Luthardt v. State

• Decision Date: 10 March 1969
• Docket Number: No. 194,194
• Citation: 251 A.2d 40,6 Md.App. 251
• Parties: Charles. J. LUTHARDT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 251

6 Md.App. 251

251 A.2d 40

Charles. J. LUTHARDT v. STATE of Maryland.

No. 194.

Court of Special Appeals of Maryland.

March 10, 1969.

William H. Zinman, Baltimore, for appellant.

Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Howard L. Cardin, State's Atty. and Asst. State's Atty. for Baltimore City respectively, on brief for appellee.

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

MURPHY, Chief Judge.

Appellant Luthardt was charged in the Criminal Court of Baltimore with 'acting in a disorderly manner, to the disturbance of the public peace, in and upon 800 block of Glade Court' on September 6, 1967, in violation of Maryland Code, 1957 Edition, Article 27, Section 123. ¹ He was subsequently convicted by the court sitting without a jury, assessed a fine of $50.00, and sentenced to thirty days in jail, the jail term being suspended upon condition of good behavior for the probationary period of two years. On this appeal Luthardt contends (a) that Article 27, Section 123 is unconstitution both on its face and as applied to his conduct under the facts of this case, and (b) that the evidence was not legally sufficient to support his conviction under the statute.

The record discloses that appellant was arrested following a 'demonstration' which had been directed against a Negro family residing at 822 Glade Court, in a predominantly white neighborhood-the demonstration having apparently been touched off by the alleged stabbing of a white boy by one of the children of the Negro family. The evidence indicated that 'demonstrations' had been conducted at this location for the three nights immediately preceding appellant's arrest, that vehicular traffic had been closed in the area because of the demonstrations, and that a large contingent of police had been assigned to keep peace and order in the affected neighborhood.

Sergeant Richard Francis testified that he was a member of the police tactical force, whose function it was to control crowds and demonstrations; that at about 8:30 p. m. on September 6, 1967, he observed that a crowd of 400 to 450 white persons had gathered in the 800 block of Glade Court; that on one side of the block were residences, in front of which were 20 to 25 men and boys marching up and down, at times in single and, at other times, in double file; that the bulk of the crowd was standing across the street on a hill behind a fence; that the marchers were being led by codefendants Zill and Richter, both of whom were dressed in the regalia of the Ku Klux Klan and that appellant was in front of the marchers with them; that some of the marchers (apparently referring to the Negro family) yelled, 'Burn them out,' and 'Run them out of the neighborhood,' and 'White man, fight'; that members of the crowd on the hill were only about forty feet from the marchers and they also were hollering and throwing bottles and rocks; and that as some members of the crowd on the hill attempted to climb over the fence, it was necessary to position a cordon of police officers on the hill to restrain them. Francis further testified that the crowd was excited, and that after the march had lasted from fifteen to twenty-five minutes, the order was given to the marchers by the police for them to disperse and that those who did not leave, including appellant, were then arrested.

Colonel Frank Battaglia, Chief of the Patrol Division, testified that at 7:00 p. m. on September 6, he observed that a large crowd had gathered in the 4100 block of Tenth Street and in the 800 block of Glade Court; and that at approximately 7:30 p. m., he observed appellant in the area driving his automobile east on Tenth Street and that his passenger Zill was exhorting the people over a loudspeaker to:

'Burn out the savages. You had a stabbing here recently. Burn them out. White man, fight. Tomorrow may be too late.'

In response to these exhortations, the crowd cheered, 'Horray, let's get them.'

Battaglia further testified that when he arrived in the 800 block of Glade Court at 8:00 p. m., he saw appellant Luthardt there and also observed bottles and bricks being thrown (some of which were thrown at the Negroes' home); that he observed men in the robes of the Ku Klux Klan and heard some of the marchers shouting and chanting 'Burn them out' and 'Get rid of the Negroes.' Battaglia also observed several members of CORE standing in front of 822 Glade Court 'and they were exchanging blasts at one another, the crowds, the people that were marching, and I went over to CORE and asked them to leave, to go into the house,' and they complied with the request. He then turned to the marchers, who, at that time, were saying such things as 'Black M. F.'s' and 'No good s. b.' Battaglia displayed his badge, identified himself and 'about three times' informed the marchers that if they did not discontinue marching they would be subject to arrest. About fifteen marchers, including appellant after he had 'left the line,' were arrested.

Wade Poole, Deputy Commissioner of Police, testified that he had deployed about 200 police officers in the area; that he observed approximately 100 members of the crowd marching in the street near the Negroes' home; that the CORE members were calling the crowd 'white trash,' while the crowd responded by shouting 'The only good nigger is a dead nigger.' Poole testified that the marchers were saying, "White man, fight,' and raising their arms in that method, and every time they would do that, the crowd would shout again.' Poole testified that he was 'fearful when the arrests were made, the crowd would charge down into it,' and that the main object of the police was to keep the crowd on the hill from 'rushing down.'

Police Officer Michael Pucci testified that he was assigned to the Glade Court area during the evening of September 6, and observed the appellant 'marching with the Klan,' and that when the arrests were ordered, 'I noticed Mr. Luthardt disappear * * * (and) when I again saw Mr. Luthardt, he was up on the hill, approximately seventy-five feet from where I was standing and * * * I went up there, placed him under arrest.' On cross-examination Officer Pucci was asked whether appellant was in the marching line when the arrest order was given, and he replied, 'Yes, Sir, I saw him in the line.'

Appellant testified in his own behalf and denied that he participated in the march. He stated that he had gone to the head of the marching formation and given Zill American flags, declining, however, to march because he had been informed by Deputy Police Commissioner Poole earlier in the day that if he did he 'would be locked up.' He testified that he used no obscene language and did not engage in any shouting. After he had handed out the flags and the march began, he went 'up on the hill.'

On cross-examination, the court made inquiry of appellant as follows:

'Q. What was being said over the speaker system have anything to do with the demonstration or marching to take place in that block of Glade Court?

'A. Mr. Zill was pleading with the people to come over to the demonstration and lend their support to it. This talk about 'Let's burn them out.' I think this is utterly ridiculous to attempt to label us and prevent us from expressing out opinion. * * *.'

Counsel questioned appellant further, as follows:

'Q. What did you expect to happen from the marching and demonstration?

'A. Expected to happen what's been happening in the past four years. People would congregate, express themselves by being present and go peacefully home.

'Q. Am I to assume one of the purposes of the marching and the demonstrating in this block was to inform the people, or so you say, of the danger and get them to do something about it?

'A. Yes, Sir.'

I

In Bacheller v. State, 3 Md.App. 626, 240 A.2d 623, we held in effect that Section 123 was not unconstitutionally vague, indefinite, nor overbroad. Appellant's contention that the statute is unconstitutional for these reasons is therefore without merit. In addition, the question of the constitutionality of Section 123 was not properly preserved for appeal by objection in the lower court and is therefore not before us for consideration. Woodell v. State, 2 Md.App. 433, 234 A.2d 890. Maryland Rule 1085.

II

Nor do we find merit in appellant's contention that as applied to his conduct, Section 123 violated his First and Fourteenth Amendment rights. The basis of his contention appears to be that even if he was a participant in the march in its initial stages, no clear and present danger existed sufficient to justify the termination of the march by the police and the arrest of the marchers for disorderly conduct under the statute. Appellant urges that the marchers were protected by the First and Fourteenth Amendments since they conducted their march in an orderly manner in the presence of the police, who had absolute...