Kiefer v. State

Boyd, J., delivered the opinion of the Court. The appellant was indicted under the local law of Baltimore City, hereinafter stated, for furnishing intoxicating liquor on Sunday. There are four counts in the indictment, but as they are substantially the same it will only be necessary to state the charge as made in the first count. It is that the appellant on the 30th day of May, 1897, “being the Lord’s day, commonly called Sunday, at the city aforesaid, being then and there under a license from the said State to sell, offer for sale and keep for sale in said city, intoxicating liquors, unlawfully did furnish intoxicating liquor to Conrad Miller, contrary,” etc. A demurrer was interposed and being overruled the traverser was tried, convicted and sentenced to pay a fine and costs.

An appeal ⁵⁶⁴ was taken and the sufficiency of the indictment is the only question before us. It is contended that the offence is not sufficiently described in the indictment because it does not allege the particular kind of intoxicating liquor that was furnished. But chapter 429 of the laws of 1890, provides that “ in any indictment for the unlawful sale or disposition of spirituous or fermented liquors or lager beer, it shall not be necessary to specify the particular variety, provided the indictment sets forth an unlawful sale or disposition of intoxicating liquor, but the defendant on application to the State’s Attorney before trial, may obtain a statement of the particular variety of liquor expected to be proved. ” It is contended, however, that the statute is unconstitutional because it is contrary to the Declaration of Rights of-this State and to the provisions of the 14th Amendment to the Constitution of the United States, inasmuch as it seeks to deprive the traverser of his constitutional right to be informed of the accusation against him, and he may thus be deprived of his liberty without due process of law. But the statute has made it a crime to sell or furnish “ intoxicating liquors ” on Sunday, excepting as hereinafter stated, and it cannot be said that he is not informed of the accusation against him .when the indictment thus follows the very language of the statute.

Whether or not that of itself, without the aid of the statute above quoted, would be sufficient need not be determined, as it gives the accused the right to obtain before trial a statement of the particular variety of liquor expected to be proven. He is thus informed of the kind of intoxicating liquor he is charged with furnishing. The practice thus authorized by the Legislature is not more calculated to work a hardship on him than that which has always been permitted, which enables the State’s Attorney to include in the indictment as many counts as he may deem necessary to meet any uncertainty in the evidence thus embracing, it may be, every variety of intoxicating liquors, and we cannot understand how it can be said to be in violation of the constitutional provisions of this State or ⁵⁶⁵ of the United States. But as this Court has so recently-sustained indictments for false pretences (the punishment for which may be confinement in the penitentiary), under the provisions of a statute of the same character (Art. 27, sec. 288 of the Code) we deem it unnecessary to discuss this branch of the case further.

Carnell v. State, 85 Md. 1 , and Jules v. State, 85 Md. 305 . If that were the only ground of error we would have no hesitation in affirming the judgment of the Court below, but another objection has been urged to the indictment which in our opinion has more merit. Chapter 343 of the laws of 1890 added a number of new sections to the Public Local Laws for Baltimore City under the sub-title “ Liquor and Intoxicating Drinks,” including section 653 P (now section 682 of the new charter of Baltimore), which is as follows : “ No licensee under this Act shall sell or furnish to any person intoxicating liquors on any day upon which elections are now or hereafter may be required by law to be held, nor on the Lord’s day, commonly called Sunday, except that if the licensee is a hotel keeper he may supply such liquors to be drunk in their rooms, or with their meals to bona Jide guests, nor between the hours of twelve o’clock midnight and five o’clock, A. M. at any time, nor except in hotels, shall conduct his business in any place to which an entrance shall be allowed other than directly from a public traveled way; provided,” etc. Omitting the other offences, that with which we are now concerned would read as follows : “ No licensee under this Act shall sell or furnish to any person intoxicating liquors * * * * * * on the Lord’s day, commonly called Sunday, except that if the licensee is a hotel keeper he may supply such.liquors to be drunk in their rooms or with their meals to bona Jide guests.” As will be seen above, the indictment simply described the traverser as being “ under a license from said State to sell,” etc., without alleging that he was not a hotel keeper or, if a hotel keeper, that the liquors alleged to have been furnished were not supplied “ to be drunk in their rooms or with their meals to bona Jide guests. ” ⁵⁶⁶ The question therefore presented for our consideration is whether it was necessary to negative, in the indictment, this exception in the statute. The general rule is that an exception in the enacting clause of a statute must be negatived in an indictment whilst one that is not in that clause need not be, but is merely a matter of defence.

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 offence 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 factó 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.

The case of