Lansman v. State

³⁹⁹ Briscoe, J., delivered the opinion of the Court. The traverser, in this, case, was indicted and tried in the Criminal Court of Baltimore City, for a violation of section 4-37 of article 27 of the Code, as amended by Chapter 700 of the Acts of 1920, title “Crimes and Phnishmemts.,” subtitle “Sabbath-breaking.” The indictment contained four counts, hut as there was no evidence to support the first and second counts, they become unimportant for the purposes of this case, and will not he considered by us. The third count of the indictment is. as. follows: “And the jurors aforesaid, upon their oath aforesaid, do further present that the said David Lansman on the said twenty-second day of May, in the year of our Lord nineteen hundred and twenty-one, the same day in the year aforesaid being the Sabbath Day, commonly called Sunday, at the City of Baltimore aforesaid, unlawfully did sell certain goods, wares and merchandise, to wit: ten loaves of bread, to one David Bernstein, he, the said David Lansman, not being then and there a retailer selling and delivering the said bread on the said day, as aforesaid, contrary to the form of the act of assembly in such case made and provided, and against the peace, government and dignity of the State.” The fourth count, is. the same as the third except the words “dispose of” are used instead of and as a substitute for the word “sell.” These counts, it will he seem, are based upon section 437, chapter 700, of the Acts of 1920', which, reads in part as follows: “Ho person in this Sítate shall sell, dispose of. barter, or deal in, or give away any articles of merchandise on Sunday, except retailers, who> may sell and deliver on said day tobacco, cigars, cigarettes., candy, sodas and soft drinks, ice, ice cream, ices and other confectionery, milk, bread, fruits, gasoline, oils and greases.” ⁴⁰⁰ The traverser filed a special plea to the third and fourth counts of the indictment, to the following effect: that he is a manufacturer of bread in the Chty of Baltimore and was such on the 22nd day of May, 1921; and that on the day aforesaid, he was also a retailer, and still is, and retailed his bread as well as wholesaling the same and under the act of the General Assembly of Maryland of 1920, chapter 700, he being a retailer and' conducting his manufacturing retail ■business and of selling bread at retail at 259 N. Exeter Street, in said City of Baltimore, had the light to1 sell and deliver on Sunday, his bread so manufactured and this fact, the defendant makes known to the court, in this his special plea, and which fact, the defendant says relieves him from all liability under the terms of the indictment, in this case filed against him, by reason of the-act heretofore referred to. to wit, the Act of 1920, chapter 700, which among other things provides, “No person in this State shall sell, dispose of, barter or deal in, or give away any articles merchandise on Sunday, except retailers, who may sell and deliver on said day, tobacco, cigars * * * bread, etc.” Wherefore your defendant prays judgment for'him by reason of this his special plea, etc. The State demurred to the special plea, and its demurrer was sustained. The traverser thereupon, upon trial before a jury, pleaded not guilty.

He was convicted and sentenced to pay a fine of twenty dollars and costs. From this judgment he has appealed. The objection that the special plea was not a proper