Reynolds v. State

• Court: Maryland Supreme Court
• Writing for the Court: BOYD, C.J
• Citation: Reynolds v. State, 141 Md. 637, 119 A. 457 (Md. 1922)
• Decision Date: 17 November 1922
• Docket Number: 19.
• Parties: REYNOLDS v. STATE.

119 A. 457

141 Md. 637

REYNOLDS v. STATE.

No. 19.

Court of Appeals of Maryland

November 17, 1922

Appeal from Circuit Court, Washington County; Frank G. Wagaman Judge.

Lloyd Reynolds was convicted of violating the local liquor law, and he appeals. Affirmed.

Elias B. Hartle and Richard H. Sweeney, both of Hagerstown, for appellant.

Alexander Armstrong, Atty. Gen. (Lindsay C. Spencer, Asst. Atty. Gen and D. Angle Wolfinger, State's Atty., of Hagerstown, on the brief), for the State.

BOYD C.J.

This is an appeal from a judgment rendered against the appellant, who was convicted by a jury and sentenced by the circuit court for Washington county to pay a fine of $500 and costs, and to be confined in the jail of that county for a period of three months for a violation of the local liquor law of that county. The first count in the indictment alleges that the defendant-

"did unlawfully sell, dispense and otherwise dispose of a certain quantity of alcoholic, spirituous, vinous fermented, distilled, and malt liquors and intoxicating bitters which will produce intoxication, to Bruce Simpson, the said Lloyd Reynolds not being a manufacturer thereof, and said liquors not being sold for delivery for shipment to places beyond the state of Maryland, or to places within the state of Maryland, where such sale is not prohibited by law," etc.

The defendant demurred to the indictment, and that was overruled. The same day he made a motion to quash the indictment, which was overruled, and a plea of "not guilty" was then filed, upon which the case was tried. As the statute provides that no indictment shall be quashed "for any matter or cause which might have been a subject of demurrer to the indictment," etc., if the grounds relied on related to supposed defects in it, the motion was properly overruled (article 27, § 496, of Code [volume 3]); Maguire v. State, 47 Md. 485; State v. Edlavitch, 77 Md. 144, 26 A. 406), and if it was based on matters dehors the record, they have not been brought before us, and hence cannot be considered. It is therefore only necessary for us to pass on the ruling on the demurrer, as nothing else is presented by the record.

Chapter 30 of the Acts of 1916 was an act to enable the registered and qualified voters of the city of Baltimore, five counties, including Washington county, and portions of several others-

"each as a separate political unit to determine by ballot whether or not the sale, manufacture for sale and transportation for sale of alcoholic, spirituous, vinous, malt and intoxicating liquors for beverage purposes shall be forever prohibited in the said political units above designated, respectively," etc.

Washington county was one of the units in which there was a majority of the votes in favor of "prohibition," and this statute was in force there when the Eighteenth Amendment to the Federal Constitution and the Act of Congress known as the Volstead Act (41 Stat. 305) were adopted. Among other provisions in it was one that-

"Any person, persons, social club, firm or corporation manufacturing, selling, transporting, dispensing or disposing of any alcoholic, spirituous, vinous, fermented, distilled or malt liquors within such political unit or units so voting for prohibition shall be liable for all the penalties now or hereafter prescribed for manufacturing, selling, dispensing or disposing of alcoholic, spirituous, vinous, fermented, distilled, malt and intoxicating liquors without a license." Section 5.

It is contended by the appellant that the only law in that county providing a penalty for anything prohibited in that statute is section 325c, of chapter 380 of the Acts of 1908 (page 1048), which provides:

"That any person who shall hereafter be convicted of selling intoxicating, spirituous or fermented liquors or lager beer, or any admixture thereof in Washington county, Maryland, without a license first having been obtained therefor under the provisions of this act, shall be sentenced to pay a fine of not less than one hundred dollars, nor more than five hundred dollars, or undergo improvement [imprisonment] in the county jail for not less than three months, nor more than twelve months, or both fine and imprisonment, in the discretion of the court or justice of the peace trying the case."

As will be seen above, the indictment alleges that the traverser "did unlawfully sell, dispense and otherwise dispose of a certain quantity of alcoholic, spirituous, vinous, fermented, distilled and malt liquors," etc., and it is argued that, inasmuch as the act of 1908 provided a penalty for selling and not for dispensing or otherwise disposing of the liquors, the penalty for dispensing or otherwise disposing of the liquors is a different one, and such as would be authorized for the violation of a statute which did not name the penalty, and hence they cannot be joined in the same court, and the demurrer should have been sustained.

In the brief of the appellant there is a quotation from 22 Cyc. 380, in reference to duplicity, which is also quoted in the state's brief, excepting the last paragraph, which is omitted. We will not, however, do more than refer to that, as the question is settled in this state. In Stearns v. State, 81 Md. 341, 32 A. 282, it is said:

"If a statute makes it a crime to do this or that or that, mentioning several things disjunctively, all may indeed, in general, be charged in a single count, but it must use the conjunctive 'and' where 'or' occurs in the statute, else it will be defective as being uncertain. Therefore an indictment upon a statute of this kind may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction 'and' where the statute has 'or,' and it will not be double, and it will be established at the trial by proof of any one of them."

See, also, Pritchett v. State, 140 Md. 310, 117 A. 763, decided at the January term, 1922, of this court.

Such is the established rule in this state, and we do not deem it necessary to quote authorities from other jurisdictions or text-books, but the appellant contends that, as by the act of 1908 a penalty is prescribed for selling, but there is none for dispensing or disposing of liquors, the three cannot be joined in one count, and that the rule announced in Stearns v. State is not applicable. It is said by the appellant that the only penalty which could be imposed for dispensing or disposing of liquors is such as could be at common law, for the violation of a statute, which itself includes no penalty.

We will not stop to look through the various local laws of Washington county to see whether we can find a statute which in terms mentions dispensing and disposing of liquors as we understand it to be practically conceded by the state that there is none, but there are several answers to the appellant's contention. In the first place, the language of the statute itself (Act 1916) shows that it did not mean a penalty imposed for violating that statute. It does not say or indicate that such was the intention of the Legislature, but, on the contrary, it says "shall be liable for all the penalties now or hereafter prescribed, for manufacturing, selling, dispensing or disposing of" any of the liquors mentioned, without a license. In a word, it only referred to penalties already prescribed or those which might be afterwards prescribed. While it is true that an indictment may lie for the violation of a statute, although it imposes no penalty, yet where the statute shows on its face that the Legislature only intended such penalties as were then or might thereafter be prescribed (that is to say, by the Legislature) and not such as would be imposed by the common law for violating a statute, then it would seem clear that the latter could not be imposed.

But there does not seem to us to be any serious question about the right to include in the indictment all three of the terms which were used, or about the power of the court to impose the penalty fixed by the act of 1908. The object of the act of 1916 was to enable the voters of the different units mentioned to determine by ballot "the question whether or not the sale, manufacture for sale, and transportation for sale" of the liquors named should be prohibited. If the voters in any unit so determined, the primary object of the statue undoubtedly was to prevent the sale of liquors. No one familiar with the decisions of this and other courts concerning such sales can fail to know that many schemes and artifices have been adopted from time to time in attempts to evade the laws on the...