State v. Magaha

• Decision Date: 02 June 1943
• Docket Number: 17.
• Parties: STATE v. MAGAHA.
• Court: Maryland Court of Appeals

32 A.2d 477

182 Md. 122

STATE v. MAGAHA.

No. 17.

Court of Appeals of Maryland

June 2, 1943

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

Harry Magaha was indicted for violating a city ordinance by failing, while operating a trackless trolley, to exercise reasonable care to avoid injury through collision with a motor ambulance and a demurrer was sustained to the indictment and the indictment was quashed, and the State appeals.

Order reversed and case remanded.

Robert E. Clapp, Jr., Asst. Atty. Gen. (William C Walsh, Atty. Gen., and J. Bernard Wells, State's Atty and Thomas N. Biddison, Asst. State's Atty., both of Baltimore, on the brief), for appellant.

Eben J D. Cross, of Baltimore (Philip S. Ball, of Baltimore, on the brief), for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON, MELVIN, and ADAMS, JJ.

DELAPLAINE Judge.

The State has brought this appeal to defend the constitutional validity of 'General Rule Covering the Use of Streets' in the Traffic Ordinance of Baltimore City. The challenged section provides: 'Reasonable care to be used. Nothing contained herein or omitted herefrom shall be construed or held to relieve any person using, or traveling or being upon any street, for any purpose whatever, from exercising all reasonable care to avoid or prevent injury through collision with all other persons and vehicles.' Ordinances of Mayor and City Council of Baltimore, 1908-09, Ord. 139; Baltimore City Code, 1927 Edition, art. 4, sec. 57.

Harry Magaha was indicted in the Criminal Court of Baltimore City for violating this section. The specific charge in the indictment is that the defendant on October 24, 1942, while operating a trackless trolley westbound on Federal Street, failed to exercise all reasonable care to avoid and prevent injury through collision with the motor ambulance being driven northbound on Wolfe Street by John Thomas Riley. The defendant demurred to the indictment, and the appeal was taken from an order sustaining the demurrer and quashing the indictment.

The Criminal Court considered the section unconstitutional on account of failure to fix an ascertainable standard of guilt. It is an established doctrine of constitutional law that a penal statute creating a new offense must set forth a reasonably ascertainable standard of guilt and must be sufficiently explicit to enable a person of ordinary intelligence to ascertain with a fair degree of precision what acts it intends to prohibit, and therefore what conduct on his part will render him liable to its penalties. A statute which either commands or forbids the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess at its meaning and differ as to its application violates the constitutional guarantee of due process of law. Commonwealth v. Zasloff, 338 Pa. 457, 13 A.2d 67, 128 A.L.R. 1120; Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322; Lanzetta v. New Jersey,

306 U.S. 451, 59 S.Ct. 618, 621, 83 L.Ed. 888; Daniel Loughran Co. v. Lord Baltimore Candy & Tobacco Co., 178 Md. 38, 47, 12 A.2d 201. But it is well settled that a penal statute or ordinance should not be held void merely because juries may differ in their judgments in cases brought thereunder on the same state of facts. In 1913 the Supreme Court of the United States, in upholding the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, laid down the rule that a statute is not void for indefiniteness merely because it casts upon a person the risk of rightly estimating a matter of degree. Justice Holmes emphasized in that opinion: 'But * * * the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death. * * * If a man should kill another by driving an automobile furiously into a crowd, he might be convicted of murder, however little he expected the result. * * * If he did no more than drive negligently through a street, he might get off with manslaughter or less. * * * And in the last case he might be held although he himself thought that he was acting as a prudent man should.' Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 781, 57 L.Ed. 1232. In the following year Justice Holmes amplified his view in the Nash case as follows: 'That deals with the actual, not with an imaginary condition other than the facts. It goes no further than to recognize that, as with negligence, between the two extremes of the obviously illegal and the plainly lawful there is a gradual approach, and that the complexity of life makes it impossible to draw a line in advance without an artificial simplification that would be unjust. The conditions are as permanent as anything human, and a great body of precedents on the civil side, coupled with familiar practice, make it comparatively easy for common sense to keep to what is safe.' International Harvester Co. v. Kentucky, 234 U.S. 216, 34 S.Ct. 853, 855, 58 L.Ed. 1284.

Following the authority of the Nash case, the Supreme Court sustained a conviction of manslaughter under an Oregon statute providing that every person operating a motor vehicle shall drive 'in a careful and prudent manner, * * * and in no case at a rate of speed that will endanger the property of another, or the life and limb of any person.' Laws Or. 1921, c. 371, § 2(16). Miller v. Oregon, 273 U.S. 657, 47 S.Ct. 344, 71 L.Ed. 825. Chief Justice Taft upheld the standard fixed by the Oregon statute as follows: 'Such standard for the driver of an automobile on a highway is one to which it is neither harsh nor arbitrary to hold those criminally who operate such a possibly dangerous instrument of locomotion, and who are or ought to be aware of what degree of care is necessary to avoid injury to others under the conditions that prevail on a highway. * * * But it will not do to hold an average man to the peril of an indictment for the unwise exercise of his economic or business knowledge, involving so many factors of varying effect that neither the person to decide in advance nor the jury to try him after the fact can safely and certainly judge the result.' Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 687, 71 L.Ed. 1146.

The appellee cited United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 300, 65 L.Ed. 516, 14 A.L.R. 1045, where the court invalidated the Lever Act, which undertook to punish any person who wilfully makes 'any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries.' Act Oct. 22, 1919, 41 Stat. 297. But in that opinion Chief Justice White explained: 'Observe that the section forbids no specific or definite act. * * * It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against.' In Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322, the court likewise held unconstitutional an Oklahoma statute requiring that all persons employed by or on behalf of the State shall be paid 'not less than the current rate of per diem wages in the locality where the work is performed.' 61 O.S.1941 § 3. Nevertheless, it was subsequently held by the Maryland Court of Appeals that the Act providing that laborers on any public work within the City of Baltimore shall be paid 'not less than the current rate of per diem wages in the locality where the work is performed', Code Pub.Loc.Laws 1930, art. 4, § 516, did not contravene the Fourteenth Amendment of the Federal Constitution or the Maryland Declaration of Rights, because it is possible to ascertain the current rate of wages from a scale or standard generally established by common consent in the area which includes the site of the public work and the adjoining territory where such wages prevail. Judge Parke said in that case: 'So the question is, fundamentally, one of fact, but the necessity for a fact to be proved does not make the fact so in issue indefinite or uncertain. * * * Wages * * * tend to uniformity and stability and so to an average or ordinary rate, which varies somewhat from place to place. * * * A problem in construction of a statute is not to be abandoned until all the resources of the art are exhausted.' Ruark v. International Union of Operating Engineers, 157 Md. 576, 584, 146 A. 797, 800.

The public policy of the State of Maryland in favor of criminal prosecution for reckless driving on the public highways of the State has been declared by the Legislature through the last 29 years in the enactment of the statute making it a criminal offense to operate a motor vehicle recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway, or so as to endanger the property and life or limb of any person. Acts of 1914, ch. 832; Code, art. 56, sec. 196(1). It is for the legislative branch of government to enact such measures as it deems desirable for the advancement of the public welfare but the judiciary is the ultimate authority to determine whether constitutional restraints have been violated, confining itself to the question, not of legislative policy, but of legislative power. We adopt the rule supported by the great weight of authority in the United States that a statute prohibiting under penalty the driving of a motor vehicle on a public highway at a speed greater than is reasonable and proper, or so as to endanger life, limb or property is not void for indefiniteness. Commonwealth v. Pentz, 247 Mass. 500, 143 N.E. 322; State v. Andrews, 108 Conn. 209, 142...