State v. Levitt

Decision Date03 March 1981
Docket NumberNos. 690,928,s. 690
Citation48 Md.App. 1,426 A.2d 383
PartiesSTATE of Maryland v. Jeffrey LEVITT. STATE of Maryland v. Nicholas KOURKOULES.
CourtCourt of Special Appeals of Maryland

Stephen Rosenbaum, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Maryland, Sandra A. O'Connor, State's Atty. and John F. Hanson, Asst. State's Atty., Baltimore County, on brief, for appellant.

Benjamin Bronstein, Towson, with whom was Gary Huddles, Towson, on brief, for appellee, Levitt.

Leslie L. Gladstone, Baltimore, for appellee, Kourkoules.

Argued before THOMPSON and LOWE, JJ., and ORTH, CHARLES E., Jr. (Retired), Specially Assigned Judge.

CHARLES E. ORTH, Jr. (Retired), Specially Assigned Judge.

The General Assembly has declared it to be the policy of Maryland that "it is necessary to regulate and control the manufacture, sale, distribution, transportation and storage of alcoholic beverages within this State and their transportation and distribution into and out of this State to obtain respect and obedience to law and to foster and promote temperance." Md.Code (1957, 1976 Repl.Vol.) Art. 2B § 1. In furtherance of that policy, and "for the protection, health, welfare and safety of the people of this State," id., it devised a comprehensive scheme, comprised of the "restrictions, regulations, provisions and penalties ..." contained in Art. 2B, sometimes hereinafter referred to as the Alcoholic Beverages Law. To enhance the integrity of the scheme and to promote the administration and enforcement of it, various penalties were prescribed for violations of its provisions. Art 2B, §§ 198-203. Section 198, under the heading "False statements," reads:

"If any signed statement, report, affidavit, or oath, required under any of the provisions of this article, shall contain any false statement, the offender shall be deem guilty of perjury, and upon conviction thereof, shall be subject to the penalties provided by law for that crime."

During the forty-eight years since the enactment of the Alcoholic Beverages Law Acts 1933 (Special Session) Chapter 2 an appellate court of this State has not had occasion to construe the provisions of § 198 or to determine its constitutionality. These appeals call on us to do so. 1

At the center of each of the two cases before us is an application for renewal of a liquor license. The renewal application is required by § 68 of Art. 2B, which provides, inter alia, that "(t)he holder of any expiring license ... shall (within a designated time) file a written application, duly verified by oath, for the renewal of such license with the official authorized to approve the same." The applications here, addressed to the Board of Liquor License Commissioners for Baltimore County, warn against making a false statement by setting out an "extract" from § 198 which is practically a repetition of its provisions. The applications include a certification by the applicants over their purported signatures that "the facts and information set forth in the application upon which the present license was issued are unchanged." They contain an "Affidavit" in which a notary public certified over his signature and Notarial Seal that the applicants named therein personally appeared before him "and made oath in due form of law that the matters and facts contained in said application are true." Each application was the basis of an indictment filed in the Circuit Court for Baltimore County. The indictments present, respectively, that Nicholas Kourkoules (Appeal No. 928) and Jeffrey Levitt (Appeal No. 690) "did unlawfully make and sign a renewal application for Alcoholic Beverage License to the Board of Liquor License Commissioners of Baltimore County under the provisions of the State Alcoholic Beverage Law, Article 2B, § 68 of the Annotated Code of Maryland, to wit: unlawfully and falsely did certify that the facts and information set forth upon which this license was issued are unchanged, the matters so stated being material, willfully, corruptly, and knowingly false 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."

Below this is typed "(Article 2B, § 198 False Statement)."

The Kourkoules Case

Kourkoules filed a motion to dismiss the indictment. 2 The State answered, and the matter was heard and determined by the Circuit Court for Baltimore County (Alpert, J.) prior to trial. The court issued an order granting the motion. From this final order the State appealed. Md.Code (1974, 1980 Repl.Vol.) § 12-302(c) of the Courts and Judicial Proceedings Article. The issue before us is whether § 198 of Art. 2B is void as repulsive to the dictate of constitutional due process because of vagueness. See Bowers v. State, 283 Md. 115, 120, n.5, 389 A.2d 341 (1978).

At the hearing on the motion, Kourkoules argued that § 198 of Art. 2B was unconstitutionally vague because it "did not set forth there must be a wilful rather than a negligent or unknowingly false statement," and because it did not require that the false statement be material. 3 The State's position was that the Legislature had made the mere making of a false statement in a signed statement, report, affidavit, or oath, required by the Alcoholic Beverages Law, the crime of perjury; the perjury elements do not "enter into it." The only element, the state urged, is that such a false statement be made and, if it were, the one making it (the offender) committed the crime proscribed.

As we have indicated, note 3 supra, § 198 had been declared to be unconstitutional by Raine, C. J. in the Levitt case. Chief Judge Raine found that the statute was unconstitutionally vague because it

"refers to 'the offender,' without specifying with any particularity the conduct that renders one an offender. It equates the offense with the crime of perjury but refers merely to a signed statement. If such a statement was not under oath, it would not be deemed to be perjury. It refers to a 'report.' If a verbal report was false, would the person making the oral statement be an offender? Does an 'offender' encompass the notary? Is one who utters a false document an 'offender'? All of these questions are the subject of speculation. Is one who makes a false statement believing it to be true, an 'offender'?"

"There is little doubt," the judge observed, "that the Legislature intended to punish a person who made a false statement in writing under oath." But, the judge opined: "If that were all the Legislature intended, the Statute would have been unnecessary, for the person making the false statement under oath could be charged with the crime of perjury." The judge admonished: "If the Legislature had meant to create a new crime, they should have used specific language such as is found in every other criminal statute to which the Court's attention has been directed."

Judge Alpert adopted the opinion of Chief Judge Raine by reference but disagreed with parts of it. He thought that it was "relatively clear that the Legislature desired to engraft the elements of perjury into this statute, ..." but he also thought that "it (was) fundamentally clear they failed to do so." This failure, which Judge Alpert believed the Legislature did not intend, left the meaning of the provisions vague, particularly with respect to criminal intent. Mens rea, the judge pointed out, is a necessary element of a crime. Although "(i)t is within the power of the Legislature, if it sees fit, to dispense with the necessity for a criminal intent, and to punish particular acts without regard to the mental attitude of the doer," such intention must clearly appear. Judge Alpert thought that it did not clearly appear in this statute.

The tenets of the void-for-vagueness doctrine were lucidly set out in Bowers v. State, supra, and supported by ample authority.

"The cardinal requirement is that a penal statute "be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.' ... '(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.' ... The Fifth and Fourteenth Amendments guarantee that '(n)o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.' " 283 Md. at 120, 389 A.2d 341, (citations omitted).

"A statute is not vague when the meaning of the words in controversy can be fairly ascertained by reference to judicial determinations, the common law, dictionaries, treatises or even the words themselves, if they possess a common and generally accepted meaning." Id. at 125, 389 A.2d 341.

Two basic criteria should be considered in assessing the constitutionality of a statute assailed as overly uncertain either in respect of the acts it purports to prohibit or the person to whom it applies. The first criterion is the fair notice principle. Simply put, it is that "(s)ince 'vague laws may trap the innocent by not providing fair warning,' ... no one should be subject to criminal responsibility for conduct which he could not reasonably understand to be prohibited." Id. at 120-121, 389 A.2d 341 (citations omitted). The second criterion is the failure to provide legally fixed standards and adequate guidelines for police, judicial officers, triers of fact and others whose obligation it is to enforce, apply and administer the penal laws. A statute is not void merely because it allows for the exercise of some discretion on the part of law enforcement and judicial officials, but it must not be so broad as to be susceptible to irrational and selective patterns of enforcement. Id. at 121-122, 389 A.2d 341.

The general rule is that the constitutionality of a statutory...

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7 cases
  • Smith v. State
    • United States
    • Court of Special Appeals of Maryland
    • 12 Abril 1982
    ...3. when a person swears wilfully, absolutely and falsely; 4. to a matter material to the issue or point in question. State v. Levitt, 48 Md.App. 1, 426 A.2d 383 (1981). As defined above, it is declaratory of the common law to which Maryland residents became entitled by virtue of the Declara......
  • Furda v. State Of Md..
    • United States
    • Court of Special Appeals of Maryland
    • 14 Septiembre 2010
    ...312 Md. 280, 539 A.2d 664 (1988). Notably, “ ‘[a] wrongful intent is an essential ingredient’ ” of perjury. State v. Levitt, 48 Md.App. 1, 10 n. 6, 426 A.2d 383 (1981) (citation omitted). Furda does not dispute that the evidence was sufficient to prove that he averred in an affidavit that h......
  • Hourie v. State
    • United States
    • Court of Special Appeals of Maryland
    • 9 Noviembre 1982
    ...Deckard v. State, 38 Md. 186, 201-202 (1873). As Judge Orth (specially assigned) pointed out for this Court in State v. Levitt, 48 Md.App. 1, 9, 426 A.2d 383 (1981), "In the statute, perjury encompasses common law perjury as well as other acts which at common law constituted the lesser crim......
  • State v. McGagh
    • United States
    • Court of Special Appeals of Maryland
    • 29 Enero 2021
    ...McGagh argues that the State erred by limiting the application of the two-witness rule to falsity. See also State v. Levitt , 48 Md. App. 1, 9-10, 426 A.2d 383, 389 (1981) (noting confusion over whether falsely, willfully, and knowingly are synonymous with corruptly).According to McGagh, th......
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