Maguire v. State

Alvey, J.,

delivered the opinion of the Court.

This is an appeal brought here on exceptions, under the Act of 1872, ch. 316.

The indictment is for violating the provisions of the statute in regard to selling, disposing of, or giving away certain articles, among which are spirituous or fermented liquors, on the Sabbath day, commonly called Sunday. The statute is that of 1866, ch. 66, which repealed and re-enacted sections 179 and 180 of Art. 30 of the Code of Public General Laws. The indictment contains three counts ; the first, for selling whiskey on the Sabbath day; the second, for disposing of whiskey on the Sabbath day; and the third, for giving away whiskey on the Sabbath day, the traverser being a licensed dealer. In each of these counts the offence charged is alleged to have been the second committed by the traverser under the statute, and the former indictment and conviction are set out with particularity ; the statute imposing a different and a severer punishment for a second offence against its provisions, from that imposed for the first.

*494 The traverser demurred to the indictment,, and the demurrer was overruled ; but the judgment on demurrer is not before us on this appeal.

He then tendered a motion to quash the indictment, for various causes, all of which were open on the demurrer. This motion to quash was refused to be entertained by the Court, and to which refusal the traverser excepted.

That the Court was right in refusing to entertain the motion to quash, it is only necessary to refer to the explicit language of the statute, found in the Code, Art. 30, sec. 82, which is a codification of the Act of 1852, ch. 63.

By that section of the Code, it is provided, that “No indictment or presentment for felony or misdemeanor shall he gnashed, nor shall any judgment upon any indictment' for any felony or misdemeanor, or upon any presentment, whether after verdict, by confession, or otherwise, be stayed or reversed,” for the-omission or want of certain averments, or the defective or misstatements therein specified, “ or by reason of any mere defect or imperfection in matters of form which shall not tend to the prejudice of the defendant, nor for any matter or cause xvhich might have heen a subject of demurrer to the indictment, inquisition or presentment.”

The manifest object of this statute was to preclude all objections to the indictment that might or could be raised by demurrer, from being raised in any other manner. Motions to quash, and motions in arrest, for defects in the indictment that could have been taken advantage of by demurrer, are no longer available modes of attacking the1 indictment; and if the opportunity of demurring is not availed of at the proper time, the party is to be taken as having waived all such defects. Here, a demurrer was interposed and overruled; and the motion to quash, being founded upon supposed defects in the indictment, was, therefore, properly refused to be entertained. Cowman vs. The State, 12 Md., 250 .

*495 2. Tbe next exception taken was to the Court’s allowing the State’s attorney to read that part of the indictment to the jury that contains the allegations of the former indictment and conviction under the statute, in his opening statement; and, in connection with this exception, may also be considered the next exception that follows, which was taken to the admission in evidence of the docket entries of the proceedings on the former indictment against the traverser, containing the entry of conviction and judgment thereon ; and following which last mentioned evidence, was produced and read in evidence the indictment in the former case. The plain object of this proof was to support the allegations in the present indictment of the former indictment and conviction under the statute, and to show that the present indictment is' for a second offence under the same statute.

Why should not the whole indictment be read to the jury, including that part containing the allegations of the former conviction and judgment? The jury being the judges of both the law and the fact, as to whether the offence had been committed as charged, they should certainly be informed of what they are sworn to try; and for that purpose, no means are so proper as the reading of the indictment itself.

The objection that by allowing the jury to consider the first conviction, in passing upon the question of the traverser’s guilt on the charge of a second offence, he is, to some extent, made liable to double punishment, is without foundation. It is a common thing in this State, as it is elsewhere, to find in statutes in regard to crimes and punishment, the second or third offence under the same statute, made subject to an increased punishment; and this for an obvious reason. The great object of the law is the prevention of crime ; and the party charged with the commission of a second offence is supposed to have known all the penalties denounced against it. If, therefore, the *496 punishment denounced against the first offence proves to be insufficient to restrain his vicious propensities, it is but just and right that an increased punishment should be inflicted for a second or third offence ; and he has no reasonable cause of complaint that his former transgressions, under the same law,- are brought up in judgment against him. No constitutional objection exists to such regulation of punishment; and provisions in statutes similar to that under which the present indictment was framed, have been uniformly sustained, whenever or wherever questioned. Ross’ Case, 2 Pick., 170; Plumbly vs. Comm., 2 Metc., 413 ; Rand vs. Comm., 9 Gratt., 743 ; People vs. Stanley, 47 Cal., 113 .

It is said, however, that the party accused is not to be tried for being generally bad, but only for one particular bad act; and that, therefore, the fact of prior conviction of a similar offence should not he allowed to be considered, or to influence the mind of the jury, until after conviction of the particular offence for which the party is on trial; that if he should he found guilty, then the jury should be required to pass upon the fact of the alleged former conviction, and the identity of the accused, with a view to the infliction of the punishment prescribed. But this course of procedure is not in accordance with the established, practice in such cases. The law would seem to be well settled, that if the party be proceeded against for a second or third offence under the statute, and the sentence prescribed be different from the first, or severer, by reason of its being such second or third offence, the fact thus relied on must be averred in the indictment; for the settled rule is, that the indictment must contain an averment of every fact essential to justify the punishment inflicted. Rex vs. Allen, Russ. & R., 513 ; Reg. vs. Page, 9 C. & P., 756; Reg. vs. Willis, L. Rep., 1 C. C., 363 ; Plumbly vs. Comm., 2 Metc., 408 ; 3 Whart. C. L., sec. 3417 ; 1 Bish. C. L., (6th Ed.,) sec. 961, 963. And this *497 averment of prior conviction can only be sustained by the production of the record, or a duly authenticated copy of it, sustained by proof of the identity of the person on trial with the one described in the former indictment. Reg. vs. Clark, 20 Eng. L. & Eq. Rep., 582; 1 Bishop Cr. Law, sec. 963; 3 Whart. C. L., sec. 3417. But such an averment of prior conviction does not charge an offence. As said by Lord Campbell, in the case of Reg. vs. Clark, supra, “ it is only the averment of a fact which may affect the punishment. ' The jury do not find the person guilty of the previous offence ; they only find that he was previously convicted of it, as an historical fact.” Such being the import of the averment and the nature of the inquiry before the jury, there can be no good reason for adopting the mode of procedure contended for by the appellant; and the practice in England, until changed by statute, was, as it is here, to allow the prosecution to put the prior conviction before the jury as part of its evidence in chief, and before the accused commenced his evidence in defence. Rex vs. Jones, 6 C. & P., 391. It was therefore proper, not only that the entire indictment, containing the averment of the prior conviction, was allowed to be read to the jury in the opening of the caso, but that the record of such prior conviction was admitted in evidence in support of the indictment, or rather of the particular averment therein of former conviction.

And as to the objection that there was not a formal and extended record offered, instead of the docket entries of the proceedings of the prior conviction, we think that altogether untenable. Tbe indictment in that case was offered in connection with the docket entries, and the entries show that the party accused submitted under plea of guilty, and that he was thereupon fined $50 and costs. This record evidence was offered in the same Court in which the proceedings occurred; and, in such case, the docket entries, being made under the direction or inspec *498 tion of the Court, when offered in counection with the original papers or files of the Court, stand in the place of the record, and are received in evidence as such record. Boteler & Belt vs. State, use of Chew, 8 Gill & J., 359 ; Weighorst vs. State, 7 Md., 442 .

(Decided February 20th, 1878.)

It follows that neither the second nor the third exception, taken by the traverser and certified by the Court, can be sustained.

In conclusion it may not be improper for us to notice, though not involved in the questions presented on this appeal, that as the verdict appears to have been guilty generally, without any thing more, the judgment to be entered on it can only be as for a first offence. The authorities are clear to the effect that in order to justify a sentence, as for a second offence, it must appear by the verdict that the jury have found the party guilty of such second offence. Thomas’ Case, 22 Gratt., 912 ; 3 Whart. C. L., (7th Ed.,) sec. 3418; 1 Bishop’s C. L., (6th Ed.,) secs. 961, 963.

We thus notice the verdict in order to avoid a possible error in the rendition of the judgment.

Bulings affirmed, and cause remanded.