Slymer v. State

• Decision Date: 29 May 1884
• Citation: 62 Md. 237
• Parties: ANDREW F. SLYMER v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

62 Md. 237

ANDREW F. SLYMER v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

May 29, 1884

The cause was submitted on briefs to ALVEY, C.J., STONE, MILLER IRVING, and BRYAN, J.

Andrew F. Slymer, in propria persona.

Charles B. Roberts, Attorney-General, for the State.

IRVING J., delivered the opinion of the Court.

The appellant was indicted in the Circuit Court for Harford County, for violating the Act of Assembly of 1882, chapter 92, known as the "Local option law" for Harford County. The indictment contains six counts, each concluding "contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State." The first count charges the sale of whiskey to one David H. German; the second the sale of brandy to the same man; the third and fourth counts repeat these charges, with the allegation that the traverser was not a druggist, and did not have a bona fide prescription of a physician for the same. The fifth and sixth counts charge the giving away of the liquor without negativing the exceptions made in the sixth section of the statute, as was done in the third and fourth counts.

To this indictment a general demurrer was interposed, which having been overruled, a special demurrer was filed. This also having been overruled, the traverser was tried, convicted and fined; thereupon he has brought the case to this Court by writ of error.

The grounds of error which are assigned are in substance as follows:

1. That it did not appear from any allegation in the indictment that the Act of 1882, chapter 92, had become a law applicable to Harford County.

2. That it was not alleged in the indictment that the law had ever been voted upon, and that the judges of election had ever made any return, and that the result had been proclaimed.

3. That it was necessary for the indictment to state affirmatively that every condition precedent to the law taking effect had been complied with.

4. That there was no statute forbidding the sale as charged in the indictment.

The Constitution of the United States guarantees in criminal prosecutions the accused shall enjoy the right to be informed of the nature and cause of the accusation, and so does the Bill of Rights of this State. Lord DENMAN says, that the first principles of the law require that such charge be so preferred as to enable the Court to see that the facts amount to a violation of law, and the prisoner to understand what it is he is to answer and disprove. Forsyth's Cases and Opinions on Constitutional Law, 457 and 458; 2 Hawkins' Pleas of the Crown, ch. 25 secs. 57 and 60.

It is the offence which is charged, that is, the act done, which is to be described in the indictment, and not the law which is alleged to be violated. Ignorance of the law is no excuse for its violation, by all authority, and the reason is, that every one is presumed to know what it is. This indictment concluded "contrary to the form of the Act of Assembly in such case made and provided," and that would seem to be all that was necessary in such case. Hale in his Pleas of the Crown, vol. 2, page 192, says the indictment need not set out the statute, unless it be a private statute, whereof the Court cannot take notice. The same law is laid down by Hawkins' Pleas of the Crown, ch. 25, secs. 100 and 101; and in 1 Chitty's Criminal Law, pp. 276-281, the same doctrine is maintained. In Bishop on Statutory Crimes, one of the latest publications upon criminal law, this statement is made: "It has been perfectly settled that there is no necessity, in any indictment on a public statute to recite the statute upon which it is founded; for the Judges are bound ex officio to take notice of all public Acts of Parliament, and where there are more than one by which the proceeding can be maintained, they will refer it to that which is most for the public advantage." Bishop adds that if recital be attempted, variance may vitiate, and therefore it is always advisable not to recite. Bishop on Statutory Crim., sec. 395. Courts are created to administer and enforce the law; therefore they do and must take judicial cognizance of all public laws. Whether the law has existence is for them to say, just as fully as it rests with them to say whether the indictment is good or bad, or that the evidence to prove the offence alleged is legally admissible or otherwise. To the Courts alone belong the right of saying whether a statute has been constitutionally and legally enacted. Legg vs. The Mayor, &c. of Annapolis, 42 Md., 219; Hamilton vs. State, ex rel. Wells and Hardesty, 61 Md., 14. Ordinarily our laws require nothing more than passage by the two Houses of the Legislature and the signature of the Governor, accompanied with the great seal of the State, affixed in the presence of certain designated officers of the Legislature, to make them operative. But the law under which this prosecution is made, after passage by the Legislature and approval in the method mentioned, required submission to the people of Harford County at a regular election, for their acceptance before it should become operative. And it is the omission to state in the indictment, that it became operative through the observance of all the formalities prescribed in the law, which is the ground of demurrer.

It was decided by this Court in Hammond vs. Haines, 25 Md., 558, Fell vs. State, 42 Md., 71, and in Crouse vs. State, 57 Md., 328, that a law like the one now involved became a valid law of the State so soon as it received the approval of the Governor in constitutional form notwithstanding its operation was deferred till a future time, and was made entirely dependent upon the acceptance of the same by a majority of the ballots of voters at an election held for the purpose of ascertaining their will. In the same case it was decided that the certificate of the judges of election and the proclamation of the clerk were conclusive that the law had been accepted by the people, and had become effectual as a law; and that as no mode of contesting the validity of such election had been provided by law, no evidence was admissible to the jury to controvert the result of...