Rawlings v. State , 2 Md. 201 ( 1852 )

Tuck, J,

delivered the opinion of the court.

The motion to dismiss this appeal having been overruled, we are now called upon to decide the various points suggested on the motion in arrest of judgment.

This indictment was found under the act of 1817, ch. 227, which prohibits licensed retailers and persons accustomed to make- and sell distilled spirits, in Calvert, St. Mary’s and Anne Arundel counties, from allowing negroes to be in their storehouses between sun-set and sun-rise, except as therein provided. The first and seventh sections contain the offence and the exceptions.

It is alleged, that the indictment is defective in not stating that the traverser was accustomed to make and sell distilled spirits; and also, in not stating that the negro was not a “traveller putting up or stopping while travelling through the county,” as- mentioned in the seventh- section.

The penalties in the act are directed against-two classes of persons, vizr licensed retailers and persons accustomed to make and sell distilled liquors. This party is described as a licensed retailer, which we think sufficient.. The act applies to both licensed retailers and persons accustomed to make and sell distilled spirits or other liquors, without a license.

It is supposed that the indictment is bad, because it does not allege that the negro, “was not a traveller putting up,” &c. This exception is contained in a proviso to the seventh section of the act, the offence being defined and punished by the first and second sections. It is not always necessary to negative exceptions contained in the act creating an offence. 1 Ch. Cr. Law, 283. The Court of Appeals has stated some of the rules in Bode vs. State, 7 Gill, 330. But, as more particularly applicable to this case, we must distinguish between an exception contained in the enacting clause and one introduced by way of proviso to a subsequent section. An exception in the purvieu must be negatived, a proviso need not be. Bwarris on Statutes, 661. And Lord Mansfield in Rex vs. Jarvis, reported in a note to the case of King vs. Stone, 1 East., 644, said, “what comes by way of proviso •must be insisted on for purposes of defence, but where exceptions are in the enacting part of the law, the indictment must charge that the defendant is not within any of them.” 12 Gill mid Johns, 262. 9 Bac. Abr., Statute L., sec. 3, Bouvier's Ed., 1846. Archb. Crim. Plead., 52.

In the case in 7 Gill, the court held, that the party must be described as a licensed retailer, because it was apparent from the wdiole act, that it wTas designed only to apply to such persons. It was not the case of an exception in favor of particular persons, contained in a section not defining the crime, as this is, but the character of the offence could be gathered only from the entire statute. The persons exempted from the operation of this act are mentioned in the first and seventh sections. The Court of Appeals, in 1 Gill, 59, State vs. JYutwell, decided, that it is necessary to negative a license to the negro, according to the first section, although contained in a proviso to that section; but it does not follow^, that the indictment is defective when the exception contained in the proviso to the seventh section is not also negatived. Indeed, it may be strongly inferred from that case, that no such necessity exists, because that indictment was open to the same objection that is made here, but it was not noticed, either in argument or by the court, and we hardly think that such a point would have escaped notice if it had been deemed available to the defendant.

But then it is said that the State having undertaken to set out this exception in the statute, must do so truly. It is not every misrecital that is fatal. The mistake must be in something material to the plaintiff’s case. In 2 Mod., 99, it is said, “if a party undertakes to recite a statute, and mistakes in a material point, it is incurable; but if he recites so much as will serve to maintain his own action, truly, and mistakes the rest, this will not vitiate the declaration.” It is sufficient, if enough be stated, to bring the case within the statute, or to charge the defendant. Willes, 210, 7 Gill, 330. “Every fact and circumstance laid in an indictment which is not a necessary ingredient in the offence, maybe rejected as surplussage; also, if there be any defect in the manner of stating such matter the defect will not vitiat.e the indictment.” Archb. Cr. PL, 42.

Here the offen.ce is created by the first section of the act. As to the exceptions therein contained, and necessary to be negatived, according to State vs. JYutwell the indictment is good and can be impeached only by invoking the seventh section. We have seen that it is unnecessary to plead this part of the act, because not an essential ingredient in the offence; and therefore, upon the authorities last quoted, the alleged mistake, (the insertion of the word “by,”) is not fatal.

In 1 Chittifs Cr. Law, it is said, “If any defect arise in the recital of a public act which there was no occasion to set out, and the indictment would be good without it, if the indictment conclude generally “contrary to the form of the statute in such case made and provided,” the recital may be rejected as surplussage, and judgment may he given against the defendant; hut otherwise, if it be referred to in the conclusion, as “the said statute,” 276-7, 281. The reason assigned is, that in one case the court is tied down by the terms of the indictment to a particular statute, and if none such exist, there can be no conviction, whereas, under the general conclusion, they may look, judicially, to any statute by which the indictment can be maintained. If, therefore, there had been in this case special reference to the act of 1817, setting out the first section correctly, but misreciting the seventh, the general conclusion would have obviated the present objection.

We have examined the cases referred to by the appellant’s counsel on this point, and do not find that they conflict with our view of the question.

It is also insisted, that this being a private act, should have been set out at length; and Bwarris, 629, is referred to, where he says, “ acts relating to divers particular counties” are private laws. For this he gives us no case or authority whatever. No doubt there are statutes relating to particular counties which are private, and not public acts, but as a general proposition this cannot be correct. And, indeed, in almost the next sentence he says, “though an act be of a private nature, (as if it concern a particular mystery or trade,) yet, if a forfeiture be reserved to the king, it is a public statute;” and in his classification of statutes he speaks of public general acts and public local acts, (page 628.) This act relates to the administration of justice in three of the counties. The act of 1818, ch. 184, extends its provisions to five others. The object was to to regulate certain classes of persons in their dealings with negroes and slaves, as well for the better government of this portion of our population, as to promote peace and order in the community; and to these ends it exacts a forfeiture for the benefit of the county, recoverable on indictment, and in certain cases imprisons the party. On a question like the present, a forfeiture to the county is equivalent to one reserved to the State. The proceeding must be by indictment, and, of course, in the name of the State, and the judges are required to notice judicially, and to give the act in charge to the grand juries. If these qualities are not sufficient to place it in the class of public local laws, we are at a loss to conjecture how one would be framed to attain that object. And, besides, there are many acts limited in their operation to particular counties, which, like the present, have generally, if not always, been enforced as public laws, without regard to the forms requisite in pleading private statutes.

It is also objected that the traverser was tried by the court, when the jury alone is authorised to pass upon the indictments found under this act of Assembly. By the act of 1793, ch. 57, sec. 19, a party indicted was authorised to submit his case to the court; but this act, on the part of the accused, was so far a confession of the crime alleged against him, as to charge him with the costs of prosecution, even if he escaped the punishment prescribed for the offence. For the purpose of saving time and expense, (as we are informed by the act of 1809, ch. 144,) persons indicted were authorised, in their discretion, to submit to the court, without incurring the effect of the confession implied under the act of 1793, and, on the submission, the courts were authorised to hear and decide on the “whole merits of the case.” In effect the court was put in the place of the jury on the question of innocence or guilt of the party, at the same time that they might hear evidence in mitigation of the offence, and decide and pronounce judgment accordingly. It is said that this power is taken away by the fourth section of the act of 1817, in prosecutions arising under that act. The authority here given to the courts is for the benefit of the accused. It is to be exercised only at his election, and in the event of his choosing to waive the trial by jury. This mode of trial is cheaper and more convenient, and in many instances dispenses with forms necessary in jury trials. Looking to the design and effect of this proceeding, we should hesitate to interfere with the exercise of the power, even upon the strongest and most necessary inference from the words of the act of 1817. But we think that there is no ground for any such conclusion, even if a jurisdiction once conferred could be ousted by implication, which, it is well settled, cannot be done.

Another reason assigned is, that it does not appear that issue was joined on the plea of not guilty. Whether this objection would avail if the case had been tried before the jury we need not decide. It is certainly unnecessary for this to appear, on the record, in jury trials before courts of oyer and terminer, and gaol delivery. Rex vs. Royce, 4 Burr., 2084. 1 Ch. Cr. Law, 720. The power of trying cases on submission was first given by the act of 1793, ch. 57, which established the court of oyer and terminer. If, then, that court were now in existence and we were dealing with its judgment, it would seem that the objection now taken would not lie. The same power Was subsequently conferred on the county courts by the act of 1809, ch. 144, but materially enlarged for the benefit of the accused. We cannot perceive any reason why the same forms of proceeding should not be observed in both courts. All the considerations of time, expense and convenience that applied in the former court, address themselves, with at least equal force, to the county Courts, having the same jurisdiction over the subject matter, and more comprehensive powers in its exercise.

It appears that the present traverser entered the plea of not guilty, and “thereupon submitted to the court.” He invited no issue to his plea, as would have been the case if he had “put himself upon the country.” In the exercise of a legal right, he required the court to examine into’ all the circumstances of the charge against him-; the State was left no alternative, but was compelled, of necessity, to go before the tribunal thus selected, as well upon the facts as upon all questions that might arise on the record. We do not think that a technical issue before the court is necessary in such cases. And, in fact, we are satisfied, after inquiry as to the form of proceeding in many of the courts of this State, that this practice has never obtained. Indeed, if this formal issue were allowed, it might have the effect, in most cases, on strict principles of pleading, of narrowing the scope of the court’s inquiry, to such matters only as are cognizable by the jury, and thus deprive the accused of material advantages designed to be afforded by the legislature, in opening the whole case upon the submission. We overrule the motion in arrest of judgment on all the causes assigned at the bar.

It is insisted, however, that the final judgment must be reversed, because the fine is adjudged to the State, when the act of Assembly awards one-half to the informer and the other to the county or owner, according as the negro may be free or slave.- It must be observed that the.penalty is to be adjudged and recovered on indictment in the county court. This proceeding must be in the name of the State, and the party must be fined in the' name of the State, though other persons are ultimately entitled to the money. There are many acts of Assembly under which informers are entitled to share the fine, and some in which it goes to the county, school funds, &c., but there is no instance, as far as we can discover on examination, in which the fine has not been, on the record, adjudged to the State. There is a form of such a judgment on pages 291, 292, 2 Ev. Har.-, in which, after adjudging the fine to the State, and the' payment of costs for the use of the persons who may be entitled to the same, there is an order, “that one half of the said fine be paid to C D, the informer in the prosecution.” The latter clause, technically, is no part of the judgment. Being designed for the benefit of the informer, the traverser can have no interest in the mode of making that entry, or whether it be entered or not. But this form has not been always observed, as we find on examination of some of the cases. In suits on bonds to the State, with collateral conditions, the judgment and release are both in the name of the legal plaintiff, although not entitled to one cent of the amount recovered.

But this defect, if it be one, does not concern the traverser. He is interested in having the proceedings so conducted as to protect him against a second prosecution, and this security the indictment abundantly affords. 1 Gill, 54. Not being injured by the form of the judgment, it will not be reversed at his instance. 3 Gill and Johns., 450. 9 Gill, 439.

Judgment affirmed with costs.