Spielman v. State

• Decision Date: 19 July 1867
• Parties: JONATHAN SPIELMAN v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

27 Md. 520

JONATHAN SPIELMAN v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

July 19, 1867

WRIT OF ERROR to the Circuit Court for Washington County.

The facts of the case are sufficiently stated in the opinion of the Court.

The cause was argued before BOWIE, C.J., BARTOL and CRAIN, J.

Andrew K. Syester, for the plaintiff in error.

The prosecution of this case professes to be based upon a non compliance with the terms of the Act of 1862, ch. 121. The plaintiff in error, together with one Bombarger, in May 1864, obtained as partners, a trader's license, and prosecuted business thereunder until July, 1864, when the partnership was dissolved,--Bombarger selling out to his associate, and the latter continuing the business. In the license thus issued, the name of each partner was set out in full. The plaintiff in error stands indicted for selling under this license, and was found guilty on the ground, that under the Act of 1862, ch. 121, he was required to take out a new license. The language of the Act is very plain. The circumstances that afford protection to a party doing business under such a license are three, one of which is that he be " named in the license."

The questions arise on demurrer to the special plea, and all the pleadings are open for review. The fifth and sixth counts do not ascribe to the plaintiff in error, anything known to the Statute laws of this State, sufficient to expose him to the penalties of the 89th section of the 56th Art. of the Code of Public General Laws.

In neither of these counts is any offence, defined by Statute set out.

The language of the indictment is, that he "exposed and offered to sell," whilst that in the Code, describing the offence, is, " shall barter and sell. " ""Offer or expose for sale," are not words equivalent to selling and bartering. The offence must be set out in the precise and technical language of the Statute defining the offence. Foster, 424; 1 Hale, 517, 526 535; 1 Arch. Cr. Prac. and Plead., Waterman's notes, 86, note 2; Wh. Am. Cr. Law, 78.

Nor does the Act of 1864, ch. 18, help this defect, because that Act has reference only to the measure of proof, and does not pretend to describe an offence. Neither does it profess to stand as a modification of the 89th section of Article 56 of the Code of Public General Laws; no allusion, whatever, being made to that or any other section. It is nothing more than an additional section, if, indeed, any legal effect can be given to it, in the face of striking inconsistency between its title and body. These objections apply to all the counts except the third and fourth. All the counts in the indictment, except the second, are defective, in not setting out the name of the person to whom the merchandise was sold, or in not alleging that the person or persons to whom the same was sold, were unknown. 1 Leach, 248; 2 Leach, 861; Hawk., B., 2, ch. 25, S. 71 and 72; Bac. Abr., Indictment, G., 2; 2 East. Pl. Cr., 651, 781; Rex vs. Smith, 6 Carr & Payne, 151; 1 Arch. Crim. Prac. Plead., 81, note 1; State vs. Nutwell, 1 Gill, 54; Capritz vs. The State of Maryland, 1 Md. Rep., 569; 1 Chitty Cr. Law, 212; Commonwealth vs. Maxwell, 2 Pickering, 139.

It is therefore submitted, that the first, second and third counts, being covered by the special plea, and all the others obnoxious to the objections alleged under the second point, the judgment ought to be reversed.

A. Randall, (Attorney General,) for the State:

It is contended on the part of the State, that the plaintiff in error, as a defence to the various charges in the indictment, if sufficiently made, ought to have taken out two distinct licenses, one called " a trader's license, " which would be a defence against the charges in the first, second and third counts in the indictment; the other a " retailer's license," which would be a defence against the charges in the fourth, fifth and sixth counts of this indictment. But the only defence taken by the plaintiff in error was the plea alleging, that he had "a trader's license," which was no sufficient defence against the fourth, fifth and sixth counts in the indictment, and thereupon the judgment of the Court on the demurrer to this plea was rightfully sustained by the Court. As to a trader's license, Code, Art. 56, secs. 41, 42, &c., to 57 inclusive. Licenses to sell spirituous liquors, &c., not less than a pint, section, 58 to 69, of Article 56 of Code of Pub. Genl. Laws; 1 Chitty's Crim. Law., 443, (442, top,) 472.

The defendant below was not authorized as an individual trader to use the license granted to the firm, of which he was a co-partner, after the dissolution of the partnership. Code, Art. 56, secs. 1, 2, 12, 14, 15, 16, 17, 21, 22; 1862, chs. 97, 121 and 144; 1865, ch. 76.

The offences are legally set forth in the counts of the indictment. Code of Pub. Genl. Laws, Art. 56, sec. 25; 1864, ch. 18; 1 Bishop's Crim. Law, secs. 76, 83, 126; Burk vs. The State, 2 H. & J., 426; The State of Maryland vs. Dent, 3 G. & J., 8. If not legally set forth therein, this judgment cannot now be revised or stayed, because of such defective counts, for if such counts were defective, they might have been the subject of a demurrer, or the defect was in the averment of matters unnecessary to be proved. Code of Pub. Genl. Laws, Art. 30, sec. 82; 1864, ch. 18.

CRAIN J., delivered the opinion of this Court.

In this case the defendant below was indicted in the Circuit Court for Washington County, for violating, in November, 1864, the license laws of this State. The indictment contains six counts, five of which charge him with a violation of the license law generally, but the second count charges him with violating it, by selling general merchandise to William H Beard. To this indictment a special plea was filed by the defendant below, setting forth that he, together with a certain Emanuel Bombarger, in May, 1864, obtained as partners a trader's license, in and on which the name of each of the partners was set out in full, and opened and prosecuted business thereunder, in Washington county, until July, 1864, when the partnership was dissolved, and he became the assignee of the...