99 A. 702 | Md. | 1916
The appeals of Anton Vanura and Lizzie Vanura v. State andMoritz Benesch v. State were heard together. In each case a demurrer to the indictment was overruled, a plea of not guilty was entered and a verdict of guilty was found by the Court, by whom the traversers elected to be tried. The only questions before us are presented by the demurrers to the indictments, and as the parties were indicted under the same section of the statute (section 9F of Chapter 31 of the Acts of 1916), the two cases will be disposed of by one opinion.
Those made liable to prosecution and punishment by section 9F can properly be divided into three clases, and for *507 convenience we will insert the letters (a) and (b) before the two clauses involved in these appeals, although they are not in the statute. They are as follows:
"9F. (a) Any person, or any officer or member of any corporation, association or club owning, leasing, renting or occupying any park, ground or shore in Baltimore County who shall lease, rent or hire out the same for a picnic, crab feast, shad bake, barbecue, oyster roast or feast, or other entertainment or assemblage to be held on the Sabbath or Lord's Day, commonly called Sunday, and at which any spirituous, fermented or intoxicating liquor of any kind, or lager beer or near-beer, are drunk or to be drunk on said Sabbath Day;
"(b) or any person, or any officer or member of any corporation, association or club, who shall give, hold, conduct or take part in any picnic, crab feast, shad bake, barbecue, oyster roast or feast, or other entertainment or assemblage on the Lord's Day, commonly called Sunday, at which spirituous, fermented or intoxicating liquor of any kind or lager beer or near-beer are drunk or to be drunk on the Lord's Day, commonly called Sunday, * * * shall be guilty of a misdemeanor and upon conviction thereof shall pay a fine of not less than $200.00 nor more than $1,000.00 or be imprisoned in jail or in the House of Correction of Maryland for not less than 30 days, or suffer both fine and imprisonment, as aforesaid, in the discretion of the Court."
The grounds for the demurrer relied on are stated in the briefs for the appellants to be: 1st. That section 9F is unconstitutional and void in that the title of the Act is defective — section 9F not being germane thereto; 2nd. That the section is unconstitutional and void because it has no real or substantial relation to the police power of the State, being a plain invasion of rights secured by the fundamental law and being oppressive and discriminating and obnoxious to *508 the 14th Amendment of the Federal Constitution; and, 3rd. That the indictment does not properly embrace the language of the statute in that it is not specific and does not apprise the traversers properly of the crime with which they are sought to be charged.
We will consider them in that order. First: The title to the Act is as follows: "An Act to repeal and re-enact with amendments Sections 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 17, 21 and 26 of Chapter 179 of the Acts of the General Assembly of Maryland of 1908, entitled `An Act to regulate the sale and the granting of licenses for the sale of spirituous and fermented liquors in Baltimore County,' and to add eight new and additional sections to said Chapter 179," etc. — Section 9F being one of the eight added.
The Act of 1908, referred to in the above title, contained 29 sections. The title to that Act is correctly quoted in that of the Act of 1916, and it is contended that the latter is not a sufficient compliance with the requirement of Section 29 of Article 3 of the Constitution, in so far as Section 9F is concerned. It could not be successfully contended, in view of the decisions of this Court, that such a title as that of the Act of 1908, would not be sufficient to sustain a prohibition against selling or giving away liquor on Sunday, and to provide penalties for its violation. It would clearly be a compliance with the Constitution, as construed in former cases of this Court, when it purports "to regulate the sale and the granting of licenses for the sale of spirituous and fermented liquors." The experience of those connected with the administration of the law, as well as the many decisions of this and other Courts, has taught them that there are many attempts to evade the laws regulating the sale of liquors. If, then, it be found that the ordinary prohibition against selling or giving away liquor on Sunday is not sufficient to correct the evil sought to be corrected, and that other provisions are necessary, in order to accomplish the object of such laws, it can not properly be said that such provisions are not germane. *509 No one would now question the validity of a statute having a title such as that of the Act of 1908, because in the body of the Act screens, curtains and other obstructions were required to be removed on Sundays and other days on which sales are prohibited, and it was provided that sales at times which are permitted can only be made in some room fronting on a street or public highway. The object of such provisions is to aid in the enforcement of the laws prohibiting sales and the disposition of liquor on Sundays and at other prohibited times.
It is common knowledge that the excessive use of intoxicating liquors, especially where many persons are gathered together, is liable to produce disorder, rioting and disturbance of the public peace. Under such conditions the place is likely to become a public nuisance. If it had been found that in Baltimore County, which adjoins a large city, the provisions of the local liquor laws were inadequate to prevent disorder, and insure the enforcement of the law, and that such provisions as those in Section 9F were necessary for that purpose, then they are germane to the subject of the Act.
It will be well to recall some of our decisions, which illustrate the construction of this constitutional provision by us and our predecessors, when statutes concerning the sale, etc., of liquor were involved. In the familiar case of Parkinson v.State,
In Baltimore City v. Flack,
In Cearfoss v. State,
It would oftentimes be impossible to prove sales at picnics and other entertainments mentioned in the statute, and the Legislature realizing the necessity for preventing the use on such occasions enacted section 9F. There is no reason why owners or holders of such properties should be permitted to rent them, if the use of them in the way prohibited is liable to result injuriously to the peace and quiet of the community on Sunday. Perhaps the best way to prevent it was to do what that section does — prohibit the renting, etc., for picnics, etc., where liquor was to be drunk. If the owner acted in good faith and had no reason to believe that liquor was to be drunk, and it was done without his knowledge or connivance of any kind, then a different question would arise, but in the indictment against the Vanuras they were charged with leasing, renting and hiring out a certain park, ground and shore for a picnic, etc., to be held on Sunday, at which beer "was then and there drunk and was then and there to be drunk on said Sabbath Day," and in the indictment against Benesch it was alleged that he did hold, conduct, give and take part in a certain picnic on Sunday at which beer was drunk and was to be drunk.
It must not be forgotten that this section is a part of the Local Liquor Laws for Baltimore County, and its provisions were intended to aid the regulation of not only the sale of liquor, but of its use and obtention at prohibited times and places. The statute was doubtless intended to reach, amongst other things, the sale of liquor without license, and it is apparent that it would be very difficult at such gatherings as those referred to in this section, to prevent evasions of the law by those who are not licensed, and licensees were prohibted from selling or giving away liquor on Sunday, under the law in force when the statute was passed. If conditions were such from the use of intoxicating liquors on Sunday in that county, as to require legislation of this character, we *513 can see no reason why it should not be included in this Act, which was known as the Liquor Law for the County. It can be properly inferred from the provisions of this section that such conditions did exist. Regulations of law in reference to intoxicating liquors would naturally be expected to be found in it. In legislating on such a subject it would be practically impossible to specifically refer in the title to everything that was deemed proper to be embodied in the Act, without making the title so long that its length might have the effect of causing those interested to overlook the very thing they were most interested in. It was not the design of the framers of the Constitution to require a bill of particulars to be set out in the title. Many additional decisions might be cited, but those referred to above are sufficient to show what this Court and its predecessors have regarded as the subject of an Act of this kind.
Second: It is further contended that this section has no real or substantial relation to the police powers of the State. InLochnar v. State,
JUSTICE HARLAN, in the well known case of Mugler v. Kansas.
If the State has the power to prohibit the sale of liquor it also has the power to prohibit the giving of liquor by one person to another. The evil to be avoided is the communication from one to another of an article which may be injurious to the recipient, or which, by its general use may demoralize or harm the whole community. It is not attempted to restrain a man's private indulgence in drink. But that is because the law deals not with the isolated individual, but with them in their relations to each other. Upon the delivery of a noxious substance from one to another, a relation is established of which the law may take cognizance. And it is perfectly immaterial whether the transfer be by sale, barter or gift. The evil is not in the receipt of money for the article furnished, but in the furnishing of it, and so the authorities hold. Black on Intoxicating Liquor, section 39.
If, then, in the judgment of the Legislature it be necessary or proper to have such regulations as are found in section 9F in order to insure a better regulation of the sale or use of intoxicating liquors, the courts can not rightly interfere. These cases are before us on demurrers and hence there is no evidence in the Record, but judges, as well as other people, know how frequently disturbances of the public peace result *515 from such gatherings on Sunday as are referred to in this statute, when liquor can be obtained and is used to excess, as it is likely to be. They would have to forget the cases they have sat in and ignore the dockets of their own courts if they remained in ignorance of the fact that there may be need of such legislation for the protection of the public welfare.
In Sligh v. Kirkwood,
Our own decisions on the subject are too numerous to justify an attempt to cite all or even the most important ones. But in addition to the above we would refer to Deems v. Mayor, Etc.,of Baltimore,
Third: The remaining question to be considered is whether the indictments are sufficient, regardless of the two points already disposed of. It will be necessary to pass on them separately. (a) The one against the Vanuras alleges that they on the 21st day of May, 1916, "at Baltimore County aforesaid, then and there being the owners of a certain park, ground and shore, in said county, unlawfully did lease, rent and hire out the same for a certain picnic * * * to be then and there held on the Sabbath Day, commonly called Sunday, at which said picnic * * * fermented liquor, to wit, beer, was then and there drunk and was then and there to be drunk on said Sabbath Day," etc.
It is urged that the indictment does not "state specifically the location of the property in question, in other words, the traversers may have been the owners, lessees, renters or occupants of more than one park, ground or shore in Baltimore *517
County, all of which may have been rented, leased or hired, on the particular day mentioned therein, to different parties." In the first place, the indictment alleges that the traversers "being then and there the owners of a certain park," etc., and it does not allege that they were lessees, renters or occupants. But the case of P.W. B.R.R. Co. v. State,
So although it might be better in such case as this to be more specific as to the location of the place, that was not essential to the validity of the indictment. Nor do we think it necessary to allege by whom the liquor was drunk or to be drunk. So far as the latter is concerned it would practically nullify that provision of the statute, if it was necessary to allege and prove by whom the liquor was to be drunk, for in the first place even if the traverser knew by whom it was to be drunk it would generally be impracticable, if not impossible, for the State to get such information, and if the indictment must allege and the State must prove the names of such persons, the traverser might testify that they were not the persons and it would be impossible for the State to meet his evidence. But it is not likely that the traverser himself would know, as he could not well tell who would be present or who would drink liquor there. It is not the kind of case in which it would be required to allege that it was to be *518 drunk by persons unknown to the grand jurors, as it is perfectly manifest that they could not know. Then as to the allegation that the beer "was then and there drunk" there can be no valid reason for requiring the State to allege and prove the names of the persons by whom it was drunk. In the first place, if it be not necessary, as we hold, to give the names of the persons by whom the liquor was to be drunk, we do not understand how the indictment could be held to be defective when it alleges that the beer was drunk and was to the drunk. In Stearns v.State,
The traversers were not indicted for selling, giving, or in anyway furnishing liquor, but for leasing, renting and hiringout a place for a picnic, etc., at which liquor was drunk and was to be drunk. The language of the statute was literally followed, excepting it was alleged conjunctively instead of disjunctively. The general rule is that when an offense is created by statute the indictment is sufficient if it follows the language of the statute. State v. Dent, 3 G. J. 8, 11;Parkinson v. State,
The rulings on the demurrer in Mincher v. State, State v.Falkenham and Simond v. State,
The only question which has given us any difficulty is whether the indictment should not have alleged to whom the park, ground and shore were leased, rented and hired out, or, if unknown to the grand jurors, should have so alleged. It is not easy to understand why the name of the party to whom the property was leased could not be known to the State's Attorney and the grand jurors, if there was sufficient evidence to justify the indictment for leasing the property, but if there be such a case it could be alleged that the person to whom it was leased was unknown. After thoroughly considering the question, we have concluded that the indictment against the Vanuras is defective, in not alleging the name of the person to whom the property was leased, rented or hired out, or alleging that it was unknown to the jurors, if such was the fact. It is possible that persons might take possession of the property without the owner's knowledge, and in his absence, and use it for a picnic, etc., where liquors were drunk or to be drunk, and as it can be readily ascertained who the lessee was the traversers ought to be informed as to whom it is contended they rented the property. In cases which are more or less analogous, the name of the lessee is stated in the indictment. For example, it is said in 14 Cyc. 500, that an indictment of the lessor for renting a house for bawdy purposes should give the name of the lessee, or state some reason for not giving it. In Smith v. State, 6 Gill, 425, our predecessors said that an indictment for leasing to *520 another a house to be used as a common bawdy house must contain a certain description of the crime and a statement of the facts by which it is constituted. It is there said that it need not state when the lease commenced or was to end, as "it would be in vain to prosecute, if in order to support the indictment, this proof, that may be in the possession only of the opposing parties, was required." The indictment in that case did allege the name of the lessee. The Court said that the offense charged was described with convenient certainty, so as to enable the defendant to make his defense and to plead the indictment in bar to any subsequent proceeding.
We find nothing in section 10 which was required to be negatived in an indictment under section 9F as suggested by counsel for the appellants. It follows that the judgment against the Vanuras must be reversed, but, of course, they can be reindicted and tried.
(b) Most of what we have said above applies to the indictment against Benesch. He was indicted under what we have denominated paragraph (b) and hence there was no such question in his case as we have just said made the indictment in the Vanura case defective. It is charged that he did then and there hold, conduct, give and take part in a certain picnic. etc., following the language of the statute. For reasons stated above, we find no such defect in the indictment against him as to require the judgment against him to be reversed, and it will be affirmed.
Judgment in case of Anton Vanura and Lizzie Vanura v. State (No. 54 Court Docket, Oct. Term, 1916) reversed.
Judgment in case of Moritz Benesch v. State (No. 53Court Docket, Oct. Term, 1916) affirmed, the appellant to paythe costs, including one-half of the cost of printing the brieffor the State. *521