to name the person who was permitted to open the bottle and consume the contents on the premises. In the Capritz case, the appellant had been indicted for unlawfully selling intoxicating...