Sharpe v. State

• Citation: 231 Md. 401,190 A.2d 628
• Decision Date: 07 May 1963
• Docket Number: No. 206,206
• Parties: John Wesley SHARPE v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 401

231 Md. 401

190 A.2d 628

John Wesley SHARPE v. STATE of Maryland.

No. 206.

Court of Appeals of Maryland.

May 7, 1963.

Archie D. Williams, Baltimore, for appellant.

Thomas B. Finan, Atty. Gen., Jacques E. Leeds, Asst. Atty. Gen., William J. O'Donnell, State's Atty., and Dene L. Lusby, Asst. State's Atty., Baltimore, on brief on original argument, Jacques E. Leeds, Asst. Atty. Gen., on reargument, for appellee.

Argued Feb. 7, 1963, before BRUNE, C. J., and HENDERSON, HAMMOND, HORNEY and MARBURY, JJ.

Re-argued April 1, 1963, before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

HENDERSON, Judge.

The appellant was tried and convicted in the Municipal Court of Baltimore City on charges of disorderly conduct and of assaulting a police officer. He was sentenced to thirty days in jail on the first charge and sixth days on the second, to run concurrently. On appeal to the Criminal Court of Baltimore he was tried by the court without a jury and again found guilty on both charges, sentenced to thirty days on the first charge and six months on the second, to run concurrently. The appeal to this Court is based on Code (1962 Supp.), Art. 5, sec. 12A(2), 'Where the sentence of the Municipal Court of Baltimore City was imprisonment only and the sentence of the Criminal Court of Baltimore on appeal therefrom is imprisonment for a greater term * * *.' Technically, it appears that only the judgment in the assault case is before us. Sec. 12A provides that only where a case is brought within the exceptions listed is there a further appeal to this Court.

There were two versions of what occurred, but since both the triers of fact chose to believe the testimony of the police officers, and we cannot find that the trial judge was clearly wrong if there was credible evidence to support his findings, we shall simply state the substance of the testimony of the officers. According to them, on March 1, 1962, about 5 P.M., while they were on cruising patrol in a police car, the appellant backed his car out of an alley without stopping, causing them to make an abrupt stop to avoid collision. See Code (1957), Art. 66 1/2, sec. 243. Cf. Sec. 234. Officer McGuire ordered the appellant to pull over to the curb, approached the car on foot and asked the appellant for his operator's license and registration card. Sharpe got out his wallet containing his driver's license, but refused to take the license out. He told the officer: 'you can see it enough where it is.' He also said: 'I ain't taking this g..... d..... license out of this wallet.' The officer then told Sharpe he was under arrest for disorderly conduct, and asked him to get out of the car. Sharpe replied: 'If you want me out of this m..... f..... car, you are going to have to take me out.' Obviously, he did not submit to arrest. A woman passenger in the car got out the other side. Sharpe then got out and started to walk away. On the facts in this case, the arrest did not occur until McGuire grabbed his coat. Cf. Childress v. State, 227 Md. 41, 43, 175 A.2d 18. A scuffle ensued in which Sharpe struck the officer with his fists, and tore his shirt. The other officer Block, who had remained in the patrol car, then came to McGuire's assistance and they took Sharpe to the station house. Block testified he heard profanity used by Sharpe and saw him strike the first blow. He also testified that a crowd had gathered at the time of the scuffle. Another witness, Mrs. Evans, who was sitting in a cab that had stopped along with other traffic, heard Sharpe 'talking back' to the officers.

The case turns on the legality of the arrest. If the arrest was lawful, the appellant was not justified in resisting it, and assaulting the police officer. See Kellum v. State, 223 Md. 80, 85, 162 A.2d 473 and Price v. State, 227 Md. 28, 41, 175 A.2d 11. We think the arrest was lawful. Officer McGuire was clearly within his rights in asking to see Sharpe's operator's license, after he had witnessed a traffic violation. Bradley v. State, 202 Md. 393, 397, 96 A.2d 491. Cf. Cornish v. State, 215 Md. 64, 67, 137 A.2d 170. Code (1957), Art. 66 1/2, sec. 97 expressly provides that 'Operating licenses shall at all times be carried by the licensee when operating a motor vehicle * * *, and shall be subject to examination upon demand by an uniformed officer of the law * * *.' Sec. 338 makes it a misdemeanor to violate 'any of the provisions of this article unless * * * declared to be a felony.' See Sec. 31, for similar provisions as to registration cards. Under a similar statute in Indiana, it was held that an arrest for failing to exhibit a driver's license was lawful, Rucker v. State, 225 Ind. 636, 77 N.E.2d 355, 357.

The request that the card be removed from the wallet was not unreasonable. Some licenses have restrictions, or other data, on the back, and the officer testified that it was departmental policy not to 'handle personal property,' such as a wallet. Refusal to obey a proper order of an officer may constitute an offense justifying an arrest, particularly where there is profanity in the presence of others that may threaten a breach of the peace. Cf. Drews v. State, 224 Md. 186, 192, 167 A.2d 341 and cases there cited. See also Lippert v. State, 207 Misc. 632, 139 N.Y.S.2d 751; City of St. Petersburg v. Calbeck, 121 So.2d 814 (Fla.App.); City of Saint Paul v. Morris, 258 Minn. 467, 104 N.W.2d 902. Other cases are collected in a note, 34 A.L.R. 566. In the present posture of the case, however, we do not reach the question whether the charge of disorderly conduct could be justified. We hold that the arrest was justified for failure to comply with the officer's demand to examine the operator's license under the circumstances. The fact that he was not charged with that offense would seem to be immaterial. Cf. Price v. State, supra, where charges of assault upon an officer were sustained, because the officer had reasonable grounds to believe that the accused was attempting burglary at the time of the arrest, although never charged with that offense.

Judgment affirmed, with costs.

MARBURY, Judge (dissenting).

I think both judgments should be reversed without a new trial. Maryland Rule 886 a.

I agree that the version of the facts as set forth in the majority opinion is substantially a true narration of the events leading to appellant's arrest, trial and conviction for disorderly conduct and assault upon an officer. I further agree that the case turns upon the legality of the arrest for disorderly conduct, but it seems to me that the majority opinion misses the salient point in the case. Appellant was not arrested and tried under Code (1957), Article 66 1/2, §§ 97 and 338. He was arrested for disorderly conduct under Article 27, § 123, and the gist of the crime of disorderly conduct has been stated by this Court to be '* * * the doing or saying, or both, of that which offends, disturbs, incites, or tends to incite, a number of people gathered in the same area.' Drews v. State, 224 Md. 186, 192, 167 A.2d 341, 343.

A careful examination of the testimony convinces me that the evidence was insufficient to support a finding that the appellant was guilty of disorderly conduct. Rule 886 a, supra. No doubt, a scuffle arose between the appellant and the arresting officer. The question is whether, prior to the scuffle, words or actions of appellant were sufficient to justify his being placed under arrest for disorderly conduct. Accepting the officer's testimony as true, there was no evidence that appellant's alleged vile language was such as to offend, disturb, incite, or tend to incite a number of people gathered in the same area. There was no evidence that anyone, except Officer McGuire, and possibly Officer Block, heard what appellant said in the presence of Officer McGuire. Cf. Heinze v. Murphy, 180 Md. 423, 428, 24 A.2d 917. I point out that the profanity used by the appellant did not involve a characterization of the officer or calling him a vile name.

The majority opinion seems to read into Section 123 of Article 27 something that is simply not there. If this section should be amended to include using profane language in the presence of an officer, or failing to comply with a proper demand of a traffic officer (Code (1957), Article 66 1/2, § 97), this is a matter for consideration by the Legislature and does not justify judicial legislation to amend the statute with reference to disorderly conduct.

The cases from other jurisdictions cited in the majority opinion are all distinguishable, either on their facts or due to a specific statute in each of those jurisdictions not comparable to the...