Lambert v. State

• Decision Date: 09 November 1949
• Docket Number: 45.
• Parties: LAMBERT v. STATE.
• Court: Maryland Court of Appeals

69 A.2d 461

193 Md. 551

LAMBERT v. STATE.

No. 45.

Court of Appeals of Maryland

November 9, 1949

Percy K. Lambert was convicted in the Circuit Court for Cecil County, Floyd J. Kintner, J., of violating a statute making it unlawful to erect or maintain any sign intended to aid in the solicitation or performance of marriages and he appealed.

The Court of Appeals, Delaplaine, J., reversed the conviction on the ground that admission of evidence that defendant was not a member of the county ministerial association was prejudicial.

Louis S. Ashman, Baltimore (Ashman and Link, Baltimore, and Edward D. E. Rollins, Elkton, on the brief), for appellant.

Harrison L. Winter, Asst. Atty. General and Kenneth C. Proctor, Asst Atty. General (Hall Hammond, Atty. General and Henry L Constable, State's Atty. Cecil Co. and J. Gifford Scarborough, Asst. State's Atty. Cecil Co., both of Elkton, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

DELAPLAINE Judge.

This appeal was taken by the Rev. Percy K. Lambert, of Elkton from the judgment of conviction entered upon the verdict of a jury in the Circuit Court for Cecil County for violation of the statute making it unlawful to erect or maintain any sign intended to aid in the solicitation or performance of marriages. Laws of 1943, ch. 532, Code Supp. 1947, art. 27, sec. 444A.

The State charged that on September 1, 1947, defendant maintained a sign containing the name 'Rev. P. K. Lambert' at the entrance to his home at 170 East Main Street to aid in the solicitation and performance of marriages. The Court admitted in evidence two photographs of the sign. One was taken on an afternoon in September, 1947; the other on a night in August, when the sign was illuminated by electricity.

The Court also admitted a bulletin of marriage information, which had been issued by defendant. It was shown that 4,000 of these bulletins had been printed for defendant in 1946. After giving information as to minimum ages and other requirements for applicants for marriage licenses, the bulletin contained the following advice: 'No magistrate or civil authority is permitted to solemnize matrimony in this State, but I perform nonsectarian wedding services for Catholics and Hebrews which is accepted by their churches at face value. I am the only minister here that offers this service to the public. * * * I do not make a charge, but legal and local expenses in our city, such as rent, phones, secretary, etc., are very high and due to the great number of couples to be served by marriage in Elkton, and in order to render prompt and efficient services to all, the fee has been estimated at $10. Some couples pay more, and a few in desperate circumstances pay less. * * * Applicants be sure to come direct to my home at the address given below. Do not go to the Court House or accept advice from any outsider until you have first received advice from me. This will save you both time and money. I have been in this business for many years and am considered the most efficient minister in Elkton. My name is at the front door. Turn the knob and walk in. Either myself or my secretary will greet you.'

The State showed that thirty ministers performed 1,267 marriages in Cecil County during the month of August, 1947, and that 275 of these were performed by defendant.

Defendant did not testify. His only witness, a next-door neighbor, testified that the sign was at the entrance to defendant's home under the front porch, but admitted on cross-examination that the sign was illuminated by an electric light attached to one of the front posts of the porch about seven feet in front of the door.

First. Defendant contended that the indictment was defective because it was not drawn in the exact language of the statute. The indictment charged that defendant displayed signs 'intended to aid,' whereas the statute forbids signs 'any one or more of which is intended to aid.' There is no merit in the objection. The general rule, as stated in State v. Monfred, 183 Md. 303, 37 A.2d 912, is that an indictment for a statutory offense is sufficient if it follows the language of the statute and is sufficiently specific to inform the accused of the particular charge on which he is to be tried. Of course, an indictment, whether based upon the common law or upon a statute, must characterize the particular crime and describe it with such reasonable certainty that the accused will be enabled to prepare his defense and, if necessary, plead the judgment as a bar to any subsequent prosecution for the same offense. State v. Wheatley, Md., 63 A.2d 644, 647. In the case at bar the omission of the words 'which is' from the language of the statute did not deprive defendant of any necessary information, especially since the State, after a demand for a bill of particulars, specifically mentioned the sign which defendant was charged with displaying.

Second. Defendant contended that his conviction by the Court below deprives him of the free exercise of religion guaranteed by the First Amendment of the Federal Constitution. This contention is not tenable. We have held that the Act of 1943 does not violate the First and the Fourteenth Amendments. State v. Clay, 182 Md. 639, 35 A.2d 821; Hopkins v. State, Md., 1949, 69 A.2d 456.

Third. Defendant contended that it was error to refuse his testimony that the State's Attorney of Cecil County advised him in 1944, before he erected his sign, that it did not violate the law. For reasons given in Hopkins v. State, supra, we reject this contention.

Fourth. Defendant objected in the Court below to the testimony of the Rev. Walter A. Hearne, pastor of the Elkton Methodist Church, (1) that defendant was not the pastor of any church in Elkton and did not perform any ministerial duties in this community except the performance of marriages, and (2) that he was not a member of the Cecil County Council of Churches, a ministerial association composed of 32 Protestant ministers. The rule is established that where the defendant in a criminal prosecution is charged with displaying a sign advertising himself as a minister with intention to aid in the solicitation and performance of marriages, evidence that he was not the pastor of any church and did not perform any ministerial duties other than the performance of marriages is admissible. Sturgill v. State, Md., 59 A.2d 763. On the other hand, evidence that defendant was not a member of an association of Protestant ministers is irrelevant and prejudicial. Hopkins v. State, supra.

Fifth. Defendant contended that the judge erred in admitting photographs of the sign in evidence. There can be no question that the photographs were admissible to show the location, size and appearance of the sign.

Sixth. Defendant objected to the evidence as to the number of marriages performed in Cecil County during August, 1947. Although there were thirty ministers who performed the marriages in the county during that period, defendant performed more than one fifth of these marriages. This evidence was relevant to show that defendant intended to conduct, and was conducting, a marriage business of the type forbidden by the law.

Seventh. Defendant objected to the admission of his bulletin of marriage information, because the State had failed to show that he had distributed any of these bulletins within a year prior to September 1, 1947, the date of the alleged offense. But this bulletin was admitted in evidence, not to show the commission of a prior offense, but to show defendant's motive in erecting the sign. The judge instructed the jury that defendant was not being tried for anything printed on the bulletin, or for the distribution of the bulletin. He explained that it was introduced solely 'as something directing the attention of the public to the sign.' We hold that it was admissible.

Eighth. Defendant objected to the judge's advisory instruction as to the meaning of 'beyond a reasonable doubt.' After instructing the jury that the State must prove the commission of the crime beyond a reasonable...