Franklin v. State

• Decision Date: 20 July 1858
• Citation: 12 Md. 236
• Parties: GEORGE E. FRANKLIN v. THE STATE.
• Court: Maryland Court of Appeals

12 Md. 236

GEORGE E. FRANKLIN v. THE STATE.

Court of Appeals of Maryland.

Jul. 20, 1858

A statute, in its enacting part, prohibited any person from selling spirituous liquors to any slave, " unless upon the written order of his or her master mistress, or owner." An indictment, under this act charged a party with selling liquor to a slave, " who then and there did not have a written order of his master, mistress, or owner, authorizing the said sale." HELD:

That this indictment was defective in not sufficiently negativing the existence of the written order; it is not enough to negative the possession of the order by the slave, but it must appear affirmatively on the face of the indictment that the act of the traverser was not done upon such order.

The constitutional provision that, " In the trial of all criminal cases, the jury shall be judges of law as well as fact, " is merely declaratory, and has not altered the pre-existing law regulating the powers of the court and jury in criminal cases."

The jury, in a criminal case, have no right to judge of the constitutionality of an act of Assembly, and it is proper for the court to prevent counsel for the traverser from arguing that question before the jury.

ERROR to the Circuit Court for Anne Arundel county.

The plaintiff in error was indicted for a violation of the act of 1858, ch. 55, passed on the 17th of February 1858, entitled " An act to prohibit the sale of intoxicating liquors in the city of Annapolis, or within five miles thereof to minors and people of color."

The 1st section of this law enacts, " That from and after the first day of April next, it shall not be lawful for any person or persons, whether licensed to sell spirituous liquors or not, to sell, dispose of, barter, or give, within the corporate limits of the city of Annapolis, or within five miles thereof, any spirituous or fermented liquors or cordials of any kind, or in any quantity whatever, to any youth or minor under the age of twenty-one years, without the written order of the parents and guardian of such minor, nor to any free negro or mulatto except upon the certificate of three respectable freeholders of the city of Annapolis, that said free negro or mulatto is of good and temperate habits, and of moral character, or the written order of some physician nor to any negro or mulatto slave, unless upon the like order of his or her master, mistress, or owner, " and then fixes a fine as a penalty."

The 2nd and 3rd sections provide for the suppression of the licenses of such persons as, having licenses, violate the provisions of this act. The 4th section provides that any one order mentioned in the first section, shall not be valid for a longer period than two days from its date. The 5th, 6th and 7th sections require the court to give the act in charge to the grand jury, the sheriff, and constables, to exercise proper diligence to detect violations of the law, give one-half the fine to the informer, and make him a competent witness.

The 8th section enacts, " That a copy of this act shall be furnished, by the clerk of the circuit court for Anne Arundel county, to each person residing in the city of Annapolis, and within five miles thereof, who shall receive a license under the provisions of this bill, for which he shall receive fifty cents; and the clerk shall, before he delivers any license to the parties aforesaid, administer and endorse upon the said license the following oath or affirmation: I, A. B., do swear upon the Holy Evangely of Almighty God, that I will faithfully comply with the provisions of this act." The 9th section provides " that this act shall take effect from and after the first day of April, eighteen hundred and fifty-eight."

The indictment charges that the plaintiff in error, " being then and there a person having a license authorizing the sale of sqirituous liquors, on or about the fifteenth day of April, in the year of our Lord eighteen hundred and fifty-eight, with force and arms, at the county aforesaid, within the corporate limits of the city of Annapolis, unlawfully did sell and dispose of a certain quantity of spirituous liquor, to wit, one pint of spirituous liquor commonly called whiskey, to Samuel Jones, slave of Miss Ellen Stockett, and who then and there did not have a written order of his master, mistress, or owner, authorizing the said sale of the said quantity of spirituous liquor as aforesaid, to the said Samuel Jones, contrary," & c.

To this indictment the plaintiff in error filed a general demurrer, which the court (Jonathan Pinkney, special judge,) overruled, and the case having been tried before a jury upon the plea of non cul, and a verdict of guilty rendered, the traverser moved in arrest of judgment for the following reasons:

1st. Because, at the trial of the case, the counsel for the traverser undertook to argue before the jury that the act of 1858, ch. 55, was unconstitutional, and thereupon Judge Pinkney objected, and said that the counsel could not discuss a constitutional question before the jury, and told the jury that though they were made, by the constitution, judges of the law and fact in criminal cases, they had no right to determine a constitutional question, or whether said law was void, if they believed it was unconstitutional. This ruling of the judge is placed on the record so that in the event of this case being carried to the Court of Appeals by writ of error, the point of his ruling may be corrected by said court.

2nd. Because the traverser obtained a retailer's license and a retailer's liquor license, under the act of 1856, ch. 353, which authorized him to sell to all persons not excepted by the said licenses and the then existing laws.

3rd. Because the court permitted the State to prove by the clerk, by reference to his record, that the traverser had obtained such licenses, though the counsel for the traverser objected to the admissibility of such testimony, because no notice had been given to him to produce the licenses, and further, having without notice produced them, he insists that said original licenses are the best, and, therefore, the only admissible evidence. (These licenses, which are set out with this reason, are in the usual form, were issued on the 9th of May 1857, and purport " to continue until the first day of May next." )

The court overruled the motion and imposed the fine prescribed by the act, and to correct this judgment the present writ of error was sued out by the traverser.

The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.

Jas. S. Franklin and Thos. G. Pratt for the plaintiff in error:

1st. The court below erred in refusing to permit the counsel for the accused to argue to the jury the invalidity of the act under which he was indicted. By the 5th sec., art. 10, of the constitution, it is provided, that " In the trial of all criminal cases, the jury shall be the judges of the law as well as fact." Independent of this constitutional provision, the jury were the exclusive judges of all facts, and by this provision they are as well the exclusive judges of the law, and necessarily of the validity, as well as of the meaning and construction of the law. The Debates of the Convention which framed the constitution, (2 vol., 767, 768,) show the views there presented on this point, but we are not to speculate as to what were the views of that body, or what they ought to have done; we can only look to what they have done. In State vs. Mace, 5 Md. Rep., 350, and Manly vs. The State, 7 Md. Rep., 147, this court has said, that the words of the constitution must be construed in the sense in which the people who adopted it understood them. Now both the people and the convention are presumed to have known what the law on this subject was at the time this clause was framed and adopted, (26 Ala. Rep., 326, Duramus vs. Harrison,) and prior to this time, the judges had the power to judge of the law, to say to the jury such is the law, and that the law made such and such offences crimes, that such and such acts came within the law, but had no power to enforce their instructions in case of an acquittal. The jury had power to disregard, if they chose, the instructions of the court, and to judge of the law for themselves, and, in this sense, they were said to be, in criminal cases, judges of the law and fact. 3 Johns. Cases, 364 to 376, People vs. Croswell. 18 Maine, 346, State vs. Snow. 4 Blackford, 150, Warren vs. The State. The constitution designed to go further, and enact something more, to give to the jury some further powers, and every voter when voting upon this constitution, supposed he was conferring upon the jury, in all criminal cases, the exclusive judgment of the law. There is no exception made in the clause, and the court can make none.

2nd. The act of 1858, ch. 55, is unconstitutional, 1st, because it embraces more than one subject, and the subjects embraced are not described in the title, as required by the 17th sec. of art. 3rd of the constitution. The title is, " An act to prohibit the sale of intoxicating liquors," & c. The body of the law prohibits disposing of, and bartering, and giving intoxicating liquors. It also includes persons not licensed, when by a previous law such were prohibited from selling such articles. The subjects of the law are, therefore, more than one, and are not disclosed by the title. 2nd, because the plaintiff in error as a licensed retailer, under the act of 1856, ch. 353, acquired from the State, for the same consideration, the same privileges which a similar license conferred upon any other person in any other part of the State, and the Legislature possessed no power to discriminate even prospectively, in favor of a class of...