McCracken v. State

McSherry, J., delivered the opinion of the Court. James E. McCracken was indicted in the Criminal Court of Baltimore under sec. 264, Art. 4, Code of Public Local Laws, for selling liquor on an election day. He pleaded not guilty, was tried before the Court without a jury and was convicted. Thereupon the following sentence was imposed, “that James E. McCracken's ¹⁵² license be forfeited, and that he be disqualified from taking out any license for the period of five years, and that he pay a fine of five hundred dollars, and costs amounting to nineteen dollars and sixteen cents, to the State of Maryland, and the parties entitled thereto.” A motion was made the same day asking the Court to strike out that part of the judgment and sentence imposing the fine of five hundred dollars.

This motion was overruled, and a petition was at once filed assigning errors and praying that the record be removed to the Court of Appeals as upon writ of error. The record has accordingly been brought to this Court and is now before us. The section under which the indictment was framed reads as follows: “It shall be unlawful to keep open in the said city on any election day any drinking establishment or bar-room, or any grog-shop whatsoever, or to furnish any spirituous or fermented liquor therein or therefrom; and any person who shall be guilty of violating this section, or of retailing or dispensing any spirituous or fermented liquors on any election day in said city, shall, on conviction thereof, forfeit his license, if he shall have taken out any, and be disqualified from taking out any other license for the sale of such liquors for the space of five years thereafter, and shall, moreover, be liable to a penalty of five hundred dollars, to be recovered by said board of police by civil action in the name of the State” * * * The sole ground of error assigned is that the Criminal Court was without jurisdiction to impose the fine; or, in other words, that under the statute the pecuniary penalty can only be recovered in a * civil action by the board of police in the name of the State, and cannot, therefore, be imposed as was done. On the part of the prosecution it has been insisted that the Act of 1880, ch. 211, as construed by this Court in Snowden vs. State, 69 Md., 203 , provides that the mode of proceeding in all such cases shall be by indictment.

That Act declares that where ¹⁵³ any fine or penalty is imposed by any Act of Assembly for the doing of any act forbidden to be done, or for omitting to do any act required to be done, the doing of such ‘act or the omission to do such act, shall be deemed a criminal offence, to be punished, in Baltimore City, after trial in the Criminal Court at its Saturday sessions, or by indictment therein, and in the counties by indictment in the Circuit Courts. In Snowden vs. State it was held that, “in all instances, proceedings for the recovery of fines must be by indictment,” and that, in the case then being considered, there was nothing in the language of the statute before the Court at that time that made the manner of its enforcement an exception. But there has been a materia] change in the statute law of this State since the date of that decision. Before the Code of 1888 became operative, the Aei of 1880, ch. 211, undoubtedly5^!) far modified the section under which this indictment was framed — being section 211 of Art. 4, of the Local Code of I860 — as to require that the prescribed penalty should be recovered by