Hall v. State

Burke, J., delivered the opinion of the Court. The appellant was indicted, tried and convicted in the Circuit Court for Baltimore County for the sale of beer on Sunday, and was sentenced to- pay a fine of $200.00 and costs, and her license was suppressed. She demurred to the indictment, and also filed a motion in arrest of judgment. The demurrer and motion in arrest were overruled, and the -record before us has been brought here by her appeal from the judgment. ⁵⁷⁹ The Act of 1908, Oh. 179, p. 564, regulates the sale and granting of licenses for the sale of spirituous and fermented liquors in Baltimore County.

It is provided by section 14 of that Act: “If any person having a license under the provisions of this Act, shall violate any of the provisions of this Act, upon conviction thereof, except in the cases enumerated in the next preceding and succeeding sections, he shall pay a fine of not less than $100.00, and no more than $200.00, and on conviction the second time, which fact the Court may ascertain from the dockets of the Court in connection with evidence, he shall pay a fine of $200.00, and his license shall be suppressed.” The appellant asks a rever sel of the judgment for two reasons: First, because of the insufficiency of the indictment; and, secondly, because section 14 of the Act, under which the fine was imposed and the license suppressed, is unconstitutional and void. The indictment contains one count only, and the offense charged is alleged to be the second committed by the traverser under the statute. The statute imposes a severer punishment, viz., the suppression of the license for a second offense against its provisions, than that imposed for the first offense. The portion of the indictment which set out the former indictment and conviction is as follows: “The jurors of the State of Maryland, for the body of Baltimore County, on their oath present that heretofore, to wit, at the September Term of the Circuit Court for Baltimore County, in the year of our Lord one thousand nine hundred and twelve, one Frances F. Hall, late of said County, having then and there a license to sell spirituous and fermented liquors under the provisions of the Act of Assembly of Maryland of 1908, Chapter 179, was indicted by the G-rand Inquest of the State of Maryland, in and for Baltimore County, for the unlawful sale of a certain quantity of fermented liquors, to wit, beer, to a certain Ferdinand Groshaus, on the Sabbath Day, commonly called Sunday, to wit, on the twenty-eighth day of July, in the year of our Lord one thousand nine hundred and ⁵⁸⁰ twelve; and that on the eleventh day of Hovember, in the year of our Lord one thousand nine hundred and twelve, at a session of the said Court, the Circuit Court for Baltimore County, upon the indictment aforesaid, the said Trances T. Hall, was convicted, and judgment was entered by the Court that the said Trances T. Hall pay a fine of two hundred dollars and costs; as by the record thereof will more fully and at large appear; which judgment still remains in full force and effect, and not in the least reversed or made void.” It is contended by the appellant that these allegations of the indictment are not sufficiently definite and cléar to charge a second offense under the statute.

It is well settled that in such cases as this the indictment must set out the former conviction, and the jury by their verdict must find the traverser guilty of such second offense before the penalty provided for the second offense can be imposed. Maguire v. State, 47 Md. 485 ; Goeller v. State, 119 Md. 61 . In Maguire’s Case, supra, it was said: “The law would seem to be well settled that if the party be proceeded against for a second or third offense under the statute, and the sentence prescribed be different from the first, or severer, by reason of its being such second or third offense, the fact thus relied on must be averred in the indictment; for the settled rule is that the indictment must contain an averment of every fact essential to justify the punishment inflicted. Rex v. Allen, Russ & R., 513; Regina v. Page, 9 C. & P. 756; Reg. v. Willis, L. R. 1 C. C. 363; Plumbly v. Conn., 2 Met. 413 ; 3 Whart., C. L., sec. 3417; 1 Bish.

C. L., secs. 961, 963. And this averment of a prior conviction can only be sustained by the production of the record; or a duly authenticated copy of it, sustained by proof of the identity of the person on trial with the one described in the former indictment.