Forwood v. State

Bartol, C. J., delivered the opinion of the Court. The indictment in this case charges the appellant with a violation of the revenue laws of the State, in selling one-half pint of whiskey, in July 1877, to one James M. Reynolds, without having first obtained a license so to do ; and also with selling to the same person, without a license, spirituous liquors in quantities not less than a pint. The traverser pleaded not guilty; he also pleaded four other pleas numbered in the record 2nd, 3rd, 4th and 5th pleas ; these allege substantially that prior to the first day of May 1877, the traverser was a duly licensed hotel keeper, and as such had on hand at that time a stock of liquors unsold, that after the said first day of May 1877, he dis — 533 — continued his said business and purchased no other liquors, surrendered the lease which he held as tenant of said hotel property, and proceeded to close out his said stock of liquors, and sold the same at cost, and not with a view to profit in the prosecution of a regular trade or business, and that the sale of liquor charged in the indictment was part of the said stock of liquors acquired by the traverser prior to the first day of May 1877, and the sale thereof was made at cost, not with a view to profit in the prosecution of a regular trade or business. To these special pleas the State demurred; and the demurrer was sustained. There being no final judgment in the case, the ruling of the Circuit Court upon the demurrer is not regularly before us for review on this appeal ; but our opinion thereon will be sufficiently indicated in disposing of the bills of exceptions, which incidentally present the same question as that raised by the demurrer. The first and second bills of exception were taken by the traverser to the rejection by the Court of testimony offered by him. The State proved by Reynolds, the prosecuting witness, that from the first day of May 1877, and up to and after the date mentioned in the indictment, the traverser was the keeper of a hotel in Bel-Air, that sometime in July 1877, the witness asked traverser to sell him a drink of his best whiskey ; traverser said he could not sell him a drink, but could sell him a bottle, witness said he did not want a whole bottle, traverser said he would sell half a pint, which was put in a bottle, and witness paid for it 25 or 30 cents ; that he and two others then drank out of the bottle, from glasses furnished by traverser at witness’ request, then left the balance there. That he had seen parties get whiskey there, and driving in and out, and he supposed he entertained them as usual. Witness stated on cross-examination traverser told him, at the time he got the half pint, that he could not sell any — 534 — one a drink, that he had no license, but had taken the advice of counsel, that he had a right to sell out his old stock, and was selling it out at cost. Witness said “ he meant when he said that traverser kept a hotel, that he saw persons driving in, whom he supposed traverser entertained as usual. He did not mean to say that traverser kept a hotel for the sale of liquor.” Then witness was asked by defendant's counsel whether traverser since the first of May 1877, and before the alleged sale, had not sold out his household furniture and bar-room fixtures, formerly used by him in his business at that place P and whether witness did not notice such change in the bar-room and furniture ? The State objected to this question, the Court sustained the objection and traverser excepted. The State then proved, by other witnesses, that traverser had sold, during the .period covered by the indictment, in quantities of a half pint, and upwards to gallons, and to any and all persons who called for it, but never by the glass, always refusing so to do, and saying at the time of the sales were made that he was selling out his old remaining stock at cost, under the advice of his counsel, and without any intent to evade or defraud the Revenue Laws of the State, that persons frequently called for drinks, but traverser always refused, and either accommodated them by measure, or sent them away ; and upon this evidence the State closed its case. Whereupon the traverser was called as a witness, and proved that he ceased business, as a licensed ordinary keeper, on the first of May 1877, and then offered to prove that his lease of the property, on which he kept said ordinary, had expired and been surrendered; also that at that time, he had an old stock of liquors on hand remaining unsold, which together with his furniture and fixtures he advertised, and offered to sell at public auction, and sold the furniture and fixtures, hut was unable to sell said stock — 535 — of liquors, for want of bidders He further offered to prove tliat he had not been from that time, and during the period covered by the indictment, engaged in any business, but was seeking a new home, and other employment. That he did not in any way add to his old stock, and that the selling of liquor charged in the indictment was part of said old stock, which he sold at actual cost. Traverser then offered to prove by the Hon. Stevenson Archer, the agent and attorney of the owner of the hotel property, that the traverser’s lease of the same had expired, and been surrendered, that witness had tried to procure a new tenant, and that shortly after the surrender of the lease, and before the sale charged, the traverser authorized him to sell his entire old stock of liquors at cost, showing his bills and receipts therefor from the merchants from whom he had purchased. Upon the objection of the State, the Court refused to admit the testimony so offered, and this ruling forms the subject of the second bill of exceptions. The appellant’s counsel contend that the evidence ought to have been allowed to go to the jury, to prove that the sales were not made with a view to profit in the prosecution of a regular business, and to bring the case within the exception provided in the Code, Art. 56, sec. 5. They say in their brief ££ that the question, though now coming up for the first time in the Appellate Court, has been frequently passed upon by the Circuit Courts, and old County Courts of the State. That Chief Justice Archer and others have uniformly decided that a party discontinuing a business, which required a license, had the right to sell off and dispose of his remaining stock, provided it was not done with a view to profit in the prosecution of a regular trade or business.” No case has been cited by the counsel, and we have not the means of verifying the correctness of their report of the decisions by Chief Justice Archer and others. We — 536 — "have no doubt however that where a trader or keeper of an ordinary, whose license has expired, discontinues his business, he may, without renewing his license, lawfully sell and dispose of his chattels, including his stock of goods remaining on hand. If this is done in good faith, not in the prosecution of a regular business, the case would fall within the exception named in the Code. But he could not be allowed to go on without a license, to sell out his stock of merchandise by retail' to such customers as might buy, and claim protection under the fifth section, Art. 56, of the Code. In our judgment the evidence offered by the traverser did not in any manner tend to bring this case within the exception. His license expired on the 1st of May 1877. The proof on the part of the State was that for six months thereafter he continued in the occupation of the same premises, selling ardent spirits to any and all persons who called for them in quantities of a half pint and upwards, and that in July of that year he sold a half pint to the prosecuting witness as charged in the indictment. The offence of selling spirituous liquor without a license was thus distinctly proved. Now to bring his case within the exception, under section 5th, Article 56, the appellant offered evidence “that his lease of the premises occupied by him had expired, that he had sold at auction his household furniture and bar fixtures, and offered at the same time for sale his stock of liquors on hand, but failed to find a purchaser ; that then he continued to sell them to such customers as called for them, not by the single glass, but in quantities of half a pint or more, that he did not increase his supply, but sold only of the old stock, and at cost. If the appellant had sold his stock of liquors at public auction, with his other chattels, we think it would not have been a breach of the law. Or if, failing in that, he had disposed of them at private sale, by wholesale and at — 537 — one time in good faith, solely for the - purpose of closing his business, and not in the continued prosecution of his business, this would not have been in our judgment any infraction of the license laws. Bu.t the evidence offered on the part of the appellant, so far from being any answer to the charge in the indictment, or tending to bring his case within the exception on which he relies, shows that the sales proved were made in the prosecution of a regular business. The fact that he sold at cost, or supposed he had a lawful right to sell in that way and acted under the advice of counsel, is no answer to the charge. We think, looking to the case as disclosed by the record, that the evidence offered by the appellant was immaterial, and that it was not error to reject it. The policy of the law is clearly to prevent the sale of spirituous liquors without a license at retail in the manner described in the testimony. The third hill of exceptions was taken to the instructions given by the Court to the jury upon the questions of law involved. These instructions were given at the request of the jury, who were at the same time instructed that in criminal cases, they being judges of the law and of the facts, they were not bound by any instructions of the Court, but were only to give such instruction such weight as in their judgment they saw proper. It was within the discretion of the Court to give instructions to the jury, though we have said they were not obliged to do so. Wheeler vs. State, 42 Md., 569; Broll vs. Slate, 45 Md., 359. It has been contended by the attorney-general that instructions so given are not “ rulings ” within the meaning of the Act of 1872, ch. 316, subject to he reviewed upon appeal. It is not necessary to express any opinion on that point in this case ; because in our judgment the instructions given to the jury were correct; they are in accord — 538 — anee with the views we have expressed in disposing of the first and second bills of exceptions ; and even if they were properly before .us for review, there would be no ground for reversal. (Decided 24th July, 1878.) Rulings affirmed, and ' cause remanded.