Swann v. State

Irving, J., delivered the opinion of the Court. The appellant was indicted in the Criminal Court of Baltimore for selling liquor'on Sunday. The indictment •contained three counts, and in each of them a conviction of a former offence of like character was set out in order to make the offence, by it charged, a second offence, and to be punished accordingly. After the testimony was closed, and the case had been argued and submitted to the jury, before retiring for consultation the jury asked the Court whether they could find a verdict for a first offence ?

In reply, the Court instructed the jury, “that under the indictment they could only find a verdict of 1 guilty of a second offence.’ ” To this instruction of the Court exception was taken, which presents the sole question for consideration. The record shows that the jury found a verdict of “ guilty as of second offence.” ■ In numerous cases this Court has decided, that under the Act of 1812, ch. 316, bills of exception are allowable “in-criminal cases in the like manner and to the same ⁴²⁵ extent” as they are allowed in civil cases. Rhinehart vs. State, 45 Md., 455 ; Archer vs. State, 45 Md., 460 ; McGrath vs. State, 46 Md., 632 ; Kearney vs. State, 46 Md., 423 . And in numerous cases in this Court, since the Act of 1872, cln 316, and since the obiter construction of it in Broll vs. State, 45 Md., 356 , the Court has entertained and passed upon rulings of the lower Court during the trial, other than upon questions of evidence.

Waters vs. The State, 51 Md., 435 ; Turpin vs. The State, 55 Md., 462 ; Zimmerman vs. The State, 56 Md., 536 ; Bell vs. The State, 57 Md., 108 . It has uniformly been held, that the jury, under the State Constitution, are judges of both law and fact, and that they are not bound by any instruction the Court might choose to give, such instruction being only “advisory.” Wheeler vs. The State, 42 Md., 569 ; Forwood vs. State, 49 Md., 537 ; Bloomer vs. State, 48 Md., 539 . It has never been decided, however, that if the Court should, in the exercise of its