Bacheller v. State

• Decision Date: 15 April 1968
• Docket Number: No. 52,52
• Citation: 3 Md.App. 626,240 A.2d 623
• Parties: Donald C. BACHELLER, Allan B. Greene, Wayne R. Heimbach, David L. Harding, Daniel A. Kline and Daniel Rudman, v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 626

3 Md.App. 626

240 A.2d 623

Donald C. BACHELLER, Allan B. Greene, Wayne R. Heimbach David L. Harding, Daniel A. Kline and Daniel Rudman, v. STATE of Maryland.

No. 52.

Court of Special Appeals of Maryland.

April 15, 1968.

Anthony G. Amsterdam, Philadelphia, Pa., with whom was Fred E. Weisgal, Baltimore, on brief, for appellants.

Frank A. DeCosta, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Alan B. Lipson, State's Atty., and Asst. State's Atty., respectively, Baltimore, on brief, for appellee.

Before ANDERSON, MORTON, ORTH, and THOMPSON, JJ., and CHILDS, E. MACKALL, Special Judge.

ANDERSON, Judge.

On April 19, 1966, the appellants were tried in the Municipal Court of Baltimore and convicted of disorderly conduct in violation of Article 27, section 123, Maryland Code (1967 Repl.Vol.). Appellants were each sentenced to a term of sixty days in the Baltimore City Jail and fined fifty dollars plus costs. An appeal was duly noted and a trial de nove granted. Trial was held in the Criminal Court of Baltimore on June 8, 1966, before a jury, Judge J. Gilbert Prendergast presiding. Appellants were found guilty and each was sentenced to sixty days in the Baltimore City Jail and fined fifty dollars plus costs.

Appellants raise seven allegations of error on appeal:

1. That Article 27, section 123 is unconstitutional on its face under the First and Fourteenth Amendments to the Constitution of the United States.

2. That Article 27, section 123 as applied was an unconstitutional abridgement of the appellants' right of free speech, expression, petition and assembly, guaranteed by the First and Fourteenth Amendments to the Constitutions of the United States.

3. That appellants' convictions violate the First and Fourteenth Amendments because the trial court refused to instruct the jury that appellants had a Constitutional right to express their political beliefs and that the jury could not convict on the basis of a disagreement with appellants' expressed views.

4. That the denomination of appellants' cause before the jury as an 'appeal' deprived them of their statutory right to a trial de novo in the Criminal Court of Baltimore City, and their Federal Constitutional right to a fair trial.

5. That the refusal of the trial court to question jurors on the voir dire examination about relatives serving in Vietnam deprived appellants of their statutory right to challenge jurors for cause.

6. That the trial court committed reversible error in reopening the case to allow the testimony, highly prejudicial to the appellants, of a witness for the prosecution who had been taught and prompted by the content of the previous testimony.

7. That the trial court committed reversible error by failing to give a promised instruction that the Jury should exclude from consideration the evidence of events inside the recruiting station.

The evidence adduced below established that on Monday, March 28, 1966, at approximately 3:00 p. m., a group comprised of 30 to 40 demonstrators, evidencing dissatisfaction with the United States policy in the Vietnam conflict, congregated outside the United States Recruiting Station at 3328 Greenmount Avenue, Baltimore, Maryland. Subsequently, three of the appellants entered the Recruiting Station and demanded, through their spokesman, Harding, that their protest posters be displayed inside. This request was rejected and the appellants refused to leave until there was compliance with their demand. Thereafter, the three additional appellants also entered and joined the original three.

Mr. Frank Udoff, United States Marshal for the District of Maryland, approached the appellants shortly before the usual 5:00 p. m. closing time, identified himself, and requested them to leave peacefully. This request was rejected and it became necessary for Mr. Udoff to deputize several Baltimore City policeman to assist in the physical removal of the appellants to the sidewalk outside. By stipulation, there was no dispute as to the authority of the Marshal to so remove the appellants.

Some appellants were carried outside and deposited in a prone position upon the sidewalk while others were escorted out. Two appellants attempted to crawl back to the doorway and thus bar its closing.

Appellants then assumed either a semicircular sitting or prone position, fully blocking the ten to twelve foot sidewalk for picketers and pedestrians alike. This performance attracted a gathering of between 80 and 100 onlookers. Some of the gathering became hostile and hurled statements at the demonstrators inclusive of 'let's get them', 'we'll take care of them.' As the crowd increased its discontent, the police found it necessary to hold the crowd back and to intercede between the two elements. As the situation grew more tense and the anger grew, additional sentiments were hurled from the crowd, such as, 'Bomb Hanoi', 'let's get them, I'll bust him in the mouth.' The resultant turmoil was such that the police found it necessary to fend off the crowd's attempt to vent its displeasure on the demonstrators and to ward off the trampling of the appellants. The size of the crowd continued to increase.

At this juncture, the appellants were ordered by police to get up, but they declined to abide by the order. As the possibility of violence increased the order was repeated three times, but appellants continued to refuse to respect the order. Subsequently, the officers arrested the appellants and charged them with disorderly conduct directly arising out of the obstruction of the sidewalk which consequentially was causing a public disturbance and the specific refusal to comply with three lawful commands of the police officers.

I and II

The thrust of the appellants' first and second contentions is that Article 27, section 123, Maryland Code Annotated (1967 Repl.Vol.), fails to afford sufficient fair warning that the conduct herein engaged in was subject to criminal sanctions and is therefore unconstitutionally vague and indefinite; and that, furthermore, the application of the statute infringed upon the rights protected by the First and Fourteenth Amendments.

All statutes come before this Court cloaked in a presumption of constitutionality. Therefore, any challenge levied at the constitutionality of a duly enacted statute must clearly establish that said statute plainly contravenes the Federal or State Constitutions, otherwise the presumption remains unrebutted and the statute will not be declared unconstitutional. See Woodell v. State, 2 Md.App. 433, 437, 234 A.2d 890 (1967). Clearly, a statute is within the guidelines of the constitutional safeguards only if persons of ordinary intelligence would be able to know when their conduct would place them in violation of the specified statutory prohibition. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 63 L.Ed. 888 (1939). However, while compelling strict compliance to such guidelines, the Federal Constitution refrains from the imposition of impossible standards of specificity in the construction of penal statutes. The primary requirement is that a statute convey 'sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.' United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947); United States v. Woodward, 376 F.2d 136, 140 (7 Cir. 1967).

The formulation of statutory language is, at best, an inexact exercise vulnerable to varying degrees of doubt and ambiguity. Therefore, the enunciation of the meaning and ambit of a specific statute by judicial construction strives to ascertain and define the legislative intent and purpose, and upon making of a determination of the legislative meaning the efficacy of the statute is more clearly and precisely promulgated.

In making our determination of the instant statute's constitutional posture, we remain attentive to the observation of Mr. Justice Holmes in Roschen v. Ward, 279 U.S. 337, at page 339, 49 S.Ct. 336, at page 336, 73 L.Ed. 722 (1929), when he stated:

'We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean.'

Article 27, section 123, Maryland Code (1967 Repl. Vol.), states in pertinent part:

'Every person who shall be found drunk, or acting in a disorderly manner to the disturbance of the public peace, upon any public street or highway, in any city, town or county in this State * * * shall be deemed guilty of a misdemeanor; and upon conviction thereof, shall be subject to a fine of not more than fifty dollars, or be confined in jail for a period of not more than sixty days or be both fined and imprisoned in the discretion of the court. * * *'

In rejecting a prior contention that the statute was unconstitutional on its face, the Court of Appeals in Drews v. State, 224 Md. 186, stated at page 192, 167 A.2d 341, stated at page 343, through Judge Hammond (presently Chief Judge) that:

'The gist of the crime of discorderly conduct under Sec. 123 of Art. 27, as it was in the cases of common law predecessor crimes, is 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. * * * Also, it has been held that failure to obey a policeman's command to move on when not to do so may endanger the public peace, amounts to disorderly conduct.'

In Sharpe v. State, 231 Md. 401, 404, 190 A.2d 628, 630 (1963), while the Court of Appeals did not reach the question of whether the charge of disorderly conduct could be justified, it did observe that '(r)efusal 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...