State v. Blakeney

Fowler J., delivered the opinion of the Court The traverser was indicted in the Circuit Court for Kent County for the violation of the Local Option Law of that County. The indictment contains five counts. The first two counts charge sales of intoxicating liquors to one George Cadwalader, and the third the giving away of such liquors to Robert R. Calder. The fourth count alleges that the traverser kept and had in his possession spirituous and fermented liquors to be used by said Robert R. Calder, and the fifth that the traverser allowed his place of business to be a depository for such liquors.

Each of these offenses is alleged to be in violation • of the Act of Assembly, known as the Local Option Law of Kent County. The traverser demurred to the whole indictment — and his demurrer which was sustained by the trial Court is based upon the proposition that he cannot be called ⁷¹² •on under one indictment-to answer three distinct criminal charges entirely disconnected. The proposition, as thus stated, cannot be maintained. The general rule is thus expressed in io Encyl.

P. & Pr. (Indict ments), p. 546. “While it is said that the defendant ought not to be charged with different felonies in different counts of the same indictment, as such a course might interfere with his full defense, the joinder of different offenses in the same indictment, in separate counts, is not necessarily fatal to the pleading itself, as appears from the various adjudications holding that such joinder is not ground for demurrer or arrest of judgment, but that the Court may, in its discretion, quash the indictment or compel the prosecutor to elect upon which count he will proceed.” Among the cases cited in the notes to sustain the text is the case of State v. McNally, 55 Md. 562 . The indictment in the case just cited contains three counts charging the traversers with the larceny of a quantity of wheat. In each count it was alleged the wheat was the property of a different owner, and it was contended in support of a motion to quash that the ownership of the property alleged in the indictment to have been stolen, could not properly be charged in the same indictment, as being in different persons and that it was in effect, holding the defendants to answer upon several and distinct charges.

It was held (Bartol, C. J.) that even if the indictment did, as alleged, contain several distinct charges of felony against the defendants it was settled that this would not be a cause of demurrer, or a ground for a motion in arrest after verdict. “Where several distinct felonies are chaiged in the same indictment the rule in England is as stated by Chitty (1 Cr. L. 449m), that the only mode of objecting to such a joinder of offenses is by an application to the Court to quash the indictment or to require the prosecutor to elect.” “This rule of the common law” said this Court in State v. McNally , “exists in Maryland, and in a case where there are several counts in the indictment charging the defendant with more than one distinct and separate felony, it is competent for the Court, in its discretion, either to compel the ⁷¹³ prosecutor to elect upon which he will proceed, or in a clear case to quash the indictment.” “Such a case” continued the Court “does not fall within the provisions of the Code, Art. 30, sec. 82 (Art. 27, sec. 286); because it is well settled that in point of law, it is no objection that two or more offenses of the same nature and upon which the same or a similar j udgmeht may be given, are contained in different counts of the same indictment. It, therefore, forms no ground for a motion in arrest, neither can it be objected to byway of demurrer.” Having thus fully considered the case upon the assumption that the indictment in its several counts charged the traverser with distinct and separate offenses, the Court proceeds to point out that the error committed by the lower Court was in so construing the indictment, whereas it was said to be obvious on the face of the indictment “that the several counts relate to the same transaction,