Ellingham v. State

Urner, J., delivered the opinion of the Court. The appellant in this case was employed as a telegraph operator by the General News Bureau, Incorporated, and was convicted of acting as its agent in ]\ Dryland, contrary to section 121 of article 23 of the Code, when it had not complied, as a foreign corporation, with the requirements of the state law. As in Vogel v. State, 163 Md. 267 , 162 A. 705 , with which this case was argned, there is an exception to an advisory instruction classifying the appellant, under the evidence, as an agent within the purview of the statute. In our judgment, the evidence in the record does not prove conclusively that his employment as telegraph operator involved any authority or responsibility sufficient to make him an agent of the foreign corporation within the meaning and effect of the act, as we have construed it in the opinion delivered in the companion case.

What we have said in that opinion in reference to the refusal of the court to allow counsel for the defendant to make an argument to the jury in opposition to its advisory instruction applies equally to an exception raising the same question for this appeal. One of the exceptions in the present record was reserved because of the court’s action in overruling a plea of former jeopardy. The ground of the plea was that the appellant had ²⁸⁰ been tried and acquitted under an indictment charging him with having served as an agent of the General News Bureau, in violation of the statute cited, on a specified date (November 18th, 1931) next succeeding that mentioned in the indictment upon which he was for the second time brought to trial. It was alleged in the plea that the two indictments were based upon the same facts, the only variance being in the specification of the day on which the offense was said to have been committed., The contention is that if the service rendered by the appellant for the foreign corporation was a violation of the statute, it was a continuing offense for which he could be tried only once with respect to the period prior to the institution of the criminal proceeding which resulted in his acquittal.

Upon the evidence in the record it is clear that the employment of the appellant by the General News Bureau was continuous during the period in which the days designated in the two indictments were included. His work as a telegraph operator, both on the 17th and 18th of November, was performed in pursuance of one and the same engagement. It is a well-recognized rule that an acquittal or conviction resulting from a trial for an offense which is a continuing course of conduct bars a second indictment charging the commission of the same offense prior to the beginning of the first prosecution. 16 G. J. 268 and cases there cited. In State v. Jones, 201 N. C. 424 , 160 S. E. 468, 469 , the court said: “Wharton defines a continuing offense as a transaction or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time