State v. Cherry

• Decision Date: 17 January 1961
• Docket Number: No. 83,83
• Parties: STATE of Maryland v. John C. CHERRY.
• Court: Maryland Court of Appeals

Page 144

224 Md. 144

167 A.2d 328

STATE of Maryland v. John C. CHERRY.

No. 83

Court of Appeals of Maryland.

Jan. 17, 1961.

Clayton A. Dietrich, Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., Saul A. Harris, State's Atty., and Howard G. Reamer, Asst. State's Atty., Baltimore, on the brief), for appellant.

No appearance for appellee.

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

PRESCOTT, Judge.

The appellee, John C. Cherry, was indicted by the Grand Jury for the City of Baltimore, December 9, 1959, on two counts under Code (1957), Article 27, Section 558. The first count avers that the appellee was a common thief on December 1, 1959, and the second charges that he was a common thief on December 1, 1959, and has continued to be a common thief until the return of the indictment. The appellee filed a motion to quash the indictment and the appellant moved to dismiss the motion, as being contrary to Maryland Rule 725. The trial court granted the appellee's motion after construing it to be a motion to dismiss. The appellant appeals from the order granting the motion.

Of course, Maryland Rule 725a abolished motions to quash indictments; the Rules should be closely adhered to, and any departure therefrom discouraged. However, since the motion actually made was, in effect, a motion to dismiss under our present procedure and the trial court treated it as such, we shall do likewise. ¹

An analysis of the statute discloses that basically it is divisible into four segments. The first imposes a duty on police officials to arrest all persons whom "they shall know or have good reason to believe are common thieves or pickpockets." ² The second sets the penalty upon conviction. The third segment makes provision for second "or more" offenders, stating that "it shall be necessary to charge in the indictment only that the person is a common thief * * *, and any evidence, either of facts or reputation, proving such person is habitually and by practice a thief * * *, shall be sufficient for his conviction if satisfactorily establishing the fact to the court or jury by whom he is tried * * *." And finally, the fourth provides that no conviction of the charge of being a common thief shall prevent a conviction for any particular act of larceny that he may have committed.

The learned trial judge held that the statute violates the due process clauses of both the Fourteenth Amendment of the Federal Constitution and Article 23 of the Maryland Declaration of Rights in two important aspects: (1) that it fails to set any positive guides or definite standards for determining the guilt of a person charged with being a common thief, and is, therefore, too vague, indefinite and uncertain; and (2) that it permits proof of guilt by reputation, alone. And he seems to have had certain misgivings concerning the provisions relating to arrests; although he did not specifically state these to be bases for his conclusions.

I

The rule as to whether a penal statute is so vague and indefinite as to run afoul of the Due Process Clause of the Fourteenth Amendment (and Article 23 of the Maryland Declaration of Rights) has been stated many times by many courts. Perhaps, one of the most lucid expositions thereof is that of Mr. Justice Sutherland in Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, wherein it is said:

"That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law * * *.

"The question whether given legislative enactments have been thus wanting in certainty has frequently been before this court. In some of the cases the statutes involved were upheld; in others, declared invalid. The precise point of differentiation in some instances is not easy of statement. But it will be enough for present purposes to say generally that the decisions of the court upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them, * * * or a well-settled common-law meaning, notwithstanding an element of degree in the definition as to which estimates might differ, * * * or, as broadly stated by Mr. Chief Justice White in United States v. Cohen Grocery Co., 255 U.S. 81, 92, 41 S.Ct. 298, 301 (65 L.Ed. 516, 14 A.L.R. 1045), 'that, for reasons found to result either from the text of the statutes involved or the subject with which they dealt, a standard of some sort was afforded.' " (Emphasis added.)

This statement was repeated by Mr. Chief Justice Taft in Cline v. Frink Dairy Co., 274 U.S. 445, 459-460, 47 S.Ct. 681, 71 L.Ed. 1146. See also Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888; Musser v. State of Utah, 333 U.S. 95, 97, 68 S.Ct. 397, 92 L.Ed. 562; Winters v. People of State of New York, 333 U.S. 507, 515, 68 S.Ct. 665, 92 L.Ed. 840. And there are a long line of Maryland cases in accord therewith. Among them, see State v. Magaha, 182 Md. 122, 125, 32 A.2d 477; Glickfield v. State, 203 Md. 400, 404, 101 A.2d 229; Blake v. State, 210 Md. 459, 462, 124 A.2d 273; Miedzinski v. Landman, 218 Md. 3, 11, 145 A.2d 220.

It is true that the offense of being a "common thief" is not one of common-law origin. However, there were many other offenses at common law designated as "common," i.e., common scold, common brawlers, common barrators, etc. And by the time our statute, Section 558, was enacted in 1864 (and, indeed, for many years prior thereto), the word "common" had acquired a technical and well-known meaning in law, when used to designate a "common" offender. In State v. Russell, 14 R.I. 506, the defendant was charged with being a "common night walker" (in violation of a statute), without alleging any particular facts. The sufficiency of the complaint was challenged, as being only in general terms. In upholding the complaint, the Court said that, "the words 'common night walker' are words having a technical meaning in law, and it would therefore be superfluous to spread their definition on the record," and further stated, "the offense does not consist of particular acts but of an habitual practice evidenced by a series of acts." (Emphasis added.) A like ruling was made by the Court in State v. Dowers, 45 N.H. 542, in the same year that Section 558 was passed into law (where the accused was charged under a statute originating in 1791 [several amendments, however, having been made before 1864], when the Supreme Judicial Court of New Hampshire held that the offense of being a "common nightwalker" was of such a definite meaning that it could be described in the indictment in general terms, stating, "the offense is made up of a series of acts which together form the habit of the individual's life, and constitute the offense." (Emphasis added.)

The defendant in Com. v. McNamee, 112 Mass. 285 was charged with being a "common drunkard" in 1872. The court stated that the law nowhere undertook to define how many instances of intoxication, in any given time, shall be deemed sufficient to fix upon a man the imputation of being a common drunkard; but the word "common" imports frequency, and it has been held that to convict a man upon such a charge, it must be shown that he is an habitual drunkard.

Again, in State v. O'Conner, 49 Me. 594, the accused was indicted under a statute of 1858, as a "common seller of intoxicating liquors." The statute of 1858 simply provided that no person shall be a common seller of intoxicating liquors, without stating any acts that would constitute the offense. A previous act of 1856 had defined a common seller as a person who had made a certain minimum number of sales within specified times, but it had been repealed. The presiding judge instructed the jury that under the act of 1858 "no particular number of sales was necessary to be proved to constitute a common seller; but that the jury must be satisfied * * * that selling intoxicating liquors was [the defendant's] common and ordinary business, * * *." This instruction was attacked on the ground that the jury should have been instructed that three distinct sales, at least, in connection with other evidence, were necessary to support a finding of guilt. The appellate Court held that the instruction was more generous to the defendant than she had a right to expect; that the word "common seller" was not a term of art, and had not been defined by statute nor by common law; consequently, its definition must be sought from the same sources that we seek the meaning of other words or phrases in our language. The Court then pointed out that the word "common," "as defined by Worcester, means frequent, usual customary, habitual, " and stated that a "common seller," therefore, is one who sells frequently, usually, customarily, habitually. ³

The above gives a brief outline of the background of the use and meaning of the word "common" in describing penal offenses at the time of the enactment of Section 558, and a few of the holdings of the Courts at, or about, that time; and they disclose that "common," when used in a penal statute without definition, meant essentially the equivalent of what it is said to mean in Section 558; namely, "a person [who] is habitually and by practice" a thief. ⁴ In following the terms of the statute, this Court, in considering the only case brought here under the statute, World v. State, 50 Md. 49, 54, stated that, "in order to justify...