Baker v. State

• Decision Date: 19 February 1969
• Docket Number: No. 220,220
• Citation: Baker v. State, 6 Md.App. 148, 250 A.2d 677 (Md. App. 1969)
• Parties: Robert Lee BAKER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 148

6 Md.App. 148

250 A.2d 677

Robert Lee BAKER v. STATE of Maryland.

No. 220.

Court of Special Appeals of Maryland.

Feb. 19, 1969.

[250 A.2d 679] August L. Lundquist, Glen Burnie, for appellant.

John J. Garrity, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Baltimore, Julian B. Stevens, Jr., and Ronald M. Naditch, State's Atty. and Asst. State's Atty. for Anne Arundel County, Annapolis, on the brief, for appellee.

Before MURPHY, C. J. and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

ORTH, Judge.

FAILURE TO CHARGE AN OFFENSE

Appellate Review

On appeal from a conviction by a jury in the Circuit Court for Anne Arundel County and sentence of 3 years to run consecutively with a sentence then being served, the appellant for the first time raises the point that the count of the indictment under which he was convicted did not charge an offense. Md. Rule 725 b reads:

'Defenses and objections based on defects in the institution of the prosecution or in the indictment other than that it fails to show jurisdiction in the court or to charge an offense, must be raised by motion before trial. Such motion shall include all such defenses and objections then available to the accused. Failure to present any such defense or objection as herein provided shall constitute a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment to charge an offense shall be noticed by the court at any time during the proceeding. Any defense or objection capable of determination without the trial of the general issue may be raised before trial by motion.'

By Rule 5 i 'court' includes the Circuit Court for any county but does not include this Court. Thus there is no authority by Rule 725 b for this Court to notice, at any time during the proceeding, lack of jurisdiction or failure of the indictment to charge an offense. At the close of all the evidence the appellant moved for a judgment of acquittal and the motion was denied. We must determine whether the lower court erred in denying the motion. Williams v. State, 5 Md.App. 450, 247 A.2d 731. By Rule 1085 this Court ordinarily will not decide any point or question not tried and decided by the lower court but the Rule expressly provides: 'Where jurisdiction cannot be conferred on the Court by waiver or consent of the parties, a question as to the jurisdiction of the lower court may be raised and decided by this Court whether or not raised and decided in the lower court.' We do not think that a court exercising criminal jurisdiction has the power, in a jury trial, to allow a case to go to the jury, or in a court trial to make a finding of guilt, or in either case to impose sentence, under an indictment which charges no offense. See Putnam v. State, 234 Md. 537, note 1 at 540-541, 200 A.2d 59. We believe that the question of the failure of the indictment to charge an offense is a matter of jurisdiction and that, therefore, Rule 1085 permits appellate review whether or not the question was tried and decided below.

The Offense Charged

The case went to the jury on the second count of the indictment. It charged that the appellant '* * * unlawfully did attempt to violate the narcotic law, to wit; to smuggle narcotics into the Maryland House of Correction; 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.' There is no 'narcotic law' in this State which makes it a crime, in the precise terms of the count, 'to smuggle narcotics into the Maryland House of Correction.' But it is clear from the record that the lower court, the State and the appellant assumed that the statute which the count charged the appellant attempted to violate was Art. 27, § 122A of the Maryland Code. The court so instructed the jury and there were no exceptions to the instructions. The statute ¹ designates certain items, viz: anything to effect the escape of a prisoner lawfully detained in a place of confinement within the State, any intoxicating beverage, any stimulating, sedative, narcotic drug or dangerous drug as defined by Art. 27, § 307. ² With reference to these items it creates offenses in three categories with respect to places of confinement within the State:

1) The first category pertains to the delivery of such items.

Whoever

a) delivers, or

b) procures to be delivered, or

c) has in his possession with intent to deliver

any such item ³ to a person legally detained and confined in any place of confinement within the State shall be guilty of a misdemeanor.

2) The second category pertains to the concealing of such items.

Whoever

a) deposits, or

b) conceals

any such item in or about the institution, or upon any land appurtenant thereto, with the intent that a convict shall obtain or receive it, shall be guilty of a misdemeanor.

3) The third category pertains to the receipt of such items. Whoever receives any such item from a convict, with the intent to convey it out of the institution, without written permission of the superintendent of prisons or the officer in charge of the place of confinement, shall be guilty of a misdemeanor.

It is clear that the offenses proscribed in the second and third categories require a specific intent but, as to the offenses proscribed in the first category, only that of possession, requires a specific intent. ⁴ The offenses of delivering or procuring to be delivered proscribed in the first category require no specific intent. Therefore, if the count under which the appellant was convicted charged an offense, it could only be with regard to § 122A, that he attempted to commit the offenses of the delivery of narcotics to a convict or of procuring them to be so delivered, for the count alleged no specific intent as required in the other offenses under the section. In charging the substantive offense the general rule is that the criminal intent of the accused must be alleged when the criminality of an act depends upon the intent with which it was done, as when the statute makes such intent one of the constituent elements of the offense. 4 Wharton's Criminal Procedure (Anderson) § 1773, p. 576. That is to say, when an act is by statute made criminal only if done with a particular intent, the intent must be alleged and proved according to the terms of the statute. Joyce on Indictments, 2d Ed., p. 450. See also Hochheimer Criminal Law, 2d Ed., § 102, p. 123; 41 Am.Jur.2d 951; 42 C.J.S. Indictments and Informations § 134 p. 1027. ⁵ It follows that when the indictment charges an attempt to commit an offense, an essential element of which is a specific intent, the required specific intent of the offense charged as attempted must be averred. 'Specific intent to commit the offense charged in an indictment, of which intent is an essential ingredient, is not sufficiently averred by an allegation that the accused did the acts charged in an attempt to commit the offense charged, when such acts also constitute an entirely distinct and separate offense * * *.' 4 Wharton's Criminal Procedure, supra, § 1773, p. 577.

The appellant was convicted of attempting 'to violate the narcotic law, to wit: to smuggle narcotics into the Maryland House of Correction.' ⁶ The narcotic laws of this State are usually considered to be those codified in Md.Code, Art. 27, §§ 276-306D, under the title 'Crimes and Punishments', subtitle, 'Health-Narcotic Drugs.' ⁷ It may be cited as the 'Uniform Narcotic Drug Act.' § 305. We find no provision in the Uniform Narcotic Drug Act expressly proscribing the offense here charged. Nor can we construe the language used in charging the offense to allege attempted possession or control of a narcotic drug, § 277, assuming there are such offenses as attempted possession and attempted control, or the other offenses created by the Uniform Narcotic Drug Act. If the count here charged an offense, we agree with the conclusion obviously arrived at by the lower court, that it could only be the offense of attempting to violate Art. 27, § 122A. We must next determine whether the violation specified, charged as attempted, was an offense under that statute. It is patent that as expressly stated it was not. The word 'smuggle' does not appear in the statute. By our finding as to the lack of allegations of the required specific intents, the only offenses under the statute that in any event could be said to be properly charged as attempted are those as to the delivery or procuring to be delivered a narcotic drug to a person legally confined in a penal institution or place of confinement.

We are here considering whether the indictment charged an offense. This question is distinguished from the question, when the indictment does charge an offense, whether it was fatally defective in failing to allege such other facts as would enable the accused to prepare his defense, State v. Lassotovitch, 162 Md. 147, 159 A. 362, 81 A.L.R. 69, for an accused has the constitutional right to be informed of the accusation against him to prepare his defense, Seidman v. State, 230 Md. 305, 187 A.2d 109. See Briscoe v. State, 3 Md.App. 462, 240 A.2d 109. It is no longer open to controversy in this State that as to the question whether an indictment charges an offense, 'in indictments for statutory offenses, in describing the act, the doing of which, or omitting to do which, constitutes the crime, it is sufficient to describe said act in the words of the statute. * * * In other words, the language of the statute, when used, is a sufficient description of the crime; and if the statute contains all of the elements necessary to constitute a crime, the indictment is sufficient to describe the offense, if laid in the words of the statute.' State v. Lassotovitch, supra, at 150, 159 A. at 363. In the instant case there is no statute making the attempt to violate § 122A a crime, the attempt being a misdemeanor at common law, but the indictment...