Kenny v. State
| Decision Date | 24 June 1913 |
| Parties | KENNY v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Baltimore County.
Thomas J. Kenny was convicted of selling fermented liquors on Sunday, and he appeals. Reversed and remanded.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON STOCKBRIDGE, and CONSTABLE, JJ.
William H. Lawrence, of Towson, for appellant. Edgar Allan Poe, Atty Gen., for the State.
The appellant was indicted on the 9th day of October, 1912, in the circuit court for Baltimore county as a licensee, for selling fermented liquor, to wit, beer, on Sunday, in violation of chapter 179 of the acts of 1908, regulating the sale and the granting of licenses for the sale of spirituous and fermented liquors in Baltimore county.
By section 10 of the act it is provided that no person having a license under the provisions of this act, shall sell or give away any spirituous liquors on the Sabbath Day, commonly called Sunday, nor shall he sell or give away any spirituous or fermented liquors at his place of business between the hours of 12 o'clock midnight and 5 o'clock a. m. at any time.
By the fourteenth section it is provided that if any person having a license under the provisions of this act shall violate any of its provisions, 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 $300, and on conviction a second time he shall pay a fine of $200, and his license shall be suppressed.
The indictment charges that heretofore, to wit, at the May term of the circuit court for Baltimore county, in the year of our Lord one thousand nine hundred and twelve, one Thomas J Kenny, late of said county, was indicted by the grand inquest of the state of Maryland, in and for Baltimore county, for the unlawful sale of a certain quantity of spirituous and fermented liquors, to wit, beer, to a certain Ferdinand Groshans, on the Sabbath Day, commonly called Sunday, to wit, on the 5th day of May, in the year of our Lord one thousand nine hundred and twelve; that on the 20th day of June, in the year of our Lord one thousand nine hundred and twelve, at a session of the said the circuit court for Baltimore county, upon the indictment aforesaid, the said Thomas J. Kenny was convicted, and judgment was entered by the court that the said Thomas J. Kenny pay a fine of $200 and costs, as by the record thereof will more fully and at large appear, which said judgment still remains in full force and effect, and not in the lease reversed or made void. And the jurors aforesaid, upon their oath aforesaid, do further present that the said Thomas J. Kenny afterwards, and after he had been so convicted as aforesaid, to wit, on the 18th day of August, in the year of our Lord one thousand nine hundred and twelve, at the county aforesaid, the same day in the year aforesaid, being the Sabbath Day, commonly called Sunday, having then and there a license to sell spirituous and fermented liquors under the provisions of the act of the General Assembly of Maryland of 1908 (chapter 179), unlawfully did sell a certain Harvey Baker a certain quantity of fermented liquor, to wit, beer, contrary to the form of the act of assembly in such cases made and provided, and against the peace, government, and dignity of the state. A demurrer was interposed to the indictment by the traverser, but was overruled by the court below, and the case was tried upon the plea of non cul. He was convicted, and upon the verdict of guilty it appears, by a certified copy of the docket entries filed herein on the 18th day of April, 1913, at the hearing of the case, that the court imposed a judgment and sentence that the traverser pay a fine of $200 and costs, and that his license be suppressed.
The learned Attorney General very properly concedes in his brief, on behalf of the state, that the court below committed an error in the imposition of the sentence, and in this we concur. The verdict in this case, it will be observed, was simply "guilty" generally, and did not justify the penalty provided by the statute for a second offense, as imposed by the court in this case. In Maguire v. State, 47 Md. 485, Judge Alvey, in delivering the opinion of this court, said: "The authorities are clear to the effect that, in order to justify a sentence for a second offense, it must appear by the verdict that the jury have found the party guilty of such second offense." Thomas Case, 63 Va. 912; 3 Wharton, C. L. § 3418; 1 Bishop, Crim. Law, 961. The ruling in Maguire's Case, supra, was followed by us in the more recent case of Goeller v. State, 119 Md. 61, 85 A. 954, involving a construction of the very statute upon which this indictment is based. In Goeller's Case we said, however, that: "Nothing we have said herein is to be understood as applicable to the imposition of a penalty in any case not arising under a statute of the character before us."
If the error in the judgment or sentence itself was the only error committed by the court below in this case, we should reverse the judgment and remand the record to the court below, in order that a proper judgment could be pronounced upon the indictment and conviction. Article 5, § 81, Code of Public General Laws; MacDonald v. State, 45 Md. 90; Lynn v. State, 84 Md. 83, 35 A. 21.
But, we think, there was an error committed by the court in not sustaining the demurrer to the indictment. The traverser was indicted as a licensee, for a second offense, under section 14 of the Acts of 1908, chapter 179, and ...
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