Whitman v. State
| Decision Date | 27 February 1895 |
| Citation | 31 A. 325,80 Md. 410 |
| Parties | WHITMAN v. STATE. |
| Court | Maryland Court of Appeals |
Error to circuit court, Dorchester county.
Indictment against E. J. Whitman for unlawfully selling intoxicating liquors. From the sustaining of a demurrer to defendant's plea that he was a licensed pharmacist and druggist, and from a conviction and sentence to imprisonment in the house of correction, defendant brings error. Reversed.
Argued before ROBINSON, C.J., and BRISCOE, ROBERTS, FOWLER, and McSHERRY, JJ.
Alonzo L. Miles, for plaintiff in error.
Atty Gen. Poe and P. L. Goldsborough, for the State.
The appellant was indicted by the grand jury of Dorchester county for unlawfully selling intoxicating liquor to one Stack. The traverser demurred to the indictment, but the demurrer was overruled, and he then pleaded, first, that he did sell the liquor as charged, but that, at the time of so doing, he was a regular pharmacist or druggist, having a license to carry on the business of pharmacist or druggist; that the sale referred to in the indictment was made upon the written bona fide prescription of a regular practicing physician, and that he did not sell but once upon the same prescription. He also pleaded not guilty. To the first plea the state, by its attorney, demurred, and the court sustained the demurrer. The trial then proceeded upon the issue joined on the second plea, and the traverser, having been convicted, was sentenced to pay a fine and to be imprisoned in the house of correction. A petition was then filed asking that the record be transmitted to this court as upon writ of error for a review of the several errors assigned in the petition.
We need not pause to discuss the demurrer to the indictment, because the chief question involved arises on the state's demurrer to the first plea of the traverser. To understand that question, a brief reference must be made to some of the local legislation relating to liquors and intoxicating drinks in Dorchester county. By Pub. Local Laws, art. 10, §§ 207-219, the subject of liquors and intoxicating drinks is dealt with. The sale of spirituous, fermented, or other intoxicating liquors was prohibited in 12 of the 14 election districts of the county, but a proviso excepted from this prohibition regular pharmacists or druggists, who were expressly permitted, upon the written bona fide prescription of a practicing physician, to compound and sell such liquors. These 12 districts included district No. 7, which embraced within its limits the town of Cambridge. Section 217 contains provisions for submitting to the voters of any election district of the county the question as to whether liquor shall be sold in that district; but no such question can be voted on until a petition has been presented to one of the judges of the circuit court, and an order has been passed by him directing the election to be held. Section 218 prescribes how an election so ordered shall be conducted, and declares that, if a majority of the votes are cast "for license," the provisions of section 213 shall apply, and that section fixes a penalty for the sale of liquor by any one; whereas, if a majority of the votes cast are "against license," the provisions of sections 207 to 215, inclusive, shall apply; and these sections, as already stated, prohibit the sale of liquor except by druggists upon the prescription of a physician. The local legislation standing thus, the general assembly passed an act, being chapter 484 of the Acts of 1894, whose title will be considered later on. It was the obvious design and purpose of this act to resubmit to the people of Cambridge the question as to whether liquor should be sold in that town. Accordingly, minute and appropriate provisions were inserted in the act for the holding of an election on a designated day in the month of May, 1894, for ascertaining the sense of the voters of the town with reference to the granting of licenses for the sale of liquor in Cambridge. It was declared by the third section of this act that, if a majority of the ballots cast should have printed or written on them the words "for the sale of spirituous or fermented liquors," the commissioners of the town should make proclamation of the result; and that, on and after the 2d day of July following it should be lawful for all persons to sell liquor within the limits of the town upon procuring the licenses, and complying with the other requirements set forth in subsequent sections of the statute; and that thereupon sections 207 to 213 inclusive, of the Public Local Laws, prohibiting the sale of liquor, should be repealed so far as the town of Cambridge was affected thereby. By the tenth section of the act of 1894, it was provided that, if the election should result against the sale of spirituous or fermented liquors, proclamation should be made, and thereupon the town of Cambridge should remain under the provisions of the then existing liquor laws, except that it should thenceforth be unlawful for a pharmacist or druggist to sell in said town or in district No. 7 of the county any intoxicating liquors or medicated bitters producing intoxication, or any compound of which alcohol forms the chief or principal ingredient; and it further provided that "all laws inconsistent with this provision are hereby repealed, and any pharmacist or druggist violating this provision shall be liable, upon prosecution and conviction, to the penalties provided in section 7 of this act."
There is nothing in the record to indicate that this act of 1894 was either voted on by the people of Cambridge, or whether the majority of the votes cast were for or against the sale of liquor. The act by its explicit terms was only to become operative if the majority of the votes cast at the election directed to be held in May, 1894, were found to be in favor of the granting of liquor licenses. If that condition precedent did not occur, the act has no vitality. The repeal of the antecedent local option legislation, as embodied in sections 207 to 213 of the Public Local Laws, was dependent on the act of 1894 becoming effective, and the latter could only become effective if a majority of the votes cast at the election in May were in favor of license. As the record does not inform us what was the result of the election, if one was ever held, we cannot determine whether the act of 1894 became operative or not. There are many things of which courts will take judicial notice. 1 Greenl. Ev.§§ 5-7. Ordinarily, while they will take such notice of the geographical divisions of the state and of the location of the cities and towns thereof, they will not, in a criminal prosecution, supply by that means an omission to prove the venue. State v Hartnett, 75 Mo. 251; State v. Burgess, Id. 541. And while, too, courts will take judicial notice of general elections and of the offices to be filled, they...
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