Jessup v. State
| Decision Date | 09 January 1912 |
| Citation | 83 A. 140,117 Md. 119 |
| Parties | JESSUP v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Anne Arundel County; Jas. R. Brashears Judge.
Elizabeth B. Jessup was convicted of selling liquor illegally, and she appeals. Affirmed.
Robert Moss and Daniel R. Randall, for appellant.
Isaac Lobe Straus, Atty. Gen., for the State.
These three cases were argued together, and, as they present the same questions, they will be considered and disposed of by this court in one opinion. The questions are presented by a single exception, and that is to the ruling of the court, at the close of the state's testimony, in refusing, upon motion of the traverser, to strike out all the evidence upon the part of the state, which had been admitted, subject to exception.
The case was tried before the court sitting as a jury, and it appears from the record that, after the first witness was sworn on the part of the state, the traverser objected to his testimony as to the sale of the liquor to him at Carvel Hall Hotel, unless it was followed up by testimony legally sufficient to prove that the defendant was prima facie guilty of the offense charged in the indictment. The court had admitted all the evidence set out in the record, subject to exception, with leave to the defendant at the close of the state's case to move to strike out the whole or any part of it.
At the close of the state's case, the traverser submitted the following motion, as stated in the exception: "The defendant moves the court to strike out all the evidence of all of the state's witnesses, the said evidence having been admitted subject to exception, and all of the said evidence of all of the witnesses not being legally sufficient or admissible to prove or tend to prove that the defendant was guilty of the offense of selling or giving away whisky and wine to Aaron S. Merrill on December 24, 1910, at Carvel Hall Hotel, city, county, and state aforesaid." This motion was overruled by the court below, and the traverser declining to offer further evidence, was then convicted, upon the issue joined upon the plea of not guilty, and sentenced to pay a fine of $50 and costs; and from this judgment she has appealed.
The testimony, which the traverser's motion sought to strike out, was all of the evidence offered by the state and was as follows:
Aaron S. Merrill testified that he purchased at Carvel Hall Hotel, Annapolis, Md., on the 24th day of December, 1910, whisky and wine, and that it was delivered to him in a little room off from the bar by one of the hotel waiters, and he paid for the same, and at the time he purchased and paid for said whisky and wine he was a minor under the age of 21 years, and a midshipman attached to the United States Naval Academy, and that he was not a student of St. John's College. The witness testified on cross-examination that at the time he purchased the liquor he did not see Miss Elizabeth B. Jessup in that part of the hotel, and had never seen her at any time in that part of the hotel adjacent to the bar.
William J. Seeley testified that Miss Elizabeth B. Jessup was the manager of Carvel Hall Hotel, Annapolis, Md., on the 24th day of September, in the year 1910, and that as said manager she had the right to employ and discharge waiters and bell boys and minor help; that she employed him as chief clerk, upon recommendation of A. H. McCartly; that as such manager she paid all bills contracted in and about the management of the hotel, drawing checks for same on a fund in bank in the name of the Carvel Hall Hotel Company, and signing check: "Carvel Hall Hotel Company, E. B. Jessup, Manager." On cross-examination the witness testified that Miss Elizabeth Jessup received a regular monthly salary, the same as he did, he being chief clerk of the hotel, and that she did not have the right to discharge him, and did not have the right to employ or discharge the barkeeper, who also received a monthly salary, and that their salaries were paid them by the Security Land Company, a body corporate incorporated under the laws of the state of New Jersey, of which A. H. McCartly was manager, and that said company conducted the hotel, and all the liquor in the hotel for sale was kept at the bar.
The state further proved that the application of the Security Land Company to the mayor, counselor, and aldermen of the city of Annapolis for a liquor license was signed by Elizabeth B. Jessup, Agent. It was admitted in the case that the Security Land Company was a nonresident corporation of the state of Maryland, but licensed to do business in this state, certifying to Secretary of State of Maryland that its sole business in the state of Maryland was the renting and collecting rents from property known as Carvel Hall Hotel Company, and that Daniel R. Randall was its agent on whom process could be served, and that all its directors and officers were nonresidents of the state of Maryland.
We have thus set out the evidence at length, because the ruling of the court, embraced in the exception, upon the motion to strike it out, presents the only legal question to be reviewed by us, as we do not understand that the correctness of the court's ruling upon the demurrer to the indictment is pressed, on this appeal. It is clear, we think, that the motion to strike out, as submitted to the court and set out in the bill of exception, is entirely too broad and general, and was properly overruled by the court for two reasons:
The law is well settled that if the objection is a general one to all and each and every part of the evidence, and if any part of it is admissible, the court will overrule the objection. Mr Wigmore, in his work on Evidence (1 Wig. § 18, p. 57), states the rule as follows: "The cardinal principle is that a general objection, if overruled, cannot avail." In Pegg v. Warford, 7 Md. 582, this court said: Budd v. Brooke, 3 Gill 220, 43 Am. Dec. 321; Morrison v. Whiteside, 17 Md. 458, 79 Am. Dec. 661; Levy v. Taylor, 24 Md. 282; Burgoon v. Bixler, 55 Md. 384, 39 Am. Rep. 417; Luery v. State, 116 Md. 284, 81 A. 681. In Carroll v. Granite Mfg. Co., 11 Md. 399, the court used this language: ...
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