84 Md. 299 | Md. | 1896
delivered the opininion of the Court.
The appellant was indicted by the grand jury of Baltimore County for selling goods, wares and merchandise without having a license. An agreed statement of facts was entered into between the State’s Attorney and the traverser’s counsel, wherein the following facts appear: That the traverser had, during the period of time covered by the indictment, a trader’s license which had been issued by the Clerk of the Court of Common Pleas of Baltimore City, where the traverser resided and conducted a store ; that the traverser was in the habit of selling oil from a tank wagon throughout portions of Baltimore County where he had no fixed place of business, and that this oil was taken from his stock in trade in the Baltimore City store and was sold from the wagon in Baltimore County to such persons as desired to purchase it without having been previously ordered by them, and that these were the sales mentioned in the indictment. Under the agreement the case was tried before the Court sitting as a jury. A demurrer to the evidence was filed. This we understand was intended to raise the question as to the legal sufficiency of the admitted facts to establish guilt. No notice was taken of this demurrer by the lower Court, and a verdict of guilty was entered, whereupon a motion in arrest of judgment was filed and was overruled, and final judgment was entered. The first and second grounds assigned in arrest of judgment assert the insufficiency of the evidence to sustain a conviction, and the third is general or not specific. From the judgment of conviction the traverser has appealed.
It has long been held in this State, under the act of 1785, ch. 87, sec. 6, now codified in sec. 2, Art. 5 of the Code, that in prosecutions for the recovery of any “ penalty, fine or damages,” an appeal will lie to this Court upon questions
The record as printed does not show that the traverser was arraigned upon the indictment or that he pleaded thereto, and this failure to arraign and omission to plead is assigned as a fatal error. Under a writ of diminution the record has been corrected and it appears that there was a plea of not guilty though there was no arraignment. It is unnecessary that a party accused of a misdemeanor should be arraigned; but it is indispensible that a plea should be entered to the
By sec. 35 of Art. 56, of the Code, it is provided that “ no person * * other than the grower, maker, or manufacturer, shall barter or sell or otherwise dispose of, or shall offer for sale, any goods¡ chattels, wares or merchandise within this State, without first obtaining a license.” Sec. 36 declares, “ That when any person * * shall propose to sell or barter, or dispose of, or offer for sale, any thing mentioned.in the preceding'section * * . he shall apply to the Clerk of the Circuit Court for the county in which he proposes to cárry on such selling or bartering or disposing of goods, wares, chattels or merchandise * * and a license to offer for sale, issued by said Clerk of Court of Common Pleas, or by the Clerk of the Circuit Court for any county, shall be good and sufficient as a license to offer for sale in every part of the State, provided, that such license shall not authorize the holder thereof to open or carry on any store or fixed place of business for such selling or offering for sale in any other city or county than the city or county in which such license shall be issued * *.”
The 3 5th sec. prescribes who shall take out a license to barter and sell, or to offer for sale, and the 36th sec. prescribes where the license shall be taken out and where it shall be
We find no error in the judgment of conviction.
Judgment affirmed with costs above and below.