162 A. 709 | Md. | 1932
The appellant in this case was employed as a telegraph operator by the General News Bureau, Incorporated, and was convicted of acting as its agent in Maryland, contrary to section 121 of article 23 of the Code, when it had not complied, as a foreign corporation, with the requirements of the state law. As in Vogelv. State,
One of the exceptions in the present record was reserved because of the court's action in overruling a plea of former jeopardy. The ground of the plea was that the appellant had *280 been tried and acquitted under an indictment charging him with having served as an agent of the General News Bureau, in violation of the statute cited, on a specified date (November 18th, 1931) next succeeding that mentioned in the indictment upon which he was for the second time brought to trial. It was alleged in the plea that the two indictments were based upon the same facts, the only variance being in the specification of the day on which the offense was said to have been committed. The contention is that if the service rendered by the appellant for the foreign corporation was a violation of the statute, it was a continuing offense for which he could be tried only once with respect to the period prior to the institution of the criminal proceeding which resulted in his acquittal.
Upon the evidence in the record it is clear that the employment of the appellant by the General News Bureau was continuous during the period in which the days designated in the two indictments were included. His work as a telegraph operator, both on the 17th and 18th of November, was performed in pursuance of one and the same engagement. It is a well-recognized rule that an acquittal or conviction resulting from a trial for an offense which is a continuing course of conduct bars a second indictment charging the commission of the same offense prior to the beginning of the first prosecution. 16 C.J. 268 and cases there cited. In Statev. Jones,
As Judge Pattison said in Gilpin v. State,
The acquittal of the appellant when tried upon the charge which referred to November 18th was a determination that his conceded work as telegraph operator on that day did not make him liable to prosecution as an agent of the forign corporation by which he was employed. In view of that adjudication, and of the rule we have stated, he should not be compelled to undergo another trial on the charge of having performed, on the preceding day, the same unchanging and continuous service.
When first enacted by chapter 270 of the Acts of 1898 (section 109C), the statute under consideration prescribed a fine of $100 "for each and every day" on which persons affected by its provisions should act in the prohibited capacity. As amended into its present form by chapter 240 of the Acts of 1908 (page 52, sec. 69), the statute discards the principle of cumulative penalties and provides simply for a fine of $200 to be imposed upon an officer or agent of a foreign corporation who transacts business for it in this state when it has failed to comply with the Maryland law.
The case of Keller v. State,
In our judgment this appeal presents a typical case for the application of the rule we have stated in regard to continuing offenses, and the plea of former jeopardy should have been sustained.
The rulings of the trial court on the admissibility of certain evidence were correct, and were fully supported by the decision in Pick v. State,
Judgment reversed, and new trial awarded.