Green v. State

• Decision Date: 19 February 1936
• Docket Number: 23,24,25,26,4.
• Citation: 183 A. 526,170 Md. 134
• Parties: GREEN v. STATE (TWO CASES). JONES v. STATE (THREE CASES).
• Court: Maryland Court of Appeals

183 A. 526

170 Md. 134

GREEN v. STATE (TWO CASES).

JONES v. STATE (THREE CASES).

Nos. 23, 24, 25, 26, 4.

Court of Appeals of Maryland

February 19, 1936

Appeals from Circuit Court, Dorchester County; T. Sangston Insley and James M. Crockett, Judges.

Hansel Green and Leslie Jones were separately tried and convicted of violation of a prohibition statute, and they appeal.

Judgment reversed.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

James A. McAllister, of Cambridge, for appellants.

Hilary W. Gans, Deputy Atty. Gen. (Herbert R. O'Conor, Atty Gen., Charles T. Le Viness, 3d, Asst. Atty. Gen., and J Gorman Hill, State's Atty., of Cambridge, on the briefs), for the State.

SLOAN Judge.

We have here five appeals in three records by two defendants, separately tried, but charged with the violation of the same statute, with the charges and defenses so similar that they were argued together and may be so considered.

In Nos. 23 and 24 Hansel Green had been indicted in the circuit court for Dorchester county in the first two counts of the indictment with unlawfully selling and disposing of a certain spirituous liquor, commonly called "whisky," and in the third count with selling and disposing of a certain compound "of which alcohol is a principal ingredient commonly called whisky."

He filed a motion for a bill of particulars, by which he asked to be particularly informed as to the statute and law under which the indictment was found, which was overruled. The point was not argued on appeal.

He next filed a motion to quash the indictment "because the statute and law under which the said indictment was found and these proceedings instituted was repealed by chapter 2 of the Acts of the General Assembly of Maryland, passed at its special session of 1933," and this motion was overruled.

He next (same day) filed a plea to the jurisdiction for the reasons assigned in the motion to quash, and the docket entry is, "Plea overruled," though no demurrer or other objection seems to have been interposed by the state.

The case then came to trial, before the court sitting as a jury, and the docket entry is: "The court finds the party guilty. Verdict amended by adding 'under first count.' " A motion in arrest of judgment was filed the same day, the reason assigned being: "The court was, and is, without proper jurisdiction to determine the issue involved in the above entitled case, and to try the same and to pass judgment thereon." Five days later an additional reason for the motion in arrest was filed. "That the verdict * * * is not clear, but negatives itself, in that the said verdict as amended is 'guilty under the first count' and nothing is said therein as to the second and third counts of the indictment in this cause, by which it is implied that the verdict as to such second and third counts is 'not guilty,' so that the verdict when taken as a whole, is contradictory of itself and cannot stand." The court overruled the motion and sentenced the defendant to two years in the House of Correction, the maximum sentence which could be imposed. The defendant immediately entered an appeal from the judgment. Two days later a motion to strike out the judgment and sentence was filed on two grounds, the first of which was abandoned, the second to remarks of one of the judges when imposing sentence in this and three other cases of the same character which had come up on appeal from a justice of the peace, and vigorously urged in the argument of this case as a reason for setting aside the judgments. The motion was overruled, and an appeal from the order also taken.

In Nos. 25 and 26, Leslie Jones had been charged before Fred F. Stevens, described in the warrant as "Police Justice of the said State, in and for the 7th Election District of said County," with selling "unto Raymond H. Staples, one pint of whiskey, or a compound of which alcohol is a principal ingredient," and the warrant was signed by "Fred F. Stevens, Police Justice." The defendant Jones waived a jury trial, was tried by the magistrate, and sentenced to six months in the House of Correction, the minimum fixed by the Act of 1910, c. 583 (Code Pub. Loc.Laws 1930, art. 10, § 367). From this judgment Jones appealed, elected to be tried by the court sitting as a jury, was found guilty, and sentenced to two years in the House of Correction, the maximum penalty fixed by the act; the increase in the sentence being ascribed by the judge imposing the sentence to the taking of a frivolous and useless appeal from the justice of the peace. The same motions and pleas were filed as in the Green case, with the same results and appeals to this court.

Later, Leslie Jones, as appears from the record in No. 4, April term, 1936, advanced and argued with the other appeals, filed a motion to strike out the judgment and sentence in the case against him on the ground that the Act of 1912, c. 698, Code of Public Local Laws, art. 10, § 356, providing for the designation of one of the justices of the peace for the Seventh election district as a police justice is unconstitutional and void, and the acts of Fred F. Stevens as such police justice are unconstitutional and void, and that he was therefore without jurisdiction to issue a warrant for and to try the said Leslie Jones for the offense wherewith he was charged, and this motion was overruled and an appeal prayed.

The chief contention of the defendants is that they were charged with the violation of a statute which had been repealed, that is, the Act of 1910, c. 583, Code of Public Local Laws, art. 10, § 367, which it is contended was repealed by the Act of 1933, Sp. Sess. c. 2, by section 2.

The Local Law for Dorchester County, Act of 1910, c. 583 (p. 816) Local Code, art. 10, § 367, provide that: "It shall be unlawful for any person or persons, firm or corporation, directly or indirectly, to sell or otherwise dispose of by way of barter within the limits of Dorchester County, any spirituous, vinous, malt, fermented or other intoxicating liquors or fermented wine or cider of any kind, medicated bitters or any compound of which alcohol is the chief or a principal ingredient." Concurrent jurisdiction is conferred on the circuit court and any justice of the peace of the county. The penalty is confinement in the House of Correction for not less than six months nor more than two years.

The Act of 1933, Sp.Sess. c. 2, provided for the issuance throughout the state of beer and liquor licenses of various kinds and classifications, with such exceptions of counties and classifications as were specifically made. With the exception of Garrett, Kent, Talbot, Caroline, and Somerset counties, the comptroller, a state official, is authorized to issue a "Manufacturer's License," anywhere in the state, and this includes Dorchester county, by which any brewer or distiller may sell his or its product to any other license holder in this state, and this could be done notwithstanding the prohibition of the Act of 1910, c. 583. The comptroller is also authorized to issue a "Wholesaler's License" to any one in Baltimore City or any county of the state, except Garrett county, and he may sell his merchandise "to another license holder or to a dispensary," in spite of the provisions of the local law for Dorchester county. We are not informed whether there are any manufacturers' or wholesalers' licenses in Dorchester county, but that makes no difference, as, as we have often said, laws are not only construed with reference to what has been but what may be done under them.

From the numerous classes of beer, wine, and liquor licenses which may be issued under the Act of 1933, Sp.Sess., c. 2, Dorchester county was specially, by name, excepted from all except beer licenses, "Class A (Off Sale)," "Class B (On Sale)--Hotels and Restaurants," and "Class C (On Sale)--Clubs," and these are the only classes of licenses, aside from manufacturers' and wholesalers', which may be issued in and for Dorchester county. The Legislature met the situation that might arise in Dorchester or any other county operating under the general law or any of its provisions, from sales made by one not having a license, by providing (section 1, subd. 2) that "no person shall at any time manufacture, blend, rectify, bottle, import or sell * * * or keep or suffer to be kept on his premises, in his possession or under his charge or control for the purpose of sale and delivery within this State, any alcoholic beverage without a license as hereinafter provided," and this not only covers every offense prohibited in Dorchester county by the local law of 1910, but more. This is not a mere regulatory provision, but is prohibitory as well. See Ulman v. State, 137 Md. 642, 113 A. 124; Molinari v. State, 141 Md. 565, 119 A. 291; Weisengoff v. State, 143 Md. 638, 123 A. 107; Commonwealth v. Vigliotti, 271 Pa. 10, 115 A. 20; Id., 258 U.S. 403, 42 S.Ct. 330, 66 L.Ed. 686.

The Act of 1933, Special Session, c. 2, did not in terms or by reference repeal the Act of 1910, c. 583, but it did, in addition to the statutes referred to in the act, repeal "all other laws or parts of law, whether general or local, inconsistent with the provisions of this Act."

In a leading case in this state, Garrett v. Janes, 65 Md 260, 266, 3 A. 597, 599, it is said: "The general rule in the construction of statutes * * * is that a later one of a general nature does not effect the repeal of a special one, unless direct reference is made to the latter with that intent, or in terms they are so irreconcilable that a repeal by implication is manifest." It has been frequently said in this court and elsewhere that repeals by implication are not favored and will not be so held unless there is...