McGowan v. State

• Citation: 151 A.2d 156,220 Md. 117
• Decision Date: 14 May 1959
• Docket Number: No. 237,237
• Parties: Margaret M. McGOWAN et al. v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 117

220 Md. 117

151 A.2d 156

Margaret M. McGOWAN et al. v. STATE of Maryland.

No. 237.

Court of Appeals of Maryland.

May 14, 1959.

Melvin J. Sykes, Baltimore (Harry Silbert, Baltimore, on the brief), for appellants.

John Martin Jones, Jr., Asst. Atty. Gen (C. Ferdinand Sybert, Atty. Gen., and C. Osborne Duvall, State's Atty. for Anne Arundel County, Annapolis, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND and HORNEY, JJ.

HAMMOND, Judge.

Seven persons, convicted of making sales of merchandise forbidden on Sunday in Anne Arundel County, argue in their appeal that the trial court committed reversible error (1) in refusing to remove or postpone their trials; (2) in denying motions to dismiss the prosecutions based on the claims the Sunday Blue Law is unconstitutional (a) as violating the right of religious freedom guaranteed by the First and Fourteenth Amendments to the Constitution of the United States, (b) as discriminating arbitrarily in favor of certain sales and against others, and (c) as being vague and indefinite, all contrary to the Fourteenth Amendment and Articles 19 and 23 of the Maryland Declaration of Rights; and (3) in refusing to direct verdicts as to some of the accuseds after the evidence was in.

Code (1957) Art. 27, deals with 'Sabbath Breaking' in Sections 492 to 534. Section 492 prohibits 'bodily labor' on Sunday throughout the State, 'works of necessity and charity always excepted,' as well as any 'unlawful pastime or recreation.' Section 521 prohibits throughout the State the sale, barter or gift on Sunday of any merchandise except tobacco, cigars, cigarettes, candy, sodas and soft drinks, ice cream, and other confectionery, milk, bread, fruits, gasoline, oil and greases, drugs, medicines and patent medicines, and newspapers and periodicals. Section 522, also State-wide in operation, makes it unlawful to keep open or use on Sunday any 'dancing saloon, opera house, tenpin alley, barber saloon or ball alley.' Section 509 repeals pro tanto Sections 492, 521 and 522 in Anne Arundel County insofar as they prohibit there the operating of, or working at, any 'bathing beach, bathhouse, amusement park, dancing saloon', and permits in the County on Sunday the 'sale or selling of any novelties, souvenirs, accessories, or other merchandise essential to, or customarily sold at, or incidental to, the operation of the aforesaid occupations and businesses, at retail, picnic groves, amusements, games amusement rids, amusement devices, entertainments, shows * * *.'

For some time before September 1958 the Sunday laws had not been enforced regularly or vigorously in Anne Arundel County. Then, because of complaints that a newly opened branch of an interstate chain of stores was flouting the law to a degree exceeding that considered reasonable by competitors, the Anne Arundel County police began and continued an extensive and non-discriminatory crackdown on forbidden Sunday sales. The appellants, all employees of the new store, were arrested for, and charged with, selling merchandise on Sunday in violation of Section 521.

Counsel for appellants, retained the day before the trial, asked Judge Michaelson in chambers on the morning of the trial for a postponement or removal of the trial. They were told the motions would not be granted but that they would have to be made and denied in open court. Then, in the courtroom in which the jury panel was seated, appellants requested removal of their trials from the Circuit because 'there has been considerable agitation concerning these so-called Sunday Laws in this County,' said they did not have the necessary affidavits prepared, and asked for a ruling on the motion as if the formalities had been complied with, and leave to file the motion and supporting newspaper clippings to show the prevailing sentiment of the community. Leave was granted for the late filing of the motion and supporting data, and the removal was denied. The motion to postpone the case because of the late employment of counsel also was denied. As to this the court said that some twenty-six days earlier he had told counsel then representing appellants that there would be no postponement and that the litigants could not now complain fairly of lack of time to make full and proper defense. The court went on to say, that from what he had been told by prior counsel for appellants, the litigants 'went from one lawyer to another and then finally to you gentlemen, who represent them today, primarily for the purpose of getting these cases postponed * * * and * * * that such tactics should not be sanctioned or approved by the Court, consequently, much as it regrets to do it, it will have to overrule the motion for a postponement.'

The appellants say it was an abuse of discretion for the trial judge not to grant either the motion for removal or the motion for postponement because, after he made the remarks he did in the presence of the prospective jurors, who were seated in the courtroom, they had to take a court trial or be tried by a prejudiced jury. We find no prejudicial error. It would appear from the record that the court had told counsel in chambers that he would deny both the removal and the postponement and that counsel, before they entered the courtroom, had decided to have the cases tried by the court because of the refusal to remove the case, not becaue of the refusal to postpone the trials, and not because of the court's remarks in the presence of the jury.

A new panel of jurors was not requested, which could have been done if a jury trial had been wanted, because of what had been said by the court. In any event, the remarks of the court as to the reasons for refusing a postponement cannot reasonably be expected to have had the effect the appellants seek to give them. They were no more than revelations of knowledge the judge had obtained officially from agents of the appellants during the progress of the case, and there is no reason to suppose that a jury chosen from the panel seated in the courtroom would have been influenced as to the guilt or innocence of the appellants by hearing the judge temperately say that they had attempted to postpone their trials.

There is no indication in the record that community sentiment was aroused or adverse to Sunday sales or the appellants. If anything, the newspaper accounts of the new police enforcement of the Sunday laws were more sympathetic to the position of appellants than otherwise.

It is settled that refusal to remove a non-capital criminal case is not subject to review by this Court except upon a showing of abuse of discretion. Piracci v. State, 207 Md. 499, 508-509, 115 A.2d 262. We find no such abuse in Judge Michaelson's refusal to remove or postpone the case.

The appellants' argument that the Sunday Blue Laws are unconstitutional as violating the right of religious freedom has been answered many times by this and other courts, which have held that the basic purpose of such statutes, with their exceptions, is the civil establishment and regulation of a day of rest from work, not a law respecting the establishment of religion or prohibiting the free exercise thereof, and that the statutes do not offend the First and Fourteenth Amendments to the Constitution of the United States. Judefind v. State, 78 Md. 510, 28 A. 405, 22 L.R.A. 721; Levering v. Board of Park Commissioners, 134 Md. 48, 106 A. 176, 4 A.L.R. 374; People v. Friedman, 302 N.Y. 75, 96 N.E.2d 184, 186, and cases cited therein (appeal dismissed for want of a substantial federal question, 341 U.S. 907, 71 S.Ct. 623, 95 L.Ed. 1345). We have been shown no reason why we should depart from these holdings.

The argument of unconstitutionality on the ground of discrimination likewise has been answered before by the cases. The legislative plan is plain. It is to compel a day of rest from work, permitting only activities which are necessary or recreational. There can be, and often are, sharp differences of opinion as to what is necessary and what is proper or preferred recreation,...