Franklin v. State

12 Md. 236, 1858 Md. LEXIS 20

• Court: Court of Appeals of Maryland
• Decided: July 20, 1858
• Status: Published

Opinion

Le Grand, C. J.,

delivered the following opinion.

Many questions were argued at the bar not important, to be decided, nor indeed presented by tiro record. Sut, looking to the policy of the act of 1858, ch. 55, and the reasonable anxiety of the community upon which it is to operate, to ascertain by judicial interpretation its true meaning, i will express my opinion in regard to some matters not absolutely necessary to the decision of this particular case. I do this because I believe the public have the right to expect it of the appellate court, and, also, because if, will subserve the general good by putting to rest quibbles and doubts, which, unless quieted by proper authority, tend to the annulment of the legislative will.

The plaintiff in error was indicted, Ire being a person having a license authorising the sale of spirituous liquors, that he, “oil or about the fifteenth day of April, in the year of our Lord, eighteen hundred and fifty-eight, with force and arms, at the county aforesaid, within the corporate limits of the city of Annapolis, unlawfully did sell and dispose of a certain quantity of spirituous liquor, to wit, one pint of spirituous liquor, commonly called whiskey, to Samuel Jones, slave of Miss Ellen Stockett, and who then and there did not have a written order of his master, mistress or owner, authorizing the said sale of the said quantity of spirituous liquor as aforesaid, to the said Samuel Jones,” &c., &c. To this indictment the plaintiff demurred. The court overruled the demurrer, when a jury was sworn, whoreturneda verdictof guilty, upon which judgment was entered. A motion in arrest of judgment was filed, assigning several reasons in support thereof.

If for no other reason, than that the indictment does not sufficiently negative the existence of a written order authorising the sale by the traverser, I think the demurrer should have been sustained. The case of the State vs. Nutwell, 1 Gill, 54, is clear to this point. In that case, the party had been indicted under the act of 1817, ch. 227, which made it unlawful for any licensed retailer or other person residing in certain counties, “accustomed to make and sell distilled spirits or other liquors, to suffer any free negro or mulatto, or any negro or mulatto servant or slave, to be in his, her or their store-house, or other house, wherein he, she or they may be accustomed to sell distilled spirits or other liquors, between sunset in the evening and sunrise of the succeeding morning.” The act, however, contained a provision byr which it was provided, that the act should not extend to the case of such servant or slave as should “have a written order or license for that purpose, from his master, mistress, overseer or other person, in whose employment he might.be with the consent of his owner.” Theindictment after other averments declares as follows: “the said slave then and there not having a written order or license for that purpose from his master, against the act,” 8fc. In the case now before the court, the words are as follows: “and who (that is the slave) then and there did not have a written order of his master, mistress or owner, authorizing the said sale,” Sfe, By a comparison, it will be perceived that the language in both instances is of the same import, although not identical, and therefore that of the court in State vs. Nutwell, is equally applicable to this. “The omission,” say the court, “to exclude a license by the necessary averment of a want of one, was a fatal defect; the non-existence of a license being an essential ingredient in the constitution of the offence, according to the true and sound construction of the act of Assembly, upon which the prosecution was founded.” In this case, the words of the statute are not followed, and in this particular, it is unlike that of the State vs. Rawlings, 2 Md. Rep., 201. Without inquiring as to the sufficiency of the other parts of the indictment, the defect which I haye stated justifies the reversal of the judgment.

For the reasons I have given, 1 will now indicate my views in regard to some of the other questions discussed at the bars It is stated, as one of the reasons for an arrest of (he judgment, that the court refused to allow the counsel of traverser to discuss, before the jury, the constitutionality of the act of Assembly. Although the question is not presented by the record, it is yet proper the meaning of the words of the 5th section of the 10th article of the constitution should be expressed. This is my decided opinion, for, whatever privilege they give to the party charged with crime, he ought to enjoy without being subjected to expensive prosecutions of appeals and writs of error. The language is: “In the trial of all criminal cases the jury shall be the judges of law as well as fact.”

It was argued, that the true interpretation of these words authorized the jury to judge of the constitutionality of the act of Assembly. In this opinion I do not concur. The debates which took place in the Convention that framed the Constitution, show what were the reasons that induced the adoption of the section. It is apparent from these debates, that opposing views as to the powers of a jury in a criminal case, prevailed in different parts of the State, and, that to guard in the future against such conflict, the provision was inserted in the constitution. It. was well known that some members, both of tbe judiciary and tbe profession, held, that juries in criminal cases were the judges of law as well as fact, whilst others held a directly contrary opinion. It is not now important to inquire on which side there was a preponderance of authority and reason. When the meaning of tbe terms are fixed, there is an end to controversy in regard to the relative powers of court and jury.

So far as I know, there is no instance in which a court admitted that the Words, “judges of law as well as fact, ” auth orized the jury to decide on the constitutionality of a law. With those who insisted upon the enlarged power conferred by the words in our constitution, there was no pretence that it authorized a judgment by a jury of the constitutionality of an act of Congress or of the State Legislature. All they contended for was, that in a criminal case the jury were not bound to abide by the interpretation of the court of the meaning of a law, but were free to construe and apply it according to their own judgments. They never pretended the jury had the right to decide on the constitutionality of an act defining murder, arson or any other crime, but that they had the right to affix their own meaning on the particular law, and to determine for themselves, whether the facts proven brought the traverser within that meaning. The words in the constitution have no greater significance since their incorporation into the organic law than they had previously, and I think I have given to them the broadest latitude ever sanctioned or seriously countenanced by any respectable authority.

Without determining whether under the police power conferred by the 13th section of the Bill of Rights, the Legislature, “with a political view,” and “for the good government and benefit of the community,” could, before the expiration of a license granted by the State, superadd additional penalties or prescribe additional limitations, I am of opinion, that whatever may be the correct view in this regard, in the passage of the act of 1858, ch. 55, no such power was exercised. In my opinion, the act was to go into operation on the first day of April, but not to operate on those whose licenses would not expire until May following. The act contemplated the party should have a license, and that he should take an oath to observe the directions of the act. Of course I do not now allude to persons other than those having a license; a different class of reasons apply to them. The case before the court is that of a person having a license, and it is clear to my mind, that whilst the purpose of the act was to allow persons to take out a license under it, on and after the first day of April, it was yet no part of its scope to qualify the privilege which, by its terms, would not expire until the first day of May.

I entertain no doubt the Legislature has the power to forbid the sale of spirituous liquors to minors and slaves. A sale necessarily implies a contract, which, strictly speaking, neither an infant or slave can make, and therefore, if for no other reason, a party dealing only by virtue of a license has no just right to insist, it is an abridgment of his rights to prevent him from trading with either infants or slaves.

The act makes it unlawful, within the prescribed limits, ato sell, dispose of, barter or give,” any spirituous liquors, &c. Now I understand all these words as intended but to express one idea, that, for profit, liquor should not be given to the persons mentioned.

There are some historical facts so notorious, that courts are bound to notice and apply them when interpreting the language and purposes of the Legislature. To ignore them, would be inevitably to superinduce one of two results, both of which, iu their nature, are productive of great mischief, that is to say, to make it incumbent for the legislative body to set out, by way of preamble, a long detail of facts and reasons, with which the entire community arc perfectly familiar, or to have their action frittered away by philological niceties, more noticeable for their ingenuity than their practical good sense. The whole nation knows that many laws, especially in the Eastern states, were some years since passed, restraining in some instances, and in others, absolutely forbidding the sale of intoxicating liquors, and that one of the most favored devices resorted to, to avoid the penalty of the law, was to sell some trifle for a price bearing no proper proportion to its value, and then, to “give” the liquor. It was to guard against such discreditable evasion, that words other than that of “sell” were employed in legislation, such as “dispose of” or “give,” the whole of them, as.before observed, having but one object in view. In construing aryr writing, whether it be a law or anything else, eveiy portion of its language should be construed always with special reference to the subject matter and its immediate context. I hold the word “give,” as it appears in the act. of 1858, to be as comprehensive, and to mean the same, as the word “'sell.” Eveiy one knows words have different significations according to the association in which they are found. Thus, the word “gift” in some connexions, means “bounty” "or “gratuity,’’whilst in others “to pay.” A reference to Todd’s, Johnson’s and Walker’s Dictionary, will show the following definitions of the verb “to give,” and the authorities for the same “ To pay as price or reward, or in exchange.” — Job ii. “Is it lawful for us to give tribute unto Caesar or no. ’ ’ — Luke xx. £ £ To enable, ’ ’ Hooker. “ To pay, ’ ’ Shakespeare. The meaning of the word “barter” is thus given, “To give any thing in exchange for another,” as liquor for money. To “dispose” is defined as the equivalent of “to give.” And, in Webster, many definitions of the word “give” are to be found, among which is the following: “to pass or deliver the property of a thing to another for an equivalent; to pay.” This is nothing more nor less than the description of a sale.

If I have affixed the correct meaning to the words taken from the body of the act, (and that I have must be manifest if the decisions of lexicographers of the greatest repute be of any authority,) then, there is no efficacy in the suggestion, that the title does not properly, within the meaning of the 17th section of the 3rd article of the constitution, describe the subject matter of the act. For these reasons I am in favor of the reversal of (he judgment.

Inasmuch as a great deal was said in argument by counsel, pro and con., in regard to the policy of such legislation as the act of 1858, I will merely observe, that although I have very strong convictions on the subject, yet, whilst acting in a judicial capacity, I have nothing to do with such considerations; it is for the legislative branch of the government to decide that question, the judiciary having nothing whatever to do with it.

Bart on, J.,

delivered the opinion of this court.

We concur with the Chief Justice, in the propriety of reversing the judgment of the circuit court in this case, upon the ground, that the indictment does not sufficiently negative the existence of the written order required by the statute.

It is a necessary ingredient of the offence, that the act charged should be done without such written order. The words of the act are, “nor to any negro or mulatto slave, unless upon the like order of his or her master, mistress or owner,” and being in the enacting part of the statute, must be fully negatived in the indictment. This principle has been recognized in the cases of The State vs. Nutwell, 1 Gill, 54, and Rawlings vs. The State, 2 Md. Rep., 201.

This indictment charges the traverser with selling, &c., “spirituous liquor” to “Samuel Jones, a slave of Miss Ellen Stockett, and who then and there did not have a written order of his master, mistress or owner,” &c.

This is not within the statute. It is not enough to negative the possession of the order by the slave; it must appear affirmatively on the face of the indictment, that the act of the traverser was not done upon such order.

The phraseology of the act of 1858, ch, 55, is different, in this respect, from that of the act of 1817, ch. 227. In the case of Rawlings vs. The State, an indictment under the act of 1817, which negatived the slave’s having the written order or license required by that act, was held to be sufficient because it was in the words of the statute, The indictment before us is not in the words of the act of 1858.

We concur also in the views expressed by the Chief Justice, upon the question of the power of the jury in criminal cases, to pass upon the constitutionality of the law, and think that the attempt of the counsel of the traverser to argue that question before the juiy, was properly arrested by the circuit court.

in our opinion the constitutional provision on that subject is merely declaratory, and has not altered the pre-existing law regulating the powers of the court and jury in criminal cases.

(Decided July 20th, 1858.)

With reference to the other views expressed in the opinion of the Chief Justice upon the construction of the act of 1858, as there is a difference of opinion among the members of the court, as to some of them, and. their determination is not necessary for the decision of the case, we refrain from expressing our viéws upon them.

Judgment reversed.