Mulkern v. State

Burke, J., delivered the opinion of the Court. The Act of 1908, Chapter 179, made provisions for the regulation of the sale and the granting of licenses for the sale of spirituous and fermented liquors in Baltimore County. The Act, after declaring how and upon what conditions the license might be granted, provided, among other things, in section 10, “That no person having a license under the provisions of this Act shall sell or give away any spirituous or fermented liquors * * * at his place of business between the hours of twelve o’clock midnight and five o’clock A. M. at any time.” The appellant, James A. Mulkern, had been granted a license under the provisions of this Act to sell spirituous and fermented liquors in Baltimore County. He was indicted under section 10 of the Act for having violated the provisions quoted above.

The indictment contained two counts. The first count, after alleging the jurisdiction and that the traverser was a licensed dealer,, under the Act, charged that he “unlawfully did sell a certain William D. LeEevre a certain quantity of fermented liquor, to wit: beer, between the hours of twelve o’clock midnight and five o’clock A. M., 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 second count was identical with the first ⁴³ with the exception that it charged that he gave away the beer. The appellant demurred to the indictment. The demurrer was overruled.

He then pleaded not guilty, and upon the issue joined upon this plea he was tided by a jury, was found guilty, and adjudged to pay a fine of $200 and costs. From this judgment he has prosecuted this appeal. The single question is this: Does the indictment charge the appellant with an offense within the terms of section 10’ of the Act of 1908, Chapter 179 ? The indictment was framed upon that section, and to be valid it must charge the traverser with the statutory offense created and defined by the section.

The offense created by the section is the sale or giving away by the licensee, at his place of business, spirituous and fermented liquors during the prohibited hours mentioned. It is not a violation of this section of the Act for a licensee to sell or give away in Baltimore County spirituous or fermented liquors at a place other than his place of business at any time or during any hour. For such an act he would doubtless be indictable, but the indictment must be framed under a different section of the Act. The indictment omits to state a fact essential to be found before there could be a conviction for the offense created by the section-under which the indictment was framed, viz., that the fermented liquor was sold, or given away at the traverser’s place-of business.

This being an essential fact or element to constitute the offense it was necessary to allege it in the indictment, and the omission of that allegation rendered the indictment fatally defective. It did not describe the offense created by the statute. The rule of pleading applicable to indictments for statutory crimes is thus stated in 10 Ency. Pl. & Prac. 483 to 486: “While it is essential that all the facts constituting an offense must be so stated as to bring the-defendant precisely within the law, it is a rule of universal application that when a statute creates