*1 120 STATE. KENNY vs.
Syllabus. J. THOMAS KENNY STATE MARYLAND. OF indictment; same Twice in invalid retrial jeopardy: offense. indictment punishment; “Second heavier offense”: violations; Liquor verdict. laws: or others. by licensee is , which a is indicted Where the indictment under traverser again for the declared invalid be indicted and tried he may 125 p. same offense. An of a as licensee under violating (which 179 of the Acts section relates licensees found a second time punishment guilty violating void, unless liquor laws), that the was a time of alleges licensee his con- viction for the first offense. pp. 123,124 verdict of in such a does simple “guilty” justify case provided the statute for a penalty offense; jus- tify a sentence for a offense it must from appear the jury verdict that have found the party guilty of such second offense. p.
On an in a appeal, ease, criminal where an error in judg- ment or sentence itself is ‘the error committed below, the Court of may reverse the Appeals judgment and record, remand the in order that a proper judgment bemay pro- uounced the indictment and conviction. p. 24th,
Decided June from the Circuit Court for Appeal Baltimore County. are facts stated opinion of the Court. The cause before argued Boyd, C. J., Briscoe, Stockbridge and Constable, Thomas, Pattison, Burke, JJ.
KEKNY vs. Gook on Elmer J. Lawrence whom William H. (with for the brief), appellant-.* *2 submitted Poe, Attorney-General, Allan Edgar a brief for the case on appellee. of opinion delivered J.,
Briscoe, October, of 9th day indicted on the was appellant licensee, aas Baltimore for County the Circuit Court in vio- beer, Sunday, wit, fermented liquor, selling 564), regulating of the Acts of 1908 of Ch. (p. lation of spirituous sale and of licenses sale the granting in Baltimore County. and fermented liquors that no it is provided, person Act, By this Act shall sell a license provisions on the Sabbath day, or any spirituous away give * * * or nor shall give away called Sunday, commonly at his- of business p*ace or fermented liquors spirituous any five o’clock the hours of twelve o’clock midnight between at time. A. M. any it is if hav- the 14th section provided, person any
By a of this shall license violate ing in the thereof, conviction except any provisions, next in the sec- cases enumerated preceding succeeding dollars, shall fine of not less than one hundred tions, he pay than hundred nor more three and on conviction dollars, he shall fine of two hundred dollars, second time pay be suppressed. license shall his heretofore, wit, May charges, Court for Baltimore
Term of the Circuit County, year hundred thousand nine one one Lord, twelve, of our late of said indicted Kenny, county, Thomas J. by State of and for Balti- Inquest Maryland, Grand sale the unlawful certain quantity more County, fermented liquors, wit, beer, certain Sabbath on the Groshans, day, called commonly Ferdinand fifth on the day to wit, May, of our year KENNY Opinion of the Court. that on Lord one thousand nine hundred and twelve; one thousand Lord, twentieth in the of our day June, year the Cir- said, nine hundred and at a session of twelve, afore- cuit the indictment Court for Baltimore County, upon was convicted judgment said said Thomas J. Kenny J. Kenny the said Thomas entered record costs; a fine of two hundred dollars and as pay said will more and at which judg- thereof large appear; fully in the ment in full force and and not still remains effect, least reversed or made void. do aforesaid, their oath aforesaid,
And jurors afterwards,- further that the said Thomas J. present Kenny had to wit. on aforesaid, after he been so convicted our Lord one day eighteenth year August, *3 aforesaid, twelve, nine hundred and the thousand county in the Sabbath aforesaid, the same the day being day, year then there a license to called and commonly fermented the and under 1908, the of of Acts of Assembly o-fthe General Maryland, Baker, did sell a certain a 179, unlawfully Harvey wit, certain of fermented beer, quantity liquor, contrary in made form of the Act of such cases and Assembly to the the of government against peace, dignity provided, the State. the was indictment trav- interposed demurrer by the Court and the below, hut was overruled case
erser, by non of cut. convicted, the He was was tried upon plea it a certified of appears the verdict guilty, by copy upon the 18th filed herein on docket entries day April, 1913, the that the case Court a imposed judgment at the hearing a $200 that the traverser fine of pay costs and sentence, his license be suppressed. concedes in very Attorney-General properly The learned behalf the Court below State, com- brief, his in in sentence, an error imposition this mitted concur. we
KERRY vs.
j simply observed, in verdict this will- case, provided' not justify penalty did “guilty” generally, Court offense, imposed by statute for in this case. in deliv Judge Alvey, State,
In
v.
47 Md.
Maguire
are
authorities
said,.
of this
opinion
Court,
ering
in
sentence
the effect that
order to justify
clear to
the jury
it must
verdict
offense,
appear by.
Thomas
such second offense.
found
party
have
guilty
Wharton,
Commonwealth,
L. sec.
C.
v.
Gratt. 912;
Law,
961.
Crim.
3418; Bishop,
in
us
case,
was followed by
Maguire’s
supra,
ruling
(85
recent
of Goeller
If the error or sentence itself, judgment error committed below case, and remand reverse record, should judgment order that could be below, proper judgment pro- the indictment and conviction. Art. nounced sec. Laws; Public Code General McDonald v. State, 84 v. 90; Md. Md. Lynn *4 an there was error committed the
But, think, we the demurrer indictment. not sustaining was indicted as a for a second licensee, the Acts under 14 of of 1908, Chapter 119, offense, to section relates offenses committed only by pen- license under the Act. provisions the. sons that the indictment the charges While awas it the time the second sale, fails licensee to altogether a licensee when convicted that he for the first allege the indictment was Hence, defective, offense. because the traverser within that class of bring persons did upon KEOTT of the Court. he was under which Act, whom alone the provisions were indicted, designed operate. is
It seems to he that a licensee sells clear, who first offense, liable under section 10 of the Act, Section offense. under section 14 Act, a license to offenses applies persons having committed by had licensee who of the and to a Act, provisions for a been 10 of the first offense. convicted under section Act, In is other a licensee who sells on words, Sunday liable first of a Act, when convicted penalty prescribed by is liable under sec- offense under Act, tion 14 for a second offense. a licensee under he could not be liable -as
Manifestly, as a convicted, until had been for a offense he a first and the offense,- charge omission licensee, convicted leaves that he a licensee when first and renders it defective to this indictment open objection, on demurrer. said, it is it is 7 Gill, .perfectly
In Bode v. in criminal clear the settled of pleading principles it was incumbent on the cases, party bring aver statute, by positive within purview charged who to' class of persons, ment that belonged were whom Sabbath, against restrained from selling Act, in case of its viola provided by alone penalties is, to be denounced. proposition intended were tion, con that the indictment should have incontrovertible think, traverser was its face distinct allegation, tained on thus described. the class of persons within Ch. 1Y9 of the Legislature passing The design of licenses for the the granting was to regulate Acts in Baltimore County, and fermented liquors sale and its for- provisions, penalties title indicates, relate to dealers. licensed are applicable feitures confined to class and prescribed Act limited This a license “having only persons *5 KEUUY 125 Opinion of the Court.
Act”
and amenable
14,
are liable under sections 10
of the Act.
penalties
seen,
it will
however,
Acts
be
1908,
Chapter 179
the Code of
does not
of Article
repeal
“Sabbath
Public General Laws
title
Breaking”,
(1904),
dealers,
so far as it
not licensed
who are
applies
persons,
on
who
or fermented
Sunday
State
v.
section,
violation of
Baltimore County.
Edlavitch,
Seick v.
45 Md.
State
Md.
Popp,
432;
144;
v.
State,
Chapter 179, from who sells on Sunday, prescribed person” “Any under the General Article Law, section 385 of of the Code and as section 28 of the Local Law (1904), all Acts Acts, therewith, or inconsistent repeals parts think, it is that the indictment in this case apparent, properly Law, Law Local and not under the General brought of Article 27 of Code of Public General 1904. laws,
The indictment on face its at the time of the charges offense the had a license to sell “under the Act of the General Assembly Maryland and he 179,” into Court to was brought answer the violation of this the Local Law and not the General Law. Under this state of facts the reference to the Act cannot be treated mere indictment, as contended for behalf surplusage, contention bewill overruled. respect, stated, For reasons demurrer should have been sus- tained below and the indictment quashed. reversed, therefore, will be but inasmuch as judgment, tried valid indictment was not he can be Stearns v. re-indicted and tried 346; 81 Md. again. State, v. Md. Kiefer cause reversed and
Judgment remanded.