Spielman v. State

Crain, J., delivered the opinion of this Court. In this case the defendant below was indicted in the Circuit Court for Washington County, for violating, in November, 1864, the license laws of this State. The indictment contains six counts, five of which charge him with a violation of the license law generally, but the second count, charges him with violating it, by selling general merchandise to William H. Beard. To this indictment a special plea was filed by the defendant below, setting forth that he, together with a certain Emanuel Bombarger, in May, 1864, obtained as partners a trader’s license, in and on which the name of each of the partners was set out in full, and opened and prosecuted business thereunder, in Washington county, until July, 1864, when the partnership was dissolved, and he became the assignee of the partnership effects, by purchase from Bombarger, and continued the business, and that he had not in any other way or manner sold, disposed of, traded or bartered any goods, wares or merchandise. The State demurred to this plea, and judg [524] ment was entered on the demurrer by the Court below against the defendant. It is to review this judgment, that this writ of error has been issued. By the demurrer all the pleadings are open for review, and it is an established principle in pleading, both civil and criminal, that on a demurrer the Court gives judgment against the party whose pleading was first defective, notwithstanding the defect of the pleading demurred to. It is insisted by the plaintiff in error, that the first error was committed by the State, because all the counts in the indictment, except the second, were defective, in not setting out the name of the person to whom the merchandise was sold, or in not alleging that the person or persons to whom sold were unknown. We are of opinion, that according to the law, as expounded by this Court in the case of the State against Nutwell, 1 Gill, 54, and Capritz vs. The State, 1 Md. Rep., 569, the defect in the first, third, fourth, fifth and sixth counts of the indictment is fatal; nor do we think that the 18th chapter of the Act of 1864 can cure the ' defect, because that Act referred only to the measure of proof, and did not pretend to describe an offence. The reasons assigned by the learned Judge who delivered the opinion of the Court in the case of the State against ■Nutwell, for considering the indictment in that case defective, apply with equal force to all criminal prosecutions. It is requisite, for the protection of the accused against a second prosecution, that the indictment should aver to whom the goods were sold. This certainly is a necessary attribute in criminal pleading, when conviction is followed by penal consequences. The omission of these averments in the five counts of this indictment must be held fatal. We think the special plea of the defendant was a sufficient answer to the second count in the indictment, and as the demurrer admits the truth of the plea, judgment [525] should have been entered by the Court below for the defendant on the demurrer. All the Acts of Assembly relating to licenses form one entire system, and must he construed together. By imposing penalties for the violation of the provisions of these laws, the legislature intended to protect the revenue of the State from fraud, hut did not intend to impose penalties for violations of the law when none were intended. The most recent Act, and the one on which this indictment is founded, is the Act of 1862, chapter 121. The language of the Act is very plain, in these words: “Any license may he obtained by partnerships or firms, as well as by individuals; hut in all such cases, the names of all the partners of any firm shall he set forth in full in the license, and no license shall protect any person pretending to act under the same, unless he is named therein. In the exposition of Statutes, the intention is to he deduced from a view of the subject matter and the object contemplated by its enactment. This Act was designed to raise revenue, and was extended to partnerships as well as individuals for that purpose, and whilst the license, by the express terms of the Act, was to protect both partners, it surely cannot, by implication, he construed to deprive both of the protection of the license in the event of a dissolution and the continuance of the business by one. (Decided 19th July, 1867.) In our opinion, the true interpretation of the law enabled the plaintiff in error to conduct the business and trade.under the license granted to him and Bomharger, although Bomharger had retired from the firm. By this construction of the law the State is not deprived of her just revenue, and the defendant is exonerated from the penalty of an intentional violation of the law. We, therefore, reverse the judgment of the Circuit Court for Washington County. Judgment reversed.