State v. Lassotovitch

• Decision Date: 04 March 1932
• Docket Number: 16-19.
• Citation: 159 A. 362,162 Md. 147
• Parties: STATE v. LASSOTOVITCH ET AL., AND THREE OTHER CASES.
• Court: Maryland Court of Appeals

159 A. 362

162 Md. 147

STATE v. LASSOTOVITCH ET AL., AND THREE OTHER CASES.

Nos. 16-19.

Court of Appeals of Maryland

March 4, 1932

Appeals from Criminal Court of Baltimore City; Eugene O'Dunne Judge.

Eric Lassotovitch, Anthony Lassotovitch, Basil B. Wells, the Whiting-Turner Construction Company, and the Mullan Contracting Company were indicted for offenses. Demurrers by the respective accused to the indictments were sustained, and the State of Maryland appeals.

Affirmed and remanded in each case.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, DIGGES PARKE, and SLOAN, JJ.

Wm. L Henderson, Asst. Atty. Gen., and William H. Maynard, Asst State's Atty., of Baltimore (Wm. P. Lane, Jr., Atty. Gen., and Herbert R. O'Conor, State's Atty., and Albert H. Blum, Asst. State's Atty., both of Baltimore, on the brief), for the State.

Charles E. Moylan, of Baltimore (Theodore R. McKeldin, of Baltimore, on the brief), for appellee Wells.

Charles McH. Howard, of Baltimore (Venable, Baetjer & Howard, of Baltimore, on the brief), for appellee Whiting-Turner Const. Co.

Harry E. Karr, of Baltimore (Edward J. Colgan, Jr., of Baltimore, on the brief), for appellee Mullan Contracting Co.

J. Purdon Wright, of Baltimore, for appellees Lassotovitch.

DIGGES J.

Nos. 16, 17, 18, and 19 of this term present the same question for determination by this court, and were argued together. They are appeals by the state of Maryland from an order of the criminal court of Baltimore City sustaining demurrers interposed by the respective accused to the indictments and each and every count thereof. We will only discuss the indictment in No. 16, as each will be controlled by and must stand or fall upon the determination in that case.

The indictment is drawn under the provisions of the Act of 1910, chapter 94, now appearing in Flack's Charter and Public Local Laws of Baltimore City, 1927, as §§ 516 and 516-B. Section 516 provides: "That eight hours shall constitute a day's work for all laborers, workmen or mechanics who may be employed by or on behalf of the Mayor and City Council of Baltimore, except in cases of extraordinary emergency, which may arise in time of war or in cases where it may be necessary to work more than eight hours per calendar day for the protection of property or human life; provided, that in all such cases the laborer, workman or mechanic so employed and working to exceed eight hours per calendar day shall be paid on the basis of eight hours constituting a day's work; provided further, that the rate of per diem wages paid to laborers, workmen or mechanics employed directly by the Mayor and City Council of Baltimore shall not be less than two dollars per diem; provided further, that not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen or mechanics employed by contractors or sub-contractors in the execution of any contract or contracts, in any public work within the City of Baltimore."

According to the provisions of section 516-B, any contractor or subcontractor, or other person acting for them, violating any of the provisions of this act, is subject to a fine of not less than $10 nor more than $50 for each and every offense.

The pertinent language of the first count of the indictment is that the appellees "on the ninth day of May, in the year of our Lord nineteen hundred and thirty one, at the City aforesaid being then and there subcontractors engaged in the execution of a contract in public work within the City of Baltimore, unlawfully did pay less than the current rate of per diem wages in the locality where the work was performed, to laborers, workmen and mechanics employed in the execution of a contract in public work, within the City of Baltimore, contrary to the form of the Act of Assembly in such case made and provided, and against the peace, government and dignity of the State."

The remaining counts charge the offense in the words of the first count, except that the payment is alleged to have been made on other and different dates.

The appellees contended in the trial court that their demurrer to the indictment should be sustained for two reasons, first, because the statute involved is unconstitutional as to its minimum wage feature; and second, because the particular act which constituted the alleged offense is not described with sufficient accuracy and definiteness to inform the accused of what he is called upon to defend, and protect him against future prosecution.

The trial judge held the statute valid, but that the indictment was fatally defective for the second reason above stated; sustained the demurrer and discharged the traversers.

Our views being in accord with the lower court on the second point, and so requiring an affirmance of the order appealed from, it is unnecessary to discuss the constitutionality of the minimum wage provision of the statute.

It will be noted that the indictment charges the offense in the words of the statute. The state contends that such statement of the charge is all that the law requires, and cites decisions of this court in support of that proposition.

It is no longer open to controversy in this state that the general rule as contended for by the appellant is firmly settled. That is to say, in indictments for statutory offenses, in describing the act interdicted, the doing of which, or omitting to do, constitutes the crime, it is sufficient to describe said act in the words of the statute. Bosco v. State, 157 Md. 407, 146 A. 238, and cases there cited, to which might be added many others. The effect of these decisions is to hold that the pleader, in describing the act of the accused which is sought to be punished, can safely use the words employed by the Legislature; and generally this will be sufficient. But this does not mean that it is unnecessary to allege such facts in connection with the commission of the offense as will certainly put the accused on full notice of what he is called upon to defend, and establish such a record as will effectually bar a subsequent prosecution for that identical offense. In other words, the language of the statute, when used, is a sufficient description of the crime; and if the statute contains all of the elements necessary to constitute a crime, the indictment is sufficient to describe the offense, if laid in the words of the statute. However, it is clear that an indictment which charges the accused with the act prohibited by the statutory language, and does nothing more, would be fatally defective in failing to allege such other facts as would enable the accused to prepare his defense. In all criminal prosecutions every man has a right to be informed of the accusation against him, and to have a copy of the indictment or charge in due time if required to prepare for his defense. Article 21, Maryland Declaration of Rights.

In Goeller v. State, 119 Md. 61, 85 A. 954, 955, Ann. Cas. 1914C, 562, Judge Pearce, speaking for the court, in respect to this article, said: "The information hereby guaranteed to him is not to be conveyed by word of mouth, nor by any other means than by 'a copy of the indictment or charge,' or accusation, upon which he is to be tried, and it is a guaranty that he must be informed of the whole charge or accusation against him, and not of a part only. The reason for this is given in the same article of the Declaration of Rights, viz., 'to prepare for his defense,' and this he cannot do without a full knowledge, both of every element of the offense charged and of the penalty or penalties to which he may be subjected in event of conviction."

In State v. Nutwell, 1 Gill, 54, it was said: "Certainty to a reasonable extent is an essential attribute of all pleading, both civil and criminal, but is more especially necessary in the latter, where conviction is followed by penal consequences. One of its objects is notice to the party of the nature of the charge, against which he is to come prepared to defend himself; and it is also necessary, not only that the offence may be displayed upon the record, so as to enable the court to pronounce the sentence of the law, but to enable the party to defend himself against a second prosecution for the same crime, by pleading a prior acquittal or conviction." The indictment in that case was under the Act of 1817, c. 227, which made it unlawful for any licensed retailers in Calvert county to suffer any slave to be in a storehouse where they were accustomed to sell liquors, between sunset in the evening and sunrise of the succeeding morning. The indictment charged that the accused, being then and there a licensed retailer, suffered a slave to be in his storehouse, where he was accustomed to sell liquors, between the prohibited hours. It did not allege the name of the slave or any method of identifying him. The court said: "In the case now before this court, the indictment, we think, is defective, in omitting the name of the slave and that of the master, if known, if not known, the fact should have been so stated in the indictment. Such an averment in the indictment was requisite, not only to inform the accused of the charge alleged against him, so as to prepare for his defence, but to prevent a second punishment for the same offence, by pleading in bar a former acquittal or conviction."

In Mincher v. State, 66 Md. 227, 7 A. 451, the statute involved required each registration officer in Baltimore City, within three days after the expiration of his September sitting, and within the same time after his October sitting to "make, complete and publish two alphabetical lists, one of which shall comprise the names of those persons whom" he has "stricken from" the registry of qualified voters, and the...