Seick v. State

Pearce, J., delivered the opinion of the Court. The appellant was indicted for selling spirituous and fermented liquor to one Richard Bland, a minor, in violation of sec. 86 of Art 56 of the Code. This section does not provide any increased penalty for a second offense (as is provided by sec. 248 of Art. 27, for selling or giving away spirituous or fermented liquor on Sunday), nor does it allude at all to a second conviction for its violation. The State alleged,' however, that the appellant had been previously convicted of a similar offense in the same Court, and each of the two counts of the indictment set out this former conviction as required in Maguire v. State, 47 Md. 496 , a case arising under the Sunday law, Act of 1866, ch. 66, now sec. 248 of Art. 27.

The traverser demurred to each count of the indictment, and the demurrer being overruled, he went to trial and was convicted and sentenced to pay a fine of $100, from which j’udgment .this appeal has been taken. Counsel for the State, in their brief, allege that sometime after overruling the demurrer, the Court instructed the jury fo make no reference in their verdict to a previous conviction, but this does not appear in the record which discloses nothing more than we have stated above. We have not been referred to, nor have we discovered any ⁷³ reported case' precisely in point, but the principles by which we must be governed, we think; are neither obscure nor doubtful. The contention of the State is, that as the former conviction is no part of the offense here charged, and was introduced only with a view to attach a heavier penalty to the actual offense charged than would otherwise be imposed, the averment of a former conviction must be regarded as surplus-age, and therefore not injurious, while the appellant contends that as the averment was not stricken out, and the indictment went to the jury with that averment as part of the record, after the demurrer was overruled, he was thereby prejudiced, his character being thus practically brought before the jury as a bad character, without his character having been put in issue in any manner sanctioned by the law, and we cannot doubt that this is a correct position.

We have carefully examined all the cases cited by the appellee in support of its contention, and we find that all except one are cases in which the alleged surplusage consisted in the description of the offense charged, and that the single exception, State v. Moore, 121 Mo. 514 , arose under a statute providing a heavier penalty for a second offense, in which the objection was that the indictment was bad for duplicity in setting out the first offense at all, the Court overruling the objection on the same ground taken by this Court in Maguire’s case, supra. If th¿ averment in this case could be regarded as surplusage, it should have been stricken out, which was not done, and the alleged direction of the Court to the jury to make no reference in their verdict to the former conviction, is very different from a direction not to