197 A. 296 | Md. | 1938
The appellant in this case was indicted by the grand jury of Caroline County for the sale of one pint of *678 "intoxicating liquors" at that county. His demurrer to the indictment was overruled, he pleaded not guilty, he was tried and convicted by a jury, and was sentenced to the Maryland House of Correction for a term of six months. This appeal is from that judgment.
The single question submitted is whether the indictment is good. It is attacked on two grounds; one, that it is based on a local statute which was repealed by a general statute, and, two, that it is duplicitous.
The objection that the local statute on which the indictment rests was repealed by a general statute will be considered first:
Code Pub. Loc. Laws, art. 6, sec. 369, is a codification of a part of the Acts of 1910, ch. 34 (p. 679). Code Pub. Gen. Laws (Supp. 1935) art. 2B, is a codification of chapter 2, Acts of 1933, Ex. Sess. The one is a local law designed to prohibit the sale of intoxicating liquors for beverage purposes, under any circumstances, in Caroline County. The other is a regulatory law the purpose of which is to permit, but to regulate, the sale of or traffic in such liquors in those parts of the state to which its provisions apply.
Code (Supp. 1935, art. 2B) is a public general law, but it provides no general system of regulating the liquor traffic uniform throughout the state. On the contrary, its manifest and controlling purpose and intent is, in accordance with the long-established policy of the State, to secure to each of its political subdivisions the option of deciding whether it will permit and regulate or prohibit traffic in liquor therein. Accordingly, while some of its provisions apply to all such subdivisions, they are consistent with either prohibition or with regulation. Others apply to some subdivisions but have no application to others.
It provides for five different kinds of genera of licenses and eighteen subclassifications, Section 3. Of those classifications, either by reason of express exemption, or because of the nature of the license, only one, a wholesaler's license, may be issued for the sale of intoxicating *679 liquor in Caroline County, except on railroads, trains, or steamboats, and, by the express terms of the statute, the holder of such a license is prohibited from selling such liquors to any person in Caroline County other than another license holder.Id. sec. 3, subsec. 2.
Chapter 2, Acts 1933, Ex. Sess., expressly repeals certain public general laws, naming them, and certain public local laws, naming them, but does not repeal any public local law of Caroline County, except in so far as that result may be accomplished by the following omnibus clause: "and all other laws or parts of laws, whether general or local, inconsistent with the provisions of this Act, be, and the same are hereby repealed." Section 2. That act was approved and became effective on December 5th, 1933.
By chapter 523, Acts of 1933, which became a law on April 5th, 1933, twelve new sections were added to the public local laws of Caroline County (Pub. Loc. Laws 1930, art. 6, sec. 375 et seq.) the effect of which was to authorize the issuance of licenses for the sale in that county of lager beer, ale, and porter containing not more than 3.2 per cent. of alcohol by weight, if, but only if, a majority of the votes cast at the "next special or general election" held in Caroline County were in favor of the law. That act was approved at an election held on September 12th, 1933. Certain provisions of that act were amended by chapter 68 of the extraordinary session of the Legislature of 1933, which was approved on December 15th, 1933.
The contention of the appellant is that chapter 2, Acts 1933, Ex. Session., is wholly inconsistent with the provisions of Code Pub. Loc. Laws, art. 6, sec. 369, and effected a complete repeal of that statute. The contention of the State, on the other hand, is that it had no such effect.
In support of his contention the appellant relies mainly on the decision in Green v. State,
But the same thing is not true of the effect of chapter 2 of the Extraordinary Session of the Legislature of 1933 on traffic in intoxicating liquor in Caroline County, for under its terms no license can be issued for the local distribution of intoxicating liquors of any kind in that county. So that the question comes finally to this, Is the fact that under the General Law a license may issue authorizing the licensee to deliver such liquors only to another license holder, and which fails to provide for the issuance of any other kind of license for the sale of such liquor in that county, so inconsistent with the provisions of the local liquor law of Caroline County that they cannot both stand?
As Judge Sloan said for this court in Green v. State, supra: "It has been frequently said in this court and elsewhere that repeals by implication are not favored and will not be so held unless there is some express reference to the previous statute, or unless there is a manifest inconsistency in the two, or their provisions are so repugnant that they cannot stand together.Mayor etc. of Cumberland v. Magruder,
It may be conceded that the general law is inconsistent with so much of the local law of Caroline County as makes it unlawful for any person to sell any kind of intoxicating liquors in that county under any circumstances, because the general law permits a wholesaler to sell such liquor to another wholesaler in or beyond that county, or to the holder of some other kind of license beyond that county, but the two are not so inconsistent that they cannot stand together. The same law which contains that prohibition in the local law, in different sections, contains these exceptions, that such liquor may be sold for medicinal purposes "in compliance with existing laws" by druggists, used for sacramental purposes by churches, and imported in limited quantities for any purpose by individuals. These exceptions are in conflict with the broad terms of section 369, but the Legislature must have assumed that they were not repugnant thereto nor inconsistent therewith, for, after the passage of chapter 2 of the Extraordinary Session of 1933, it, by chapter 68, amended chapter 523 of the Acts of 1933, which provides for the issuance of licenses for the sale of beer, ale, and porter in that county. That would seem to indicate a legislative intent that chapter 2 should not necessarily operate uniformly throughout the State, for the sale of beer in Caroline County can only be licensed under chapter 68, Acts of 1933, Ex. Sess., and chapter 523 of the Acts of 1933, and not under chapter 2, Acts 1933, Ex. Sess. Chapter 2, Acts 1933, Ex. Sess., is not therefore inconsistent with, but complementary to, Code Pub. Loc. Laws art. 6, sec. 369, and the latter act is, except in so far as it prohibits the issuance of a wholesaler's license in Caroline County, or is inconsistent with *683 chapter 523, Acts 1933, and chapter 68, Acts 1933, Ex. Sess., in full force and effect.
Repeal by implication is not favored, and is carried no farther than is required to gratify the legislative intent manifested in the later act. 25 R.C.L. "Statutes," sec. 25; 59 C.J. 1917;Ulman v. State,
The same thing is stated in 59 C.J. 916, in these words: "Where there is sufficient repugnancy or inconsistency between two statutes, or parts of two statutes, to effect a repeal by implication, the earlier statute is impliedly repealed to, and only to, the extent of the conflict, repugnancy or inconsistency." To the same effect is this statement in 25R.C.L. 916: "A repeal resulting from irreconcilable inconsistency and repugnancy between two acts is measured by the extent of the conflict or inconsistency, and if any part of the earlier act can stand as not suspended or affected by the later act, it is not repealed."
Tested by these principles, it cannot be said that these two statutes are so utterly and completely irreconcilable that both cannot stand. Obviously so much of the local law as prohibits the sale in Caroline County of intoxicating *684 liquors by a wholesaler to another license holder was repealed by the general law, but so much of it as prohibits the sale of such liquor in said county other than as allowed by chapter 523, Acts 1933, and Chapter 68, Acts 1933, Ex. Sess., by any person not holding a wholesaler's license under any circumstances is not affected.
Considering next the objection that the indictment is duplicitous, it appears that it charges that the appellant "on the eighteenth day of September in the year of our Lord nineteen hundred and thirty seven, at the county aforesaid unlawfully did sell certain spiritous, vinous, malt or fermented or other intoxicating liquors, to wit: one pint of spirituous, vinous, malt or fermented or other intoxicating liquors to a certain Harvey R. Baker, contrary to the form of the Act of Assembly, in such case made and provided, and against the peace, government and dignity of the State."
It may be noted, that while it charges the defendant with selling "certain spirituous, vinous, malt or fermented or other intoxicating liquors," it fails to specify which of those several kinds of liquor he sold. The statute, section 369 of article 6 of the Code of Public Local Laws of Maryland, makes it unlawful for "any person * * * to sell * * * within Caroline County, any spirituous, vinous, malt or fermented or other intoxicating liquors." The defendant contends that under that statute the sale of any one of the several knds of liquor mentioned is a separate offense, and that since the indictment, following the statute, charges in effect that the defendant sold one kind or another kind, without charging either that he sold all of the several kinds named in the statute, or that he sold some one particular kind of liquor described therein, that it lacks certainty, and is bad for that reason.
The clear weight of authority supports that contention (Wharton, Crim. Proc., sec. 761; Joyce on Indictments, sec. 465; Bishop on Crim. Proc., sec 436; Woolen Thornton onIntoxicating Liquors, sec. 852; Bishop on Stat. Crimes, sec. 244; Stearns v. State,
But where the statute makes the sale of any one of several enumerated kinds of liquor an offense, separating the descriptions by the disjunctive "or," and the indictment charges the sale of the several kinds of liquor enumerated in the statute, separating the descriptions by the disjunctive "or," a different question is presented. Such an indictment either charges that the defendant committed several different offenses, or that he may have committed any one of several offenses, without charging which of them he did commit. As indicated above, such an indictment is, by the weight of authority, defective. For, as pointed out in Woolen Thornton on IntoxicatingLiquors, sec. 852, "an indictment charging a sale of `beer or wine', although it follows the language of the statute, would be bad for uncertainty, because the accused would not know whether he was to meet evidence showing a sale of beer or of wine." And to the same effect is 15 R.C.L. 390, where it is said: "As a general rule, the use of the disjunctive `or' in charging the kind of beverage sold is held objectionable upon the ground that it renders the indictment uncertain. This is particularly true where the beverages named are of distinct kinds as `whisky or brandy', `beer or ale', `spirituous, malt, or other intoxicating liquor', `wines, spirituous liquor or other intoxicating beverage', and the like, although there is some authority of a contrary import." Comm. v. Grey, 2 Gray, Mass. 501; 33 C.J. 722; People v. McBride,
That rule applies with peculiar force to the indictment in this case, which charged that defendant sold "a spirituous, *687 vinous, malt or fermented or other intoxicating liquors." But chapter 523 of the Acts of 1933, approved at an election held on September 12th, 1933, permitted one licensed under its provisions to sell in that county "beer, lager beer, ale and porter" containing not more than 3.2 per cent of alcohol by weight, for consumption off the premises, and, as amended by chapter 68, Acts Ex. Sess. 1933, in certain cases for consumption on the premises.
So that the indictment charged the defendant in the alternative with acts which may or may not have been unlawful, and with acts which were definitely unlawful, without stating any fact or circumstance sufficient to enable the court or the defendant to determine whether the acts which may or may not have been unlawful did in fact constitute criminal offenses.
The right conferred by Code, art. 27, sec. 561, to demand a bill of particulars, could not cure such a defect (31 C.J. 752), for, as said in Howes v. State, supra, a "bill of particulars does not ordinarily cure a defect in an indictment, because it is no part of the pleadings." And, while the court in that case referred to that statute in dealing with a demurrer to an indictment, it did so only to point out that the defendant was not injured by the failure of the indictment to describe the particular kind of liquor sold, because under the statute the State was bound to give him that information upon demand. So that, while that case might be authority for the proposition that, if the indictment here had charged the defendant merely with the sale of "intoxicating liquors," without describing the kind, and without setting forth any exceptions, it would have been good because under the statute the State was required on demand to describe the kind of intoxicating liquor it intended to prove, it could not be authority for the proposition that the right to a bill of particulars would cure the duplicity in an indictment which charged the defendant with some acts disjunctively, any one of which constituted a crime, and with other acts which may or may not have constituted *688 crimes. In other words, "a bill of particulars is not designed to uphold an insufficient indictment, but only to be used where the indictment is sufficient upon demurrer. It cannot change the offense charged nor in any way aid an indictment fundamentally bad, although it may remove an objection on the ground of uncertainty." 31 C.J. 753.
The demurrer to the indictment should therefore have been sustained.
It follows that the judgment must be reversed.
Judgment reversed.
BOND, C.J., dissents. *689