Howard v. State

• Decision Date: 25 June 1976
• Docket Number: Nos. 546,547,s. 546
• Citation: 32 Md.App. 75,359 A.2d 568
• Parties: Laura Agnus HOWARD v. STATE of Maryland. Richard Alden HOWARD, Sr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 75

32 Md.App. 75

359 A.2d 568

Laura Agnus HOWARD v. STATE of Maryland.

Richard Alden HOWARD, Sr. v. STATE of Maryland.

Nos. 546, 547.

Court of Special Appeals of Maryland.

June 25, 1976.

Reginald W. Bours, III, Assigned Public Defender, Rockville, and John M. King, Damascus, for appellants.

Arrie W. Davis, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L Sonner, State's Atty., for Montgomery County and Thomas L. Heeney, Asst. State's Atty., for Montgomery County on the brief, for appellee.

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

ORTH, Chief Judge.

Laura Agnus Howard ¹, 900 Neal Drive, Rockville, Maryland was arrested on 24 March 1974. Officer William F. Green of the Montgomery County Police Department promptly executed a statement of charges, No. 195999, signed by a judicial officer as returned on the day of the arrest. ² The charging document gave 24 March 1974 as the offense date, the time as 12:10 A.M. and the location as Mrs. Howard's address. It alleged that she 'did unlawfully violate Art. 27, Sect. 121 of the State of Md. to wit did make a disturbance of the Public Peace by wilfully disturbing the public peace by making loud and unseemly noises, profanity, swear & curse, against the peace government and dignity of the state.' ³ She was released upon posting an unsecured personal bond in the amount of $500.

Officer Green set out the following in the

Richard Alden Howard, Sr., the husband of Laura Agnus Howard, was also arrested on 24 March 1974. Four statements of charges emanated from his arrest. Three of them, Nos. 198403, 198404, and 195996, were executed by Sergeant Jack W. Hall and the other one, No. 195998, was executed by Corporal J. E. Eckenrode, both members of the Montgomery County Police Department. All four charging documents were signed by a judicial officer as returned on 24 March 1974, and all pertained to arrest no. 37376 and report no. RD412510. In the statement executed by Eckenrode the time of the offense was given as 12:10 A.M and the place as Lynn Court and Neal Drive. It alleged that Mr. Howard 'did unlawfully commit the crime of Disturbance of the peace (Public) art. 27, Sec. 121 of the annotated Code of Maryland by willfully disturbing the public peace by making loud and unseemly noises, profanity, swear and curse against the peace, government and dignity of the State.' ⁴ Statement of Charges no. 195996 executed by Hall alleged that Mr. Howard 'did unlawfully commit the crime of Disturbance of the Public Peace Art. 27 section 121 Annotated Code of Maryland by willfully disturbing the public peace by making loud and unseemly noises, profanity curse and swear and use obscene language against the peace, government and dignity of the state.' ⁵ Statement of Charges no. 198403 executed by Hall alleged that Mr. Howard 'did unlawfully make an assault upon Jack W. Hall and did then and there beat, bruise and ill treat the said Jack W. Hall, against the peace, government, and dignity of the state. Commonlaw of the state of Maryland against the peace, government, and dignity of the state.' ⁶ Statement of Charges no. 198404 executed by Hall alleged that Mr. Howard 'did unlawfully hinder and prevent Jack W. Hall, a public police officer in the lawful execution of his duty, knowing him to be such officer Common laws of the state of Md. against the peace, government, and dignity of the state.' ⁷ Mr. Howard was released upon posting a 'personal' bond in the amount of $500.

Although on each Statement of Charges the judicial officer set the trial date as 16 May 1974, it seems that the cases came for trial as to both accused on 24 September 1974. ⁸ Mr. Howard and Mrs. Howard demanded a jury trial, Courts Art. § 4-302(d)(1), and the presiding District Court judge ordered that the 'original papers' be transferred to the Circuit Court fof Montgomery County. Bond was continued as to each accused. The five Statements of Charges were filed in the Circuit Court for Montgomery County and docketed on 30 September 1974. ⁹ According to the docket entries in each case under date of 1 November 1974, a motion by Mr. and Mrs. Howard to consolidate the cases was granted. ¹⁰ It appears from the docket entries that at a preliminary inquiry hearing on 1 November Mr. Howard and Mrs. Howard stood 'mute on plea' and demanded a jury trial. The court entered a plea of not guilty. Bond was continued as to each accused. On 24 January 1975 the State filed a 'Motion for Appropriate Relief.' ¹¹ The relief sought was that (1) the case in which Mrs. Howard was charged be severed from the four cases in which Mr. Howard was charged and remanded to the District Court for Montgomery County for trial, and that (2) with respect to the four cases in which Mr. Howard was charged, Criminal 15234 and Criminal 15235, each alleging a disturbance of the peace in violation of Code, art. 27, § 121, be severed and remanded to the District Court for Montgomery County for trial. Mr. and Mrs. Howard answered, opposing the motion. The State requested a hearing and the matter was heard on argument of counsel on 12 March 1975. The court issued an order dated 7 May 1975 and filed 8 May 1975:

'ORDERED that Criminal Numbers 15234 and 15235 charging Richard A. Howard, Jr. with disturbing the peace on two different occasions under Article 27, Section 121, be and they are hereby severed from Criminal Numbers 15232 and 15233 and 15230 and remanded for disposition to the District Court for Montgomery County; and it is further

ORDERED that Criminal Number 15230 charging Laura A. Howard with disturbing the peace under Article 27, Section 121, is hereby severed from Criminal Numbers 15232 and 15233 and remanded to the District Court of Montgomery County for disposition.'

In each case against them, Mr. and Mrs. Howard, on 5 June 1975, filed a request with the Clerk of the trial court that he 'enter an appeal to the Court of Special Appeals of Maryland . . . from the opinion, order and judgment of the Circuit Court for Montgomery County . . . of May 7, 1975,' ¹²

I

The State included a motion to dismiss the appeal in its brief as authorized by Maryland Rule 1036, § d. The argument in support of the motion was that the order appealed from was a proper exercise of the lower court's discretion granted by Rule 735. ¹³ Neal v. State, 272 Md. 323, 322 A.2d 887 (1974) is cited as indicating that a 'rightful exercise' of the court's discretion is not immediately appealable. Mr. and Mrs. Howard oppose the motion in their reply brief. Rule 1036 § d. They claim that the order of 7 May 1975 was not merely an exercise of judicial discretion resulting in a severance of offenses and defendants authorized by Rule 735. They assert that the order finally terminated the proceedings in the Circuit Court for Montgomery County as to three cases, criminal 15230 against Mrs. Howard and criminals 15234 and 15235 against Mr. Howard, and that it finally adjudicated both their right to a jury trial in those cases and the jurisdiction of the Circuit Court for Montgomery County to try them. We agree that it was a final judgment going to the jurisdiction of the court. The motion to dismiss the appeal is denied. See State v. McCray, 267 Md. 111, 126, 297 A.2d 265 (1972).

II

Statement of Charges no. 195999 (Criminal 15230) as to Mrs. Howard and Statements of Charges no. 195998 (Criminal 15235) and no. 195996 (Criminal 15234) as to Mr. Howard alleged a commission of the crime proscribed by Code, art. 27, § 121. ¹⁴ The offense created by the statute is a misdemeanor. Any person convicted thereof shall 'be sentenced to a fine of not less than one dollar and not more than one hundred dollars or shall be subject to imprisonment for not more than thirty days, or shall be subject to both such fine and imprisonment, in the discretion of the court and shall pay costs of the prosecution.' Statement of Charges no. 198403 (Criminal 15232) alleged that Mr. Howard committed the crime of assault and battery, and Statement of Charges no. 198404 (Criminal 15233) alleged that he committed the crime of hindering a police officer in the execution of the officer's duty. These crimes are common law misdemeanors without statutory designation of punishment. Thus, punishment is within the discretion of the trial court with the limitation that it be not cruel or unusual. Roddy v. Finnegan, 43 Md. 490, 500-506 (1876); Wilkins v. State, 5 Md.App. 8, 22, 245 A.2d 80 (1968); Coleman v. State, 4 Md.App. 386, 390-391, 243 A.2d 24 (1968), cert. den. 252 Md. 730 (1969); Perkins on Criminal Law (2d ed.) 494-498; 3 Wharton's Criminal Law (Anderson), § 1283. See Matter of Nawrocki, 15 Md.App. 252, 263, 289 A.2d 846 (1972), cert. den., 266 Md. 741 (1972).

The criminal and civil jurisdiction of the District Court is bestowed by statute. Its criminal jurisdiction is designated by Courts Art. §§ 4-301 through 4-303, which specify the criminal cases in which it has exclusive original jurisdiction, concurrent jurisdiction and no jurisdiction.

A. Exclusive Original Jurisdiction Cases, § 4-301

The District Court has exclusive original jurisdiction in cases in which the charge is:

1) a violation of the vehicle laws or the State Boat Act; ¹⁵

2) the commission of a common law or statutory misdemeanor; ¹⁶

3) a violation of certain sections of Code, art. 27, whether a felony or misdemeanor, if the value of money or the thing taken, stolen, received, converted, or shoplifted does not exceed $500; ¹⁷

4) if not a felony,

a) a violation of a county, municipal, or other ordinance;

b) a criminal violation of a state, county, or municipal rule or regulation;

c) doing or omitting to do any act made punishable by a fine, imprisonment, or other penalty as provided by a particular law, ordinance, rule, or regulation defining the violation. ¹⁸

B. Concurrent Jurisdiction Cases, § 4-302(c)

The jurisdiction of the District Court is concurrent with that of the circuit court in a...