Goeller v. State

• Decision Date: 20 November 1912
• Citation: 85 A. 954,119 Md. 61
• Parties: GOELLER v. STATE.
• Court: Maryland Court of Appeals

85 A. 954

119 Md. 61

GOELLER v. STATE.

Court of Appeals of Maryland

November 20, 1912

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

Joseph Goeller was convicted of selling intoxicants on Sunday, and appeals. Reversed and remanded for judgment.

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

Wm. H Lawrence, of Baltimore, for appellant. Edgar Allan Poe, Atty Gen., for the State.

PEARCE J.

The appellant was indicted in the circuit court for Baltimore county for selling liquor on Sunday, and, upon conviction was sentenced to pay a fine of $200, and his license was suppresssed. The docket entry was as follows: "Feby 28th 1912. It appearing to the court upon an inspection of the dockets of the court, and on evidence, that this is a second conviction under the license issued May 1st 1911, the sentence of the court is that the traverser pay a fine of $200 and costs, and that his license be and it is suppressed."

There are two counts in the indictment, but in neither is it averred that the offense charged was a second offense, which fact, if relied on as affecting the punishment, it was determined in Maguire v. State, 47 Md. 496, must be averred in the indictment as the law then stood. Chapter 179 of the Acts of 1908, regulating the sale, and granting of licenses for sale, of spirituous and fermented liquors in Baltimore county, provides, in section 14, that: "If any person having a license under the provisions of this act, shall violate any of the provisions of this act, upon conviction thereof, except in the cases enumerated in the next preceding and succeeding sections, he shall pay a fine of not less than $100, nor more than $200, and on conviction a second time, which fact the court may ascertain from the dockets of the court, in connection with evidence, he shall pay a fine of $200, and his license shall be suppressed." This act appears to have been passed to meet cases of a second offense, where, from ignorance of the fact, or inadvertence in drawing the indictment, that fact is not averred in the indictment. The record has been brought here as upon writ of error to determine the validity of section 14 of chapter 179 of 1908, and the petition designates the following points of law by the decision of which the appellant feels aggrieved: "(1) That the court gave judgment directing, in addition to the other penalty imposed, that his license to engage in the liquor business be suppressed. (2) That by such judgment the court determined that he was guilty of a second or subsequent offense, of the character charged against him, and liable to the aggravated penalty therefor. (3) That in thus giving judgment and determining the court imposed upon him a punishment for matter of which he did not stand accused by the indictment presented against him, nor established by the verdict upon said indictment. (4) That in this manner he was deprived of his legal and constitutional right to be informed of the nature and cause of the accusation against him."

The first, second, and third of these points state facts apparent upon the face of the record, and thereby raise the question for decision, viz., whether he was thus deprived of his constitutional right under article 21 of the Maryland Declaration of Rights, which, among other things, declares "that in all criminal prosecutions, every man has a right to be informed of the accusation against him," and "to have a copy of the indictment, or charge, in due time, if required, to prepare for his defense." The information hereby guaranteed to him is not to be conveyed by word of mouth, nor by any other means than by "a copy of the indictment or charge," or accusation, upon which he is to be tried, and it is a guaranty that he must be informed of the whole charge or accusation against him, and not of a part only. The reason for this is given in the same article of the Declaration of Rights, viz., "to prepare for his defense," and this he cannot do without a full knowledge, both of every element of the offense charged and of the penalty or penalties to which he may be subjected in event of conviction. Mr. Bishop, in his New Criminal Procedure, has treated more fully, perhaps, than any other legal writer, the principles which underlie the authorities upon this question. In volume 1, § 77, he says: "Every wrongful fact, with each particular modification thereof which in law is required to be taken into account in determining the punishment upon a finding of guilty must be alleged in the indictment. This doctrine is fundamental. Originating in natural reason and abstract justice it has been adopted into the common law and confirmed by our written constitutions. *** An indictment which does not substantially set down all the elements of the offense, every act or omission which the law has made essential to the punishment it imposes is void." Id. § 98A. "An accusation is nothing unless it specifies in some way the whole wrong for which the punishment is to be inflicted." Id. § 87. "A statute having made a second offense punishable more heavily than the first, it was held not to be unconstitutional when it provided a short form of stating the first offense and conviction in the second indictment, adding, 'and such allegation may be amended without terms and as a matter of right'; but an entire omission to aver the former offense, or conviction for it, cannot be authorized." Id. § 101, subsec. 2. This doctrine is consistently sustained in a line of Massachusetts decisions (Commonwealth v. Phillips, 16 Pick. [Mass.] 213; Commonwealth v. Wood, 4 Gray [Mass.] 11; Commonwealth v. Lang, 10 Gray [Mass.] 11), and in other courts, as in State v. Startup, 39 N. J. Law, 432, Riggs v. State, 104 Ind. 261, 3 N.E. 886, and Williams v. State, 12 Tex.App. 395. The twelfth article of the Declaration of Rights of Massachusetts provides "that the offense must be fully and plainly, substantially and formally described to the accused"; and, construing that article, the Supreme Court of Massachusetts held in Commonwealth v. Harrington, 130 Mass. 35, a statute permitting an increased penalty without alleging prior conviction in the indictment to be in conflict with that article of the Declaration of Rights of that state; and the Supreme Court of Maine in State v. Learned, 47 Me. 426, held that the Legislature cannot validate an indictment which does not fully and formally inform the accused of the accusation against him. In 22 Cyc. p. 285, the law is stated thus: "It is within the power of the Legislatures under such a constitutional provision to prescribe the form of the indictment or information, and such form may omit averments regarded as necessary at common law; but the Legislature, while...