Cowman v. State

Objections to an indictment, that the act charged ag'ainst the traverser is no offence within the true meaning of the law under which the indictment was framed, and that the law itself is unconstitutional, are subjects of demurrer, and, since the act of 1852, ch. 63, can he raised by a demurrer to the indictment, and in no other way.

Error to the Circuit Court for Anne Arundel county. The plaintiff in error was indicted under the same law as the party in the preceding case, the indictment charging that the traverser “within the corporate limits of the city of Annapolis, did give a certain quantity of spirituous or fermented liquor, to wit,” <fcc., to a person “who was then and there a minor, under the age of twenty-one years, and who did not then and there have a written order from his, the said minor’s, parents and guardian, authorizing the said giving of the said quantity of spirituous or fermented liquor as aforesaid, contrary to the form of the act of Assembly,” &c. The plea was non cul, and upon the rendition of a verdict of guilty, the traverser moved in arrest of judgment. 1st. Because the evidence in this case clearly showed that the traverser went into a public bar-room, in the city of Annapolis, and invited two minors, under the age of twenty-one years, there present, to drink, which they did, and the traverser paid for what they so drank; that the traverser is not a party licensed to sell liquor, and is not engaged in any business of trading in merchandize, and he submits and insists that such an act is no offence, within the true and proper construction of the act of 1858, ch. 55, upon which this indictment is framed. 2nd. Because after the argument of the case before the jury, by the counsel for the traverser, who had argued to them that the act of 1858 was unconstitutional and void, as being in violation of the constitution of this State, the court gave an opinion, and told the jury that the counsel for the traverser had no right to argue to them that said law was unconstitutional, and that the jury had no right to consider the question of its unconstitutionality. 3rd. Because the act of 1858, upon which this indictment was framed, is unconstitutional and void, and no valid judgment can be rendered by the court upon the verdict of the jury in this case. The court (Brewer, J.,) overruled the motion, and imposed the fine prescribed by the law in question, and to correct this judgment, the traverser sued out the present writ of error.