Maguire v. State

• Citation: 47 Md. 485
• Parties: PATRICK MAGUIRE v. STATE OF MARYLAND.
• Decision Date: 20 February 1878
• Court: Court of Appeals of Maryland

47 Md. 485

PATRICK MAGUIRE v. STATE OF MARYLAND.

Court of Appeals of Maryland

February 20, 1878

INDICTMENT.

APPEAL from the Criminal Court of Baltimore City.

The appellant was indicted under section 179 of the Act of 1866 chapter 66, which repealed and re-enacted with amendments sections 179 and 180 of Article 30, Code Pub. Gen. Laws.

In the first and second counts of the indictment it was charged that the appellant had, in 1875, being then the licensed keeper of an ordinary, unlawfully sold, disposed of and given away, on a certain Sunday in that year, a quantity, less than one pint, of spirituous liquor to a certain person, and had been convicted and sentenced for such offence in February, 1876 and that having been so convicted, he did afterwards, on a certain Sunday in October, 1876, unlawfully sell and dispose of to another person, a certain other quantity less than one pint of spirituous liquor.

In the third count of the indictment it was charged that the appellant had, in 1875, being then the licensed keeper of an ordinary, unlawfully sold, disposed of and given away a quantity, less than one pint, of spirituous liquor, to a certain person, and had been convicted and sentenced for such offence in February, 1876; and that having been so convicted he did, on a certain Sunday in October, 1876, he being then licensed to keep an ordinary, give away at his said ordinary a certain quantity of spirituous liquor, less than one pint to a certain other person.

The appellant entered a general demurrer to the indictment, which being overruled, he demurred specially to the first and second counts, which special demurrer was also overruled.

[The judgment on demurrers was not considered by the Court of Appeals, hence the reasons assigned as cause or demurrer are omitted.--REPORTER.]

Afterwards the appellant moved the Court to quash the whole indictment and assigned therefor the following reasons:

1. For that section 179, Art. 30, of the Code of Public General Laws of Maryland, under which said indictment is framed, is in contravention of the Bill of Rights and the Constitution of the State of Maryland, and is therefore unconstitutional and void.

2. For that the presentment for the second offence, mentioned in said indictment, was made more than one year after the alleged commission of the first offence mentioned therein.

3. For that said indictment alleges that said Maguire did commit three several and distinct offences, on the 3rd day of October, 1875, to wit: That he did sell, that he did unlawfully dispose of, and that he did give away a certain quantity of spirituous liquor on the Sabbath day, and in reciting the conviction alleges that he, said Maguire, was convicted of said offence, without specifying which of said three several offences.

4. For that the first count does not allege that he, the said Maguire, was, at the time of the alleged second offence, to wit: on the first day of October, 1876, a licensed dealer in any one or more of the articles of merchandise mentioned in sec. 179, Art. 30, of the Code.

5. For that the second count does not allege that he, the said Maguire, was, at the time of the alleged second offence, to wit: on the first day of October, 1876, a licensed dealer in any one or more of the articles mentioned in sec. 179, Art. 30, of the Code.

6. For that the said first count does not allege any price at which said liquor was sold.

7. For that the said second count does not allege any price for which said liquor was sold, or consideration for which the same was unlawfully disposed of.

The Court below refused to entertain this motion.

A jury having been impanneled, and the case having proceeded to trial, the State's attorney, in his opening address to the jury, proceeded to read to the jury the indictment which it was impanneled to try.

The appellant objected to the reading of the whole indictment to the jury, or any part of said indictment, except that part which related to the second offence charged therein.

The objection was overruled by the Court, and the whole indictment read.

The docket entries, showing indictment and first conviction of appellant, in the Criminal Court of Baltimore City, were then offered in evidence. The appellant objected to this evidence, but his objection was overruled.

The appellant was found guilty by the verdict of the jury.

The record then shows the following entries: "Whereupon the traverser excepts to the several rulings of the Court aforesaid, and prays an appeal therefrom, and prays the Court to attest this his bill of exceptions, &c."

No judgment was entered by the Court below in this case.

The cause was argued before BARTOL, C.J., MILLER, ALVEY and ROBINSON, J.

John M. Carter, for the appellant.

The demurrers to the indictment are included in the record, in order that this Court may be properly informed of the whole case, though only the questions arising under the bill of exceptions will be considered.

1st. It is contended that the Court erred in refusing to entertain the motion to quash, although the reasons therefor were the same as those assigned in support of the demurrer.

The second ground--that limitations applied--is clearly a proper one in support of a motion to quash. 1 Wharton's Criminal Law, (7 th Ed.,) pp. 444 and 518; State vs. Robinson, 9 Foster, (N. H.,) 274.

The third reason was also a proper one in this behalf. The traverser was entitled to such certainty of allegation as would enable him to determine whether to demur or plead. Archbold's Criminal Pleading, 53; State vs. Bacon, 7 Vermont, 219; State vs. Robinson, ante.

The fourth and fifth reasons assigned were sufficient for quashing the first and second counts of the indictment. As an indictment for a first offence these counts were good under the statute, and, therefore, not proper subjects of demurrer; but as for a second offence they were bad, in that they failed to allege that traverser was a licensed dealer, so that the Court might be informed how to impose that part of sentence requiring suppression of license, as required by the decision of this Court in Bode vs. The State, 7 Gill, 326; Root vs. State, 10 G. & J., 374; 1 Bishop on Crim. Law, (5 th Ed.,) 961; Cooley's Constitutional Limitations, 330.

As to the sixth and seventh reasons:

The failure to allege in the first and second counts the price for which the liquor was sold, and the consideration for which it was unlawfully disposed, was fatal on motion to quash. Divine vs. The State, 4 Indiana, 240; Cool vs. The State, 16 Indiana, 355.

The Court below might very properly refuse to hear argument upon the motion, but it should have entertained the motion, at least to the extent of reading it or having it read in the case, even though it had overruled it afterwards.

2nd. The reading of the whole indictment to the jury in the opening statement by the State's attorney, it is contended, was manifestly wrong. In such cases the jury should be charged and the evidence proceed as if the indictment did not contain the averment of a previous conviction, until traverser is first found guilty of the subsequent offence.

"To put prior conviction in evidence would be to violate the established principle that a man's character and his previous bad acts are not to be put in evidence unless at his own instance, as well as to invade another well settled safeguard of justice, that the defendant is to be tried, not for being generally bad, but only for one particular bad act." 3 Wharton's Crim. Law, (7 th Ed.,) 3418; 1 Bishop on Crim. Law, 964; Archbold's Crim. Pleading, 964.

3rd. The State undertakes to supply, by proof, the omission in these two counts--the failure to allege that raverser was a licensed dealer.

And this is done by the rather novel method of reading by a witness in one Court from the records of another Court, instead of producing a properly exemplified copy or certificate of the license issued.

It is submitted that this evidence was inadmissible, as varying from those counts of the indictment upon which only, at this juncture of the case, the traverser could be tried.

But the gist of the enquiry as to the license is to enable the Court to pronounce against the traverser that part of the penalty requiring the suppression of his license, that is to say, the license held by him at the time of trial.

Here the proof is only as to licenses issued to him during preceding years, and the Court is still left in ignorance whether or not he has a license in existence which can be suppressed.

4th. It is submitted that the record of former conviction is insufficient. The docket entries, while reciting the submission, under a plea of "guilty," make no mention of a judgment in the case.

When the law speaks of conviction, it means judgment and not merely a verdict, which in common parlance is called a conviction. Smith vs. The Commonwealth, 14 Sergt. & Rawle, 69.

And the indictment in the first offence case contains three counts, charging three separate and distinct offences; and the plea of "guilty," if otherwise sufficient, does not determine of which traverser was convicted.

Under such circumstances, the worst that can happen to the prisoner is a conviction of a first offence against the statute. The People vs. Cæsar, 1 Parker's Crim. Cases, 645.

Charles J. M. Gwinn, Attorney-General, for appellee.

No judgment has been entered by the Criminal Court of Baltimore in this case.

Until a judgment is entered and the appellant, after such entry of judgment, shall proceed by petition addressed to the Criminal Court of Baltimore to designate the point or questions of law by which he may feel aggrieved, (see 1 st Rule of Court of Appeals, 29 Md., 1;) and that Court shall act...