Howes v. State

Boyo, O. J., delivered the opinion of the Court. The appellant was convicted in the Circuit Count for Anne Arundel County for selling and offering for sale intoxicating liquors in violation of the provisions of chapter 568 of the Acts of 1890, and was sentenced to pay a fine of $600 and costs, and committed to the county jail of that county for three months. From that judgment he took an appeal to this Court. At the January Term thereof the case was heard, and the judgment was affirmed by a divided court.

On the application of the appellant, a re-argument was ordered, and heard at this (April) term. The indictment contained four counts, but a demurrer was sustained to the first and second and overruled as to the third and fourth. The traverser then pleaded not guilty, was convicted by a jury, and the case is before us for review on the demurrers to those two counts. As they present the same objections urged by the traverser, we need only quote from the third, which charges that Waters Howes on the 5th day of July, 1921, “at the county aforesaid, to wit, at the City of Annapolis, in said county, unlawfully did sell to John Elliott certain intoxicating liquors without first taking out a license authorizing him, the said Waters Howes, to sell intoxicating liquors at said City of Annapolis, in said county,” beginning and concluding in the usual form.

The part of section 184 A of chapter 568 of the Acts of 1890, applicable to this case, provides that, “no person after the first day of May, eighteen hundred and ninety, shall sell, offer for sale or keep for sale in the City of Annapolis, any intoxicating liquors except as hereinafter provided, but this shall not apply to sales made by a person under a provision of law or order or decree of a court of competent jurisdiction requiring him to sell personal property, or ⁵³⁵ to sales of cider by the maker thereof not to be drunk on the premises.” It then states what the term “intoxicating liquors,” as used in that and the succeeding sections, shall he deemed to include. The indictment does not in either count negative the expression in the statute, “but this shall not apply to sales made,” etc., and it is contended that such omission makes it fatally defective, and hence the demurrer should have been sustained to the third and fourth counts. The important question, therefore, is whether it was necessary to negative those two exceptions, as we will call them, or either of them. 1. It was contended by the appellant at the original argument, and emphasized at the re-argument, that it was no longer an open question in this State, great reliance being placed on the case of Kiefer v. State, 87 Md. 562 , which was said to he conclusive.

In that ease we had before us section 653 P of chapter 343 of the Acts of 1890 — that act adding a number of new sections to the Public Local Laws of Baltimore City, under the sub-title, “Liquor and Intoxicating Drinks,” which for the most part are very similar to the provisions in the Annapolis statute. The section in the Kiefer case related to sales of liquor on Sunday by licensees. Tt may he as well, in the beginning of our discussion, to say that wre have no intention or desire to recede from the position taken in the case of Kiefer v. State, supra, and we are not unmindful of what we quoted in that case from Stearns v. State, 81 Md. 341 , as the general rule on the subject, that “where a statute contains an exception so incorporated in its enacting clause, that the one cannot he read without the other, the indictment or information must negative the exception, but wben, after general words of prohibition, an exception is created in a subsequent clause or section, it must be interposed by the accused as matter of defense.” kin. JrsTTcu Outkforb remarked in United States v. Cook, 17 Wall. 176 , that “commentators and judges have sometimes been led into error by supposing that the words '"enact ⁵³⁶ ing clause/ as frequently employed, mean the section of the statute defining the offense, as contradistinguished from a subsequent section in the same statute, which is. a misapprehension of the term, as the only real question in the case is whether’ the exception is so incorporated with the substance of the clause defining the offense as to constitute a material part of the description of the acts, omission or other ingredients which constitute the offense.” In that case, Mr. Justice Clifford also said: “Text writers and courts of justice have sometimes said that if the exception is in the enacting clause, the party pleading must show that the accused is not within the exception, but where the exception is in a subsequent section or statute, that the matter contained in the exception is matter of defense and must be shown by the accused.

Undoubtedly that rule will frequently hold good, and in many cases prove to be a safe guide in pleading, but it is clear that it is not a universal criterion, as the words of the statute defining the offense may be so entirely separable from the exception that all the ingredients constituting the offense may be accurately and clearly alleged without any reference to the exception.” There is nothing in our own decisions in conflict with what we have just quoted. In the Kiefer case, after referring to the general rule, we said: “The rule as thus announced is, however, not strictly -accurate, as applicable to all cases, and sometimes may be misleading. The real question to be determined is whether the exception is descriptive of the offense or so incorporated in the clause creating it as to make it a part of it. The exception may be of such a character as that the facts are only within the knowledge of the accused, and not such as the prosecuting officer or the grand jury can readily obtain.

In such case the burden would generally be on him to establish them, even if the exceptions were negatived in the indictment, but, on the other hand it is necessary that the accused be brought within the scope and meaning of the statute.” In that case we used, as an illustration ⁵³⁷ of the latter statement, Bode v. State, 7 Gill, 362 (should have been 326). There the prohibitory clause was within the first section of the act, hut the court determined that, as that section provided that, for a second conviction, the license of the person offending* should he suppressed, and as the second section made it the duty of the treasurer, or other person whose duty it was to have the tavern licenses prepared, to have inserted in said licenses the clause especially excepting the Sabbath day from the operation of such licenses, the act was. to he construed to refer only to licensed tavern keepers. The Court said: “There were no exceptions to be negatived by the indictment; and it was not a case of exemption, to he interposed by the accused, as a- matter of defense.” In State v. Price, 12 G. & J. 260 , it was held, quoting from the syllabus, that “where the enacting clause of a penal act contains an exception, it is not indispensable that an indictment framed under it should set forth an express negation of it. Where the charge preferred ex natura rev as conclusively imports -a negation of the exception, as if such negative had been in express terms, no rule of construction requires more.” The Court said, after referring to the contention of the appellee in the case that if there be- an exception, in the same clause which creates the offense, the indictment must show, negatively, that the defendant or subject of the indictment does not come within the exception: “In announcing* such a principle, the court must be understood as asserting it in reference to the cases then before it, and those of a similar character.” The case of Stearns v. State, supra, clearly adopted the principle we refer to.

This Court did not reverse that ease because the exception had not been negatived, but by reason of the information being defective for duplicity. ISTor did we intimate that the fact that the exception was separated from the general words of prohibition by a semicolon, instead of a comma, or commenced with the word “provided” instead of “'except,” “except that,” or something of that kind, in any ⁵³⁸ way affected our conclusion on that point, hut on the contrary we recognized it as an “exception,” although we also spoke of it as a “proviso,” and based our decision on the ground that, “the exception contained in the proviso of the statute is sufficiently negatived by the averment in the information itself.” On page 344 of 81 Md., that is clearly stated by Judge Bbiscoe. The information alleged that the offense was committed by gambling, making books and pools, etc., in Anne Arundel County, on races which took place at Sheepshead Bay race tracks in the State of New York. We held that that suffipientK' negatived the exception in the statute, as to races held within the grounds of an agricultural association within this State. .

We refer to these cases at some length because we believe they materially reflect upon some points we will hereafter make in reference to the exceptions now being considered, and because we are inclined to believe that the general rule on ■ the subject has been misleading, as we said in Kiefer’s case, it sometimes may be.' Some of the decisions, among the many we have examined, seem to go on the theory' that in order to determine what is conclusive all that is necessary is to see .where the “exception” or “proviso,” if the term be preferred, is, and if it is in or near “the enacting clause” it is an exception, which must be negatived, but if it is further down the line it need not be. The above cases show: this does not necessarily follow. It may be so situated and worded as to settle the question — as in the Kiefer case there can be no doubt where it belongs, while in such an one as State v. Knowles, 90 Md. 646 , it is equally clear as to where it should be put. In such cases the general rule may be sufficient, without any or much discussion of it, but there are many cases which require closer and more careful consideration in order to determine where they belong.

This is clearly pointed out in State v. Abbey, 29 Vt. 60 , where it is said, “The question is whether the exception is so incorporated with, and becomes a part of the enactment, as to constitute a part of the defini ⁵³⁹ tion or description of the offense; for it is immaterial whether the exception or proviso be contained in the enacting clause or section, or be introduced in a different manner. It is the nature of the exception, and not its location, which determines the question.” That court also said that the question did not depend upon any distinction between the words, “provided” and “except,” as they may be used in the statute. See also State v. Connor, 142 N. C. 700 . By reference to chapter 343 of the Acts of 1890, regulating the sale of intoxicating liquors in Baltimore City, it will be seen that section 653 A uses the same language in the beginning as the Annapolis act does, but after the expression “except as hereinafter provided,” and just before, “but this act shall not apply to sales,” etc., there is a semicolon, instead of a comma, which is in the Annapolis act.

There might have been periods in both, so far as the meaning of the provision is concerned. The “general words of prohibition,” as they are called in the rule quoted above from Stearns v. State, in this section are separated from the provision “but this does not apply to sales,” etc., by the expression “except as hereinafter provided.” That refers to the' provisions for the obtention of licenses, the regulation of licenses, etc., which constitute fourteen sections of this statute. One of them (section 184 0) expressly provides: that “druggists and apothecaries in said city shall not be required to obtain licenses under the provisions of this sub-title,” but goes on to provide that they shall not sell intoxicating liquors except upon prescriptions of regular physicians, and has a number of regulations in reference to' them. It is not pretended that it is necessary to negative the exception in favor of druggists and apothecaries, and the reason given for not doing so is simply because that is in a subsequent section, although, as we will show later, there were good reasons in reference to the sales following the expression, “but this shall not apply,” etc., which do not exist in the case of druggists.

There has been no explanation attempted as to why the Legislature ⁵⁴⁰ would intentionally malee a distinction between the three classes, as. the appellant contends it did by the positions in the statute, so that for sales under court orders and sales of eider, the exceptions must be negatived, but need not be for sales by druggists, and, so far as we can see, no valid explanation could be given. 2. There are some decisions which hold that such a provision as “except as hereinafter provided” brings up to the enacting clause the exceptions to which it refers, although they are in subsequent clauses or sections of the statute. The case of Comm. v. Hart, 11 Cush. 130 , which is a leading one referred to by many courts and text writers, so decided, but that was overruled in regard to that question by Comm. v. Jennings, 121 Mass. 47 , and it is not in accord with the weight of authority, although approved by some cases of high standing, such as State v. Abbey, 29 Vt. 60 . But that expression, following as it does immediately after the general words of prohibition, does mark a dividing: line between those words and the exceptions presented by “but this shall not apply,” etc., and it would not bo easy to understand why the latter part of the general rule stated in Steams v. State, supra, is not applicable — that “when after general words of prohibition, an exception is created in a subsequent clause or section, it must be interposed by the accused as a matter of defense.” Those two exceptions are in a subsequent clause, just as much as the provision as to druggists and apothecaries is in a subsequent section, and, with the risk of repeating what we have in substance already said, there can be no logical ground for requiring the exceptions relied on in this case to be negatived, when the one as to druggists, etc., is not so required — especially when we see that, they are separated by a term which refers to fourteen sections of the statute, including the one as to druggists.

They are not interwoven with the words of prohibition, like the exception in the Baltimore statute on Sunday selling, before the court in Kiefer’s case, was. There we did not even have general words of pro ⁵⁴¹ hibition, prohibiting all persons, but only licensees', and the statute was equivalent to saying that “no licensee shall sell or furnish to any person intoxicating liquors on Sunday except a hotel keeper, who may supply them to his bona- fide guests” in the ways therein stated. There was nothing between the words of prohibition and the exception, as there is in this statute, and the statute, after first saying “no licensee,” made the exception, not merely in the same clause but in such way as to require it to be read with and as a part of the prohibitory clause. While here the statute says “but this shall not apply to” the sales designated, and clearly there is no hardship on the person making such sales, if h© is required to show that they were such as the law authorized, instead of requiring the State to charge and prove a negative, as we think appellant was. o.

There was no occasion to make an exception as to sales made under a provision of law or order of court. In the first place, it is only necessary to read the subsequent sections of tins statute to see that it could not reasonably be construed io apply to such sales.