Ayre v. State, 138

• Decision Date: 31 August 1981
• Docket Number: No. 138,138
• Citation: 291 Md. 155,433 A.2d 1150
• Parties: Thomas Martin AYRE and Baltimore News Center, Inc. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 155

291 Md. 155

433 A.2d 1150

Thomas Martin AYRE and Baltimore News Center, Inc. v. STATE of Maryland.

No. 138.

Court of Appeals of Maryland.

Aug. 31, 1981.

William E. Seekford, Towson, for appellants.

David H. Feldman, Asst. Atty. Gen., Baltimore, Stephen H. Sachs, Atty. Gen., Baltimore, on the brief for appellee.

Argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

DIGGES, Judge.

The two defendants prosecuting this appeal, Baltimore News Center, Inc. and its corporate officer, Thomas Martin Ayre, were convicted by a jury in the Criminal Court of Baltimore for distributing obscene matter in violation of this State's criminal code. Preliminarily, the State contends by its motion to dismiss this appeal that neither the record in this criminal cause nor the particular substantive issue we address is properly before this Court, views with which, after a brief explication of the facts, we shall express our disagreement. Moreover, reaching the merits, we conclude that reversals of these judgments are necessitated because of the absence of valid charging documents, and it is thus unnecessary that we further review the several additional issues raised by counsel for the petitioners.

On May 9, 1979, Baltimore City police officer William Bertazon entered the establishment of the News Center at 428 East Baltimore Street and purchased from petitioner Ayre for $12.50 a magazine denominated "Swedish Erotica # 22." Based on this purchase, charging documents were issued alleging that each petitioner "on or about 9 May, 1979 at 428 E. Baltimore Street unlawfully did sell a magazine entitled 'Swedish Erotica # 22' which was reviewed by Judge Ciotola and found to be obscene in violation of Annotated Code of Maryland, Article 27, Section 418" (1957, 1976 Repl. Vol., 1980 Cum.Supp.). The trial on these charges resulted in guilty verdicts against both defendants, and, upon sentencing, appeals were noted on February 14, 1980, to the Court of Special Appeals. Two successive motions were later filed in that court by petitioners under Maryland Rule 1025 b to extend the time for transmission of the record, necessitated by the inability of the court stenographer to transcribe the testimony so that the record could be forwarded to the appellate court within the 60-day time limit imposed by Rule 1025 a. When a third motion to extend the time for filing the record was docketed one day late, on August 14, 1980, the intermediate appellate court denied the relief sought as untimely, observing that the court was "without jurisdiction to grant relief requested." Upon denial by the appellate court of the petitioners' motion for reconsideration, the Criminal Court of Baltimore, when informed of this action, struck on September 17, 1980, the order for appeal, ostensibly acting pursuant to the authority vested in it by Rule 1013. This dismissal, however, with the consent of the assistant state's attorney, was vacated by the trial court twelve days later and the clerk of the criminal court was ordered to "transmit the record to the Clerk of the Court of Special Appeals for that Court's disposition." After the record was forwarded to the appellate tribunal, the State moved the intermediate court to dismiss the "reinstated" appeal (as the assistant attorney general terms it) on the ground that only the appellate court can extend the time for filing the record, and thus the trial court lacked authority to vacate its order striking the appeal. Agreeing with this contention, a three judge panel of the Court of Special Appeals dismissed the cause, and we granted certiorari.

We first address the propriety of the Court of Special Appeals' action in dismissing the appeal to that court. As an initial matter, we believe any contention that the appeal was correctly dismissed because the intermediate appellate court properly denied the earlier motion to extend the time for filing the record, when the delay was caused solely by the inability of the court stenographer to transcribe the proceedings, is foreclosed by our opinion in Uhler v. Real Properties, Inc., 289 Md. 7, 421 A.2d 966 (1980), and we do not understand the State to argue to the contrary. ¹ Rather the crux of the State's assertion of the correctness of the dismissal by the intermediate court is that the Criminal Court of Baltimore possessed authority to strike the appeal under Rule 1013, but upon doing so, lost all jurisdiction to reconsider the matter. Consequently, under this view, since no appeal was noted from the trial court's original dismissal order, and since the criminal court was not authorized to vacate that order, the Court of Special Appeals was correct in striking the appeal which was ostensibly revitalized when the trial court vacated its dismissal order. In making this argument, the State necessarily contends that the trial court possesses no revisory power over its appeal nullification order, and to this end asserts that both section 6-408 of the Courts Article (1974, 1980 Repl. Vol.) and Rule 625, which authorize certain revisory actions, apply only in civil proceedings. ² The State appears to be correct as to Rule 625, see Rule 1 a 1 (scope of rules). As for section 6-408, ³ it would seem that the critical inquiry is the scope to be given the terms "judgment" and "court" as used in this provision, words which are not defined in the statute. A facial examination of the enactment reveals nothing in this remedial legislation, or its context in the Court's Article, that necessarily dictates the narrow application the State advances. In any event, we need not resolve the question of the applicability of this statute to criminal causes, for what the State has overlooked is that "(i)n Maryland all judgments are under the control of the court during the term in which they are entered, and during that time the court has inherent power to strike out or modify judgments in both civil and criminal cases." Madison v. State, 205 Md. 425, 431, 109 A.2d 96, 99 (1954). In the absence of a statute or rule either modifying or rescinding this power, such authority survives. See Owen v. Freeman, 279 Md. 241, 245, 367 A.2d 1245, 1247-48 (1977); Scott v. State, 223 Md. 376, 381, 164 A.2d 716, 719 (1960), and numerous citations therein. See also J. Poe, Pleading and Practice § 388 (5th ed. by H. Tiffany 1925). So, assuming the State is correct in its assertion that no rule or statute exists authorizing or otherwise regulating the vacation of the dismissal order, the Criminal Court of Baltimore possessed inherent authority to strike its judgment dismissing the appeal at anytime during the term of court in which that order was rendered. By local rule, the term of the court with which we are here concerned was specified to commence on the second Monday in September (September 8, 1980) and run until the second Monday of the following January so that the intervening revisory order of September 29 was entered prior to the expiration of the existing court term. See Rule 21 of the Rules of the Supreme Bench of Baltimore City. ⁴ This being true, the State is incorrect in its assertion that the Criminal Court of Baltimore lacked authority to strike its order of dismissal, and in light of our holding in Uhler, there exists no basis for the Court of Special Appeals' dismissal of the petitioners' appeal in this case.

Before moving to explain why reversal of these convictions for defective charges is obligatory, we pause to deny the State's motion to dismiss consideration of this particular issue, and explain our reasons. The petitioners argue that the trial court erred in denying their pretrial motion to dismiss the charging documents which was grounded, in part, on the contention that the instruments "failed to state all the essential elements of the offense" of which they were purportedly accused, and thus were fatally defective. The State counters in its motion to dismiss filed in this Court that the failure to advance this contention in the petition for certiorari forecloses examination of the issue here. While "ordinarily", based on Rule 813 a, this motion would be granted, under the unusual circumstances presented here, we deem it proper to exercise the discretion which that rule provides and consider the issue. ⁵

Turning now to the substantive issue raised by petitioners which we address, it is clear that the pretrial motion to dismiss the charges should have been granted by the trial court because the charging documents were defective for failure to properly and adequately charge the two defendants here. The provision of the code for which appellants ostensibly stand convicted provides:

Any 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. (Code (1957, 1976 Repl. Vol., 1980 Cum. Supp.), Art. 27, § 418 ⁶). Each of the appellants here was charged with "unlawfully (selling) a magazine entitled 'Swedish Erotica # 22' which was reviewed by Judge Ciotola and found to be obscene in violation of ... section 418." As we view these charging documents, they are deficient, particularly in this case, in two respects: (i) they fail to allege directly that the magazine was obscene; and (ii) there is a failure to allege the "knowing" element of the crime purportedly charged.

In discussing the deficiencies of the accusations, we think it clear the assertion that Judge Ciotola reviewed the magazine and found it to be obscene is not a direct allegation that this material is in fact obscene. We have searched our criminal statutes in vain to find a provision that makes unlawful the selling of a magazine determined to be obscene by Judge Ciotola, or, for that...