Spielman v. State

Crain, J., delivered the opinion of this Court. In this case the defendant below was indicted in the Circuit Court for Washington County, for violating, in November, 1864, the license laws of this State. The indictment contains six counts, five of which charge him with a violation of the license law generally, but the second count, charges him with violating it, by selling general merchandise to William H. Beard. To this indictment a special plea was filed by the defendant below, setting forth that he, together with a certain Emanuel Bombarger, in May, 1864, obtained as partners a trader’s license, in and on which the name of each of the partners was set out in full, and opened and prosecuted business thereunder, in Washington county, until July, 1864, when the partnership was dissolved, and he became the assignee of the partnership effects, by purchase from Bombarger, and continued the business, and that he had not in any other way or manner sold, disposed of, traded or bartered any goods, wares or merchandise.

The State demurred to this plea, and judg ⁵²⁴ ment was entered on the demurrer by the Court below against the defendant. It is to review this judgment, that this writ of error has been issued. By the demurrer all the pleadings are open for review, and it is an established principle in pleading, both civil and criminal, that on a demurrer the Court gives judgment against the party whose pleading was first defective, notwithstanding the defect of the pleading demurred to. It is insisted by the plaintiff in error, that the first error was committed by the State, because all the counts in the indictment, except the second, were defective, in not setting out the name of the person to whom the merchandise was sold, or in not alleging that the person or persons to whom sold were unknown.

We are of opinion, that according to the law, as expounded by this Court in the case of the State against Nutwell, 1 Gill, 54 , and Capritz vs. The State, 1 Md. Rep., 569 , the defect in the first, third, fourth, fifth and sixth counts of the indictment is fatal; nor do we think that the 18th chapter of the Act of 1864 can cure the ' defect, because that Act referred only to the measure of proof, and did not pretend to describe an offence. The reasons assigned by the learned Judge who delivered the opinion of the Court in the case of the State against ■Nutwell, for considering the indictment in that case defective,