Ayre v. State

• Decision Date: 22 April 1974
• Docket Number: No. 646,646
• Citation: 318 A.2d 828,21 Md.App. 61
• Parties: Thomas M. AYRE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 61

21 Md.App. 61

318 A.2d 828

Thomas M. AYRE v. STATE of Maryland.

No. 646.

Court of Special Appeals of Maryland.

April 22, 1974.

William E. Seekford, Towson, for appellant.

John P. Stafford, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty. for Baltimore City and David Jacobs, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Barbara A. Gold, Baltimore, amicus curiae, American Civil Liberties Union-Maryland Affiliate.

Argued before ORTH, C. J., and MOYLAN and MENCHINE, JJ.

ORTH, Chief Judge.

I

The fundamental principle of the administration of criminal justice under our judicial processes is that a person accused of crime is presumed to be innocent until proved guilty. 'The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.' Coffin v. United States, 156 U.S. 432, 453-454, 15 S.Ct. 394, 403, 39 L.Ed. 481. ¹ No person may be convicted and punished except upon evidence sufficient in law to establish beyond a reasonable doubt the corpus delicti, that is that the offense was committed as charged, and the criminal agency, that is that the accused committed it. The burden of this proof is upon the State as the accuser. The evidence offered by the State in meeting its burden must have been obtained in a manner neither violative of constitutional rights guaranteed an accused, nor offensive to constitutional prohibitions. The trial at which the evidence is adduced must be fair and impartial, affording due process of the law.

In this scheme of the administration of justice, the vehicle by which a person is formally accused and under which he is prosecuted, plays an important part. ² It was the ancient rule of the common law, now embodied in the Maryland Declaration of Rights, ³ that the accusation or charge must be such as to enable the accused to prepare his defense, and serve as a bar to future prosecution for the same act. State v. Lassotovitch, 162 Md. 147, 155, 159 A. 362. See Seidman v. State, 230 Md. 305, 187 A.2d 109; Byrd v. State, 16 Md.App. 391, 297 A.2d 312. The charge should be full and definite, State v. Kiefer, 90 Md. 165, 44 A. 1043, informing the traverser of the whole charge, Goeller v. State, 119 Md. 61, 85 A. 954, characterizing the crime and describing the particular offense, State v. Wheatley, 192 Md. 44, 63 A.2d 644. ⁴ See Mason v. State, 12 Md.App. 655, 280 A.2d 753; Ward v. State, 9 Md.App. 583, 267 A.2d 255; Lynch v. State, 2 Md.App. 546, 236 A.2d 45.

In Maryland, criminal prosecutions are not grounded exclusively upon statutory provisions. '(T)he Inhabitants of Maryland are entitled to the Common Law of England * * *', Art. 5, Declaration of Rights, Constitution of Maryland, and although the General Assembly of Maryland has enacted numerous statutory provisions concerning substantive offenses, resort is also had to the common law as the source and authority for crimes other than those embodied in the statutory array. See Clark and Marshall, Crimes (7th ed.), § 104. There is no material distinction with respect to the manner of charging an offense whether the proscribed conduct is a crime at the common law or under a statute, ⁵ but it is generally sufficient if an indictment for a statutory offense sets out the charge in the words of the statute. Bryant v. State, 229 Md. 531, 185 A.2d 190; Byrd v. State, supra; Blondes v. State, 16 Md.App. 165, 294 A.2d 661. ⁶ There is a caveat to this generalization,however, and it is because the charge in the case before us was drafted in the words of a statute, that we hold it to be defective.

Criminal statutes may create only one crime by proscribing only one act. Code, Art. 27, § 4. Or a statute may create a number of offenses. Code, Art. 27, § 287(a), (b), (c), (d). Or a statute may create one offense, but specify several different acts, transactions, or means by which it may be committed. Code, Art. 27, § 320. Or a statute may create one offense, and designate a variety of intents with which it is committed. Code, Art. 27, § 286(a)(1).

It is firmly established that only one offense may be charged in a single count. In other words, an indictment charging two or more substantive offenses in the same court is objectionable as being duplicitous. Kirsner v. State, 183 Md. 1, 36 A.2d 538; Jackson v. State, 176 Md. 399, 5 A.2d 282; Weinstein v. State, 146 Md. 80, 125 A. 889; Mohler v. State, 120 Md. 325, 87 A. 671. ⁷ This rule has been recognized in the Maryland Rules of Procedure and the Maryland District Rules. The provisions of Md. Rule 716 a and M.D.R. 716 a that different offenses are to be charged in a separate count for each offense, even though they may be charged in the same charging document, ⁸ is mandatory. Thus, neither two or more common law offenses nor two or more statutory offenses may be charged in the same count. ⁹

When a statute creates an offense and specifies several different acts, transactions, or means by which it may be committed, an indictment for violation thereof may properly allege the offense in one count by charging the accused in conjunctive terms with doing any or all of the acts, transactions, or means specified in the statute. This is the rule of Leon v. State, 180 Md. 279, 286, 23 A.2d 706 as construed in Morrissey v. State, 9 Md.App. 470, 475-476, 265 A.2d 585. See Bonneville v. State, 206 Md. 302, 111 A.2d 669; Sturgill v. State, 191 Md. 75, 59 A.2d 763; Thomas v. State, 173 Md. 676, 197 A. 296; Reynolds v. State, 141 Md. 637, 119 A. 457; Pritchett v. State, 140 Md. 310, 117 A. 763; Stearns v. State, 81 Md. 341, 32 A. 282. See also 41 Am.Jur.2d, Indictments and Informations, § 213. We said in Morrissey, 9 Md.App. at 476, 265 A.2d at 588:

'While the rule is that an indictment or information should not charge the commission of two or more substantive offenses in the same count, it is not objectionable to charge in one count (in conjunctive terms) several related acts which enter into and constitute one offense, although when separately considered they may be distinct offenses. * * * Thus, if the acts alleged are of the same nature and so connected that they can be construed as stages in one criminal transaction, they may be joined in one count, although separately considered they are separate offenses.' ¹⁰

See 4 Wharton's Criminal Law and Procedure, § 1798.

II

THOMAS M. AYRE was arrested under a warrant purporting to charge a violation of Code, Art. 27, § 418, issued 10 November 1972 upon the sworn application of a member of the Baltimore City Police Department. ¹¹ When the warrant came on for trial in the District Court of Maryland on 20 November 1972, Ayre prayed to be tried by a jury. He was arraigned under the warrant on 20 August 1973 in the Criminal Court of Baltimore and submitted under a plea of not guilty with the 'Issue before Sworn Jury.' Trial commenced the same day. The jury returned a verdict of guilty on 21 August, and he was fined $1000 and costs. Code, Art. 27, § 424. He noted a timely appeal.

Prior to trial on the merits, Ayre filed a motion to dismiss the warrant. Md. Rule 725 b. One of the grounds for the motion, as now presented on appeal, was 'The warrant is facially invalid for charging multiple offenses in the disjunctive within a single warrant and count thereof.'

Code, Art. 27, § 418, reads:

'Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this State for sale or distribution, or in this State prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.'

The warrant, as a 'Concise statement of essential facts constituting offense charged', set out:

'Did knowingly send or cause to be sent or bring or cause to be brought into this State for sale or distribution or in this State prepares, publishes print exhibit distributes or offer to distribute or has in his possession with intent to distribute or to exhibit or offer to distribute any obscene matter'

It then states: 'The said defendant is hereby formally charged with violation of Code, Art. 27, Sec. 418, contrary to the form of the Act of Assembly in such case made and provided and against the peace, government and dignity of the State.' All as to the 'formal charge' is printed as part of the warrant form except the numbers of the Code article and section which are filled in by hand. See M.D.Rule 706 e.

An application for an arrest warrant is made in writing, signed by the applicant upon oath before a judicial officer, ¹² M.D.Rule 706 a, who shall issue it, except where he is required or permitted to issue a summons, if it appears to him that there is probable cause to believe that a crime has been committed and that the accused has committed it, M.D.Rule 706 c 1. 'Before issuing a warrant, the judicial officer may seek the advice of the State's Attorney with respect to the offense charged', idem, but we think it patent that here such advice was not sought, at least with respect to the drafting of the charge. Nor did the State's Attorney, when the case was transferred to the Criminal Court of Baltimore, seek a grand jury indictment or file a criminal information to supplant the warrant.

The Rules call for the warrant to contain 'a plain, concise and definite statement of essential facts constituting each offense charged, and each formal charge placed against the defendant.' M.D.Rule 706 e (2). See Md.Rule 712 a. As drawn, the warrant in this respect followed neither the letter nor the spirit of the Rule. The 'plain, concise and definite statement of essential facts' consisted of an inartful attempt merely to repeat the provisions of the statute. The question is whether the warrant was therefore ...