Salpner v. State

• Court: Maryland Supreme Court
• Writing for the Court: McSHERRY, C. J.
• Citation: Salpner v. State, 35 A. 885, 84 Md. 299 (Md. 1896)
• Decision Date: 19 November 1896
• Parties: SALPNER v. STATE.

35 A. 885

84 Md. 299

SALPNER

v. STATE.

Court of Appeals of Maryland.

Nov. 19, 1896.

Appeal from circuit court, Baltimore county.

Walter M. Salfner was convicted of selling goods, wares, and merchandise without having a license, and appeals. Affirmed.

Argued before McSHERRY, C. J., and BRYAN, PAGE, BOYD, FOWLER, and ROBERTS, JJ.

O. Parker Baker, for appellant.

Atty. Gen. Clabaugh and John T. Ensor, for the State.

McSHERRY, C. J. The appellant was indicted by the grand jury of Baltimore county for selling goods, wares, and merchandise without having a license. An agreed statement of facts was entered into between the state's attorney and the traverser's counsel, wherein the following facts appear: That the traverser had, during the period of time covered by the indictment, a trader's license, which had been issued by the clerk of the court of common pleas of Baltimore city, where the traverser resided and conducted a store; that the traverser was in the habit of selling oil from a tank wagon throughout portions of Baltimore county, where he had no fixed place of business; and that this oil was taken from his stock in trade in the Baltimore city store, and was sold from the wagon in Baltimore county to such persons as desired to purchase it without having been previously ordered by them; and that these were the sales mentioned in the indictment. Under the agreement, the case was tried before the court, sitting as a jury. A demurrer to the evidence was filed. This, we understand, was intended to raise the question as to the legal sufficiency of the admitted facts to establish guilt. No notice was taken of this demurrer by the lower court, and a verdict of guilty was entered, whereupon a motion in arrest of judgment was filed, and was overruled, and final judgment was entered. The first and second grounds assigned in arrest of judgment assert the insufficiency of the evidence to sustain a conviction, and the third is general or not specific. From the judgment of conviction, the traverser has appealed.

It has long been held in this state, under Act 1785, c. 87, § 6 (now codified in section 2, art. 5, of the Code), that, in prosecutions for the recovery of any "penalty, fine or damages," an appeal will lie to this court upon questions of law apparent on the face of the record. Queen v. State, 5 Har. & J. 233; Rawlings v. State 1 Md. 127; Keller v. State, 12 Md. 322. The state's attorney and the counsel of the traverser having entered into and filed an agreement of facts, as already stated, the case went to trial on those facts before the court, without the aid of a jury. It thereupon became the duty of the court to declare the law upon the facts admitted. Such an agreement has been treated as taking the place of a special verdict, and its effect is, as in cases of special verdict, to place the facts on the record as part thereof; and, on the facts thus presented, it became the duty and was the province of the court to decide as in case of demurrer. On appeal the whole record comes up, and this court can review the conclusions of law founded by the lower court upon the admitted facts. This method of procedure is confined by the terms of the act of 1785 to prosecutions for the recovery of penalties, fines, and damages, and does not extend to or include any other class of criminal proceedings. The act of 1892 (chapter 506), regulating appeals in criminal cases, and placing them upon the same footing with appeals in civil cases, has not repealed section 2 of article 5 of the Code; and, not having done so, the record now before us brings up the propriety of the appellant's conviction. We proceed, then, to inquire whether, under the facts disclosed by the record, there is any error of law apparent. Before, however, considering the merits of the case, it will not be amiss to dispose of a preliminary and purely technical question, which has been urged under the general reason assigned in arrest of judgment.

The record as printed does not show that the traverser was arraigned upon the indictment, or that he pleaded thereto; and this failure to arraign and...