Dill v. State

• Decision Date: 21 February 1975
• Docket Number: No. 495,495
• Citation: 332 A.2d 690,24 Md.App. 695
• Parties: Maurice Earl DILL a/k/a Charles Day v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 695

24 Md.App. 695

332 A.2d 690

Maurice Earl DILL a/k/a Charles Day v. STATE of Maryland.

No. 495.

Court of Special Appeals of Maryland.

Feb. 21, 1975.

Allan P. Feigelson, Assigned Public Defender, Baltimore, for appellant

Bernard A. Raum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., and Ford Loker, Asst. State's Atty. for Baltimore City, on the brief for appellee.

Argued before ORTH, C. J., and POWERS and MOORE, JJ.

ORTH, Chief Judge.

STATEMENT OF CASE

The charging document in this case was an arrest warrant issued on 11 October 1973 by a District Court commissioner upon the sworn application of a police officer on information received. Maryland District Rules 702, §§ a and f, and 706 c. It charged that Maurice Earl Dill (also known as Charles Day) did on 4 October 1973 'at 3113 St. Paul Street (basement) expose his penis to Mary Crawford Clawsey by the act of taking his erect penis out of his pants and holding it between his thumb and forefinger in her view and in the open view of others in a public place.' Interlined after the word 'exposed' was the phrase 'parts of his body required by law to be covered.' The warrant declared that Dill was 'formally charged' with a violation of the common law. On 6 November when the warrant came on for trial in the District Court, Courts Art. § 4-301(1), Dill prayed a jury trial, Courts Art. § 4-302(d). He was convicted at a bench trial in the Criminal Court of Baltimore on 8 January 1974 and on 28 March was sentenced to two years. He appealed.

ISSUE FOR DECISION

When alembicated, the actual issue presented for decision The first hurdle which Dill must overcome, and which is not mentioned by him or the State, is that neither the matter of the repeal of the common law nor the legality of the punishment imposed was presented to the trial court. 'This Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court; . . ..' Maryland Rule 1085. We may, however, pursuant to the Rule, decide a point or question of law which was presented to the lower court when a decision thereon is necessary or desirable for the guidance of the lower court or to avoid the expense and delay of another appeal to this Court even though such point or question of law was not decided by the lower court. And where jurisdiction cannot be conferred on this Court by waiver or consent of the parties, a question as to the We believe we may decide the question whether the common law crime of indecent exposure is repealed by statute. We so believe for two reasons. First, we think that the question was necessarily before the court below, even though presented by implication, and that it is desirable for the guidance of trial courts, both circuit courts and District Courts, that it be decided. Second, jurisdiction of the trial court is involved, both at the guilt stage and the penalty stage of the proceedings. We shall discuss the jurisdiction of the Criminal Court of Baltimore to try the case later in this opinion, but we now observe that, with respect to the sentence, whether the trial court exceeded its power by prescribing a penalty contrary to law concerns its jurisdiction. State ex rel. Sonner v. Shearin, 272 Md. 502, 526, 325 A.2d 573. Whether it did so exceed its power depends on whether the common law penalty for the offense is in effect in Maryland.

                is whether, in Maryland, the common law crime of indecent exposure has been repealed by legislative enactment.  Dill asks: 'Can the Appellant be charged, tried, convicted and sentenced under a common law crime if the acts constituting that crime are specified in a Maryland statute?'   The issue is of obvious importance to Dill, if for no other reason, because of the punishment permitted.  'In the case of common law crimes, the only restrictions on sentence are that it be within the reasonable discretion of the trial judge and not cruel and unusual punishment.'  Kirkorian v. State, 233 Md. 324, 326, 196 A.2d 886, 867.  See Messina v. State, 212 Md. 602, 607, 130 A.2d 578.  The argument set out in Dill's brief does not speak to his question as framed.  It, in effect, is limited to the question of punishment.  Dill claims that he should have been sentenced under Code, Art. 27, § 122 'rather than under the common law' and his conclusion is 'The sentence of the lower court is illegal and should be stricken.  1  The State meets Dill's argument.  It presents as the issue: 'Was the two year sentence imposed in the instant case lawful.'  It argues that it was
                jurisdiction of the lower court may be raised and decided in this Court whether or not raised and decided in the lower court.  Moore v. State, 15 Md.App. 396, 291 A.2d 73
                

THE LAW

The Common Law Crime of Indecent Exposure

At the common law of England, to which the inhabitants of Maryland were declared to be entitled by Article 5, Declaration of Rights, Constitution of Maryland, indecent exposure of the person was a misdemanor. L. Hochheimer, Criminal Law § 741, p. 453 (1st ed., 1897); Clark & Marshall, Law of Crimes, § 11.08, p. 779 (7th ed., 1967); R. Perkins, Criminal Law 395-396 (2d ed., 1969); 2 Wharton's Criminal Law and Procedure § 784, pp. 625-627 (Anderson ed., 1957); Annot. 94 A.L.R.2d 1353; Annot. 93 A.L.R. 996. ² The "Indecent exposure in a public place in such a manner that the act is seen or is likely to be seen by casual observers is an offense at common law * * *. Ordinarily, * * * the place where the exposure is made must be public. What constitutes a public place within the meaning of this offense depends on the circumstances of the case. The place where the offense is committed is a public one if the exposure be such that it is likely to be seen by a number of casual observers * * *. Indecent exposure on a public highway so that one person sees, and others passing by can see, is an offense * * *.' 67 C.J.S. Obscenity § 5 (p. 25). Hochheimer on Crime and Criminal Procedure, 2nd Ed., p. 430, defines the common law crime of indecent exposure as consisting of 'exposure in public of the entire person, or of parts that should not be exhibited. An Indecent exposure, to amount to a crime, must have been done intentionally. Intent may be inferred from the conduct of the accused and the circumstances and environment of the occurrence. The essential intent is a general and not a specific intent. An exposure becomes indecent, and a crime, when defendant exposes himself at such a time and place that, as a reasonable man, he knows or should know his act will be open to the observation of others. State v. Martin, 125 Iowa 715, 101 N.W. 637; Peyton v. District of Columbia, D.C.Mun.App., 100 A.2d 36, 37.' ³

authorities above cited are in substantial accord that at the common law indecent exposure was the wilful and intentional exposure of the private parts of one's body in a public place in the presence of an assembly. Thus, its main elements were the wilful exposure, the public place in which it was performed, and the presence of persons who saw it. The common law offense was held to exist in Maryland in Messina v. State, supra. The Court of Appeals described it, 212 Md. at 605-606, 130 A.2d at 579 exposure is 'public,' or in a 'public place,' if it occurs under such circumstances that it could be seen by a number of persons, if they were present and happened to look.' A number of cases have held that it is immaterial that the exposure is seen by only one person if it occurs at a place open or exposed to the view of the public and where anyone who happened to have been nearby could have seen if he had looked. The rule is stated in Reg. v. Webb, 3 Cox, C.C. 183. See also Morris v. State, 109 Ga. 351, 34 S.E. 577, explaining Reg. v. Webb; and Reg. v. Farrell, 9 Cox, C.C. 446; and Commonwealth v. Hamilton, 237 Ky. 682, 36 S.W.2d 342. Cases on the subject are collected in a note in 93 A.L.R. 996. * * *.

The Statutory Crime of Indecent Exposure

Indecent exposure was dealt with in Maryland by legislative enactment in 1902. Chapter 281, § 67A of the Acts 'Any person * * * who shall wilfully act in a disorderly manner * * * by indecently exposing his person on or about any public place or any steamboat wharf, dock or public waiting room, or in or about the station grounds of any railroad in the State, or in or on any steamboat, streetcar, electric car, railroad car, passenger train or other In Matter of Nawrocki, 15 Md.App. 252, 289 A.2d 846, we discussed fully whether § 122 required the actual presence of other persons who may be affected by the conduct or language proscribed. At 255-259, 289 A.2d 846. We held that it did. At 259, 289 A.2d 846.

of the General Assembly of that year added a new section to Art. 27, 'Crimes and Punishments', under the sub-title 'Disturbance of the Public Peace'. It provided, inter alia, that '(a)ny person * * * who shall wilfully act in a disorderly manner * * * by indecently exposing his person on or about any steamboat wharf, dock or public waiting room, or in or about the station grounds of any railroad in the State, or in or on any steamboat, streetcar, electric car, railroad car, passenger train or other public conveyance, * * * shall upon conviction thereof, be sentenced to a fine of not less than five dollars or more than fifty dollars and costs, and when such fine and costs are not paid, the party shall be committed for not less than seven days or more than sixty days to the city or county jail, such party to be released at any time before the term of his imprisonment expires upon the payment of his fine and costs.' The [332 A.2d 695] statute remained unchanged in substance for sixty-five years. ⁴ Acts 1967, ch. 520, however, made an amendment brief in content but significant in effect. It added 'on or about any public place' to the places in which indecent exposure was proscribed. ⁵ As in effect today ⁶ § 122 of...