Callan v. State

144 A. 350, 156 Md. 459, 1929 Md. LEXIS 28

• Court: Court of Appeals of Maryland
• Decided: January 17, 1929
• Docket: [Nos. 69-72, October Term, 1928.]
• Status: Published

Opinion

Digges, J.,

delivered the opinion of the Court.

This record contains four appeals from convictions and sentences imposed by the Criminal Court of Baltimore City. The appellants, Callan, Mules and Stierhoff, were each indicted for violation of section 483 of article 21 of the Code, and a fourth indictment- was returned against Callan for violation of section 485 of article 21. There was a demurrer interposed to the last-mentioned indictment, which was overruled. The record contains eighteen exceptions. Section 483, under the sub-title “Sabbath Breaking,” provides: “No person whatsoever shall work or do> any bodily labor on the Lord’s day, commonly called Sunday; and no person having children or servants shall command, or wittingly or willingly suffer any of them to do any manner of work or labor on the Lord’s day (works of necessity and charity always excepted), nor shall suffer or permit any children or servants to profane the Lord’s day by gaming, fishing, fowling, hunting or unlawful pastime or recreation; and every person transgressing this section and being thereof convicted before a justice of the peace shall forfeit five dollars, to be. applied to the use of the county.” The four cases were heard together before a jury.

We will first take up the three cases charging a violation of the section referred to, prohibiting work or labor on the Sabbath. It is contended by the appellants, in these three cases that the grand jury of Baltimore City had no authority ff> indict them for the offense set out in the indictments, for the reason that the statute provides that “every person transgressing this section and being thereof convicted before a justice of the peace shall forfeit five dollars, to be applied to the use of the county.” It is argued, first, that because under the terms of the statute the fine to be imposed upon conviction is to be applied to the use- of the county, it malees the statute inapplicable to Baltimore City; and, second, that the justices of the peace are given exclusive jurisdiction to try persons offending against the provisions of this section.

The answer to the first of these arguments is contained in section 14 of article 1 of the Code, which provides: “The word county shall be construed to include the city of Baltimore, unless such construction would be unreasonable.” In the present case it is not only reasonable to construe the word county to include Baltimore City, but it would be most unreasonable to hold that this statute, prohibiting labor on Sunday, should be held not to' apply to Baltimore City because in the statute the fine to be imposed is to be applied to the county.

In respect to the second argument, the statute under consideration clearly provides that the justice of the peace shall have jurisdiction, or that the traverser shall be fined after being convicted before a justice of the peace, and, if this were the only statute on the subject, there might be force in the position tafeen; but section 632 of article 4 of .the Public Local Laws, title “City of Baltimore” (Ed. 1927), in speaking of the police justices of said city, provides: “Each of the said justices of the peace shall have power * * * to hear, try and determine the cases of all persons brought before him for Sunday gaming, Sunday work, Sunday sales or Sabbath-breaking; * * * But it shall be the duty of the said justice before proceeding to hear, try and determine any of the charges aforesaid, to inform the party or parties charged therewith of his or their respective rights to a jury trial; and if a jury trial be prayed by the party or parties charged, or if the state’s attorney for said city shall before trial for the alleged offense pray a jury trial on the part of the state, the justice shall forthwith commit or hold the said party or parties to bail for trial in the Criminal Court of Baltimore, and endorse on the commitment or recognizance the fact of a jury trial having been prayed”; and section 634 of the same article provides: “When a person charged with any offence referred to in this subdivision of this article, or the state’s attorney, shall pray a jury trial, the justice of the peace shall, in addition to his duties prescribed in section 632, endorse upon said commitment or recognizance the names and residences of the witnesses for the prosecution; and such commitment or recognizance so endorsed shall he returned forthwith to the clerk of the said Criminal Court of Baltimore.”

What appears to have been done in the cases now before us is that upon their apprehension they were taken before one of the police justices of Baltimore City and prayed a jury trial, whereupon the justice took their recognizances and endorsed on each the fact that a jury trial was prayed, and the recognizances were sent to the clerk of the criminal court. The statutes applicable to Baltimore City j ust recited make no further provision as to the procedure in such cases. Section 12 of article 52 of the Code of Public General Laws, which is applicable to the state at large, with the exception of the City of Baltimore, Talbot, Harford, Montgomery and Frederick Counties, provides, under a similar situation, that when the party is taken before a justice of the peace and is informed of his right to a jury trial, and prays a jury trial, he is committed or recognized to appear at the next teim of court, and the justice of the peace is required to transmit the papers, including the recognizance, to the clerk of the circuit court for the county, whereupon the clerk of the court places the case upon the appeal docket, and it is then tried in said court on the information or warrant. It therefore appears that in the counties, excluding the excepted ones and Baltimore City, the grand jury would have no-authority to present and indict for the offense charged in the warrant before the magistrate, but that the traverser would he tried either before a petit jury or the court sitting; as a jury, on the warrant or information. However, this general statute, as stated, not being applicable to Baltimore City, and the sections referred to, of article 4 of the Code of Public Local Laws, title “City of Baltimore,” not requiring that the justice of the peace send any warrant or information to the criminal court, nor providing that on the praying of a jury trial such a case in the criminal conrt should be tried on the warrant or information, in cases like the present, arising in Baltimore City, the traverser, upon praying a jury trial, is entitled to a jury, trial according to the law of the land, which means that he is entitled to such a jury trial as be would, be entitled to bad bis case originated in that court, wbicb carries witb it tbe obligation that be be presented and indicted by a grand jury, as well as tried by a petit jury, if be so elects.

In Danner v. State, 89 Md. 227, tbis court quoted witb approval from tbe ease of Jones v. Robbins, 8 Gray (Mass.), 349, wherein Justice Shaw said: “Tbe right of individual citizens to be secure from an open and public accusation of crime, and from tbe trouble, expense^ and anxiety of a public trial, before a probable cause is established by tbe presentment and indictment of a grand jury in cases of high offence, is justly regarded as one of tbe securities to tbe innocent against hasty, malicious and oppressive public prosecutions, and as one of tbe ancient immunities and privileges of English liberty.” Tbis court then continued: “In Callan v. Wilson, 127 U. S. 540, tbe court was inquiring into tbe right of tbe defendant to a trial by jury, in a case where a party was tried before a police court, without a jury, but witb a right of appeal to a tribunal having a jury and in pronouncing upon tbe clauses of tbe Federal Constitution having relation to tbe subject, said: ‘The guarantee of an impartial jury to tbe accused * * * secures to him tbe right to enjoy that mode of trial from tbe first moment, and in whatever court be is put on trial.’ Ex parte Wilson, 114 U. S. 417-429; Proffatt on Jury Trial, secs. 97, 98.”

There is a large number of cases wherein it is competent for tbe Legislature to provide for tbe trial of offenders before a justice of tbe peace, in wbicb tbe 'constitutional guarantees of a jury trial could not be invoked. However, even in such cases, tbe traverser is ordinarily permitted to plead a jury trial at tbe bearing before tbe justice of tbe peace, and in those cases where be is not as¡ a matter of constitutional right entitled to a jury trial, in granting him tbe privilege of praying a jury trial tbe statute may restrict tbe exercise of tbe right of jury trial by providing a procedure wbicb does not include presentment ‘and indictment by a grand jury, but requires that tbe offender be tried on tbe information or warrant. It seems dear that, where the right of jury trial is accorded in minor offenses such as this,, and the procedure is not defined by the statute, before the party could be tried after praying a jury trial it would be necessary that he he presented and indicted by a grand jury. In other words, when the statute permits the prayer .for a jury trial, it accords to the traverser the benefit of the entire jury system, which includes the requirement not only that his guilt or innocence he passed upon by a petit jury, but that before lie be put on trial he be presented and indicted by a grand jury. The traversers in this case were tried in the only way in which they could have been brought to trial under the law, having prayed a jury trial. They were accorded all of the safeguards which are thrown around criminal trials of capital and felonious cases. Under the statute applicable to most of the counties, this would not have been done, and would not have been necessary to he done. See also Graham v. Gaither, 140 Md. 346.

The remaining case is the indictment against Gallan for a violation of section 485 of article 27 of the Code, which reads: "It shall not be lawful to keep open or use any dancing saloon, opera house, ten pin alloy, barber saloon or ball alley within this State on the Sabbath day, commonly called Sunday; and any person or persons, or body politic or corporate, who shall violate any provision of this section, or cause or knowingly permit the same to be violated by a person or persons in his, her or its employ shall be liable to indictment in any court of tbis State having criminal jurisdiction, and upon conviction thereof shall be fined a sum not less than fifty dollars nor more than one hundred dollars.” The indictment in that case is in the words of the statute; and charges that John G-. Callan "on the fifth day of February, in the year of our Lord nineteen hundred and twenty-eight, the same clay in the year aforesaid, being the Sabbath 'Day, commonly called Sunday, at the city aforesaid, unlawfully did keep open a certain opera house within the State ox Maryland, to wit, the Harford; Moving Picture Parlor, situate and being at premises commonly known as number twenty-six hundred and twenty Harford Avenue, in tbe 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 second count of the indictment charges that the traverser Callan “on the said day in the said year, the same day in the said year being the Sabbath Day, commonly called Sunday, at the city aforesaid, unlawfully did use a certain opera house within the State of Maryland, to wit, the Harford Moving Picture Parlor situate and being at premises commonly known as number twenty-six hundred and twenty Harford Avenue, in the City of Baltimore, contrary to- the form of the Act of Assembly ip. such case made and provided, and against the peace, government and dignity of the State.” The demurrer to this indictment, we think, was properly overruled. As stated, the indictment is in the words of the statute defining the offense, atad charges the traverser with keeping open an opera house, and using an opera house. Weller v. State, 150 Md. 278. The words “Harford Moving Picture Parlor” are used in the indictment, but only for the purpose of describing the place which is 'alleged h> be an opera house ; in other words, as a proper name to' designate and identify the building which the jury was required to find to he atn opera house. The indictment not being subject to demurrer, the question of whether or not the evidence showed that what the defendant did was keeping an opera house in violation of the statute, was a question for the jury, and their decision on this point is not reviewable in this court.

There are seventeen exceptions to the rulings of the court upon the evidence, and as to these the appellants contend:

First, that the court erred in not allowing them to show that the construction, placed upon the law by those charged with its enforcement was such as to pelm.it without molestation in Baltimore City on Sunday moving picture shows in churches, operas in the Lyric Theater, and basket-ball games in public places, for which either admission was directly charged or at which a collection was taken up. We find no error in these rulings. The guilt or innocence of the traversers here could not bei made to depend upon the question of whether other parties had been guilty of similar acts without prosecution -or conviction, -any more than the fact that persons engaged in similar occupations had been convicted would be proper evidence fo-r the jury to- consider in order to co-nvict the traversers- here. Neither can -a criminal statute he repealed by the failure- of authorities- to- prosecute and convict f-or its violation. Ninety-nine grand juries might refuse to indict for the violation of -a statute, -and the hundredth might take the- opposite view and indict. It would clearly be not admissible in the trial -of the case to- allow evidence of the failure of the ninety-nine juries- to- indict.

Second, that the traversers were not permitted to- qualify and produce a witness expert in the management of opera houses, and to have this expert witness testify to the jury as to- what is an o-pera house. The court properly refused to allow this testimony. The juries in this- state are judges of the law and fact in criminal cases, and it was their province to- determine- the mixed question of law and fact involved in the pro-per interpretation of the term “opera house.” It- therefore became the duty of the jury to determine whether or not the evidence- convinced them beyond reasonable- doubt that the Harford Moving Picture Parlor was an opera house within the meaning o-f that term as. used by the Legislature. It was for the jury to- say what the Legislature, in using the language employed in this statute, intended to prevent; and having determined the legislative intent, they were then required to say whether o-r not the act of Callan was a violation of the statute. Whether or not the- Legislature meant to include a moving picture show in the term “opera house” was for the jury tc- determine, and they were as well qualified to do- that as a so-called export witness. If experts are permitted in criminal cases to say whether or not in their opinion the alleged offense has been committed, they would be usurping the very function which belongs to- the- jury; and it is well established that, opinions of witnesses upon matters of law, or where the question under consideration can be decided by ordinary experience and knowledge possessed by a person of average intelligence, are not admissible; tbe jury being competent to draw proper inferences from tbe facts without hearing tbe opinion of experts. Tbe proper procedure in sucb cases is to present tbe facts, and tbe conclusions or inferences to be drawn from these facts are for tbe jury. Balto. & O. R. Co. v. Rudy, 118 Md. 58; Jones v. Dugan, 124 Md. 353; Cecil Paper Co. v. Nesbitt, 117 Md. 69; Willie v. State, 153 Md. 613.

Tbe eighteenth and final exception was to certain remarks made by tbe assistant state’s attorney during tbe course of bis argument to tbe jury, to tbe effect “that Mr. Callan himself has gone to the Legislature, and asked that moving picture bouses be excluded from tbe terms of tbe act, and tbe Legislature passed an act excluding moving pictures from tbe purview of tbe act, which was later declared unconstitutional. * * * Gentlemen of tbe jury, in 1920 our Court of Appeals at Annapolis was called upon to interpret an act which was passed by tbe Legislature of Maryland while my friend, Mr. Callan, was down there.” This was objected to, and objection overruled. It was then stated by Mr. Hill, counsel for Callan: “He was not a member of tbe House, and that is why I objected to your statement. Mr. Callan was not a member of tbe House, and it cannot come in.” “Tbe. Court: Leave Mr. Callan out. This is. clearly an erroneous statement and you gentlemen must not be in any manner affected by it.” As soon as tbe court was informed that there was an error in the statément of tbe assistant state’s attorney, be promptly directed tbe jury to disregard what bad been said, and not in any manner to be affected by it. This was all that tbe court was called upon to do, and ordinarily there is no reversible error in sucb remarks by counsel in addressing tbe jury, when tbe jury is directed by tbe court to disregard tbe statement of counsel. This, at most was a remark of counsel outside of tbe testimony, which was promptly rebuked, and what was said by tbe Supreme Court in Dunlop v. United States, 165 U. S. 486, and cited with approval by this court in Toomer v. State, 112 Md. 293, and Dunn v. State, 140 Md. 163, is applicable here: “If every remark made by counsel outside of the testimony were ground for reversal, comparatively few verdicts would stand, since in the ardor of advocacy and in the excitement of trial, even the most experienced counsel are occasionally carried away by this temptation.” To like effect see Freud v. State, 129 Md. 646; Damm v. State, 128 Md. 670; Meno v. State, 117 Md. 441. In the late case of Newton v. State, 147 Md. 92, referring to similar language used by the state’s attorney, Judge Offutt, speaking for the court, said: “That, these remarks on the part of the state’s attorney were exceedingly improper and calculated to unfairly prejudice the jury against the defendant, is scarcely a matter of argument, and the court should have warned the jury to disregard them. But as the remarks were upon motion stricken out, and as the traverser at the time asked for no other action on the part of the court, we do not regard its failure to so warn the jury as reversible error.”

Finding no error, the judgments in each case must be affirmed.

Judgment in No. 69 affirmed, with costs; judgment in No. 70 affirmed, with costs; judgment in No. 71 affirmed, with costs; judgment in No. 72 affirmed, with costs.