54 A. 614 | Md. | 1903
The traverser was indicted in the Circuit Court for Kent County for the violation of the Local Option Law of that County.
The indictment contains five counts. The first two counts charge sales of intoxicating liquors to one George Cadwalader, and the third the giving away of such liquors to Robert R. Calder. The fourth count alleges that the traverser kept and had in his possession spirituous and fermented liquors to be used by said Robert R. Calder, and the fifth that the traverser allowed his place of business to be a depository for such liquors. Each of these offenses is alleged to be in violation of the Act of Assembly, known as the Local Option Law of Kent County. The traverser demurred to the whole indictment — and his demurrer which was sustained by the trial Court is based upon the proposition that he cannot be called *712 on under one indictment to answer three distinct criminal charges entirely disconnected.
The proposition, as thus stated, cannot be maintained. The general rule is thus expressed in 10 Encyl. P. Pr. (Indictments), p. 546. "While it is said that the defendant ought not to be charged with different felonies in different counts of the same indictment, as such a course might interfere with his full defense, the joinder of different offenses in the same indictment, in separate counts, is not necessarily fatal to the pleading itself, as appears from the various adjudications holding that such joinder is not ground for demurrer or arrest of judgment, but that the Court may, in its discretion, quash the indictment or compel the prosecutor to elect upon which count he will proceed." Among the cases cited in the notes to sustain the text is the case of State v. McNally,
If this well settled rule applies to felonies, a fortitori will it apply to indictments charging misdemeanors. Thus in sec. 452, p. 279, 1 Bishop's New Crim. Procedure it is said: "By the practice everywhere, distinct misdemeanors may be joined in separate counts of one indictment to be followed by one trial for all and by conviction for each, the same as though all were charged in separate indictments — subject to practical limitations by judicial discretion." And the author states in paragraph 3 of the section just cited that when liquor selling is made a misdemeanor by statute punishable by fine, several counts for distinct sales may be combined in one indictment, and the accumulated penalty imposed. This, as we believe, is the practice, in this State in similar prosecutions in Baltimore City, and in some, at least, of the circuits.
The same general rule, namely that in prosecutions for misdemeanors several distinct offenses of the same kind requiring punishments of like nature may be joined in separate counts in the same indictment is stated in 10 Encyl. Pl. Prac. p. 549, and sustained by numerous authorities both American and English. *714
All of the offenses charged in the indictment now before us are admitted to have been violations of the Kent County Liquor Law, and if for any good reason the traverser did not wish or was unable to meet them all in one trial and before the same jury, he should have made his application to the Court to compel the State to elect. It is not every application of this kind that will be granted by the trial Court. The application is founded on the supposition that the case extends to more than one charge,State v. Bell,
We believe the practice in this State is well settled which allows the traverser to ask and authorizes the Court to require an election in misdemeanors but, as we have said this authority should be exercised with caution and only in cases in which it is clear some right of the traverser will be put in peril by its refusal.
It follows that the rulings of the Court below sustaining the demurrer will be reversed.
Rulings reversed and cause remanded.
(Decided March 31st, 1903.)