Bonneville v. State

³⁰⁶ Brune, C. J., delivered the opinion of the Court. The appellants, Walter Johnson and Joseph Weatherly, were separately indicted in the Circuit Court for Somerset County. The indictments against each of them are based upon Code (1951), Article 2B, Section 3(a), as amended by Chapter 58 of the Laws of 1952. That portion of Section 3(a) under which the prosecutions were brought reads as follows: “It shall be unlawful for any person to * * * keep or suffer to be kept on his premises, in his possession or under his charge or control, for the purpose of sale and delivery within this State, any alcoholic beverage except as provided for in this Article.” Each indictment is in two - counts.

The first count charges that the defendant on a specified date and in Somerset County, Maryland, “unlawfully did keep or suffer to be kept on his premises in said county and state for the purpose of sale and delivery within said county and state alcoholic beverage, to wit, whiskey; * * * .” The second count charges that the defendant “at the time and place aforesaid, unlawfully did keep or suffer to be kept on his premises, in his possession, or under his charge and control, for the purpose of sale and delivery within the State of Maryland, alcoholic beverage, to wit, whiskey; * * *.” It will be noted that the second count differs from the first by adding the phrase set forth in the statute, “in his possession, or under his charge and control” and by deleting reference to the specific county as the place in Maryland where the liquor was to be sold. Essentially, these indictments are in the words of the statute; and it is to be noted that they follow it to the point of copying the word “or” and not substituting for it the word “and”. The defendants moved to dismiss the indictments on the ground of duplicity and their motions (which also contained another ground since abandoned) were overruled. Their cases then proceeded to trial before the Court, without a jury; and each of the defendants was found guilty and ³⁰⁷ was sentenced to a fine and imprisonment, the imprisonment being suspended upon condition that the fine be paid.

Their appeals bring up for review only the rulings upon the motions to dismiss; and the question on each appeal is whether or not these indictments are invalid because the offenses charged are stated disjunctively in the words of the statute here involved, using the word “or”, and not conjunctively, substituting the word “and” in place of the word “or”. It is, of course, true that where an indictment is laid in the words of the statute, it will ordinarily be sufficient. State v. Petrushansky, 183 Md. 67 , 36 A. 2d 533 . However, where the statute forbids the doing of any of several acts stated disjunctively, it is also well settled in this State that if more than one of the prohibited acts is charged in a single count of an indictment, the word “and” must be substiuted for the word “or”.

An indictment so framed is not bad for duplicity; and at the trial, the particular offense may be established by proof of any one of the acts charged. Leon v. State, 180 Md. 279, 286 , 23 A. 2d 706, 710 ; Stearns v. State, 81 Md. 341, 345 , 32 A. 282, 283 ; Thomas v. State, 173 Md. 676 , 197 A. 296 ; Sturgill v. State, 191 Md. 75 , 59 A. 2d 763 . Likewise, such an indictment is not bad for uncertainty. Sturgill v. State, supra.

See also Reynolds v. State, 141 Md. 637 , 119 A. 457 . Cf. Pritchett v. State, 140 Md. 310 , 117 A. 763 , where separate offenses disjunctively stated in a statute were held properly charged in separate counts of an indictment. As a matter of procedure, a motion to dismiss the indictment under Rule 3 of the Rules of Criminal Practice and Procedure, which has superseded a demurrer in cases where a demurrer would previously have been appropriate, is proper to test the sufficiency of the indictment.

See State v. Lassotovitch, 162 Md. 147 , 159 A. 362 . The particular defect here charged is not one which might be overcome by furnishing a statement under Code (1951), Article 27, Section 708. That sec ³⁰⁸ tion merely dispenses with the necessity of specifying in an' indictment the particular kind of intoxicant alleged to have been unlawfully sold or disposed of, provided the indictment sets forth an unlawful sale of intoxicating liquor, and it gives the defendant the right to • obtain from the .State’s Attorney, before trial, a statement of the particular variety of liquor expected to be proved. The State, in its brief, cited Code (1951), Article 27, Section 692, in support of its contentions on the appeals of Bonneville and Sterling, which are referred to below.

Though it did not also cite this Section with regard to the Johnson- and Weatherly appeals, with which we are now concerned, it has been suggested that this Section prevents a reversal of the judgments against them. That Section, which had its origin in the Acts of 1852, Chapter 63, provides in part: “No .indictment or presentment * * ? shall be quashed, nor shall any judgment upon any indictment * * *, whether after verdict, by confession or otherwise, be stayed or reversed for” any of a number of specified defects “or by reason of any mere defect or imperfection in matters of form which shall not tend to the prejudice of the, defendant, nor for any matter or cause which might have been a subject of demurrer to the indictment * * It seems too well settled to require extensive discussion'that Chapter 63 of the Acts of 1852 did not preclude review on writ of error or appeal of the sufficiency of an indictment challenged by demurrer in the trial court. Such has been the consistent holding of this Court since Cochrane v. State, 6 Md. 400 , decided in 1854. In the following cases, in addition to the Cochrane case, in which this statute has been referred to - in the opinion of -this Court or has been urged upon this Court by the State, an indictment (or one or more counts thereof) sustained by the trial court as sufficient has been held insufficient by this Court and a conviction based thereon has been reversed: Spielman v. State, 27 Md. 520 (where a demurrer interposed by the State to a plea ³⁰⁹ filed by the traverser was sustained by the trial court, but was held by this Court to mount up to the indictment, which was held defective, and the conviction was reversed) ; Kearney v. State, 48 Md. 16 ; Avirett v. State, 76 Md. 510 , 25 A. 676 .

See also State v. Butler, 72 Md. 98 , 18 A. 1105 , where, after conviction and after the defendant had served a part of. his sentence, he was permitted by the trial court to withdraw his plea and to demur, and his demurrer was sustained. It was held that the statute did not impair the revisory power of the trial court over its judgments. There are numerous cases in which this Court has applied the statute and has declined to consider the sufficiency of the indictment where no demurrer was interposed, and has indicated that if a demurrer had been filed, the question would have been considered. See, for example, McCurdy v. State, 151 Md. 438 , 135 A. 161 , and cases therein cited.

In Reynolds v. State, 141 Md. 637 , 119 A. 457 , already referred to in connection with the proper form of pleading, the Court cited the statute in question to show that it was not necessary to pass on a certain matter sought to be raised by a motion to quash filed after verdict which could have been raised by demurrer but stated that it was only necessary to pass on the demurrer (which had been filed below and had been overruled), and then proceeded to do so. Chapter 388 of the Acts of 1867 (Code (1951), Article 75, Section 10) did not create, but clearly recognized, the right to demur in criminal as well as in civil cases; and it expressly permitted the defendant to plead over if his demurrer was overruled, without withdrawing his demurrer, and provided that “upon appeal or writ of error [he] shall have the questions of law arising upon the demurrer decided and determined as fully to every intent as if the party demurring had not pleaded over.” It will be noted that this Act is subsequent to’ the Act of 1852; but in view of the language of the 1852 statute and the construction of it since 1854, there is no con ³¹⁰ flict between the two. If there were, the later statute would prevail. The particular portion of the statute now sought to be invoked is that dealing with matters of form, not prejudicial to the defendant.

We have found no case in which it was applied where a demurrer or its equivalent had been seasonably interposed. It was relied on .in Hutson v. State, 202 Md. 333 , 96 A. 2d 593 , where the trial court had permitted the indictment to be amended by correcting the name of someone other than the defendant before the jury was sworn (thus not falling under Code (1951), Article 27, Section 689), and this Court held that the amendment was unnecessary and nonpre judicial. An examination of Rule 3 and Rule 9 of the Rules of Criminal Practice and Procedure and of the Reporter’s Notes will show that demurrers and motions to quash were abolished by name, and motions to dismiss were substituted for them, and to this extent Rule 3 was expressly declared (by Rule 9) to supersede Section 692 of Article 27 and Section 10 of Article 75 of the Code. The points which theretofore could have been raised by any of the pleadings which were abolished by name continued to be available if incorporated in motions to dismiss and Rule 3 seeks to have all such matters raised before trial which can be so raised.

(Exceptions are made to preserve rights to object at later stages to lack of jurisdiction or failure to state an offense.) We hold, as did our predecessors, that an indictment charging offenses in the alternative is not sufficiently definite, and that such a defect is not merely one of form, and therefore Article 27,