Nawrocki, In re

• Decision Date: 25 April 1972
• Docket Number: No. 563,563
• Citation: 289 A.2d 846,15 Md.App. 252
• Parties: Matter of Walter Jerome NAWROCKI.
• Court: Court of Special Appeals of Maryland

Page 252

15 Md.App. 252

289 A.2d 846

Matter of Walter Jerome NAWROCKI.

No. 563.

Court of Special Appeals of Maryland.

April 25, 1972.

Certiorari Denied June 29, 1972.

Peter J. Karceski, Jr., Baltimore, for appellant.

Emory Alvin Plitt, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., for Baltimore City and Lawrence Isbee, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before ANDERSON, MORTON and ORTH, JJ.

ORTH, Judge.

The keystone of this case is the determination by the judge presiding in the division for juvenile causes of the Circuit Court of Baltimore City (juvenile court) that WALTER JEROME NAWROCKI was a delinquent child by reason of his delinquent act in committing the crime of disorderly conduct. ¹ Our inquiry turns first, therefore, to the crime of disorderly conduct, and then to the sufficiency of the evidence adduced to prove that Nawrocki was guilty of that offense.

I

The Court of Appeals pointed out in Drews v. State, 224 Md. 186 ² at 192, 167 A.2d 341 that although it is said that there was no common law crime of disorderly conduct, nevertheless it was a crime at common law to do many of the things that constitute disorderly conduct under present day statutes. There are three statutes in this State making various acts of a disorderly nature a criminal offense-ss 121, 122 and 123 of Art. 27 of the Code. We look at such of the provisions of them as may be relevant to the matter at hand.

Section 121 makes it a crime for any person 'wilfully (to) disturb any neighborhood' in any city, town or county of this State 'by loud and unseemly noises, or shall profanely (to) curse and swear * * * upon or near to any (public street or highway in any such city, town or county) within the hearing of persons passing by or along such highway * * *.'

Section 122 makes it a crime for any person to act 'in a disorderly manner to the disturbance of the public peace,' or 'wilfully (to) act in a disorderly manner by making loud and unseemly noises or by profanely cursing, swearing or using obscene language * * * on or about any public place * * *.'

Section 123(c) makes it a crime for any person to 'act in a disorderly manner to the disturbance of the public peace, upon any street, highway, alley, park or parking lot, or in any vehicle that is in or upon any street, highway, alley, park or parking lot, in any city, town, or county in this State * * *.' ³

The terms employed by the statutes are not defined therein, so we consider them in their common meaning. 'Loud' is 'characterized by high volume and intensity of sound * * * clamorous and insistent.' 'Unseemly' and its synonyms such as 'improper', 'indecorous', 'indelicate' mean 'in violation of accepted standards of what is right or proper.' Within the contemplation of the statutes, 'curse' and 'swear' are synonymous-'to use profane oaths', 'abuse profanely', 'to invoke evil, calamity or injury upon', 'to damn.' Although a synonym for 'profane' is 'blasphemous', it is better here considered in its secular sense of being 'abusive, vulgar, or irreverent language.' ⁴ See State v. West, 9 Md.App. 270, 263 A.2d 602.

Interpreting the statutes, by the express provisions of § 121, other persons must be within hearing of the disturbing noises. So a person standing on a county highway making loud and unseemly noises and profanely cursing and swearing would not be committing the crime proscribed by § 121 unless within the hearing of others passing by or along the highway. We do not believe it necessary that the State prove such other persons in fact heard the noises; it would be sufficient if they were passing by or along the highway so that reasonably they may have heard them.

We next look at § 123 because we think the judicial construction given subsection (c) thereof with which we are here concerned ⁵, is germane to an interpretation of § 122. Section 123 prohibits acting 'in a disorderly manner to the disturbance of the public peace' in certain public places. ⁶ The Court of Appeals in Drews v. State, supra, 224 Md. at 192, 167 A.2d at 343, discussed the nature of disorderly conduct under § 123 (see note 3 supra). It said:

'The gist of the crime of disorderly conduct under Sec. 123 of Art. 27, as it was in the cases of common law predecessor crimes, is the doing or saying, or both, of that which offends, disturbs incites, or tends to incite, a number of people gathered in the same area. 3 Underhill, Criminal Evidence, Sec. 850 (5th Ed.), adopts as one definition of the crime the statement that it is conduct 'of such a nature as to affect the peace and quiet of persons who may witness the same and who may be disturbed or provoked to resentment thereby."

It pointed out that it was a crime at common law to make loud noises so as to disturb the peace of the neighborhood, to collect a crowd in a public place by means of loud or unseemly noises or language, or to disturb a meeting assembled for religious worship or any other lawful purpose. And it noted that it has been held that failure to obey a policeman's command to move on when not to do so may endanger the public peace is within the contemplation of disorderly conduct. We think it patent that disorderly conduct within the contemplation of Drews requires the actual presence of other persons who 'may witness' the conduct or hear the language and who 'may be disturbed or provoked to resentment thereby.' The Underhill quotation was simply authority for the statement as to the gist of the offense set out immediately before-that the conduct or language offends, disturbs, incites or tends to incite 'a number of people gathered in the same area.' Such construction is consistent with our opinions in Luthardt v. State, 6 Md.App. 251, 251 A.2d 40 and Streeter v. State, 5 Md.App. 435, 248 A.2d 119. In Heinze v. Murphy, 180 Md. 423, 24 A.2d 917, the Court held that an arrest and charge of disorderly conduct were not justified by evidence that the arrestee used profane language on the lawn of his home and refused to give an officer information regarding an automobile accident where there was no evidence that the language was heard by any person other than the officer or beyond the premises. At 428-429, 24 A.2d 917. Cf. Sharpe v. State, 231 Md. 401, 190 A.2d 628, in which Marbury, J., filed a dissenting opinion concurred in by Brune, C. J., and Hammond, J., and Hammond, J., filed a concurring dissent in which Brune, C. J., concurred.

Section 122 proscribes two general courses of conduct on or about any public place. The first, 'acting in a disorderly manner to the disturbance of the public peace' may be committed silently as by one indecently exposing his person, explicitly prohibited, or by failing to obey a lawful order of the police, such as a command to move on, when not to so may endanger the public peace, implicitly prohibited by judicial construction of comparable provisions in Drews, supra. The second, as does § 121 explcitly and § 123 implicitly, contemplates noises made, either loud and unseemly, or by profanely cursing, swearing or using obscene language. Prior to the enactment of ch. 520, Acts 1967, the two courses of conduct applied to persons '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.' The 1967 amendment made the section applicable to public places generally by inserting the phrase 'any public place' immediately preceding the other places designated. So we have no difficulty whatsoever in finding that the legislative intent was directed toward conduct which tended to disturb the public peace. Section 122 appears under the subtitle 'Disturbance of the Public Peace'; its first proscription is disorderly conduct 'to the disturbance of the public peace'; its other proscriptions designate places where the public is entitled to be and normally would be, and patently are intended to run to the benefit of the public. We feel that the section contemplates the actual presence of other persons who may be affected by the conduct or language proscribed, and that the construction given § 123(c) is apposite to § 122.

Although the constitutionality of the statutes is not here challenged, the application of certain facets of them have constitutional connotations. The statutes punish spoken words, but they cannot apply to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments. Terminiello v. Chicago, 337 U.S 1, 4-5, 69 S.Ct. 894, 93 L.Ed. 1131. The Court said in Gooding v. Wilson, 405 U.S.-, 92 S.Ct. 1103, 31 L.Ed.2d 408:

'The constitutional guarantees of freedom of speech forbid the States from punishing the use of words or language not within 'narrowly limited classes of speech.' Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Even as to such a class, however, because 'the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,' Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958), '(i)n every case the power to regulate must be so exercised as not, in attaining a permissible and, unduly to infringe the protected freedom,' Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).'

The State has the power to punish obscene expression, but to be obscene such expression must be, in some significant way, erotic, so as to conjure up such psychic stimulation in anyone likely to be confronted with it. Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284. And the State is free to ban the simple use, 'without a demonstration of additional justifying circumstances, of so-called 'fighting words,' those personally...