Kirschgessner v. State

Sloan, J., delivered the opinion of the Court. This appeal is from a judgment sentencing the defendant (appellant) to a fine of $1,000 and confinement in the Harford County Jail for one year for the violation of the local liquor law for Harford County. The defendant, Nicholas Kirschgessner, had been indicted for having sold “at retail to a certain Walter Wiley a certain brewed alcoholic beverage * * * not having then and there a license that permitted said retail sale.” He was found guilty by a jury and sentenced as above noted. The indictment was returned under the local liquor law of Harford County, Acts 1937, oh. 272.

A complete history of the liquor legislation for Harford County will be found in the case of Hill v. State, 174 Md. 137 , 197 A. 795 . The defendant demurred to the indictment, a ground of his demurrer being that the statute is unconstitutional because it provides “cruel and unusual punishment” in violation of the 16th and 25th articles of the Declaration of Rights of Maryland. Article 16 says: “No Law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter”; and article 25 says: “excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted by the Courts of Law.” The defendant in this case was given the maximum penalty provided by the act under which he was indicted, and the ground of the demurrer was that this was so cruel and unusual as to violate the two articles of the Declaration of Rights. No standard was fixed by the two sections invoked as to what is cruel and unusual, so that Legislatures and courts ¹⁹⁸ can only regard these provisions as advisory.

What may be cruel and unusual in one case may be mild punishment in another. It is the province of the Legislature to fix the penalty for the commission of crimes and offenses, and thus limit the power of the courts to impose penalties, and, prior to the year 1906, courts were restrained by the limits, high and low, imposed by statute. By the Acts of 1906, ch. 536 (Code, art. 27, sec. 578) : “In all cases where the law prescribing a punishment for crime fixes a maximum and a minimum penalty therefor, the judge of the Criminal Court of Baltimore and the several judges of the Circuit Courts of the counties may, in lieu of the minimum penalty so prescribed, impose a less penalty of the same character; provided, however, that nothing herein contained shall be construed as affecting any maximum penalty fixed by law, or the punishment for any crime where the law provides one and only one penalty.” In support of this contention that the indictment is demurrable, the defendant cites Foote v. State, 59 Md. 264 , and Mitchell v. State, 82 Md. 527, 532 , 34 A. 246, 247 . In Foote v. State, it was held that the statute providing whipping for wife beating did not violate the 16th and 25th articles of the Declaration of Rights.

The same contention was made in Mitchell v. State, supra, where the traverser was sentenced to fifteen years in the penitentiary for an assault with intent to commit a rape, and this court there said, “Our law inflicts pain, not in a spirit of vengeance, but to promote the essential purposes of public justice. Severity is not cruelty. The punishment ought to bear a due proportion to the offense. Crimes of great atrocity ought to be visited with such penalties as would check, if not prevent, their commission.

It is impossible, in the abstract, to mark the boundaries which separate cruelty from just severity. If the circumstances accompanying a crime are of unusual aggravation, the punishment ought to be unusually severe. But the courts must adopt the methods of punishment prescribed by law.” ¹⁹⁹ In the instant case the trial court did not exceed the penalty fixed by the Legislature, so that we cannot say the bounds of judicial discretion have been exceeded. No other argument having been advanced, the demurrer was properly overruled.

Another point made by the defendant was that “the indictment should have stated that the State’s witness did not have a license entitling him to buy from the wholesaler, since if he had such license no offense had been committed.” It was sufficient that the defendant be indicted in substantially the words of the statute, which was done. Curry v. State, 117 Md. 587, 590 , 83 A. 1030 ; Bosco v. State, 157 Md. 407 , 146 A. 238 ; Wentz v. State, 159 Md. 161 , 150 A. 278 ; State v. Lassatovich, 162 Md. 147 , 159 A. 362 . The defendant testified in his own behalf, and admitted that, armed with a federal license, he was distributing beer from three breweries without having obtained a state license. Guy v. State, 90 Md. 29 , 44 A. 997 ; Guy v. State, 96 Md. 692 , 54 A. 879 ; Curry v. State, 117 Md. 587 , 83 A. 1030 .

This is a separate offense for which the defendant might have been indicted. Code Pub. Loc. Laws, art. 13, sec. 421K, Acts 1937, ch. 272, p. 514.

In the course of the trial fifteen exceptions were taken to the admissibility of evidence, of which the first was abandoned. The second was to a question asked a witness, Walter M. Wiley, as to when he had bought beer at the defendant’s place. The witness had testified before the grand jury three weeks before, and his testimony taken by a stenographer. At the trial he began by saying he was at the defendant’s place on or about October 15th, when the Hopfheiser (Brewery) man was there and gave him two bottles of beer.

Asked, “Have you ever bought any beer from Nicholas Kirschgessner,” he answered, “Not